Iron Workers Local 433 (Frye Co)

IRON WORKERS LOCAL 433 (FRYE CO) International Association of Bridge, Structural and Ornamental Iron Workers, Local No. 433 and David Frye Companies , Inc. and Carpenters Local 42L, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case 21- CD-559 July 29, 1988 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT The charge in this Section 10(k) proceeding was filed April 1, 1988, by David Frye Companies, Inc. (David Frye Companies or the Employer), alleging that the Respondent, International Association of Bridge, Structural and Ornamental Iron Workers, Local No. 433 (Iron Workers Local 433) 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 it represents rather than to em- ployees represented by Carpenters Local 42L, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Carpenters Local 42L). The hearing was held April 21, 1988, before Hearing Officer Martha Z. Villanueva.' The Employer and Carpenters Local 42L waived their right to file briefs. 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, David Frye Companies , Inc., a California corporation, engages in commercial plas- tering and drywall installation in the building and construction industry, with its offices located in Bakersfield, California. During the past 12-month period, David Frye Companies, Inc. purchased and received goods valued in excess of $100,000 direct- ly from suppliers located outside the State of Cali- fornia. The parties stipulate, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Iron Workers Local 433 and Carpenters Local 42L are labor organizations within the meaning of Sec- tion 2(5) of the Act. ' Although served with notice of the 10(k) hearing, Iron Workers Local 433 was not present at the hearing H. THE DISPUTE 237 A. Background and Facts of Dispute David Frye, the president of the Employer, testi- fied that the Employer is signatory to a contract with General Contractor H. Phelps at a jobsite lo- cated in Riverside, California, which began in Jan- uary 1988. Pursuant to the contract, the Employer was to furnish and install exterior prefabricated Dryvit panels, fireproofing, interior light gauge metal framing, and drywall. By a letter dated Feb- ruary 24, 1988, the Employer assigned the installa- tion of Dryvit panels, which includes the rigging, lining, leveling, welding, placing, and any other in- cidental work, to employees represented by Car- penters Local 42L. Sometime in January or February 1988, Frye re- ceived a phone call from Dan Prentiss, the labor representative for Iron Workers Local 433, who told Frye that employees represented by Iron Workers Local 433 should be hired to set the panels and attach the angle clips; otherwise, there was "the possibility" the job would be picketed. Frye replied that he had no intention of hiring Iron Workers-represented employees as the Employer was already signatory to the Carpenters agreement, and the Employer had used Carpenters-represented employees in the past and was satisfied with their work. A few days after this conversation, Frye met with H. Phelps' job superintendent who told Frye that Prentiss had informed him that if H. Phelps did not hire Iron Workers Local 433-represented employees at the Riverside jobsite, Iron Workers Local 433 would picket the job. According to Frye, H. Phelps was preparing for the expensive operation of pouring concrete at this time, and Phelps was concerned about a picket line shutting down the jobsite. For this reason, Frye agreed to allow Phelps to hire one employee represented by Iron Workers Local 433 to do welding alongside the employees represented by Carpenters Local 42L. The employee represented by Iron Workers Local 433 was hired in late February or early March 1988. About March 28, 1988, Phelps laid off the em- ployee represented by Iron Workers Local 433 for 2 days because there was not enough welding work available, and no welding work was being per- formed on one day due to windy weather. On March 30, 1988, this employee was recalled to work. On the same day, Prentiss appeared at the jobsite and complained that the employee repre- sented by Iron Workers Local 433 was not per- forming 100 percent of all the welding on the clips and also that the employee had lost 2 days of work 290 NLRB No. 33 238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD due to the layoff. Frye replied that he had only agreed to allow one Iron Workers-represented em- ployee to work with the crew, but if more than one welder was needed, the Carpenters-represented employees that were certified heavy gauge welders would also perform the welding work in order to keep up with the schedule set forth by the general contractor. On March 31, 1988, Iron Workers Local 433 set up a picket line at the Riverside jobsite and, as a result, no work was performed at the jobsite. Iron Workers Local 433 stopped the picketing when Frye, Phelps, and Carpenters Local 42L agreed to have a meeting that day. According to Frye, Pren- tiss stated at the meeting that if Iron Workers Local 433 came to the Riverside jobsite and ob- served that the Iron Workers-represented employ- ees were not doing 100 percent of the welding, picketing would resume. The parties failed to reach an agreement at this meeting. B. Work in Dispute The disputed work involves the attachment, through welding, of steel angles to the steel sub- frames of buildings for use in the alignment and at- tachment of Dryvit panels on the exterior of build- ings at a jobsite located at 9997 County Farm Road2 in Riverside, California. C. Contentions of the Parties The Employer contends that the work in dispute should be awarded to employees represented by Carpenters Local 42L based on the fact that it has a collective-bargaining agreement with the Carpen- ters, employer preference, past practice, area and industry practice, relative skill, and economy and efficiency of operation. Carpenters Local 42L contends that the work in dispute should be awarded to the Carpenters-repre- sented employees based on the fact that it has a collective-bargaining agreement with the Employ- er, past practice, area and industry practice, rela- tive skill, and economy and efficiency of operation. 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 on a method for the voluntary adjustment of the dis- pute. 2 The jobsite is referred to as 9997 County Farm Road in the hearing transcript and as 9998 County Farm Road in the February 24, 1988 letter from the Employer assigning the disputed work to employees represented by Carpenters Local 42L As indicated above, sometime in January or Feb- ruary 1988, the labor representative for Iron Work- ers Local 433 told the Employer that there was "the possibility" that the Riverside job would be picketed if the Employer did not use Iron Work- ers-represented employees to perform the disputed work. On March 31, 1988, Iron Workers Local 433 set up a picket line at the Riverside jobsite. Fur- thermore, the Employer and Carpenters Local 42L stipulated at the hearing that they had been unable to agree on a method for the voluntary adjustment of the work in dispute. We find reasonable cause to believe that a viola- tion of Section 8(b)(4)(D) has occurred and that there exists no agreed method for voluntary adjust- ment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dis- pute is properly before the Board for determina- tion. 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 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the determination of this dispute. 1. Certification and collective-bargaining agreements There was no evidence presented that either Union has been certified by the Board as the col- lective-bargaining representative of any of the em- ployees involved. Accordingly, this factor is not helpful in determining the dispute. Iron Workers Local 433 and David Frye Com- panies have no collective-bargaining agreement. David Frye Companies is signatory to a master labor agreement between United General Contrac- tors, Inc. and United Brotherhood of Carpenters and Joiners of America. By virtue of the Employ- er's being signatory to this agreement, the Employ- er is also signatory to the Drywall/Lathing Master Agreement between California State Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO and California Drywall Con- tractors Association when it performs lathing or drywall work. Both agreements cover the disputed work. Accordingly, we find that this factor favors IRON WORKERS LOCAL 433 (FRYE CO.) 239 an assignment of the work to employees represent- ed by Carpenters Local 42L. 2. Company preference and past practice David Frye, president of the Employer, testified that David Frye Companies prefers to assign the disputed work to employees represented by Car- penters Local 42L. David Frye Companies has hired employees represented by the Carpenters Union in the past to perform similar work at Shell Plaza, California Corporate Towers, and the San Joaquin Medical Office Building. The Employer has never previously used employees represented by Iron Workers Local 433 to perform such work. These factors favor an assignment of the work in dispute • to employees represented by Carpenters Local 42L. 3. Area and industry practice David Frye testified that other companies in the Southern California area, such as E. F. Brady Company, Pierce Enterprises, The Rutherford Company, George Raymond Company,' • and Design Cast West, have utilized employees repre- sented by the Carpenters Union to perform work similar to the disputed work. Frye also testified that the practice in the industry is to use Carpen- ters-represented employees to perform such work. Accordingly, these factors favor an assignment of the work in dispute to employees represented by Carpenters Local 42L. 4. Relative skills David Frye testified that the skill required of the employees to perform the disputed work entails welding, heavy gauge welding, experience in fine alignment within an eighth of an inch of segments of 10 feet, a basic concept of how the clip is at- tached and positioned, and reading blueprints and positioning angles in accordance 'with blueprints. According to Frye, the employees represented by Carpenters Local 42L possess such skills and have been trained to work within smaller tolerances than Iron Workers-represented employees. There is no record evidence indicating that employees repre- sented by Iron Workers Local 433 possess skills comparable to those of Carpenters-represented em- ployees. Accordingly, we find this factor favors an assignment of the disputed work to employees rep- resented by Carpenters Local 42L. 5. Economy and efficiency of operation Both David Frye and Uri David Laub, a busi- ness representative of Carpenters Local 42L, testi- fied that Carpenters-represented employees are more versatile than Iron Workers-represented em- ployees as the former are able to perform different tasks on the jobsite, whereas the latter are limited to welding. Based on the above,-we find that the factor of economy and efficiency of operation favors an award to employees represented by Car- penters Local 42L.3 Conclusions After considering all the relevant factors, we conclude that employees represented by Carpenters Local 42L are entitled to perform the work in dis- pute. We reach this conclusion relying on collec- tive-bargaining agreements, employer preference and past practice, area and industry practice, rela- tive skills, and economy and efficiency of oper- ation. In making this determination, we are award- ing the work to employees represented-by Carpen- ters Local 42L, not to that Union or its members. The determination is limited to the controversy that gave rise to this proceeding.4 DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. - 1. Employees of David t Frye Companies, Inc., represented by Carpenters Local 42L, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are entitled to perform the work of the attachment, through welding, of steel angles to the steel subframes of buildings for use in the align- ment and attachment of Dryvit panels on the exte- rior of buildings at the jobsite located at 9997 County Farm Road, Riverside, California. 2. International Association of Bridge, Structural and Ornamental Iron Workers, Local No. 433 is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force David Frye Compa- nies, Inc. to assign the disputed work to employees represented by it. 3. Within 10 days of this date, Iron Workers Local 433 shall notify the Regional Director for Region 21 in writing whether it will refrain from forcing David Frye -Companies, Inc., by means proscribed by Section 8(b)(4)(D), to assign the dis- puted work in a manner inconsistent with this de- termination. 3 Although the Employer and Carpenters Local 42L argued that using Carpenters-represented employees was less costly, we do not consider wage differentials in reaching our decision See Painters Local 91 (Frank M Burson), 265 NLRB 1685, 1687 (1982), Cincinnati Mailers (S Rosen- thal & Co), 265 NLRB 1052, 1055 fn 10 (1982) 4 At the hearing, the counsel for Carpenters Local 42L asked that the Board issue a broad award We find that a broad award is not justified by the proffered evidence See Bricklayers Local I (Lembke Construction), 194 NLRB 649, 654 (1971)