International Association of Bridge, Structural and Ornamental Ironworkers, Local No. 86. AFLCIO (Kulama Erectors)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Association of Bridge, Structural and Ornamental Ironworkers, Local No. 86, AFL- CIO and Kulama Erectors and United Brother- hood of Carpenters and Joiners of America, District Council of Carpenters of Seattle, King County and Vicinity and its affiliate, Local 131, AFL-CIO. Case 19-CD-400 September 28, 1982 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND ZIMMERMAN This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Kulama Erectors, herein called the Employer, alleging that International As- sociation of Bridge, Structural and Ornamental Ironworkers, Local No. 86, AFL-CIO, herein called Respondent, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activi- ty with an object of forcing or requiring the Em- ployer to assign certain work to its members rather than to employees represented by United Brother- hood of Carpenters and Joiners of America, Dis- trict Council of Carpenters of Seattle, King County and Vicinity and its affiliate, Local 131, AFL-CIO, herein called the Carpenters. Pursuant to notice, a hearing was held before Hearing Officer Michael S. Hurtado on January 18, 19, and 22, 1982. All parties appeared and were af- forded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. 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 rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. 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 Em- ployer, a sole proprietorship with its principal place of business in Seattle, Washington, is a struc- tural steel erection subcontractor and installer of Hambro composite floor systems. During the past year, the Employer had gross sales of goods and services in excess of $500,000 and purchased goods and materials from outside the State of Washington having a value in excess of $50,000. The parties 264 NLRB No. 8 also stipulated, and we find, that the Employer is engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act and that it will effectu- ate the purposes of the Act to assert jurisdiction herein. 11. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that Re- spondent and the Carpenters are labor organiza- tions within the meaning of Section 2(5) of the Act. 11I. THE DISPUTE A. Background and Facts of the Dispute Historically, forms for the processing of concrete and their showings or support systems were con- structed of wood and were constructed by Carpen- ters. In more recent times, a number of flooring systems have been developed which use a combina- tion of wood and iron, some components being part of the classical form and showing work and others being a permanent part of the buildings' structure. One such mixed flooring system goes under the trade name "Hambro." The Employer, a structural steel erection subcontractor, has worked on a number of jobs on which the Hambro system was used. Briefly, the Hambro system's components in- clude metal joists, "roll bars," "flatbars," plywood sheets, and concrete. Joists are the only part of the system which become a permanent part of the building under construction. They are fabricated according to the architect's specifications to fit be- tween beams at specified intervals, usually every 4 or 5 feet. Once the basic structural skeleton of the building is completed, the joists are put into place and then secured by bolting or welding. The other Hambro components are used to con- struct a form and support system for the pouring of concrete. Rollbars are narrow metal bars which provide the primary support system for the ply- wood sheets onto which concrete will be poured. They are installed between joists by inserting the tails which protrude from each of the bars' ends into corresponding holes which run along the tops of the joists at 6-inch intervals. In addition to the tails, rollbars have short "ears" which protrude from the bars' sides and which should be parallel to the ground when the bars are installed to provide a proper resting surface for the plywood sheets that will later be laid. If a rollbar is not placed close enough to the end of a sheet of plywood, the sheet might bow or give out entirely under the weight of a worker or of a IRON WORKERS. LOCAL NO 86 concrete pour.' Also, if installed too close to a beam, removal of the rollbar after the pour hardens will require bending or burning the bar, thus pre- venting its reuse.2 In a similar vein, if the installer does not "offset" between rows, that is, if a rollbar is placed in the same hole from both sides of a joist, removal of the bars becomes extremely prob- lematic. Prior to its work at the Factoria jobsite where the instant dispute arose, the Employer worked three jobs involving the Hambro system. On all three jobs, it assigned the installation and disassem- bly of the forming components to carpenters and the installation of the joists to ironworkers. In the first week of November 1981, the Employer began delivering the forming components from a job it was just completing to the Factoria jobsite which was just starting up. When Randy Thompson, its carpentry foremen, began offloading these materi- als at the Factoria jobsite, some of the ironworkers claimed that the work of offloading rollbars be- longed to them, and, through their own foreman, threatened to walk off the job unless a reassign- ment of that work was made immediately. To avoid a walkout, Thompson acquiesced and the rollbars were offloaded by ironworkers. On November 10, Charles Kunes, the Employ- er's owner, had a telephone conversation with Re- spondent's business representative, Bill Dolph. Ac- cording to Kunes, Dolph asked who would be in- stalling the rollbars at the Factoria project and, when Kunes stated that he intended to assign the work to carpenters, Dolph proceeded to threaten to rip up Respondent's contract with the Employ- er. Dolph denied that he made the above threat, but admitted that, without a contract, Respondent would refuse to dispatch employees. On November 13, a Friday, the Carpenters busi- ness agent, Bill Knowles, approached Kunes to dis- cuss obtaining a compliance agreement. During the ensuing discussion, Kunes asked for the Carpenters position with respect to rollbar installation and Knowles responded by claiming the work. Later that day, Dolph and Kunes met at the Factoria jobsite. Kunes explained why he was assigning the work of installing rollbars to carpenters and then told Dolph that he, Kunes, wanted to sign a preen- gineered building contract with Respondent's parent organization. These contracts have consider- able value to contractors who intend to bid on I Additional shoring along the seams between pieces of plywood is provided by natbars which are short metal bars that ;re placed across the rollhars on either side of the searn 2 When the joists are being laid oult, their proper spacilig is sometimes determined by inserting a rollbar at each end next to the beam, rather than by using some other measuring del ice. If these bars re not readiust- ed before plywood is laid, the above-menlioned problem will result preengineered building jobs because they enable the contractor to utilize the same crew from jobsite to jobsite and thus to effect considerable efficien- cies. Knowing this, Dolph advised Kunes that he would not recommend the Employer for the con- tract unless it first "proved itself' by assigning the rollbar work to ironworkers. Carpenters began installing rollbars at Factoria on Friday, November 13. On the following Monday, however, while the carpenters were down at the union hall, ironworkers began. on their own initiative, to install rollbars at the project. When the carpenters arrived, the iron- workers' foreman told his carpenter counterpart that the ironworkers would strike if carpenters in- stalled any more rollbars. On the following day. when John Gravallese, the Employer's job superin- tendent, appeared at the jobsite, the ironworkers' foreman explained to him that the ironworkers thought rollbar installation was their work and sug- gested that Gravallese get in touch with Respond- ent before there was a walkout on the job. Graval- lese contacted the Carpenters first and was assured by Business Agent Knowles that, while claiming the work, the Carpenters would not instigate a strike if the Employer succumbed to Respondent's pressure and assigned the work to ironworkers. Thereafter, Gravallese telephoned Virgil Mitchell. Respondent's business agent. During this conversa- tion, Mitchell admittedly threatened to rip up the parties' contract if the Employer continued to give Respondent a hard time about this work assign- ment. On December 1, Knowles and Dolph met to dis- cuss the subject of rollbar installation at the Fac- toria jobsite, each union representative claiming the work for his constituents. No agreement wnas reached, and the installation of rollbars at the Fac- toria jobsite was completed by ironworkers. B. The Work in Dispute The parties stipulated that the work in dispute involves the installation of rollbars in the Hambro flooring system at the Employer's Factoria jobsite in Bellevue, Washington. The Employer and the Carpenters claim that the work in dispute also in- cludes installation of Hambro rollbars at future job- sites. C. Contentions of the Parties The Employer and the Carpenters contend that reasonable cause exists to believe that Respondent has violated Section 8(b)(4)(D) of the Act, that there is no agreed-upon method of voluntary ad- justment, and that this scope of the Board's award should not be limited to the Factoria jobsite but 167 DECISIONS OF NATIONAL LABOR RELATIONS BOARI) should extend to future jobsites as well. On the merits, both claim that such factors as employer preference, past practice, industry practice, and rel- ative training, skill, efficiency, economy, and safety weigh in favor of awarding the work in dispute to carpenters rather than to ironworkers. On the other side, Respondent argues that there is no reasonable cause to believe that Section 8(b)(4)(D) has been violated; that an agreed-upon procedure for voluntary dispute resolution exists; that a binding resolution in favor of ironworkers performing the work was, in fact, reached; and that, on the merits, the factors noted above point in favor of assigning the work in dispute to iron- workers. In any case, Respondent claims that there is no basis for the Board's issuing an award which extends to future jobsites. 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. We find that the "reasonable cause" standard was met here, but only with respect to the installa- tion of rollbars at the Factoria jobsite. Competent evidence shows that on several occasions Respond- ent's business agent threatened to tear up Respond- ent's contract with the Employer unless iron- workers installed rollbars at the Factoria jobsite. Furthermore, Respondent's own witness admitted that, without a contract, Respondent would refuse to refer ironworkers to the jobsite. Added to this is the fact that, at the time the threats to tear up the contract were being made by Respondent's busi- ness agent, ironworkers at Factoria were repeated- ly threatening walkouts if carpenters were allowed to perform the work. Given these circumstances, we conclude that reasonable cause exists to believe that threats violative of Section 8(b)(4)(D) were made relative to the assignment of rollbar work at the Factoria jobsite. :' Accordingly, we shall not quash the original notice of hearing issued in this case. We reach a different conclusion, however, with respect to the amended notice of hearing which was issued because we find no reasonable cause to ohile nolthing ill the record suggests that the rank-and-file iron- workcrs referred to abohv wscre agents of Respondent, the occurrences at Ieh1 j)hbsile are onl) relicd upoln a, background esidence in our assessment of the threatls lmade h ilndxididals who admittedly were agents of Re- sponldcnt Souitherl (alif/rnia Pipe Trades District Council No. 16: Plumb- ers & Stc,niriittier I oal .\. 582 (Kirnsocwk Division, Tridair Industries. nc, . 199 NI RH 1240, 1242 (1972). Furthermore, in making our analysis, wr empasize thait our deterrminationl here is onl 5 that reasonable cause exists and rnot that a si olaiton actually occurred Id, at 1242, fn. 9. believe that any unlawful conduct occurred with respect to the assignment of rollbar installation work at future jobsites. Rather, the record shows only that Business Agent Dolph was unwilling to endorse the Employer's efforts to secure a preen- gineered building contract from Respondent's parent organization so long as the Employer re- fused to assign rollbar work to ironworkers. While the withholding of Respondent's endorsement un- doubtedly was intended to influence the Employ- er's work assignment, nothing in Section 8(b)(4)(D) authorizes the Board to implicate itself into the substance of collective bargaining or to force a party to make an economic concession against its wishes. Accordingly, where, as here, there is no threat of unlawful action to influence an assign- ment of work, the Board's duty is clearly to refrain from interfering with the give and take of collec- tive bargaining. With respect to the issue of a voluntary method of adjustment, the contracts involved here have dispute resolution clauses which, though similar, differ as to how and when the International Unions are to become involved and as to the precise crite- ria to be applied in assigning the disputed work. We conclude, as we have previously, that these dif- ferences are significant enough to preclude "a find- ing that all parties have agreed to be bound by a single mutually agreed-upon procedure." Plasterers' and Cement Masons' Local 449, International Associ- ation of Operative Plasterers and Cement Masons, AFL-CIO (Cusick's, Inc.), 252 NLRB 780, 781 (1980). Furthermore, while Respondent claims that the two Unions actually resolved the dispute by agreeing that the ironworkers would install the rollbars, suffice it to say that the weight of the evi- dence indicates only that the Carpenters refrained from backing up its claim to the work with unlaw- ful threats or other acts of coercion, not that it abandoned that claim. On the basis of the entire record, we conclude that there is reasonable cause to believe that a vio- lation of Section 8(b)(4)(D) has occurred and that there exists no agreed-upon method for the volun- tary 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. 4 The 4 N.L.R.B. v Radio & hilevision Broadcaot Engineers Union. Local 1212, International Brotherhood of lElectrical Workers. AFL-CIO [Colum- bia Broadcasting Sstrenm]. 364 US. 573 (1961) 168 IRON WORKERS, LOCAL. NO. 8h Board has held that its determination in a jurisdic- tional dispute is an act of judgment based on com- monsense and experience reached by balancing those factors involved in a particular case.5 The following factors are relevant in making the determination of the dispute before us: 1. Collective-bargaining agreements Both Unions assert a contractual right to the dis- puted work, but neither bases that assertion on con- tractual language which indicates that a deliberate assignment was contemplated by the parties. Ac- cordingly, neither Union's contractual claim is sig- nificant in our disposition of this case. 2. Company and industry practice The Employer's uniform practice was to assign the job of installing rollbars to carpenters and that practice continues to be the Employer's stated pref- erence. As for the industry practice, there are only two other contractors in the area of western Wash- ington where the Employer operates who rely upon the Hambro system for a significant portion of their work. Of the two, one always assigns roll- bar installation work to the carpenters. The other contractor, which is owned and run by officials of an Ironworkers Local, regularly assigns an iron- workers rollbar crew to the installation of rollbars. However, that contractor also assigns carpenters who perform the rest of the forming work and assist with other installation work as well. In addi- tion, there are about six other area contractors who have used the Hambro system on an isolated basis and whose collective practice with respect to roll- bar installation has been mixed. Finally, the prac- tice with respect to other more common flooring systems than Hambro has been overwhelmingly in favor of assigning the job of installing the function- al equivalent of rollbars to carpenters rather than to ironworkers. In circumstances such as these where industry practice has been mixed, we afford little weight to that factor and rely more heavily upon the employer's own preference and experi- ence, which here tip decidedly towards an award to carpenters. 3. Relative skills, economy, and efficiency While demanding no particular physical skills, the proper installation of rollbars requires an un- derstanding of how the Hambro system works and how the placement of rollbars can have an impact upon the performance of other tasks involved in the system's installation and disassembly. For exam- ple, unless rollbars are spaced so that the seams be- " International 1.4ssi aton of. achinirs. l.odge :No. 174?1. 4bfL-CIO I( .4 Jones Conitruction ( ompany), 135 NL RH 1402 (19hI2 tween plywood sheets have proper support, the workers who lay the plywood have to respace the rollbars to avoid the likelihood of a blowout when the concrete is later poured. In a similar vein, roll- bars must be turned so that their "ears" are parallel to the ground and to the plywood sheets they are supposed to support. If they are not, it again falls to the plywood installer to make the necessary cor- rection or an unstable shoring or support structure will be the result. To avoid problems in disman- tling the system, it is important to stagger the placement of rollbars from row to row so that bars are not placed in the same joist hole from either side of the joist. Also. when bars are placed too close to a beam, and when they are used as "spac- ers" in joist placement. the only way they can be removed after a pour is by bending or burning them and thus rendering them unfit for reuse. Carpenters perform these other tasks and are ul- timately responsible for the functional integrity of the form and its support system. Accordingly, when they install rollbars, the problems described above rarely arise. Ironworkers, on the other hand, have a different orientation and the record shows that they are less effective and efficient than car- penters when installing rollbars. In fact, the record shows that, when ironworkers have installed roll- bars, much of their work had to be redone and there was considerable damage to rollbars. Furthermore, for every carpenter used on previ- ous jobs to install rollbars, it took two ironworkers at Factoria to perform the same work. Even at that, considerable delays resulted in the project's completion because ironworkers had to interrupt their primary responsibility of raising the structural iron to install rollbars. Added to this is the further fact that carpenters were often idle and, on occa- sion, were even sent home because their forming work could not proceed until more rollbars were installed. By the Employer's calculations, the net effect was that it will have to bid Hambro installa- tion jobs 30 percent higher if rollbars are installed by ironworkers. Accordingly, we find that the factors of relative skill, economy, and efficiency point decisively in favor of an award to carpenters. Our conclusion in this regard is fortified by the fact that rollbar in- stallation is part of an integrated process performed by carpenters and not by ironworkers. Plumbers Union Local #167, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting In- dustry of the United States and Canada (Gilbert Builders, Inc.), 223 NLRB 1010 (1976); Internation- al A4ssociation of Bridge. Structural & Ornamental Ironworkers Local 405 (Ana.stasi Brothers Corpora- tion), 228 NLRB 573 (1977). Indeed, while rollbars 169 DECISIONS OF NATIONAL LABOR RELATIONS HOARD are made of metal rather than wood, we find that fact an insufficient reason to assign to ironworkers an aspect of forming work to which carpenters have historically held exclusive claim. See Sheet Metal Workers' International Association, AFL-CIO, Local No. 99 (The Brower Company), 195 NLRB 412 (1972); Local No. 383, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (J. P. Cullen & Son Construction Corpora- tion), 235 NLRB 463 (1978). Conclusion Upon the record as a whole, and after full con- sideration of all relevant factors involved, we con- clude that employees who are represented by the Carpenters are entitled to perform the work in dis- pute. We reach this conclusion relying on the Em- ployer's past practice and preference, the relative skills of the trades involved, the economy and effi- ciency of the employer's operation, and the histori- cal connection of one of the trades to the type of work in dispute which, in turn, is part of an inte- grated process which that trade has always per- formed. In making this determination, we are awarding the work in question to employees who are represented by the Carpenters, but not to that Union or its members. The present determination 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 Kulama Erectors who are rep- resented by United Brotherhood of Carpenters and Joiners of America, District Council of Carpenters of Seattle, King County and Vicinity and its affili- ate, Local 131, AFL-CIO, are entitled to perform the work of installing rollbars in the Hambro floor- ing system at Kulama Erectors' Factoria jobsite in Bellevue, Washington. 2. International Association of Bridge, Structural and Ornamental Ironworkers, Local No. 86, AFL- CIO, is not entitled by means proscribed by Sec- tion 8(b)(4)(D) of the Act to force or require Kulama Erectors to assign the disputed work to employees represented by that labor organization. 3. Within 10 days from the date of this Decison and Determination of Dispute, International Asso- ciation of Bridge, Structural and Ornamental Iron- workers, Local No. 86, AFL-CIO, shall notify the Regional Director for Region 19, in writing, whether or not it will refrain from forcing or re- quiring Kulama Erectors, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disput- ed work in a manner inconsistent with the above determination. 170