Ironworkers Local No. 395, International Association Of Bridge, Structural And Ornamental Iron Workers, Afl-Cio

IRON WORKERS LOCAL 395 (CALUMET FLEXICORE) 25 Ironworkers Local No. 395, International Associa- tion of Bridge, Structural and Ornamental Iron Workers, AFL-CIO and Calumet Flexicore Corporation and Laborers International Union of North America, Local No. 41. Case 13-CD- 398 March 10, 1988 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT The charge in this Section 10(k) proceeding was filed October 27, 1987, by the Employer, Calumet Flexicore Corporation, alleging that the Respond- ent, Ironworkers Local No. 395, International As- sociation of Bridge, Structural and Ornamental Iron Workers (Iron Workers), 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 em- ployees it represents rather than to employees rep- resented by Laborers International Union of North America, Local No. 41 (Laborers).' The hearing was held November 12, 1987, before Hearing Offi- cer Julie K. Hughes. Thereafter, the Employer filed a brief in support of its position.2 The National Labor Relations Board has delegit- 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 Company, an Indiana corporation, is en- gaged in the manufacture and installation of pre- cast, hollow core concrete slabs ("Flexicore" by trade name), with a principal place of business in Hammond, Indiana. The parties stipulated that during the year preceding the hearing, the Employ- er purchased and received at its Indiana construc- tion sites goods and materials valued in excess of $50,000 from suppliers located outside the State of Indiana. The parties further stipulated, 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 Iron Workers and the Laborers are labor organizations within the meaning of Section 2(5) of the Act. 1 The Employer filed an amended charge, not affecting the substance of the original charge, on November 12, 1987. 2 Respondent Iron Workers' brief, untimely submitted, has not been considered in this proceeding. II. THE DISPUTE A. Background and Facts of Dispute The Employer performs contracts for the manu- facture of Flexicore concrete slabs and for the de- livery and installation of its product at various con- struction sites. The slabs are used for flooring in building structures. The installation process in- volves hoisting the slabs from a truck with the use of a crane and hand signals; the setting, placement, cutting, and leveling of the slabs within the struc- ture under construction; and the application of grout to the slabs. On October 26, 1987, the Employer was in the process of installing 53 Flexicore slabs at the Waste Water Treatment plant in East Chicago, Indiana. The Employer's crew consisted of a foreman, Bob Fields, and four laborers, all permanent employees of the Employer. The Employer's truckdriver, a teamster, and its crane operator, an operating engi- neer, also participated; however, their work is not at issue in the proceeding. The crew had hoisted and set one slab when four ironworkers jumped on the Employer's truck. Two of them sat down on the next slab to be unloaded, thereby preventing the job from continuing. The ironworkers claimed the work of installing the slabs and asked Fields to stop installing them until the Iron Workers business agent arrived. The business agent, James Strayer, arrived a short time later, carrying "documenta- tion" in the form of reports of various jurisidic- tional dispute boards concerning awards of similar work to ironworkers. With the ironworkers re- maining on the truck, Strayer spoke by telephone with the Employer's president, Carl Carlsson. Strayer claimed the installation work for the iron- workers and Carlsson rejected the claim. In view of the safety problems created by the ironworkers on the truck, Carlsson ordered Fields to leave the jobsite. Fields proceeded to do this, chaining down the slabs still on the truck and departing with the truck and his crew. The ironworkers climbed down from the truck when it was apparent that the Employer's crew was leaving. The entire incident lasted about 1 hour. B. Work in Dispute The disputed work is the installation of hollow core, precast concrete, Flexicore slabs at the Waste Water Treatment plant for the East Chicago con- struction site located at 4527 Indianapolis Boule- vard, East Chicago, Indiana. C. Contentions of the Parties The Employer contends that the disputed work should be awarded to its employees represented by 288 NLRB No. 7 26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Laborers in view of the following factors: its collective-bargaining agreement with the Laborers covering the work in dispute and the absence of any relevant collective-bargaining agreement be- tween the Employer and the Iron Workers; the Employer's traditional assignment of the work to employees represented by the Laborers and its preference for that assignment; area and industry practice; economy and efficiency; requisite skills; and prior decisions of the National Labor Relations Board. The Iron Workers contends that the factors of collective-bargaining agreements, area and in- dustry practice, the Employer's preference, neces- sary skills, and previous jurisdictional dispute board determinations support an award of the disputed work to employees represented by the Iron Work- ers. D. Applicability of the Statute On October 26, 1987, the Iron Workers claimed the work in dispute and caused a work stoppage of the Employer's employees engaged in the disputed work, with an object of compelling an assignment of the work to employees represented by the Iron Workers. In light of the above, we find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred. The parties stipulated that there is no agreed method binding all the parties for a voluntary adjustment of the dispute. Thus, we find that there exists no method for voluntary ad- justment of the dispute within the meaning of Sec- tion 10(k) of the Act. Accordingly, we find that the dispute is properly before the Board for deter- mination. E. Merits of the Dispute Section 10(k) requires the Board to make an af- 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 1 743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the determination of this dispute. 1. Collective-bargaining agreements3 The Employer and Laborers Local 41 are parties to a collective-bargaining agreement which was ini- 3 The parties stipulated that there is no certification or order of the National Labor Relations Board relevant to the determination of this dis- pute. tinily effective from June 1, 1985 through May 31, 1987, and which was extended by the parties' agreement through May 31, 1988. The geographi- cal jurisdiction of Laborers Local 41 covers the site of the disputed work, East Chicago, Indiana. The work coverage clause of the agreement states, in relevant part, that the laborers' work includes: Where pre-stressed or precast concrete slabs, walls or sections are used, all loading, unload- ing, stockpiling, hooking on, signaling, un- hooking, setting and barring into place of such slabs, walls or sections; all mixing, handling, conveying, placing and spreading of grout for any purpose, green cutting of concrete or ag- gregate in any form by hand, mechanical means, grindstones or air or water. Thus the agreement between the Employer and the Laborers clearly covers the work in dispute. The Employer is also a party to a "Compliance Agreement" with Iron Workers Local 1 which is effective in certain parts of the State of Illinois. • Under this agreement, when the Employer installs its product within the covered Illinois areas, it must include two employees represented by the Iron Workers in its crew. The ironworkers perform only a part of the installation work, with laborers carrying out the rest of the installation. It is appar- ent that the Compliance Agreement was the result of an arrangement between the Iron Workers and the Laborers with respect to the Illinois locations. Carlsson, the Employer's president, testified that he honors the Compliance Agreement not because he prefers to use ironworkers as part of the installation crew, but because he must use them to complete installation jobs in the Illinois locations covered by the agreement. Iron Workers Local 395, which has claimed the disputed work in this proceeding, is not a party to the Compliance Agreement. Further, that agreement is not effective in East Chicago, In- diana, the location of the disputed work. In light of the above, we find that the factor of collective-bargaining agreements favors an award of the disputed work to employees represented by the Laborers. 2. Company preference and past practice It has been the Employer's practice for 40 years to assign to employees represented by the Laborers the work of installing its product in the State of In- diana, which includes the location of the disputed work. The Employer's preference is to assign the work to employees represented by the Laborers, in view of its past practice, and because its installation crews of laborers are made up of permanent em- ployees with an average individual tenure with the IRON WORKERS LOCAL 395 (CALUMET FLEXICORE) 27 Employer of 20 years. The Employer contends that the experience of its permanent Laborer crews pro- motes continuity from job to job and flexibility and teamwork on each job, as well as the economical, efficient, safe completion of the work. The Iron Workers contends that the Employer has demonstrated a preference for assignment of the work to employees represented by the Iron Workers by its use of ironworkers in Illinois, and that its use of the same ironworker employees from job to job in Illinois demonstrates a stable work force of ironworkers. However, Carlsson testified that the use of ironworkers is not a matter of pref- erence but of necessity, to complete jobs in the Illi- nois locations covered by the Compliance Agree- ment, and that the ironworkers perform only a part of that installation work while laborers perform the rest. He further testified that if the Employer could follow its preference, it would use laborers only in all of its assignments in Illinois as well as in Indi- ana. We find that the factors of past practice and the Employer's preference favor an award of the work in dispute to employees represented by the Labor- ers. 3. Area and industry practice The Employer contends that the appropriate ge- ographic area is the northwestern part of the State of Indiana. The Employer further contends that within its industry, Flexicore is a specific type of precast concrete slab, distinct from other concrete slab products, and that the manufacture and instal- lation of Flexicore slabs is done on a franchise basis. The Employer's position is that, within its defmed geographic area, it manufactures and in- stalls virtually all the Flexicore slabs used and that the installation is done exclusively by employees represented by the Laborers. The Iron Workers contends that the appropriate geographic area is broader than northwestern Indi- ana in light of the proximity of the site of the dis- puted work to the Illinois state line. The Iron Workers' business agent, Strayer, testified that within its defined geographic area, and even within the northwestern Indiana region alone, employees represented by the Iron Workers are used by other employers to install concrete slabs having the same function as the Employer's product. We are not persuaded on this record that there is a significant distinction between the Employer's Flexicore product and other types of precast con- crete slabs with respect to the nature of the work in dispute here. Further, we find the evidence in- conclusive regarding the appropriate geographic area and concerning the practice in the industry. We conclude that the factor of area and industry practice does not clearly favor an award of the dis- puted work to either group of employees. 4. Relative skills The Employer contends that the skills involved in the installation of its product are varied; its la- borer employees receive on-the-job training, gradu- ally introducing them to the necessary skills in light of safety considerations. The Iron Workers contends that its members go through a training program to acquire the skills needed to perform the work in dispute, and that its members in fact perform similar installation work for other employers. It is apparent that both the laborers and the iron- workers possess the requisite skills to perform the work in dispute. We find that this factor does not favor an award of the work to either group of em- ployees. 5. Economy and efficiency of operations The Employer contends that, as indicated by its preference for assignment of the work, the perma- nent employment and experience of its laborer em- ployees creates a continuity and flexibility in its crews, resulting in the economical and efficient completion of its installation jobs. The Iron Work- ers submitted no evidence with respect to this factor. We find that the factor of economy and efficien- cy favors an award of the disputed work to the employees represented by the Laborers. 6. Prior jurisdictional dispute determinations The Iron Workers submitted in evidence the same reports of various jurisdictional dispute boards that Business Agent Strayer brought with him to the site of the dispute on October 26, 1987. The Iron Workers contends that these determina- tions, awarding to employees represented by the -Iron Workers rather than to employees represented by the Laborers work similar to the work at issue here, favor an award of the work to it in the in- stant proceeding. The Employer relies on various determinations of the National Labor Relations Board which awarded similar work to employees represented by the Laborers rather than to employ- ees represented by the Iron Workers. 4 However, none of the dispute board awards provides a de- tailed analysis, neither they nor the Board decisions involved this Employer, and none of the awards 4 See, e.g., Iron Workers Local 15 (Spancrete Northeast), 271 NLRB 729 (1984); Iron Workers Local 3 (Spancrete Northeast), 267 NLRB 950 (1983); Iron Workers Local 40 (Spancrete Northeast), 244 NLRB 182 (1979). 28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and determinations relied on by the parties is spe- cifically applicable to the particular controversy that was the cause of this proceeding. Accordingly, we find that the previous jurisdictional dispute de- terminations do not favor an award of the disputed work to either group of employees. Conclusions After considering all the relevant factors, we conclude that employees represented by the Labor- ers are entitled to perform the work in dispute. We reach this conclusion relying on the factors of col- lective-bargaining agreements, the Employer's past practice and preference, and economy and efficien- cy of operation. In making this determination, we are awarding the work to employees represented by the Laborers, not to that Union or its 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. 1. Employees of Calumet Flexicore Corporation, represented by Laborers International Union of North America, Local No. 41, are entitled to per- form the installation of hollow core, precast con- crete, Flexicore slabs at the Waste Water Treat- ment plant for the East Chicago construction site located at 4527 Indianapolis Boulevard, East Chi- cago, Indiana. 2. Ironworkers Local No. 395, International As- sociation of Bridge, Structural and Ornamental Iron Workers, AFL-CIO is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Calumet Flexicore Corporation to assign the disputed work to employees represented by it. 3. Within 10 days from this date, Ironworkers Local No. 395, International Association of Bridge, Structural and Ornamental Iron Workers, AFL- CIO shall notify the Regional Director for Region 13 in writing whether it will refrain from forcing Calumet Flexicore Corporation, by means pro- scribed by Section 8(b)(4)(D), to assign the disput- e& work in a manner inconsistent with this determi- nation. - i -,