Millwright-Technical Engineers

128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Millwright-Technical Engineers Local 2158 of the valued in excess of $50,000. Accordingly, we find United Brotherhood of Carpenters and Joiners that the Employer is engaged in commerce within of America and FMC Corporation, MHS Divi- the meaning of Section 2(6) and (7) of the Act and sion and International Association of Bridge, that it will effectuate the Act to assert jurisdiction Structural and Ornamental Iron Workers Local herein. Union No. 111, affiliated with AFL-CIO. Case 33-CD-242 II. THE LABOR ORGANIZATIONS INVOLVED October 30, 1981 The parties stipulated and we find that the Mill- DECISION AND DETERMINATION OF wrights and the Iron Workers are labor organiza- DISPUTE tions within the meaning of Section 2(5) of the Act. BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN III. THE DISPUTE This is a proceeding under Section 10(k) of the A. Background and Facts of the Dispute National Labor Relations Act, as amended, follow- On or about December 1, 1980, the Employer ing a charge filed by FMC Corporation, MHS Di- n the vision, alleging that Millwright-Technical Engi- gan preparatory work for the installation of an neers Local 2158 of the United Brotherhood of overhead power and free conveyor system at the John Deere Foundry in Silvis, Illinois. The em- Carpenters and Joiners of America violated Section John Deepr Foundry vis, Illinois. The em- 8(b)(4)(D) of the Act by engaging in certain pro- ployees represented by the Iron Workers per- scribed activity with an object of forcing or requir- formed the preparatory work. Sometime after the ing the Employer to assign certain work to its commencement of the preparatory work, Duane members rather than to employees represented by Bool, construction manager for the Employer, re- International Association of Bridge, Structural and ceived a telephone call from the business manager Ornamental Iron Workers Local Union No. 111, for the Millwrights, Doug Banes. Banes indicated affiliated with AFL-CIO. ' that he felt that the employees represented by the Pursuant to notice a hearing was held before Millwrights were entitled to some of the work on Hearing Officer Donald M. Glynn on March 12, the installation of the conveyor system and sug- 1981. All parties appeared and were afforded full gested that a meeting be held to discuss the matter. opportunity to be heard, to examine and cross-ex- An on-site meeting was held among representatives amine witnesses, and to adduce evidence bearing of the Millwrights, the Iron Workers, and the Em- on the issues. Thereafter, all parties filed briefs. on the issues. Thereafter, all parties filed briefs. loyer on January 27, 1981. Various proposals for Pursuant to the provisions of Section 3(b) of the assigning the work were offered during that meet- National Labor Relations Act, as amended, the Na- ing but no decision was made on the work assign- tional Labor Relations Board has delegated its au- ment issue. Subsequently, the Employer again as- thority in this proceeding to a three-member panel. signed the work in dispute to the employees repre- The Board has reviewed the Hearing Officer's sented by the Iron Workers. rulings made at the hearing and finds that they are On the morning following the assignment of the free from prejudicial error. They are hereby af- work to the employees represented by the Iron firmed. Workers, Booi was contacted again by Banes who Upon the entire record in this proceeding, the indicated that Booi would probably be sorry that Board makes the following findings: he made the assignment to the ironworkers because Banes was planning to call his union "Brothers" 1. THE BUSINESS OF THE EMPLOYER around the country and would make life "miser- The parties stipulated, and we find, that the Em- able" for the Employer wherever it worked from ployer, a Delaware corporation with its principal then on. Thereafter, Booi received a series of tele- place of business in Colmar, Pennsylvania, is en- phone calls from Millwrights business managers in gaged in the engineering, manufacture, and installa- various parts of the country. In essence, these busi- tion of material-handling equipment. The parties ness managers informed Booi that they had been additionally stipulated that during the past year the contacted by Millwright Locals 2158 about the Employer has purchased and received materials problem at the John Deere Foundry in Silvis and valued in excess of $50,000 which were shipped di- that they had been asked by Local 2158 to "hurt" rectly to its various jobsites throughout the United or to make "trouble" for the Employer the next States, including its Silvis, Illinois, jobsite and has time it did work in their respective jurisdictions by, performed services for customers throughout the for example, refusing to make estimates for the continental United States, which services are Employer's jobs. 259 NLRB No. 11 MILLWRIGHT-TECHNICAL ENGINEERS 129 By mailgram dated January 31, 1981, Banes in- ment has proven to be both efficient and economi- formed Booi that the Millwrights' dispute with the cal, and prevents the duplication of men and ma- Employer concerning the John Deere Foundry chines that would be required if the work was di- was being referred to a Joint Industry Board con- vided between the ironworkers and the mill- sisting of representatives from a local contractors wrights. The Employer additionally argues that the association, a millwright contractors association, ironworkers are more skillful at making the critical and the Millwrights.1 Although the Employer em- welds at the high elevations involved in the instal- ployed no millwrights at the jobsite at that time, lation of the conveyor system and accordingly the mailgram stated that the dispute concerned the there is less risk to men and machinery if the em- Employer's failure to pay proper wages and fringe ployees represented by the Iron Workers perform benefits to millwrights employed at the John Deere the disputed work. With regard to collective-bar- Foundry. Booi attended the subsequent hearing gaining agreements, the Employer argues that its before the Joint Industry Board but did not partici- agreements with both the Millwrights and the Iron pate because the Employer claimed the issue was Workers cover the disputed work and that the jurisdictional and not contractual. The decision of 1953 "Conveyor Agreement" between the Iron the Joint Industry Board, as stated in its February Workers and the Millwrights is too ambiguous to 13, 1981, letter to the Employer, was that the Em- rely on in any event in assigning the disputed ployer had violated its collective-bargaining agree- work.2 Finally, the Employer contends that there is ment with the Millwrights by failing to pay proper no uniformity in either area or industry practice wages and fringe benefits to millwrights "employed and so these factors cannot be determinative in by it at John Deere Foundry" and by failing to making an award of the disputed work. procure a surety bond in the principal sum of The Iron Workers essentially agrees with the $20,000. The Joint Industry Board ordered the Em- Employer. It adds that the Employer's preference ployer to post the bond, pay the proper wage rates, should be given some weight in determining who and make delinquent benefit payments. should receive the work. By letter to the Employer dated February 18, The Millwrights takes the position that the em- 1981, William C. Weaver, business manager for the ployees represented by the Iron Workers are enti- Iron Workers, stated that he was aware of the deci- tied to perform the work on the superstructure, but sion of the Joint Industry Board, but that the Iron that the employees represented by the Millwrights Workers did not participate in that board and did should install the conveyor system below the su- not recognize any of the actions of the Joint Indus- perstructure. In this regard, the Millwrights argues try Board as binding on the Iron Workers. Addi- that the millwrights have welding skills in addition tionally, Weaver advised the Employer that the to their ability to align and level the conveyor Iron Workers intended to take all necessary action, system and to execute other tasks in its basic as- including a strike, to prevent the Employer from sembly. The Millwrights also contends that the in- reassigning the disputed work to the employees dustry and area practice is to use composite crews represented by the Millwrights. of iron workers and millwrights, and that both the Millwrights collective-bargaining agreement with the Employer and the "Conveyor Agreement" en- The work in dispute involved the installation of title the employees represented by the Millwrights an overhead power and free conveyor system at to perform the work below the superstructure. The the John Deere Foundry in Silvis, Illinois. Millwrights concedes that there might be a minimal loss of efficiency in using a composite crew, but C. Contentions of the Parties argue that this loss is offset by the advantage of The Employer contends that the employees rep- gaining the job skills which the millwrights possess. resented by the Iron Workers should continue to Finally, the Millwrights argues that the Employer's perform the work. In this regard, the Employer preference should not be given controlling weight notes that the ironworkers have performed the in making an award of the work. identical work in the past and that that arrange- D. Applicability of the Statute ' The Joint Industry Board is provided for in art. IX of the Millwrights Before the Board may proceed with a determina- collective-bargaining agreement with the Employer. If the Joint Industry Board decision fails to settle a contract dispute, under the contract the tion of the dispute pursuant to Section 10(k) of the Millwrights may take the dispute to arbitration. A refusal to submit a dis- Act, it must be satisfied that there is reasonable pute to the Joint Industry Board or to arbitration or to abide by a deter- cause to believe that Section 8(b)(4)(D) has been mination of either the Joint Industry Board or an arbitrator vitiates the agreement's no-strike clause. A separate procedure is provided in the agreement for the resolution of jurisdictional disputes. 2 The Employer is not a party to the "Conveyor Agreement." 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violated and that the parties have not agreed upon The following factors are relevant in making the a method for the voluntary adjustment of the dis- determination of the dispute before us: pute. 1. Collective-bargaining agreements It is uncontested that Booi, construction manager for the Employer, received numerous telephone As the Employer contends, both operative col- calls from business agents of the Millwrights in lective-bargaining agreements arguably assign the various parts of the country threatening to make disputed work to the respective contracting "trouble" for the Employer if it commenced work- Unions. Thus, article I, "Craft Jurisdiction, Juris- ing in their respective jurisdictions. These state- dictional Disputes," sections 2-4, of the Iron ments reasonably conveyed to Booi that the Em- Worker collective-bargaining agreement with the ployer would suffer adverse economic conse- Employer "claims for its members . . . convey- quences if it failed to reassign the work to the em- ors. Similarly, the Millwrights collective-bargain- ployees represented by the Millwrights. 3 Addition- ing agreement with the Employer at article I, ally, the Millwrights presentation of the matter to "Recognition and Scope," section 3, "Occupational the Joint Industry Board on the ground that the Scope," states that this "agreement covers all mill- collective-bargaining wright work, including . . . conveyors." Other .. Employer had violated the collective-baconceivably relevant functions claimed are similar- agreement with regard to wages and fringe bene- verlapping in scope fits, despite the fact that the Employer, at that The Employer is not a signatory to nor bound time, employed no millwrights at the John Deere by the 1953 "Conveyor Agreement" between the Foundry, was clearly a pretense adopted to mask Iron Workers and the Millwrights. By its terms, its the coercive tactics employed in an effort to force purpose is to "settle jurisdictional disputes directly the Employer to reassign the work to the employ- between the two trades." It is sometimes used by ees represented by the Millwrights.4 Furthermore, employers who hire composite crews to divide we find no evidence of any method agreed upon conveyor installation work between the employees by all parties for adjustment of the dispute.5 represented by the Millwrights and employees rep- On the basis of the entire record, we conclude resented by the Iron Workers. Those employers that there is reasonable cause to believe that a vio- who testified that they used the "Conveyor Agree- lation of Section 8(b)(4)(D) has occurred and that ment" in assigning work conceded that the agree- there exists no agreed-upon method for the volun- ment is ambiguous and subject to various interpre- tary adjustment of the dispute within the meaning tations. of Section 10(k) of the Act. Accordingly, we find Accordingly, this factor does not support an as- that this dispute is properly before the Board for signment of the work to either group of employees. determination. 2. Company and industry practice E. Merits of the Dispute The testimony revealed that although composite Section 10(k) of the Act requires the Board to crews of ironworkers and millwrights are frequent- make an affirmative award of disputed work after ly used in the installation of conveyor systems, giving due consideration to various factors. 6 The crews composed of ironworkers or millwrights Board has held that its determination in a jurisdic- alone have also successfully installed conveyor sys- tional dispute is an act of judgment based on com- tems. The Employer installed another power and monsense and experience reached by balancing free conveyor system at John Deere in 1977 using those factors involved in a particular cased7 only ironworkers. Accordingly, this factor does not favor assignment of the work to either group of Sheet Metal Workers' International Association, Local Union No. 41. employees. AFL-CIO (B & WMetals Company, Inc.), 231 NLRB 122, 123 (1977). 4 Brotherhood of Teamsters & Auto Truck Drivers Local No. 85, Interna- 3. Relative skills tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Pacific Maritime Association), 224 NLRB 801, 807 (1976). We It appears that both the employees represented note in addition that Weaver, the business manager of the Iron Workers, by the Millwrights and the employees represented contacted the Employer and threatened to take all necessary action. in- cluding a strike, if the Employer reassigned the work. by the Iron Workers possess the requisite skills for The Iron Workers did not participate in the above-mentioned pro- installation of power and free conveyor systems. ceeding before the Joint Industry Board and was not bound by its deter- There is some testimony in the record that the mination. 'N.LR.B. v. Radio d Television Broadcast Engineers Union. Local 1212. ironworkers are more skilled at doing the welding, International Brotherhood of Electrical Workers, AFL-CIO [Columbia particularly that done high in the air. There is also Broadcasting System], 364 U.S. 573 (1961). International Association of Machinists. Lodge No. 1743, AFL-CIO (J. testimony that the millwrights are more skilled A. Jones Construction Company), 135 NLRB 1402 (1962). with certain facets of the installation such as align- MILLWRIGHT-TECHNICAL ENGINEERS 131 ment, but Construction Manager Booi testified that Conclusion the Employer had received no complaints from Upon the record as a whole, and after full con- John Deere with respect to those aspects of the in- sideration of all relevant factors involved, we con- stallation on the job it had done for John Deere in dude that employees who are represented by the 1977 using only ironworkers. John Deere was ap- Iron Workers are entitled to perform the work in parently sufficiently satisfied with the workmanship dispute. We reach this conclusion relying on the on the previous job to reemploy the Employer for factors of economy and efficiency of operation and the installation job over which the instant dispute the Employer's past practice and current assign- has arisen. Accordingly, this factor does not sup- ment. In making this determination, we are award- port an award of the work to either group of em- ing the work in question to employees who are ployees. represented by the Iron Workers, but not to that Union or its members. The present determination is 4. Economy and efficiency of operation limited to the particular controversy which gave The record reflects that the use of composite rise to this proceeding. crews of millwrights and ironworkers generally re- quires some duplication of personnel and equip- ment. Construction Manager Booi testified that if Pursuant to Section 10(k) of the National Labor the employees represented by the Millwrights per- Relations Act, as amended, and upon the basis of formed the work on the conveyor system under the foregoing findings and the entire record in this the superstructure additional supports would be re- proceeding, the National Labor Relations Board quired and it would be necessary to redesign the makes the following Determination of Dispute: installation apparatus. The Millwrights concedes 1. Employees of the FMC Corporation, MHS that composite crews may result in some loss of ef- Division, who are represented by the International ficiency. This factor favors assignment of the dis- Association of Bridge, Structural and Ornamental puted work to the group of employees represented Iron Workers Local Union No. 111, affiliated with by the Iron Workers. AFL-CIO, are entitled to perform the installation of the overhead power and free conveyor system 5. Employer past practice and preference at the John Deere Foundry in Silvis, Illinois. 2. Millwright-Technical Engineers Local 2158 of Consistent with its own past practice, the Em- the United Brotherhood of Carpenters and Joiners ployer initially assigned the disputed work herein the United Brotherhood of Carpenters and Joiners of America is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require exclusively, and continues to maintain that assign- FMC Corporation, MHS Division, to assign the ment. Accordingly, the Employer's past practice disputed work to employees represented by that and current assignment favor an award of the work labor organization. to the group of employees represented by the Iron 3. Within 10 days from the date of this Decision Workers. and Determination of Dispute, Millwright-Techni- 6. Joint Board determinations cal Engineers Local 2158 of the United Brother- hood of Carpenters and Joiners of America shall As noted, the Iron Workers did not participate in notify the Regional Director for Region 33, in the Joint Industry Board determination assertedly writing, whether or not it will refrain from forcing made under the collective-bargaining agreement or requiring the Employer, by means proscribed by between the Millwrights and the Employer. Ac- Section 8(b)(4)(D) of the Act, to assign the disput- cordingly, this factor does not favor an award of ed work in a manner inconsistent with the above the work to either group of employees. determination.