Bridge, Structural & Ornamental Iron Workers Local No 8, Afl-Cio (The Selmer Co.) And United Brotherhood Of Carpenters And Joiners Of America, Fox River Valley District Council, Local Union No 1146, Afl-Cio (The Selmer Co.)

222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Bridge, Structural & Ornamental Iron Workers Local No 8, AFL-CIO (The Selmer Company) and United Brotherhood of Carpenters and Joiners of America, Fox River Valley District Council, Local Union No 1146, AFL-CIO (The Selmer Company) and Wisconsin Chapter of the Associated General Contractors of America, Inc Cases 30-CD-121 and 30-CD-1221 September 30 1990 DECISION AND DETERMINATION OF DISPUTE By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT The charges in this Section 10(k) proceeding were filed on March 24 and 31 1987 2 by The Wis consin Chapter of the Associated General Contrac tors of Amenca Inc (AGC) alleging that Bridge Structural & Ornamental Iron Workers Local Union No 8 AFL-CIO (Iron Workers) and United Brotherhood of Carpenters and Joiners of America Fox River Valley District Council, Local Union No 1146 AFL-CIO (Carpenters) violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing The Selmer Company (the Em ployer) to assign certain work to employees repre sented by one of the labor organizations rather than to employees represented by the other The hearing was held on April 16 before Hearing Offi cer Gary R Johnson Thereafter the Employer 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 1 JURISDICTION The Selmer Company a Wisconsin corporation is engaged in the building construction industry at and from its facility located in Green Bay Wiscon sin where during the past fiscal year a representa tive period it purchased and received goods and materials valued in excess of $50 000 directly from sources located outside the State of Wisconsin The parties stipulate, 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 the Carpen 'On April 2 1987 the Regional Director for Region 30 issued an Order consolidating Cases 30-CD-121 and 30-CD-122 and notifying the parties that a hearing would be conducted pursuant to Sec 10(k) of the Act to resolve the jurisdictional work dispute 8 All dates refer to 1987 unless otherwise indicated ters and the Iron Workers are labor organizations within the meaning of Section 2(5) of the Act II THE DISPUTE A Background and Facts of Dispute The Employer is the general contractor for the construction and installation of machinery in a warehouse for the International Paper Company making Bounce Fabric Softener The project which began on February 23 was expected to be completed by mid June The work of moving ma chinery off trucks setting structural frames for the machinery and moving the machinery above the anchor bolts was assigned to millwrights who are represented by the Carpenters with whom the Em ployer has had a collective bargaining agreement for the past 25 years 3 The Employer is also a signatory to a standard agreement with the Iron Workers which was of fective by its terms from June 4 1984 until May 31 1987 About 2 or 3 weeks after the job started May nard Svoboda business agent for the Iron Workers visited the jobsite to inform Project Manager Leonard Martin that the Iron Workers claimed the work assigned to employees represented by the Carpenters Martin responded that all the work on this particular project was pure millwright work and that the Iron Workers should just let it go at that On March 10 Svoboda sent a letter to the Em ployer that stated Please consider this letter a formal grievance to your company which is in violation of Arti cle I, Section 4 by virtue of not employing employees of our bargaining unit in moving machinery off trucks, setting structural steel frame for the machinery and moving the ma chine to above the anchor bolt at the Interna tional Paper Warehouse in Ashwaubenon Wis consin As a remedy we are asking 8 hours for three men so far (as of this date March 10 1987) at the current wage fringe and hourly rate If we cannot resolve this matter within three (3) days after the date of this letter we will submit it to the Board of Arbitration In a letter dated March 12 Paul Lawent gen eral counsel for AGC stated in response to Svoboda s letter as follows 8 The most recent agreement between the Employer and the Carpen ters is effective by its terms from March 4 1987 until May 31 1990 291 NLRB No 31 IRON WORKERS LOCAL UNION 8 (SELMER CO) 223 The Selmer Company has asked me to respond to your letter of March 10 1987 regarding work performed at the International Paper Warehouse in Ashwaubenon Wisconsin The work described in your letter has been claimed by and traditionally performed by the millwrights We properly assigned this work and we are denying your grievance On March 16 in a letter addressed to the Allied Construction Employers Association Svoboda sub mitted the Union s grievance named two repre sentatives to sit on the board of arbitration and re quested on behalf of the Iron Workers that the board of arbitration schedule a hearing to resolve the grievance against the Employer Thereafter about March 30 after learning of the Iron Work ers claim the Carpenters threatened the Employer that the millwrights would walk off the job and possibly strike it if any part of their work was as signed to employees represented by the Iron Work ers B Work in Dispute The disputed work consists of moving machinery off trucks setting structural steel frames for the machinery and moving the machinery above the anchor bolts at the International Paper Warehouse jobsite in Ashwaubenon , Wisconsin C Contentions of the Parties The Employer and the Carpenters contend that the work in dispute should be awarded to employ ees represented by the Carpenters on the basis of the factors of collective bargaining agreements company preference, past practice area practice, economy and efficiency of operation and relative skills The Charging Party (the AGC) contends that the Carpenters threat to strike and the Iron Workers filing of a grievance constitute reasonable cause to believe that both Unions violated Section 8(b)(4)(D) The Iron Workers presented no testimony at the hearing to support its claim that the disputed work should be assigned to employees represented by the Iron Workers pute 4 In order to find reasonable cause to believe Section 8(b)(4)(D) has been violated there must be evidence that one group of employees has exert ed improper pressure on the Employer to compel it to assign certain work to that group of employees rather than to another group which also seeks the work Auto Workers (General Motors) 239 NLRB 365 366 (1978) At the beginning of the dispute employees rep resented by the Carpenters were assigned to per form the work in dispute The Iron Workers insist ed that the work belonged to employees whom it represented filed a grievance with the Employer and advised it that the matter would be submitted to the board of arbitration if the disputed work was not reassigned In addition the Iron Workers re quested that compensation for 8 hours work at the current wage fringe benefits and hourly rates be paid to three of its men Accordingly there are competing claims to the disputed work between rival employee groups 5 In response to the Iron Workers claim to the work in dispute the Carpen tern threatened to walk off the job There is no evi dence that this threat was not genuine and there fore there is reasonable cause to believe that the Carpenters used proscribed means to enforce its claims to the disputed work Based on our findings above we find reasonable cause to believe that the Carpenters violated Sec tion 8(b)(4)(D)6 and that there exists no agreed on method for voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act Accordingly we find that the dispute is properly before the Board for determination E Merits of the Dispute Section 10(k) requires the Board to make an of 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 each particular case Machinists Lodge 1743 (Jones Construction) 135 NLRB 1402 (1962) 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 4 The parties stipulated at the hearing that there is no agreed-on method for the voluntary adjustment of the instant dispute 6 See Massachusetts Laborers District Council (0 Connell s Sons) 288 NLRB 53 (1988) e If the Iron Workers had been the only Respondent in this proceed mg we would have quashed the notice of hearing under Longshoremen ILWU Local 7 (Georgia Pacific) 291 NLRB 89 which holds that the mere fling of an arguably meritorious work assignment grievance prior to a 10(k) determination by the Board does not constitute coercion within the meaning of Sec 8(b)(4)(ii)(D) of the Act Accordingly we refer Case 30-CD-121 to the Regional Director for further appropriate action 224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 labor organization has been certified by the Board as the collective bargaining representative for any of the employees involved Accordingly this factor is not helpful in determining the dispute The Employer has had a collective bargaining agreement with the Carpenters for the past 25 years the most recent of which expires May 31 1990 The Employer was also signatory to a stand and agreement with the Iron Workers that expired by its terms on May 31 1987 Both the Carpenters and the Iron Workers insist that their collective bargaining agreements cover the disputed work The Carpenters agreement specifically mentions the disputed work under the section on Trade Au tonomy (Exh B sec A p 33) The trade autonomy of the United Brother hood of Carpenters and Joiners of America consists of the milling, fashioning joining as sembling erection fastening or dismantling of all material of wood plastic metal fiber cork and composition and all other substitute mate rials The handling cleaning erecting install ing and dismantling of machinery equipment and all materials used by members of the United Brotherhood In addition the Iron Workers agreement ap pears to claim the same work under its provisions for Jurisdictional Claims (art 1 sec 1 p 1) The Union claims for the employees represent ed by it the following work The fabrication erection and construction of all iron and steel concrete structures or parts thereof metal forms and false work pertaining to con crete construction the moving hoisting and lowering of machinery and placing of same on foundations Including budges cranes derricks buildings and vessels the loading, unloading necessary maintenance, erection, installation removal wrecking and dismantling of all the above Under these circumstances we find that this factor does not favor either group of employees in volved 2 Employer preference and past practice The Employer prefers that the work in dispute be performed by its millwright employees who are represented by the Carpenters Michael Johnson company vice president testified that the Employ er has always assigned the disputed work to mill wright employees represented by the Carpenters and prefers to utilize millwrights for this kind of work We find that the factor of employer preference and past practice favors an award to Carpenters represented employees 3 Area practice According to the uncontradicted testimony of Vice President Michael Johnson and James Moore business representative for the Carpenters several contractors in the Fox River Valley area regularly assign work similar to the work in dispute herein to millwrights Therefore this factor favors an award of the disputed work to the employees represented by the Carpenters 4 Relative skills No special skills are required for unloading the machinery from the trucks however according to the testimony of Carpenters business representative Moore the setting of the structural steel frames for the machinery and the moving of the machinery above the anchor bolts require special skills that the ironworkers do not possess The record estab lashes that the Carpenters represented millwrights receive special training and acquire the necessary skills for leveling aligning plumbing and squaring the various parts of the machinery If the equip ment is not properly leveled aligned plumbed or squared the machine will not work There are also special skills needed to move the machinery to above the anchor bolts the millwrights attend spe cial classes concerning this task and receive ap proximately 40 hours training on a semiannual basis Accordingly we find this factor favors an award of the disputed work to the employees represented by the Carpenters 5 Economy and efficiency of operations We find based on the testimony of Moore and Johnson that utilizing the Carpenters represented millwrights is more economical for the Employer s customers and efficient for the operations of the Employer because the millwrights are on the job site at all times and ironworkers are not (More than 95 percent of the work on this project is pure millwright work ) Their testimony also establishes that the work claimed by the Iron Workers would constitute less than 2 percent of the work on the job Accordingly we conclude that the factors of of ficiency and economy of operations favor awarding IRON WORKERS LOCAL UNION 8 (SELMER CO) the work to employees represented by the Carpen ters Conclusions After considering all the relevant factors we conclude that employees represented by the Car penters are entitled to perform the work in dispute We reach this conclusion relying on the factors of employer preference and past practices area prac tice relative skills and economy and efficiency of operations In making this determination we are awarding the work to the millwright employees represented by the Carpenters not to that Union or its members The determination is limited to the controversy that gave rise to this proceeding DETERMINATION OF DISPUTE 225 The National Labor Relations Board makes the following Determination of Dispute Employees of The Selmer Company represented by United Brotherhood of Carpenters and Joiners of America, Fox River Valley District Council Local Union No 1146, AFL-CIO are entitled to perform the work of unloading the machinery off trucks setting the structural steel framing for the machinery and moving the machinery above the anchor bolts at the International Paper Warehouse in Ashwaubenon Wisconsin