Local 424, International Association Of Bridge, Structural And Ornamental Iron Workers, Afl-Cio

852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Local 424, International Association of Bridge, Structural and Ornamental Ikon Workers, AFL- CIO and Overhead Door 'Company of West- chester, a Division of Overhead Door Company of Norwalk, Inc and Local 210, United Broth- erhood of Carpenters and Joiners of North America, AFL-CIO Case 34-CD-35 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT The charge in this Section 10(k) proceeding was filed September 16, 1988, by the Employer, alleg- ing that the Respondent, Local 424, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Local 424) violated Sec- tion 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 employees represented by the District Council of Carpenters of Westchester County (District Council) The hearing was held October 20, 1988, before Hearing Officer Michael C Cass The National Relations Board has delegated 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, a Connecticut corporation, is en- gaged in the assembly and installation of overhead doors with an office in Elmsford, New York, where it has, in the past year, purchased and re- ceived goods valued in excess of $50,000 directly from points outside New York 1 The Employer and Local 424 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 Local 424 is a labor organization within the meaning of Section 2(5) of the Act 2 1 We note that the record indicates that the Employer annually put chases and receives at its New York location goods valued in excess of $50000 from points located outside the State of New York Therefore we find that the Employer s operations satisfy the Boards direct inflow standards for nonretail enterprises as set forth in Siemons Mailing Service 122 NLRB 81 (1958) 2 The parties also stipulate that Local 210 United Brotherhood of Car penters and Joiners of North America AFL-CIO (Local 210) is a labor organization within the meaning of the Act Local 210 was listed on the notice of hearing but attended only part of the hearing Local 210 did II THE DISPUTE A Background and Facts of Dispute The Employer was hired as a subcontractor to install sectional aluminum and rolling steel doors at a Bridgeport, Connecticut worksite The doors are heavy and made for industrial use The Employer's own carpenter employees, who are represented by the District Council, install the doors They travel to the different worksites, usually in New York and Connecticut, to install and service the doors While unloading the sectional aluminum doors at the Bridgeport site, the employees represented by the District Council were approached by a Local 424 steward He asked to see their union cards and eventually told them he could not stop them from working that day Approximately 2 weeks later, at this same work- site, one of the carpenters represented by the Dis- trict Council was briefly working alone Two Local 424 stewards and about 18 ironworkers came into the room and surrounded him The ironwork ers claimed the work was theirs and that the car- penter should not be doing it The ironworkers re- inforced these statements by saying that something might fall on the carpenter's head One of the stew ards said he would not be able to control what his ironworkers did to the carpenter or his equipment Another carpenter represented by the District Council appeared during this incident As a result of the actions of the ironworkers, both carpenters ceased work and left the jobsite The Employer is party to a collective-bargaining agreement with the United Brotherhood of Carpen- ters and Joiners of America and to a special agree- ment with the District Council of Carpenters of Westchester County Both of these documents were submitted into evidence Pursuant to the terms of the special agreement, the District Council represents the Employer's carpenter employees Local 424 did not present any evidence that it has a collective bargaining agreement with the Em- ployer B Work in Dispute The original notice of hearing stated that the work in dispute was the installation of rolling steel doors At the hearing, the Employer attempted to broaden the scope to include the installation of sec tional aluminum doors Although Local 424 would not stipulate that both types of doors were in dis pute, it maintained that its work included the two types of doors and it submitted evidence in support not submit a brief and there is no evidence that it represents the Employ er s employees 293 NLRB No 103 IRON WORKERS LOCAL 424 (OVERHEAD DOOR) of that position At the hearing, the Employer pre- sented evidence that its work included the installa- tion of both types of doors and the Employer maintains that position in its brief The employees represented by the District Council are engaged in installing both types of doors The record as a whole convinces us that the disputed work in- volves the installation of sectional aluminum and rolling steel doors at the Employer's Bridgeport, Connecticut worksite C Contentions of the Parties The Employer contends that the work in dispute should be assigned to the employees represented by the District Council on the basis of the Employer's practice and preference, the skills involved, indus- try practice, and safety The Employer requests a broad areawide award covering parts of New York and Connecticut In its posthearing brief, Local 424 contends that it should be awarded the work based on a purport- ed interunion agreement Local 424 requests that the scope of the award be restricted to the Bridge- port, Connecticut site D Applicability of the Statute Two Local 424 stewards and approximately 18 ironworkers surrounded a lone carpenter represent- ed by the District Council at the Bridgeport, Con- necticut worksite The ironworkers claimed the work the carpenter was performing They also threatened that something might fall and hit the carpenter on the head A Local 424 steward then said he would not be able to control what his men did We find the object of these actions was to force the Employer to assign the disputed work to ironworkers represented by Local 424 See Sheet Metal Workers Local 41 (B& W Metals), 231 NLRB 122 (1977), Carpenters Local 67 (Aberthaw Construc- tion), 208 NLRB 289 (1974) 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 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 853 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 the dispute 1 Certifications and collective bargaining agreements The Employer and Local 424 stipulated at the hearing that there are no Board certifications re- garding the disputed work The Employer has a collective-bargaining agree- ment with the United Brotherhood of Carpenters and Joiners of America and has a special agree- ment with the District Council However, neither agreement specifically refers to the work in dis pute Accordingly, we find that this factor does not favor awarding the work to either group of em- ployees 2 Company preference and past practice The Employer has assigned the disputed work to employees represented by the District Council and maintains a preference for that assignment Accord- ingly, we find this factor favors awarding the dis puted work to employees represented by the Dis tact Council 3 Industry practice The evidence presented by the Employer is in- sufficient to establish what the prevailing practice in the industry is with regard to the assignment of work similar to the disputed work No evidence was presented that any employer has used employ- ees represented by Local 424 to perform this kind of work Therefore, industry practice does not favor awarding the work to either group of em ployees 4 Skills The Employer uses its own skilled employees, who are represented by the District Council These employees have on-the-job experience that the Em ployer testified is necessary to develop the required skills In addition, based on their work experience, the employees have modified their equipment spe- cifically for the tasks involved Local 424 failed to present evidence showing that employees it repre- sents possess a comparable level of skills Accord ingly, we conclude that this factor favors awarding the work to the employees represented by the Dis- trict Council 8M4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 5 Safety The doors that are the subject of this work dis- pute can weigh thousands of pounds The doors do not have hinges They are suspended in the air above a door opening and roll down to close the passageway Improper installation could be ex- tremely dangerous because a door could fall out of its supports and cause serious injury Safety factors require that the doors be installed by properly ex- perienced workers Local 424 failed to present any evidence that employees it represents possess the skills necessary for a safe installation The Employ- er presented evidence that its employees could safely install the doors Therefore, we find this factor favors awarding the disputed work to the employees represented by the District Council 6 Interunion agreements Local 424 submitted two documents in support of its claim to the disputed work Local 424 con tends that the documents are agreements between the Carpenters and Iron Workers international unions However, these documents are unsigned and are labeled "proposed" and "draft " The docu- ments do not further the position of Local 424 be cause they do not appear on their face to be bind ing agreements Accordingly, this factor is not helpful to a determination Conclusions After considering all the relevant factors, we conclude that the employees represented by the District Council are entitled to perform the work in the dispute We reach this conclusion relying on company preference, past practice, relative skills, and safety In making this determination, we are awarding the work to the employees represented by the Dis- trict Council, not to any Union or its members The determination is limited to the controversy that gave rise to this proceeding 3 DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute 1 Employees of Overhead Door Company of Westchester, a Division of Overhead Door Compa ny of Norwalk, Inc, represented by the District Council of Carpenters of Westchester County are entitled to perform the installation of sectional alu minum and rolling steel doors at the Bridgeport, Connecticut worksite 2 Local 424, International Association of Bridge, Structural and Ornamental Iron Workers, AFL- CIO, is not entitled by means proscribed by Sec- tion 8(b)(4)(D) of the Act to force the Overhead Door Company of Westchester, a Division of Overhead Door Company of Norwalk, Inc, to assign the disputed work to employees represented by it 3 Within 10 days from this date, Local 424, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, shall notify the Regional Director for Region 34 in writing whether it will refrain from forcing the Employer, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with the determination 9 The Employer is seeking a broad areawide award However because we are unable to conclude that the dispute between employees represent ed by the District Council and Local 424 is likely to recur a broad award is not appropriate Iron Workers Local 350 (Cornell & Co) 271 NLRB 1182 1185 (1984)