Ironworkers, Local 405

IRONWORKERS, LOCAL 405 573 International Association of Bridge, Structural & Ornamental Ironworkers Local 405 and Employing Bricklayers Association of Delaware Valley, Inc. and Anastasi Brothers Corporation and Interna- tional Union of Bricklayers and Allied Craftsmen Local No. 1 of Pennsylvania. Case 4-CD-412 March 3, 1977 engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Ironworkers and the Bricklayers are labor organiza- tions within the meaning of Section 2(5) of the Act. DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS , PENELLO, AND WALTHER This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Employing Bricklayers Associa- tion of Delaware Valley, Inc., herein called the EBA, alleging that International Association of Bridge, Structural & Ornamental Ironworkers Local 405, herein called Ironworkers, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring Anastasi Brothers Corporation, herein called the Employer, to assign certain work to its members rather than to employees represented by International Union of Bricklayers and Allied Craftsmen Local No. 1 of Pennsylvania, herein called Bricklayers. Pursuant to a notice, a hearing was held before Hearing Officer John E. Bowders on October 26 and 27, 1976. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, briefs were filed by the Employer and EBA jointly and by the Ironworkers. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Employer is a Pennsylvania corporation engaged in the masonry construction business. During the past 12 months, the Employer has purchased goods and services from outside the Commonwealth of Pennsyl- vania having a value in excess of $50,000. The parties also stipulated, and we find, that the Employer is 228 NLRB No. 63 III. THE DISPUTE A. Background and Facts of the Dispute Joseph Casacio and Sons, herein called Casacio, operates as owner, developer and general contractor for the 10-story Evergreen Towers Apartment com- plex currently being built in Philadelphia, Pennsylva- nia. Utilizing an increasingly popular construction technique for large scale commercial structures, Casacio has planned to have load-bearing masonry walls support the weight of Evergreen Towers above its poured concrete foundation, instead of the more conventional steel skeleton support system. The load- bearing masonry construction process in this in- stance involves: (1) laying hollow-chambered con- crete blocks course upon course from floor or foundation to the ceiling of each story; (2) placing vertical and horizontal steel reinforcing rods at designated intervals within the block wall's interior; and (3) filling each 1-story wall, whose hollow- chambered components are vertically aligned, with a reinforcing grout mixture. The use of steel rods and grout as reinforcing materials eliminates the need to correlate the thickness of load-bearing masonry walls to a building's height, an expensive and inefficient practice requiring abnormally thick walls for struc- tures of any significant size. Brick wall facades are overlaid upon the cement block walls for ornamental purposes, but they serve no structural support function. Casacio has subcontracted to the Employer the performance of all brick and cement block wall construction for Evergreen Towers. The Employer employs members of the Bricklayers to do its masonry work in accord with the terms of a contract between Bricklayers and the multiemployer EBA, which represents the Employer and numerous other Delaware Valley area masonry contractors for collective-bargaining purposes. The Gunite Corpora- tion, another subcontractor at the Evergreen Towers construction site, is responsible for the framing and pouring of concrete foundations. Gunite employs members of the Ironworkers to cut, bend, tie, and otherwise handle steel rods used in the internal reinforcement of such foundations. The Employer does not employ members of Ironworkers, and 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD neither the Employer nor the EBA has a collective- bargaining agreement with the Ironworkers. The Employer began work on the Evergreen Towers project on August 2, 1976,1 at which time members of Ironworkers in Gunite's employ were already engaged in rodsetting during the foundation work. Having preliminary layout work to do, the Employer scheduled the actual laying of block walls and placing of reinforcing rods therein to begin on August 19. Shortly after August 2, the Ironworkers shop foreman at the site contacted the Bricklayers shop foreman and ascertained that the Employer intended to have members of Bricklayers handle all phases of masonry wall construction, including the rodsetting function. At the behest of Ironworkers representatives, a member of the Casacio family (the record is unclear as to whom) thereafter contacted the Employer and arranged a meeting with the Ironworkers business agent for the afternoon of August 19. The Ironworkers alleges that Casacio assured them no reinforcing rod work would be done by the Employer prior to this meeting, but Charles Anastasi, the Employer's executive vice president, denied any understanding that such work was to be postponed. On August 18, Gunite Corporation, having per- formed its subcontract, laid off those members of Ironworkers who had been setting rods for it. Members of Bricklayers employed by the Employer began laying block and setting rods as scheduled in the morning of the next day, August 19. Within 2 hours, members of the Ironworkers had established a picket line at the construction site. The Ironworkers business agent, Benny Pino, Jr., admitted for the record that he directed the establishment of this picket line, which effectively obstructed the entrance through which trucks delivering materials to the Employer had to pass. The afternoon meeting previously arranged for August 19 never took place. However, shortly after the commencement of picketing, a series of conversa- tions ensued in which the participants at various times were one of the Casacios, Charles Anastasi, Pino, and Rudolph Hagan, the Bricklayers business representative. During these occasionally heated discussions, Pino steadfastly set forth his claim that the disputed rodsetting work should be assigned to members of Ironworkers. In reply, Hagan claimed the assignment for Bricklayers, while Casacio, professing the inability to effect- changes in his subcontractor's work assignments, offered to carry a member of Ironworkers on his own payroll. Pino rejected Casacio's offer with the explanation that such an employee would do nothing and he felt the Ironworkers was legally entitled to actually perform the tasks of handling and placing the reinforcing rods in the masonry walls. Ironworkers picketed the Employer's jobsite from August 19 through 24. Picketing ceased upon the filing of the charge in this proceeding by the EBA. Stanley Casacio, president of the family-owned and -operated Casacio firm, estimated at the hearing that completion of construction at Evergreen Towers would not occur until spring 1977, although the Employer was tentatively scheduled to finish its work by December 15. B. The Work in Dispute The work in dispute involves the placement of horizontal and vertical steel reinforcing rods associ- ated with the construction of load-bearing masonry walls. C. Contentions of the Parties The Employer, EBA, and Bricklayers all contend that the Ironworkers violated Section 8(b)(4)(D) of the Act by seeking to compel the assignment of the disputed work to members of the Ironworkers. They further maintain that the Bricklayers should be awarded the work in dispute because of: (1) the contractual relationships between the parties; (2) the Employer's assignment ; (3) company and industry practice; and (4) relative skills, efficiency, and economy of operations. The Ironworkers contends that its members should be awarded the disputed work on the basis of factors including past practice in the industry, economy and efficiency of operation, and prior rulings by the Impartial Jurisdictional Disputes Board. D. Applicability of the Statute Before the Board may proceed to a determination of the dispute under 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 the parties have not agreed upon a method for the voluntary adjustment of the dispute. The record indicates and Ironworkers does not deny that its representatives sought and demanded from the Employer the assignment of the work in dispute. It is also uncontroverted that the Ironwork- ers picketed the Employer's jobsite from August 19 through 24, 1976, with the object of forcing the Employer to reassign the disputed work to members of Ironworkers. On the basis of the entire record, we I Hereinafter, all dates are in 1976, unless otherwise indicated. IRONWORKERS, LOCAL 405 find there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. Although the Ironworkers and the Bricklayers have agreed to be bound by determinations of the Impartial Jurisdictional Disputes Board, the Employ- er itself is not bound by this method of adjusting disputes. It is therefore clear that there exists no agreed-upon method for the voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that this dispute is properly before the Board for determination. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various factors.2 The Board has held that its determination in a jurisdictional dispute is an act of judgment based on commonsense and experience reached by balancing those factors involved in a particular case.3 The following factors are relevant in making the determination of the dispute before us. 1. Board certification and collective- bargaining agreements All parties stipulated that the Employer is not failing to conform to an order or certification of the Board determining the bargaining representative for the employees performing the work in dispute. As a member of a multiemployer bargaining unit, the Employer contends that the current collective- bargaining agreement between the EBA and the Bricklayers requires assignment of the entire mason- ry wall construction process to employees represent- ed by Bricklayers. Article 14.1 of the current contract states that "all mason work coming under the jurisdiction of the Bricklayers, Masons and Plasterers International Union of America . . . shall be done by bricklayers and shall include without limitation the following: . . . the laying of cement blocks. . . ." Although the language of this article contains no specific reference to the placement of reinforcing rods within cement block walls, the Employer and EBA assert that this procedure is integrally related to masonry work which is specifi- cally covered. As previously noted, neither the Employer nor the EBA has a collective-bargaining agreement with the Ironworkers. We find this factor favors awarding the disputed work to employees represented by Bricklayers. 2 N.L R B. v. Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting System], 364 U.S. 573 (1961). 575 2. The Employer's assignment and past practice As it has done without exception in the numerous past occasions on which it has been involved in load- bearing masonry wall construction, the Employer has assigned the work in dispute to its employees who are represented by the Bricklayers. Accordingly, the Employer has never employed workers represented by Ironworkers to perform such work. We find that this factor favors an award to the employees represented by the Bricklayers. 3. Area and industry practice The Ironworkers contends that load-bearing ma- sonry wall construction is not materially distinguish- able from poured concrete construction in which the employees it represents have traditionally performed all reinforcing rod work. In this regard, the Iron- workers notes that the masonry walls at the Ever- green Towers site were begun by fitting cement blocks over reinforcing rods projecting from the foundation. Those rods were set by employees of Gunite Corporation represented by the Ironworkers. The record indicates, however, that while poured concrete and reinforced cement block structures may resemble each other in their components and in their finished state, subcontractors within the construction industry make sharp distinctions between the pro- cesses used in building each type of structure. With respect to the masonry wall construction industry, the Employer and EBA presented as witnesses four presidents of area masonry contract- ing firms, including the Employer, who collectively testified that they have been involved in many load- bearing masonry construction projects and have always assigned to employees represented by Brick- layers the installation of reinforcing rods within the cement block walls they were building. None of these witnesses had ever assigned rodsetting work to Ironworkers, although Richard Aronson, president of Jack Caspar Company, testified that his company had participated as masonry subcontractor on one project, the construction of a bulk mail center in Philadelphia, where the general contractor employed an ironworker to do this work pursuant to a settlement agreement to which the masonry subcon- tractor was not a party. Two representatives of the Bricklayers with exten- sive experience in the masonry construction industry stated at the hearing that employees represented by Bricklayers had handled the work in dispute herein on all jobs with which they are familiar. On the other 3 International Association of Machinists, Lodge No. 1743, AFL-CIO (J A Jones Construction Company), 135 NLRB 1402 (1962) 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hand, Ironworkers Business Agent Pino testified specifically that employees represented by Ironwork- ers performed such work on eight area projects which are now completed, but he admitted that employees represented by Bricklayers were handling reinforcing rods on at least five current masonry wall construc- tion jobs. We find that the weight of the evidence relative to the factors of area and industry practice favors the Bricklayers claim to the disputed work. 4. Relative skills The Ironworkers contends that the employees it represents possess superior skills in the handling, bending, cutting, and tying of reinforcing rods since they have traditionally performed such tasks as part of their craft. There is, however, uncontroverted record testimony in this case that the individuals assigned the work in dispute must do little more than pick up the precut reinforcing rod and place it horizontally or vertically into slots in the cement block wall. Rods are rarely cut or bent at the jobsite, and are never tied in this type of construction. In addition, a mason's skills are sometimes required to alter the configuration of a block in order to fit the reinforcing rod properly within the wall. We conclude from the entire record that neither union can claim superior skills with regard to the work in dispute. Accordingly, we find that this factor does not favor an award to employees represented by either party. 5. Economy and efficiency of operation According to the record, the Employer has several teams of bricklayers laying block simultaneously at different locations around the Evergreen Towers construction site. Mason tenders bring reinforcing rods to these locations along with other necessary masonry materials. The rods are usually inserted in place only when the completed wall section has reached the height of a half or full story. According- ly, a very small fraction of each workday is spent handling and installing reinforcing rods. The Em- ployer and EBA contend that inefficiencies will arise from the assignment of the disputed work to an employee represented by Ironworkers because: (1) if masons at different locations simultaneously arrive at the point at which they must install reinforcing rods, someone will have to wait while the ironworkers attends to another; and (2) an employee whose sole task involves rodsetting will not have any work to do for much of each workday. The Ironworkers contends that bricklaying crews could more efficiently lay the block walls in a sequential "assembly line" fashion so that an employee represented by Ironworkers, skilled in the craft of rodsetting, could allegedly move quickly from one wall to another and install rods without delay. It is not clear, however, whether this proposed procedure would keep the Ironworkers employee busy throughout the day. Furthermore, Ironworkers Business Agent Pino admitted that delays might still result while masons at various locations awaited the rodsetter's arrival. It is clear that assignment of the work in dispute to employees by the Ironworkers would pose an additional economic burden on the Employer. Although it would have to add at least one more employee to its payroll, the Employer could not dispense with any of its present employees even if they were no longer responsible for the work in dispute. We find that the factors of economy and efficiency of operation favor an award of the disputed work to employees represented by the Bricklayers. 6. Joint Board determinations In support of its claim to the work in dispute, Ironworkers cites a March 11 , 1920, Joint Board Decision awarding work jurisdiction over "all iron and steel used for re-enforcement in re-enforced concrete, cement and floor construction" to the Ironworkers. It further cites decisions rendered by the Impartial Jurisdictional Disputes Board on January 23 and September 25, 1975, which awarded installation of vertical reinforcing bars in cement block walls to Ironworkers rather than Bricklayers. However, the latter decision, which had been expressly predicated upon the 1920 award, was reversed upon appeal on October 23, 1975, and Bricklayers was awarded the assignment of placing reinforcing rods in the walls. We therefore find that this factor does not support the claim to the work in dispute by employees represented by the Ironwork- ers. Conclusion Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that the Employer's employees who are represented by International Union of Bricklayers and Allied Craftsmen Local No. 1 of Pennsylvania are entitled to the work in dispute. We reach this conclusion relying on the specific factors of the current collective-bargaining agreement between the EBA and Bricklayers, the Employer's assignment and past practice, area and industry practice, and the economy and efficiency of the Employer's operation. In making this determination, we are awarding the work in question to employees who are represented IRONWORKERS, LOCAL 405 577 by International Union of Bricklayers and Allied Craftsmen Local No. 1 of Pennsylvania, but not to that Union or its members. The present determina- tion is limited to the particular controversy which gave rise to this proceeding. DETERMINATION OF DISPUTE 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 proceeding, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees of Anastasi Brothers Corporation, who are represented by International Union of Bricklayers and Allied Craftsmen Local No. 1 of Pennsylvania, are entitled to perform the placement of horizontal and vertical steel reinforcing rods associated with the construction of load-bearing masonry walls at the Employer's Evergreen Towers construction site in Philadelphia, Pennsylvania. 2. International Association of Bridge, Structural & Ornamental Ironworkers Local 405 is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Anastasi Brothers Corporation to assign the disputed work to employees represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Associ- ation of Bridge, Structural & Ornamental Ironwork- ers Local 405 shall notify the Regional Director for Region 4, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work in a manner inconsistent with the above determination.