International Assn. of Bridge, Local 803

DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Association of Bridge, Structural & Or- namental Ironworkers, Local 803, AFL-CIO and Honolulu Welding, Inc. and International Associa- tion of Bridge, Structural & Ornamental Ironwork- ers, Local 625, AFL-CIO. Case 37-CD-35 from points located outside the State of Hawaii. We find that the Employer is engaged in commerce with- in the meaning of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. 11. THE LABOR ORGANIZATIONS INVOLVED July 9, 1976 DECISION AND DETERMINATION OF DISPUTE The parties stipulated, and we find, that Local 803 and Local 625 are labor organizations within the meaning of Section 2(5) of the Act. BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, based on a charge filed by Honolulu Welding, Inc., herein called the Employer. The charge alleges that Interna- tional Association of Bridge, Structural & Ornamen- tal Ironworkers, Local 803, AFL-CIO, herein called Local 803, violated Section 8(b)(4)(D) of the Act by engaging in certain activity in order to force the Em- ployer to assign certain work to individuals repre- sented by Local 803 rather than to employees of the Employer represented by International Association of Bridge, Structural & Ornamental Ironworkers, Lo- cal 625, AFL-CIO, herein called Local 625. A duly scheduled hearing was held on April 26 and May 18, 1976, before Hearing Officer Eileen H. Hamamura. All parties appeared at the hearing and were afforded full opportunity to be heard, to exam- ine and cross-examine witnesses, and to adduce evi- dence bearing on the issues. Thereafter briefs were filed by the Employer, Local 803, and Local 625. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The Employer is a Hawaii corporation engaged in the operation of a metal fabrication shop and a field metal fabrication and erection business. During the calender year 1975, total sales of the Employer were in excess of $500,000. During this same period, the Employer purchased and received goods and materi- als valued in excess of $50,000 directly or indirectly III. THE DISPUTE A. The Work in Dispute The work in dispute consists of the loading by hand and servicing of the Employer 's 1/2-ton, 3/4-ton, and 1-ton field pickup trucks when used by employees represented by Local 625. B. Background and Facts of the Dispute The Employer manufacturers and erects prefabri- cated metal products in the Honolulu, Hawaii, area. Of the Employer's 24 workers, 12 work in the Employer's metal fabrication shop and 12 perform fabrication and erection operations in the field. The "shop" employees are represented by Local 803. The "field" employees are represented by Local 625. The Employer owns and maintains one 1/2-ton pickup truck, four 3/4-ton pickup trucks, and one 1-ton flatbed truck, all of which are used to deliver persons and materials to the Employer's jobsites. On the morning of March 5, 1976, Warren Tsark, shop steward for Local 803, protested the Employer's assignment of the work in dispute to employees rep- resented by Local 625 and demanded that Katsuro Kubota, manager and president of the Employer, stop two employees represented by Local 625 from servicing the field trucks. That same day Kubota met with Tsark and Marvin Sakata, business agent for Local 803, in an attempt to resolve the controversy. Kubota, with the approval of Henry Young, assistant business agent for Local 625 , suggested a compro- mise solution which consisted of letting employees represented by Local 803 perform the servicing work. This compromise was rejected by Local 803, howev- er, and on March 11 Local 803 struck in protest of the work assignment. The strike was subsequently enjoined in a U.S. District Court proceeding and the striking workers returned to work on March 22.1 1 The above findings are based on the uncontradicted testimony of Katsu- ro Kubota 225 NLRB No. 84 INTERNATIONAL ASSN. OF BRIDGE, LOCAL 803 645 C. Contentions of the Parties The Employer contends that a jurisdictional dis- pute exists and that there is reasonable cause to be- lieve that Section 8(b)(4)(D) of the Act has been vio- lated. The Employer further contends that the disputed work should be awarded to employees rep- resented by Local 625 on the basis of past practice, economy, and efficiency. Local 625 agrees with the Employer that reason- able cause exists to believe that a violation of Section 8(b)(4)(D) has occurred and contends that the work should be assigned to employees it represents on the basis of the Employer's assignment of the work, economy, efficiency, and past practice. Local 803 contends that should a statutory dispute exist, employees represented by it should be assigned the disputed work on the basis of its collective-bar- gaining agreement with the Employer, the Employ- er's past practice, efficiency of operations, skills, and the work involved. D. Applicability of the Statute Before the Board may proceed with a determina- tion of dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that there is no agreed-upon method for voluntary adjustment of the dispute. The Board is not required to find that a violation did in fact occur but only that there is reasonable cause to believe that a violation has been committed. Considering the matter in this light, we find that there is reasonable cause to believe that Local 803 picketed the Employer's plant with the intent of causing the Employer to assign the work in dispute to employees represented by Local 803. There is no contention that there is an agreed- upon voluntary method for the resolution of the dis- pute. Accordingly, we find that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated and that the dispute is properly before the Board for determination under Section 10(k). E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work af- ter giving due consideration to all relevant factors involved. The following factors are relevant in mak- ing a determination of the dispute before us: 1. Collective-bargaining agreements Local 803's current collective-bargaining agree- ment with the Employer contains several provisions that are of potential applicability to this dispute. Sec- tion I, which describes the scope of the bargaining unit, provides: (a) The provisions of this agreement shall apply to all employees of the Company who are as- signed to work in connection with the manufac- turing and fabrication of the Company's prod- ucts which is done in or about the Company's plant or plants located in the State of Hawaii, and to employees of the Company who are en- gaged in the ordinary upkeep and repair of the Company's machinery, plant and property. For the purpose of this agreement, the aforemen- tioned employees of the Company shall be rec- ognized as "production and maintenance em- ployees," and this agreement shall be applicable to all work done by such production and main- tenance employees in connection with the man- ufacture, fabrication and maintenance work which is done in or about the Company's plant or plants covered by this agreement. Section 13 of the agreement provides: (B) Members of Ironworker Local 625 will not be permitted to perform shop work except by agreement with the Business Representative of Local 803 or his authorized representative. In such cases the Company shall notify the Union of the name, classification, rate of pay and date of assignment of the employee(s) involved. Finally, Exhibit "A" to the agreement sets forth several job classifications, including the classifica- tions of maintenance mechanic and utihtyman. Local 625's collective-bargaining agreement with the Employer also contains a provision that is of po- tential applicability to this dispute. Article 3 of that agreement, which describes the agreement's jurisdiction, provides: Employees covered under the terms of this Agreement shall do all work with field fabrica- tion, erection and construction of all iron, steel, ornamental, lead, bronze, brass, copper, alumi- num, all ferrous and non-ferrous metals; and all loading, unloading, handling, rigging, placing, welding, bolting, setting, plumbing, aligning, stressing and securing, in connection with all work mentioned above. . . . Although that portion of Local 803's collective- bargaining agreement which delineates the job classi- fications of maintenance mechanic and utilityman 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would seem to support Local 803's claim to the ser- vicing work here in dispute, the agreement is certain- ly not determinative of the matter in view of its ambiguity and in view of the fact, admitted by Saka- ta, that the Employer does not have a full-time utili- tyman.2 Conversely, the jurisdictional provision in Local 625's collective-bargaining agreement would seem to favor Local 625's contention that the loading work in dispute belongs to employees represented by it, but again the contract language is not sufficiently specif- ic to force this conclusion upon us. This factor, therefore, favors neither employees represented by Local 803 nor employees represented by Local 625. 2. Employer and area practice Kubota testified that ever since the Employer was unionized in 1962, employees represented by Local 625 have performed the servicing and loading work in dispute, with the exception that occasionally em- ployees represented by Local 803 have loaded pre- fabricated steel onto the 1-ton flatbed truck. Sakata, on the other hand, testified that there was no set practice with regard to the performance of the work in dispute and that both employees represented by Local 803 and employees represented by Local 625 performed the disputed work in accordance with whoever was available. Both Sakata and Kubota agreed that other em- ployers in the area differed with regard to their as- signment of servicing and loading work-some as- signing it to employees represented by Local 803 and others assigning it to employees represented by Local 625. In view of the conflicting testimony concerning the Employer's practice and the admittedly diverse prac- tices of the other area employers, we conclude that this factor favors neither employees represented by Local 803 nor employees represented by Local 625. 4. Economy and efficiency The trucks in question are driven to the jobsite by employees represented by Local 625 and carry equip- ment and materials for use by these same employees. Efficiency considerations therefore dictate assign- ment of the work to Local 625 employees, since em- ployees represented by Local 625 presumably know better than their Local 803 counterparts what materi- al needs to be loaded and what minor servicing needs to be performed. Reinforcing our conclusion in this regard is the fact that Marvin Sakata, Local 803's business agent, was unable at the hearing to draw a distinct line be- tween the disputed work he claimed for Local 803 employees and disputed work he admitted would be more efficiently performed by employees represented by Local 625. Sakata, for example, agreed that it would be impractical for employees represented by Local 803 to load small quantities of equipment and materials destined for use by Local 625 members, but argued that employees represented by Local 803 should perform any "sizable" loading jobs. This factor, consequently, favors the employees represented by Local 625. Conclusions Upon the record as a whole, and after full consid- eration of all relevant factors involved, we conclude that the employees of the Employer who are repre- sented by Local 625 are entitled to perform the work in dispute. In reaching this conclusion, we have par- ticularly relied on the Employer's assignment of the disputed work to its employees and the efficiency of operations which results from such assignment. We shall therefore determine the dispute before us by awarding the work involved herein to employees rep- resented by Local 625, but not to that union or its members. DETERMINATION OF DISPUTE 3. Employer's assignment of the work It is undisputed that the Employer presently as- signs the work in dispute to employees represented by Local 625. This factor therefore favors employees represented by Local 625. 2 The servicing work in dispute involves checking gas, oil, water, and tire pressure , adding gas, oil, water, and air as needed , and making visual checks to assure proper functioning of the vehicle Such work is not of the kind that a maintenance mechanic would necesarily be expected to perform, but is instead work that a utilityman might be expected to perform Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this pro- ceeding, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees of Honolulu Welding, Inc., repre- sented by International Association of Bridge, Struc- tural & Ornamental Ironworkers, Local 625, AFL- CIO, are entitled to perform the work in dispute which consists of the loading by hand and servicing of the Employer's 1/2-ton, 3/4-ton, and 1-ton field INTERNATIONAL ASSN. OF BRIDGE, LOCAL 803 pickup trucks, when used by employees represented by Local 625. 2. International Association of Bridge, Structural & Ornamental Ironworkers, Local 803, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the assign- ment of the above work to its members or to the employees it represents. 3. Within 10 days from the date of this Decision 647 and Determination of Dispute, International Associ- ation of Bridge, Structural & Ornamental Ironwork- ers, Local 803, AFL-CIO, shall notify the Officer-in- Charge for Subregion 37, in writing, whether it will refrain from forcing or requiring, by means pro- scribed by Section 8(b)(4)(D) of the Act, the assign- ment of the work in dispute to employees represented by Local 803, rather than to employees represented by Local 625.