Laborers Local 125 (Spancrete Northeast)

LABORERS LOCAL 125 (SPANCRETE NORTHEAST) 503 Laborers' International Union of North America, AFL-CIO, Local Union No. 125 and Spancrete Northeast, Inc. and Bechtel Constructors Cor- poration and International Association of Bridge, Structural and Ornamental Iron Work- ers, Local Union No. 207 and Laborers' Inter- national Union of North America, AFL-CIO, Local Union No. 894. Case 8-CD-424 26 June 1987 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JOHANSEN, BABSON, AND STEPHENS The charge in this Section 10(k) proceeding was filed 11 March 1987 by the Employer, Spancrete Northeast, Inc., and by Bechtel Constructors Cor- poration. The charge alleges that the Respondent (Laborers Local 125) violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees rep- resented by it and by Laborers' International Union of North America, AFL-CIO, Local Union No. 894 (Laborers Local 894), rather than to employees represented by International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No. 207 (Iron Workers). The hearing was held 7 April 1987 before Hearing Officer Karen L. Giffen. Thereafter, the Employer and Bechtel Con- structors Corporation jointly filed a brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board affirms the hearing officer's rulings, finding them free from prejudicial error. On the entire record, the Board makes the following find- ings. I. JURISDICTION The Employer, Spancrete Northeast, Inc., is a New York corporation with a facility at Aurora, Ohio, where it is engaged in the manufacture, sale, and installation of precast, prestressed concrete planks, panels, beams, and appurtenances. During the year preceding the hearing, the Employer re- ceived at its Aurora facility goods and materials valued in excess of $50,000 directly from suppliers located outside the State of Ohio. The parties stipu- late, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Laborers and Iron Workers are labor organizations within the mean- ing of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute On 22 December 1986 the Employer began the installation of precast concrete sections at the Youngstown wastewater treatment plant in Youngstown, Ohio, under its contract with the general contractor, Bechtel Constructors Corpora- tion. The Employer hired three members of Labor- ers Local 894 from its permanent facility and two members of Laborers Local 125 for work on the site. The work entails unloading varying sizes of these concrete planks from a truck using a crane. The crane operation is performed by an operating engineer and is not claimed by any labor organiza- tion involved in this dispute. The employees "hook up on the truck" to unload the planks; and then set into place, level, and grout the product into place on the structure. The employees use tools unique to "precast," such as modified pinch bars and 'le- vering devices, as well as tools common to the in- dustry, such as concrete saws. Bechtel Constructors Corporation is signatory to a collective-bargaining agreement with the Iron Workers. That agreement provides that Bechtel shall not subcontract any work (to be performed on a jobsite covered by the agreement) to any entity that does not have a contract with the Iron Workers. On 3 February 1987 Iron Workers Busi- ness Manager Sudzina wrote to Bechtel Project Su- pervisor Betts, notifying Betts of a grievance with Bechtel because precast beam installation work had been subcontracted to the Employer, with which the Iron Workers have no collective-bargaining agreement. Betts wrote to Sudzina on 12 February 1987, noting the jurisdictional dispute between the Employer and the Iron Workers and rejecting the Iron Workers' grievance. On 23 February 1987 counsel for the Iron Workers again wrote Betts and restated the Iron Workers' grievance with Bechtel on the basis of the Iron Workers' asserted contractual right to the work. On 5 March 1987 Laborers Local 125 Business Manager Mason wrote to Bechtel concerning the Iron Workers' grievance, advising that if Bechtel changed its subcontract for precast concrete work with the Employer, Laborers Local 125 would "take the appropriate action against [Bechtel]." Subsequently, Laborers Local 125 Secretary-Treas- urer Carcelli allegedly advised counsel for the Em- ployer that, if the work were reassigned, Laborers Local 125 would defend its contract with the Em- ployer by putting up a picket line. 284 NLRB No. 56 504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. Work in Dispute The disputed work involves the unloading, stockpiling, and installation of precast concrete slabs, walls, and sections at the Youngstown wastewater treatment plant in Youngstown, Ohio. C. Contentions of the Parties The Employer and Bechtel contend that reasona- ble cause exists to believe that Laborers Local 125 has violated Section 8(b)(4)(D) of the Act. They argue that Mason's 5 March 1987 letter, warning of "appropriate action" against Bechtel if the work were reassigned to the Iron Workers, constituted an unequivocal threat to resort to job action, in- cluding picketing, as confirmed by the testimony of Laborers Local 125's vice president, Barnes. Re- garding the merits of the dispute, the Employer, Bechtel, and Laborers Locals 125 and 894 all con- tend that the disputed work should be awarded to employees represented by the Laborers Local 894 and Laborers Local 125, respectively, based on the factors of collective-bargaining agreements, em- ployer preference, area and industry practice, rela- tive skills and safety, and economy and efficiency of operation. Iron Workers made no appearance at the hearing and has taken no position. D. Applicability of the Statute Before the Board may proceed with a determina- tion of a 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 on a method for the voluntary adjustment of the dis- pute. By his letter of 5 March 1987, Laborers Local 125 Business Manager Mason threatened "appropri- ate action" against Bechtel if the work were reas- signed to the Iron Workers. Laborers Local 125's vice president, Barnes, testified that the Laborers claims the disputed work and that, in taking job action to defend that claim, Laborers Local 125 would "put a picket up," On the basis of the foregoing, we find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred. There is no evidence in the record, and no party contends, that an agreed- upon method exists for the voluntary resolution of this dispute within the meaning of Section 10(k) of the Act. Accordingly, we fmd that the dispute is properly before the Board for determination. E. Merits of the Dispute Section 10(k) requires the Board to make an at- firmative award of disputed work after considering various factors. NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U.S. 573 (1961). The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by bal- ancing the factors involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the determination of this dispute. 1.Certifications and collective-bargaining agreements None of the labor organizations involved in this proceeding has been certified by the Board as the collective-bargaining representative for a unit of the Employer's employees. Accordingly, this factor is not helpful in determining the dispute. The Employer is signatory to a national con- struction agreement with Laborers' International Union of North America, AFL-CIO, which covers all field construction. The Employer is also signa- tory to a collective-bargaining agreement with La- borers Local 894, covering field erection employ- ees assigned out of its Aurora, Ohio manufacturing facility. The Employer is not signatory to any agreement with Iron Workers and does not employ any employees represented by Iron Workers. The national agreement covers all work in the trade. The Laborers' Manual of Jurisdiction includes un- loading, stockpiling, setting into place, grouting, etc., precast concrete slabs. Based on the above, we find that the factor of collective-bargaining agreements favors an award of the work in dispute to employees represented by Laborers. 2. Company preference and past practice At the hearing and in its brief, the Employer ex- pressed its preference that the disputed work con- tinue to be assigned to laborers based on their fa- miliarity with the Employer's products and their skill in handling them. The Employer's assignment of the disputed work to three members of Laborers Local 894 and two members of Laborers Local 125 is consistent with the Employer's past practice of utilizing permanent employees represented by Laborers Local 894 on field erection work assigned from the Employer's Aurora, Ohio facility, supplemented by employees represented by the Laborers local in whose juris- diction the work is located. The precast products used at the Youngstown worksite were manufac- tured at the Employer's Aurora, Ohio facility. Fur- ther, according to the Employer, it has erected 5,679,928 square feet of product in 232 jobs in the State of Ohio since 1980 using employees repre- LABORERS LOCAL 125 (SPANCRETE NORTHEAST) 505 sented by Laborers Local 894 and various other Laborers locals. Additionally, the Employer in sev- eral other States has used employees represented by various Laborers locals to install products man- ufactured at its South Bethlehem and Rochester, New York facilities. Accordingly, we find that these factors favor an award to the employees represented by Laborers Local 894 and Local 125, respectively. 3. Area and industry practice The Employer's vice president, Koepnick, testi- fied that in his 17 years with a previous employer he used employees represented by Laborers to in- stall field products. We find that the factors of area and industry practice are inconclusive. 4. Relative skills and safety Koepnick also testified, without dispute, that the use of permanent, experienced crews of employees represented by Laborers results in greater safety on the job because of their familiarity with all aspects of the Employer's field work and their knowledge of the Employer's unique products. Accordingly, we find that these factors favor an award to the employees represented by Laborers Local 894 and Local 125, respectively. 5. Economy and efficiency of operations Koepnick further testified, without dispute, that the utilization of a single trade which can perform all facets of field work, such as laborers, is eco- nomically more advantageous than would an as- signment to a composite crew of iron workers, la- borers, and masons. We find, accordingly, that these factors favor an award to the employees rep- resented by Laborers Local 894 and Local 125, re- spectively. Conclusions After considering all the relevant factors, we conclude that employees represented by Laborers Local 894 and Laborers Local 125, respectively, are entitled to perform the work in dispute. We reach this conclusion relying on the factors of col- lective-bargaining agreements, employer preference and past practice, relative skills and safety, and economy and efficiency of operation. In making this determination, we are awarding the work to employees represented by those Unions, respective- ly, but not to those Unions or their members. The determination is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. Employees of Spancrete Northeast, Inc., repre- sented by Laborers' International Union of North America, AFL-CIO, Local Union No. 125 and Local Union No. 894, are entitled to perform un- loading, stockpiling, and installation of precast con- crete slabs, walls, and sections at the Youngstown wastewater treatment plant in Youngstown, Ohio.