Local Union No. 483, Ironworkers

LOCAL UNION NO. 483, IRONWORKERS Local Union No. 483, International Association of Bridge, Structural & Ornamental Ironworkers, AFL-CIO and Samuel W. McCleskey Construction Company. Case 22-CD-323 May 25, 1979 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY This a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following a charge filed by Samuel W. McCleskey Construction Company, herein called the Employer, alleging that Local Union No. 483, International Association of Bridge, Structural & Ornamental Ironworkers, AFL- CIO, herein called Local 483, had violated Section 8(b)(4)(D) of the Act by engaging in certain pro- scribed activity with an object of forcing or requiring the Employer to assign certain work to its members rather than to unrepresented employees of the Em- ployer. Pursuant to notice, a hearing was held before Hear- ing Officer Susan K. Anderson on November I and 2, 1978. All parties appeared and were afforded full op- portunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the is- sues. 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 proceeding, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Em- ployer, a Louisiana corporation with its principal place of business in Norcross, Georgia, is engaged in the construction of mausoleums throughout the United States. During the past year the Employer purchased and received at its Paterson, New Jersey, facility building materials and other related products valued in excess of $50,000 directly from vendors lo- cated outside the State of New Jersey. The parties also stipulated, and we find, that the Employer is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act, and it will effectuate the pur- poses of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that Local 483 is a labor organization within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute On approximately August 1, 1978,' the Employer began construction of a 4,000-crypt mausoleum at the Calvary Cemetery in Paterson, New Jersey, which was an expansion of an existing mausoleum consist- ing of 3,500 crypts built by another contractor. Al- though the other employer used Local 483 ironwork- ers to help build the 3,500-crypt mausoleum, the Employer used its own unrepresented employees. Around the same time the Employer began con- struction at Calvary Cemetery, it began construction of a mausoleum in Hollywood Memorial Park Ceme- tery in Union, New Jersey.2 At the Hollywood Me- morial Park Cemetery (herein called Hollywood Park) the Employer employed union labor, including ironworkers from Local 480. Local 480 is a member of the same district council as Local 483. In August, when Local 480 ironworkers began working on the Hollywood Park jobsite, the Ironworkers foreman gave the Employer's jobsite superintendent, Ernest Griffin, a copy of the Union's collective-bargaining agreement and asked him to sign it. Griffin told the foreman he was not authorized to sign collective-bar- gaining agreements. Griffin gave the agreement to an employer official, but the Employer never signed the collective-bargaining agreement, and no contract ne- gotiations were ever held between the Employer and the Ironworkers. The Ironworkers foreman at the Hollywood Park jobsite also told Griffin he had to purchase annuity and vacation stamps for the iron- workers on the job. In August and September Griffin on two occasions purchased both vacation and annu- ity stamps for those ironworkers. When he bought both the vacation and annuity stamps from Local 480's fund office, he was given a form to sign which he testified he believed was a receipt for the stamps. Griffin would not receive the stamps unless he signed these forms. The forms, in addition to showing the number of stamps purchased, the serial numbers of the stamps, and the amount paid for them, included I All dates are 1978 unless otherwise stated. 2 The Hollywood Memorial Park Cemetery jobsite is not in issue here. 242 NLRB No. 79 573 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certain contractual language at the bottom.3 No one from the Employer ever saw the stamp forms after they were signed by Griffin. In July a representative of the construction trades, Anthony Rego, requested a meeting with the bishop or the vicar-general regarding the Calvary Cemetery project. At the meeting, held on August 10, 4 the rep- resentatives of the trade unions, including Local 483, complained that the Employer was using nonunion labor and paying substandard wages and demanded that the mausoleum construction work be given to their members. The Calvary Cemetery representative testified that the assistant business agent for Local 483, Gaechter, said they would have to picket the gates of the cemetery if their demands were not met. At the hearing the Local 483 representative stated it did not make a demand for the work until sometime after this August 10 meeting. On August 24 the construction trade unions picketed the Calvary Cemetery jobsite with signs which identified an area standards dispute with the Employer. The picketing continued until October 3. On September 22 the Employer filed charges against a number of unions, including Local 483, al- leging violations of Section 8(b)(4)(D) of the Act. By letters dated October 24 all of the unions charged, except Local 483, disclaimed interest in the work being performed at Calvary Cemetery. On October 31 the Regional Director approved a unilateral informal settlement agreement with these unions. Local 483 continued to claim the ironwork. The Employer op- posed the acceptance of the disclaimers and the settle- ment agreement and filed an appeal on November 10, which was denied. B. The Work in Dispute The parties agree, and we find, that the work in dispute consists of ironwork performed by the Em- ployer's unrepresented employees in the construction of the crypt mausoleum at the Calvary Cemetery. The ironwork involved in the construction of the crypts basically entails placing and tying reinforcing steel 3The language, in part, stated: The undersigned applicant for Annuity Fund Stamps (or Vacation Fund Stamps) hereby accepts and agrees to be bound as a signatory by: 2. All provisions, terms and conditions of the Collective Bargaining Agreement presently in effect between said Union and the Structural Steel and Ornamental Iron Association of New Jersey, or Associated General Contractors of New Jersey, or Building Contractors Associ- ation of New Jersey, may be applicable depending upon the nature of the work to be performed from time to time hereafter by the ironwork- ers to be employed by the undersigned. Said Agreements and Declara- tions of Trust and Collective Bargaining Agreements are incorporated herein by reference .... 'Representatives from Calvary Cemetery and the construction trade unions were present: the Employer was not present. beams and steel mats in the foundations, footings, crypt floors, walls, and roof. Ironworkers also make sure the steel beams remain in place during the pour- ing of the concrete, pull the steel wire meshes up to the proper level as the concrete is poured, and fasten the vertical bulkheads in place after the concrete is poured. C. Contentions of the Parties Local 483 contends that the disputed work at Cal- vary Cemetery should be awarded to employees it represents because of the existence of a collective-bar- gaining agreement it has with the Employer. Its con- tract claim is based on the fact that at the Hollywood Park job Griffin signed the stamp forms, which in- clude language it contends binds the Employer to the collective-bargaining agreement currently in effect with the district council. The Employer contends that the work in dispute should be awarded to its own unrepresented employ- ees on the basis of the Employer's assignment and the economy and efficiency which results from assigning the work to its multiskilled employees. The Employer contends it never signed a collective-bargaining agreement or engaged in any contract negotiations with either Local 480 or Local 483. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the 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 the parties have not agreed upon a method for the voluntary adjustment of the dispute. The Employer assigned the disputed work to its own unrepresented employees when it contracted with the Roman Catholic Diocese of Paterson, New Jersey, for the Calvary Cemetery job. According to the assistant to the diocesan director of Calvary Cemetery, Jack Cavanaugh, at the meeting on August 10 Local 483, along with the other unions, claimed that the Calvary Cemetery work should be awarded to their members and stated they would picket the cemetery if their demands were not met. Local 483 does not deny it made a claim for the ironwork, al- though at the hearing it testified its demand was made sometime after this meeting. On August 24 picketing began, and it continued until on or about October 3. Local 483 is the only construction local involved that did not disclaim the work. Since Local 483 made a claim for the disputed work and threat- ened to picket the cemetery to obtain the work, we conclude that there is reasonable cause to believe that 574 LOCAL UNION NO. 483, IRONWORKERS a violation of Section 8(b)(4)(D) has occurred. The record contains no evidence that there exists an agreed-upon method for the voluntary adjustment of the dispute. Accordingly, we find that the 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. The following factors are relevant in making the determination of the dispute before us: 1. Collective-bargaining agreements Local 483 contends that the Employer is bound by an existing collective-bargaining agreement to award employees represented by it the disputed work at the Calvary Cemetery job, but concedes that the Em- ployer never signed the collective-bargaining agree- ment to which it is allegedly bound. In making its contract claim Local 483 relies on the receipt forms for the annuity and vacation stamps the Employer purchased at the Hollywood Park job. These receipts include language which implies that the collective- bargaining agreement is incorporated by reference. No one from the Employer, other than the low-level supervisor not authorized to bind the Employer to a collective-bargaining agreement, saw these receipts. There is no evidence the Employer ever intended to bind itself to the contract or engaged in any formal or informal contract negotiations with either Local 480 or Local 483. Nor did Local 480 inform Griffin when he purchased the stamps that the signing of the stamp receipts constituted an execution of the collective-bar- gaining agreement. Since the Employer did not intend to adopt or rat- ify any collective-bargaining agreement with either Local 480 or Local 483, and there is in fact no evi- dence that Local 480 assumed the Employer was binding itself to its contract when Griffin signed the receipts, we conclude that the evidence fails to estab- lish that either party intended to negotiate a collec- tive-bargaining agreement for the Calvary Cemetery job by the purchase of the stamp receipts at the ltol- lywood Park job. We therefore find that the Em- ployer is not bound by any collective-bargaining agreement with Local 4835 and that this factor is not relevant to a determination of this dispute. 5 Local Union No. 529, United Brotherhood of Carpenters and Joiners of America v. Bracy Development Co., Inc., and Matark, Inc., 321 F.Supp. 869, 875 (1971). 2. Economy and efficiency of operation The construction of a mausoleum generally re- quires 2 hours of carpentry work, 2 hours of iron- work, and/or 2 hours of cement work per day. The Employer's employees possess the skills to do all of these different jobs, including the ironwork. Use of multiskilled employees, like the Employer's, produces a more efficient use of labor and a reduced labor cost because these employees can shift from one task to another as the job requires and thereby put in a full day's work. On the other hand, ironworkers do only ironwork; and, if they were hired by the Employer, not only would they often remain idle for several hours during the day, but the Employer would have to pay them either a half or a full day's wages. Thus, efficiency and economy of operation favors an assign- ment of the disputed work to the Employer's unrepre- sented employees. 3. Employer preference The Employer has from the beginning used its own unrepresented employees to perform the disputed work. It is satisfied with the results of its assignment and prefers that the work be done by its employees. Thus, employer preference favors an assignment of the disputed work to its employees. Conclusion Upon the record as a whole, and after full consider- ation of all relevant factors involved, we conclude that the Employer's unrepresented employees are en- titled to perform the work in dispute, and we shall therefore award the work in question to them.6 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 pro- ceeding, the National Labor Relations Board makes the following determination of dispute: 1. The unrepresented employees of Samuel W. McCleskey Construction Company are entitled to perform the ironwork at the Calvary Cemetery in Pat- erson, New Jersey. 6 Since the Employer's employees are unrepresented, and Local 483 has not been certified by the Board, certification is not a factor in our determina- tion. Since there is no evidence of area or industry practice in the record, that factor does not favur either group of employees. Since there is no evidence that one group of employees is more qualified to do the work than the other, we do not rely on relative skills as a determinative factor. Finally, there are no joint board determinations or union agreements that would effect our determination of this dispute. 575 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Local Union No. 483, International Association of Bridge, Structural & Ornamental Ironworkers, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Sam- uel W. McCleskey Construction Company 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, Local 483 shall notify the Regional Director for Region 22, in writing, whether or not it will refrain from forcing or requir- ing 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. 576