Arco Inc.

National Labor Relations Board - Board Decisions

Apr 15, 1998

325 N.L.R.B. 658 (N.L.R.B. 1998)

658
325 NLRB No. 116
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1997 unless otherwise indicated.
International Association of Bridge, Structural and
Ornamental Iron Workers, Local 395 and
Arco, Inc. and Northwest Indiana District
Council of the United Brotherhood of Car-
penters and Joiners of America, AFL–CIO,
Party in Interest. Case 13–CD–546
April 15, 1998
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FOX, HURTGEN, AND BRAME
The charge in this Section 10(k) proceeding was
filed on October 16, 1997, by the Employer, alleging
that the Respondent, International Union of Bridge,
Structural and Ornamental Iron Workers, Local 395
(Iron Workers), violated Section 8(b)(4)(D) of the Na-
tional Labor Relations Act by engaging in proscribed
activity with an object of forcing the Employer to as-
sign certain work to employees it represents rather than
to employees represented by Northwest Indiana Dis-
trict Council of the United Brotherhood of Carpenters
and Joiners of America (Carpenters). The hearing was
held on November 10, 1997, before Hearing Officer
Diane Ehmich.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.
I. JURISDICTION
Arco, Inc. (Arco), an Ohio corporation, is engaged
in the business of general construction and food serv-
ice equipment sales and installation, including food re-
frigeration equipment, from its facility in Toledo,
Ohio, where it annually ships goods valued in excess
of $50,000 from its facility located in Toledo, Ohio, to
customers located outside the State of Ohio. 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 and Carpenters are labor organizations
within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
On August 8, 1997,1 Arco notified the Carpenters
that Arco’s bid to construct Meijer store #165 con-
templated the assignment of certain work to employees
represented by the Carpenters. The work included the
erection and installation of metal bumper posts or goal
posts. Thereafter Arco commenced work on the
project. On October 15, Arco’s crew of three car-
penters and one apprentice commenced setting bumper
posts or goal posts. They set one of the bumper posts,
including plumbing, leveling, and bracing. In addition,
the crew unloaded four or five additional bumper posts
from a delivery truck. Thereafter, more than a dozen
ironworkers arrived at the jobsite. The steward threat-
ened the Arco foreman with a work stoppage if em-
ployees represented by Iron Workers did not perform
the bumper post work. As a result, Arco’s crew and
the delivery truck left the jobsite, the crew failed to
unload the rest of the bumper posts or to set more
bumper posts, and the ironworkers dismantled the
bumper post already erected. On October 16, Arco
filed the charge in this case.
B. Work in Dispute
The disputed work involves the erection and installa-
tion of metal bumper posts or goal posts at Meijer’s
store #165 jobsite located at 611 West U.S. Route 30,
Merrillville, Indiana.
C. Contentions of the Parties
Arco contends that there is reasonable cause to be-
lieve that the Iron Workers violated Section 8(b)(4)(D)
of the Act. Arco further contends that the work in dis-
pute should be assigned to employees represented by
the Carpenters on the basis of employer preference, in-
dustry and area practices; relative skills and safety; and
economy and efficiency of operations.
Carpenters contend that the work in dispute should
be assigned to employees represented by the Car-
penters for the same reasons asserted by Arco.
Iron Workers did not appear at the hearing and stat-
ed no position.
D. Applicability of the Statute
Before the Board may proceed with a determination
of the dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated and that
the parties have not agreed on a method for the vol-
untary adjustment of the dispute. The Board requires
that there be reasonable cause to believe (1) that a
labor organization has used proscribed means to en-
force its claim to the work in dispute, and (2) that
there are competing claims to the disputed work be-
tween rival groups of employees.
On October 15, Iron Workers claimed the work in
dispute and threatened a work stoppage if Arco failed
to allow employees represented by Iron Workers to
perform the disputed work. Furthermore, on that date,
Iron Workers caused a work stoppage in their attempt
to enforce their claim to the disputed work. All dis-
puted work ceased and iron workers dismantled the
disputed work already performed by Arco’s crew. In
these circumstances, we find reasonable cause to be-
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659IRON WORKERS LOCAL 395 (ARCO, INC.)
2 Arco and Carpenters stipulated that there is no agreed-upon or
approved method for a voluntary adjustment of the dispute to which
all parties are bound. There is no evidence in the record of such an
agreement.
3 The record reveals that the disputed work was completed by em-
ployees represented by the Carpenters. It is well established that the
mere fact that disputed work has been completed does not render a
jurisdictional dispute moot where nothing indicates that similar dis-
putes are unlikely to recur. See, e.g., Operating Engineers Local 150
(Martin Cement), 284 NLRB 858, 860 fn. 4 (1987). There is no in-
dication here that similar disputes will not occur in the future.
4 These documents show bids on June 1, 1994; March 15, 1995;
April 24, 1995; April 16, 1996; February 17, 1997; and April 28,
1997. They included the performance of the disputed work by em-
ployees represented by Carpenters on Meijer stores in Indiana, Ohio,
and Kentucky.
5 These documents show bids from Power and Sons Construction
Company, Inc., Indiana, in June 1996; and Weber Company, Inc.,
Ohio, and Pennsylvania, in May 1988.
lieve that a violation of Section 8(b)(4)(D) has oc-
curred.
Having found that there is reasonable cause to be-
lieve that a violation of Section 8(b)(4)(D) has oc-
curred and, as we find no agreed-upon method for vol-
untary adjustment of the dispute within the meaning of
Section 10(k) of the Act,2 we conclude that the dispute
is properly before the Board for determination.3
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative 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 balancing the factors in-
volved in a particular case. Machinists Local 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of the dispute.
1. Certifications and collective-bargaining
agreements
Arco and Carpenters stipulated that there is no
Board order or certification determining the bargaining
representative of the employees performing the work in
dispute. Arco and Carpenters have had a collective-
bargaining relationship which has been embodied in a
series of collective-bargaining agreements, the most re-
cent of which was executed on October 7, 1996, and
is currently in effect. Arco has no contractual relation-
ship or collective-bargaining agreement with Iron
Workers. Accordingly, this factor favors an award of
the work in dispute to employees represented by Car-
penters.
2. Employer preference and past practice
We find that Arco prefers to assign the work in dis-
pute to employees represented by Carpenters. As indi-
cated above, on August 8, Arco notified Carpenters
that in bidding for Meijer store #165, Arco had as-
signed the work to employees represented by Car-
penters. Fritz Kunz, Arco’s estimator project manager,
testified that employees represented by Carpenters
have always performed this type of work. Kunz, him-
self, was aware of at least 15 Arco projects involving
the same contractor as the one involved in this case
where Arco used employees represented by Carpenters
to perform the disputed work. Arco provided docu-
mentation for its assignment of the disputed work to
employees represented by Carpenters on many of its
bids from June 1, 1994, until the current bid.4 We find
that this factor favors an award of the disputed work
to employees represented by Carpenters.
3. Area and industry practice
Kunz testified that, in his experience, the disputed
work had always been performed by employees rep-
resented by Carpenters. Paul Hernandez, an official of
the North West District Council of Carpenters, testified
that the disputed work was conventionally awarded to
carpenters by most general contractors or subcontrac-
tors. Arco provided documentation showing that other
employers assigned the disputed work to employees
represented by Carpenters.5 We find that this factor fa-
vors an award of the disputed work to employees rep-
resented by Carpenters.
4. Relative skills and safety
Hernandez testified that the Carpenters’ 4-year ap-
prenticeship program specifically includes training in
the disputed work. Apprentices ‘‘would build the
forms, set up the grade and elevations . . . [m]ake
sure that it’s plumb and level.’’ Hernandez also testi-
fied that Iron Workers have no comparable training.
We find that this factor favors an award of the dis-
puted work to employees represented by Carpenters.
5. Economy and efficiency of operations
Kunz testified that employees represented by Car-
penters would be able to do the disputed work in 3
days. He testified that Mike Sumners, an Ironworkers
representative, told him that it would take 30 days to
do the disputed work. Hernandez testified that it was
far more efficient to have employees represented by
Carpenters perform the disputed work, rather than di-
vide the work among separate crafts and employees
represented by several unions. We find that this factor
favors an award of the disputed work to employees
represented by Carpenters.
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660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Conclusion
After considering all the relevant factors, we con-
clude that employees represented by the Carpenters are
entitled to perform the work in dispute. We reach this
conclusion relying on the factors of collective-bargain-
ing agreements, employer preference and past practice,
area and industry practice, relative skills and safety,
and economy and efficiency of operations. In making
this determination, we are awarding the work to em-
ployees represented by the Carpenters, not to that
Union or its members. The determination is limited to
the project known as the Meijer’s store #165 jobsite
located at 611 West U.S. 30, Merrillville, Indiana.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of Arco, Inc. represented by North-
west Indiana District Council of the United Brother-
hood of Carpenters and Joiners of America are entitled
to perform the erection and installation of metal bump-
er posts or goal posts at Meijer store #165 jobsite lo-
cated at 611 West U.S. 30, Merrillville, Indiana.
2. International Association of Bridge, Structural and
Ornamental Iron Workers, Local 395 is not entitled by
means proscribed by Section 8(b)(4)(D) of the Act to
force Arco, Inc., to assign the disputed work to em-
ployees represented by it.
3. Within 10 days from this date, International Asso-
ciation of Bridge, Structural and Ornamental Iron
Workers, Local 395 shall notify the Regional Director
for Region 13 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 in-
consistent with this determination.
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