Intl. Assn. of Bridge, etc., Loc. No. 229

National Labor Relations Board - Board DecisionsJun 30, 1975

218 N.L.R.B. 1144 (N.L.R.B. 1975)

1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Association of Bridge, Structural and Ornamental Iron Workers , Local No. 229, AFL- CIO and M. H. Golden Construction Co. and San Diego County District Council of Carpenters of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case 21-CD-391 June 30, 1975 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by M. H. Golden Construction Co., herein called the Employer, alleging that Internation- al Association of Bridge, Structural and Ornamental Iron Workers, Local No. 229, AFL-CIO, herein called the Iron Workers, had violated Section 8(b)(4)(i)" and (ii)(D) of the Act by engaging in certain conduct with an object of forcing or requiring the Employer to assign particular work to employees represented by the Iron Workers rather than to employees represented by San Diego County District Council of Carpenters of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the Carpenters. Pursuant to notice, a hearing was held before Hearing -Officer Harry S. Malcolm on March 24 and 25, 1975. All parties appeared at the hearing and were afforded full opportunity to' be heard, to examine and cross-examine witnesses, and to present evidence bearing on the issues. Thereafter, the Iron Workers and the Carpenters filed briefs. Pursuant to ^ the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Hearing Officer made at the hearing and fmds that they are free from prejudicial error. The rulings are hereby affirmed. The Board has considered the briefs and the entire record in this case and hereby makes the following findings: 1. THE BUSINESS OF THE EMPLOYER M. H. Golden Construction Co. is a California corporation engaged in the business of general contracting at construction sites in the Southern California area. During the 12-month period ending December 31, 1974, it purchased and received goods, materials, and supplies valued in excess of $50,000 218 NLRB No. 173 directly from suppliers located outside the State of California. Accordingly, we find, and the, parties have stipulated, that the Employer is an employer within the meaning of Section 2(2)' of the Act; it is engaged in commerce within the, meaning of Section 2(6) and (7) of the Act; and it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we And, that Interna- tional Association of Bridge, Structural and ,Orna- mental'lron Workers, Local 229, AFL-CIO, and San Diego County District Council of Carpenters 'of 'the United Brotherhood of Carpenters and Joiners-of America, AFL-CIO, are labor organizations within the meaning of Section 2(5)' of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The Employer is in the process of building a multistory steel frame office building in the business district in San Diego . Most ofthe construction work is performed by subcontractors hired by the Employ- er to work on various stages of the project. These subcontractors employ members of different unions, including the Iron Workers and Carpenters, each of which has a particular function in relation to the building. After, the foundation is built , the actual construc- tion of the building is begun . Steel columns , beams, and girders are set by employees represented by the Iron Workers . Metal decking is laid for the floors and welded wire mesh is installed over the decking, both of these jobs being performed by ironworkers. Sleeves made of various materials are installed by whichever ' craft has use for them at a later time. Electricians then put down the wire conduit . Before the concrete for the floor is poured , other metal or steel items to be later embedded in the concrete are attached to the metal decking. Although the ironworkers perform a wide variety of jobs of a permanent nature prior to the time the concrete is poured , carpenters do not perform any such work on the building , apart from the work in dispute . They perform such tasks as putting up wooden handrails , covering openings, and installing other safety devices designed to be temporary items. After the embedded items are in place, carpenters put in the edge forms (which contain concrete at the perimeter of the building) for construction joints and blackouts for elevator sills . Laborers then pour the concrete floor. The embedded items , which are installed prior to the concrete floor being poured, are anchor bolts, INTL. ASSN . OF BRIDGE, ETC., LOC. NO. 229 1145 clip angles , plates, and related fastening accessories attached to the metal decking (flooring) system. These items are installed on each floor to provide fastening at a later date for aluminum fins , which are part of the curtain wall system. The work in dispute is the installation of the clip angle system , which consists of the installation of the various embedded items previously referred to. The purpose of the system is to provide support for the vertical members of the curtain wall. In a combina- tion crew with the ironworkers , the carpenters lay out and locate holes in the metal decking where the clip angle system is to be set. A clip angle is a piece of steel , approximately 24 inches long , usually in a 90-degree configuration, with a steel projection or legs , and is used to connect one piece of metal , in this case the aluminum fins, to another . The steel projection on the clip angle normally has several holes through which the anchor bolt is put . An anchor bolt is a configurated piece of metal which serves the purpose of attaching any other material permanently to the concrete or closely adjacent to the concrete . The anchor bolt is inserted through the metal deck and then through the clip angle and is fastened with a hexagonal nut. The 'anchor bolt becomes embedded in the concrete after the concrete is poured . The clip angle and anchor bolt are installed simultaneously on the Employer's project by a combination crew consisting of an ironworker and a carpenter. -B. Work in Dispute The parties did not reach agreement on a stipula- tion as to the scope of the work in dispute. The Employer and the Carpenters both agreed that the scope of the dispute concerns the assignment of the following work tasks ; The installation of anchor bolts and clip angles in the perimeter floor slab system at the construction project of the M. H. Golden Construction Co. located at 225 Broadway, San Diego, California . The position of the Iron Workers is that the scope of the dispute concerns the assignment of the., following : The installation of anchor bolts, machine bolts , stud bolts, and clip angle systems in the perimeter floor slab system to be used to attach aluminum curtain walls. The parties are in agreement that the work in dispute involves the installation of the clip angle system , consisting of anchor bolts and clip angles, and used to support curtain *alls . The perimeter floor slab system is synonymous with the metal decking system . The parties did not agree on the term used to describe the bolt which attaches the clip angle to another piece of metal , but agreed that a stud bolt is not involved . The Iron Workers claims that the bolt is a machine bolt, not an anchor bolt. It claims that an anchor bolt is called such only after it becomes embedded in concrete , and, since the work of installing the bolt is performed prior to the time the concrete is poured , the bolt cannot be called an anchor bolt. The Carpenters argues that a bolt embedded in concrete is an anchor bolt if it is embedded for the purpose of attaching any other material to it. Since the bolt installed here will eventually have concrete poured around it, the Carpenters contends that the bolt is an anchor bolt. The Carpenters would admit that if the bolt were not to be embedded in concrete it would be a machine bolt. The Carpenters conceded that if the anchor bolt were installed separately from the clip angle then its members would claim only the work of installing the anchor bolt , with the ironworkers installing the clip angle, However, since the two parts are installed simultaneously on this project , its members claim the entire installation . The Iron, Workers argues that, should the bolt in question be called an anchor bolt, its members are entitled to perform the work. C. Contentions of the Parties The Employer had assigned the work in dispute to employees represented by the Carpenters , but admits that members of either union are able to satisfactori- ly perform the work . The Carpenters agrees with the assignment , claiming that an agreement between it and the Iron Workers awards jurisdiction over the disputed work to its members. The Carpenters further contends that an assignment of the work to its members is supported by the factors of economy and efficiency. The Iron Workers claims that the work should be assigned to its members as the work is covered by its collective-bargaining agreement with the Employer. Furthermore , it claims that area and industry practice supports the award to its members, as carpenters have never installed a clip angle system in a steel frame building in the San Diego area. The Iron Workers also contends that it is more efficient for its members to perform the work, since they perform all the steel construction work preceding and following the pouring of concrete , and, since the disputed work is merely a portion of the steel erection process , to insert the carpenters into that process would cause a disruption in the continuity of the work already in progress. The Iron Workers thinks it significant that the Carpenters has conceded that a portion of the disputed work falls within its jurisdiction. The Iron Workers further contends that more of its members would be displaced from jobs than would 1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members of the Carpenters. Additionally, it claims that the interunion agreement is not applicable here, because that agreement specifically refers to anchor bolts, which it claims are not used in the Employer's clip angle system, and that, in any event, the Employer is not bound by that agreement. D. Applicability of the Statute Section 10(k) of the Act empowers the Board to determine a dispute out of which an 8(b)(4)(D) charge has arisen. However, before the Board proceeds with a. determination of the dispute, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that there is no., agreed-on method, binding on all parties, for the voluntary adjustment of the dispute. On January 10, 1975, the Employer assigned the disputed work to employees represented by the Carpenters. Prior to the assignment, the work in dispute had not been performed on the project in question either by carpenters or ironworkers. On January 13, after a discussion with the project superintendent and a representative of the Iron Workers, the Carpenters conceded that not all of the work involving the installation of the clip angle system fell within its jurisdiction, but that ironwork- ers should attach the clip angle to the underside of the metal decking. A combination crew consisting of one carpenter and one ironworker was used for the next several weeks. On January 30, Stuckey, the business agent for the Iron Workers, appeared on the jobsite and told the Employer's representatives that he had told his men that, if he were them, he would not work on a job where other men were doing his work. Stuckey stated that he had not told the ironworkers to leave, but shortly after this meeting the ironworkers left the job. The following day, the disputed work was not performed, and the ironwork- ers returned to the job. The work was again performed on February 4 utilizing carpenters. The ironworkers came to the jobsite but did not do any work. Although the project manager had contacted the Iron Workers hiring hall to obtain an ironworker to work on a combination crew, he was informed that no one would take the job. On February 5, the disputed work was not being done and the ironworkers returned. A meeting was held that day between the International Representa- tives of the Unions, but no resolution of the disagreement was reached. The ironworkers again walked off the job on February 6, and the carpenters were assigned the disputed work. A temporary restraining order was obtained ordering the iron- workers to return to the jobsite, which they did on February 7, but they performed no work. Stuckey then informed the Employer that his men would return if a combination crew was utilized. The Carpenters agreed to this, and since February 10 the work has been performed by a combination- crew of ironworkers and carpenters. In view of the conduct described above, we fmd that there is reasonable cause to believe that a violation of Section 8(b)(4)(i) and (ii)(D), has oc- curred. As there is no contention that an agreed-on method for its voluntary adjustment exists, we find that the dispute is properly before the Board for a determination under Section 10(k) of the Act. E. Merits of the Dispute 1. Collective-bargaining contracts and .certifications The parties stipulated that there are no orders or certifications of the Board awarding jurisdiction over the work in dispute to members of either union. Both unions presently have collective-bargaining agree- ments with the Employer. The Carpenters contract provides that its members will perform "[a]ll carpen- try work above or below ground . . . on all construction .... " The Iron Workers claims that its contract, unlike that of the Carpenters, specifically awards jurisdic- tion of the work in dispute to its members, relying on the following pertinent provisions of its contract: Section 3 . Craft Jurisdiction All work in connection with field fabrication and/or erection of structural, ornamental and reinforcing steel, including but not limited 'to the fabrication, erection and construction of all iron and steel . . . reinforced concrete structures or parts thereof; . . . clips, brackets, flooring, floor construction ... frames; . . . the installation of steel-tex and wire mesh of any type when used for reinforced concrete construction; erection of all curtain wall and window wall and entrances, panels .. . All reinforcing work in connection with field fabrication, handling, racking, sorting, cutting, bending, hoisting, placing, burning, welding and tying of all material used to reinforce concrete construction shall be done by Iron Workers. The Iron Workers contends that the language of its contract clearly covers the installation of the clip angle system. The Carpenters bases its claim to the disputed work on an agreement between the United Brother- hood of Carpenters and Joiners of America and the International Association of Bridge, Structural and INTL. ASSN. OF BRIDGE, ETC., LOC. NO. 229 1147 Ornamental Iron Workers. This International agree- ment was first executed in 1968 and was amended on February 1, 1974. The pertinent provisions are contained in article 2, entitled "Anchor Bolts for Foundations and Machinery": Section 1 . The handling and setting of anchor bolts by hand is the work of Carpenters. When anchor bolts are handled by power equipment, the Iron Workers shall hook on, signal and rig to point of installation. The Carpenter shall then receive, level, align, plumb and secure the anchor bolt to final position by any method. Section 2. The fabrication and refabrication and straightening of anchor bolts on the jobsite for machinery shall be performed by Carpenters. The fabrication and refabrication and straightening of anchor bolts for structural steel shall be per- formed by Iron Workers. Section 3. Setting base plates for machinery is the work of Carpenters. Setting base plates on anchor bolts for structural steel work is work of Iron Workers. There is no dispute over the fact that the anchor bolts are to be set by hand. Leslie Parker of the Carpenters testified that he refers to this agreement in his capacity as executive head of the Carpenters to resolve jurisdictional -disputes between the two unions. Parker conceded that if the clip angle were put, on to the anchor bolt at a different time, rather than setting the two simultaneously, and if the clip angle did not act to hold the anchor bolt in place until the concrete was poured, then the installation of the clip angle to the underside of the metal deck would belong to the Iron Workers, and the setting of the anchor bolt would still belong to the Carpenters. However, since in the present case the clip angles are installed simultaneously with the anchor bolt, the Carpenters claims that the installation of the entire system is covered by the International agreement. The Iron Workers claims that the Carpenters reliance on the International agreement is misplaced, as it refers only to anchor bolts and only when set in foundation or machinery. It claims that the founda- tion is the base upon which a building sets, and, as the work in dispute is performed above that base, there are no bolts set in foundation. It argues that an anchor bolt does not become an anchor bolt until concrete is poured around it, and that, before the concrete is poured, the bolt in question is in reality a machine bolt. 'Since concrete is poured after the bolt is set, the Iron Workers contends that there is no foundation in which the anchor bolts are set, and that the bolt is a machine bolt and not covered by the interunion agreement. The Iron Workers further contends that, should the Board decide that the bolts in question are anchor bolts, their installation should be performed by its members. Parker testified that neither the anchor bolt nor the clip angle is a part of the foundation prior to pouring the concrete, "because you won't be hanging any- thing to it [anchor bolt] until you pour the concrete." The work in dispute is performed prior to pouring concrete; after concrete is poured, the foundation is the portion in which the anchor bolts are embedded. Parker stated that the purpose of an anchor bolt is to fasten something else to it and the method used is to embed the bolt in concrete so it will hold and have strength. In the context of the present dispute, Parker claims that the foundation is that in which the anchor bolts are embedded. The project manager testified that a machine bolt embedded in concrete is called an anchor bolt if it is embedded for the purpose of attaching other materi- al to it. However, he admitted that the blueprints for the project refer to the bolts as machine bolts, and that if concrete were not poured the bolts would not be called anchor bolts. We conclude that the collective-bargaining con- tracts are so ambiguous as to be of little or no aid in our determination of this dispute. Furthermore, the testimony of the parties has rendered the meaning of the terms in the International agreement so unclear that it is difficult to determine to what that agreement'pertains. Accordingly, we find that neither the contracts nor the International agreement une- quivocably favors an assignment to the employees represented by one union over those represented by the other. 2. Area, craft, and industry practice The building which is now under construction by the Employer and which is the situs of the disputed work is the first building in which the Employer has used anchor bolts to hold the clip angles in place. The Employer's project manager testified that he has never worked on a building project which utilizes anchor bolts. He indicated that clip angles are normally installed by various methods which did not involve anchor bolts and hence did not require carpenters. The different methods consist of welding the clip angle in place, or using other fastening techniques performed by ironworkers. William Stuckey, business manager of the Iron Workers, testified that the process being utilized by the Employer is not new, but is similar to work done in erecting other steel frame buildings. He described the other methods used to install a clip angle system, methods which involve welding done by ironworkers, rather than the setting of anchor bolts. Although 1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD carpenters have installed machine bolts in safety devices in steel frame buildings, they have never installed or performed work on a clip angle system. Lawrence Beste , employed by a subcontractor who sets up curtain wall systems in steel frame buildings, testified that in his experience with the installation of a clip angle system in the San Diego area the work has been performed exclusively by ironworkers, and he has never seen carpenters install such a system. John Hendricks, an ironworker in San Diego County for 14 years, is presently working on the Employer's project, and is familiar with the installa- tion of a clip angle system in several buildings on which he worked in the San Diego area. He stated that the clip angle systems in each of those buildings were installed by ironworkers and that, to his knowledge, carpenters have never installed such a system in a steel frame building in the San Diego area . During his testimony, Hendricks stated that the clip angle systems on those buildings did not involve the setting of anchor bolts. He explained that different manufacturers prefer to secure the curtain wall by different methods, whether it be by clip angles , steel angles welded to structural steel, or T- clips, but that the purpose of all the different methods, including the clip angle system, is to support the curtain wall. The record evidence indicates that the practice in the San Diego area has been to assign the installation of the clip angle system to ironworkers, regardless of which of the various methods is employed to support the curtain wall system. We find that the factor of area practice favors an award to the ironworkers. 4. Economy and efficiency The Iron Workers, citing the fact that the Carpen- ters conceded a portion of the work to its members, requested that the Employer separate the anchor bolts from the clip angle, so that they could be installed separately. However, the separation of the two pieces would greatly increase the cost of setting the bolt to the Employer. The Iron Workers claims that it is more efficient for its members to perform the work, since they perform all the steel erection work before and after concrete is poured. Furthermore, since the Carpen- ters conceded that the ironworkers should attach the clip angle to the underside of the metal decking, the Iron Workers argues that to allow the Carpenters to install only the anchor bolt would interrupt the continuity of the work being performed by its members. In response to the Carpenters contention that its members should perform the installation work in its entirety, the Iron Workers argues that to insert the Carpenters into the steel erection process would still cause disruption to the continuity of the work. The Carpenters contends that it is more economi- cal for its members to perform the work, since they are paid a lower hourly rate than the ironworkers. However, we do not regard differences in wage rates as a factor. We do conclude, because of the sequence of performance in the steel erection process, that it would be more efficient for the ironworkers to perform the disputed work. 5. Skills 3. Job impact The record indicates that there is a potential for job displacement regardless of which union is awarded the work. However, the impact of such displacement on members of both unions is not so great when the nature of the services provided and the time spent on the project are considered. There is a larger number of ironworkers employed than there are carpenters, and the ironworkers are more versatile in relation to the remaining work to be performed on the project. While ironworkers spend approximately 300 man- days per floor performing all their work, carpenters spend only I man-day per floor. If the carpenters perform the disputed work, the ironworkers will not experience a significant impact in job displacement, as their services may be utilized elsewhere on the project. Similarly, since so few carpenters are employed and since the need for their services is limited, their jobs will not be greatly affected if the ironworkers are awarded the work. The disputed work is not highly skilled in nature, and neither union is more skilled than the other in its performance. Members of both unions use similar tools in the performance of both the disputed work and other work on the project, and they are approximately equal in the use of those tools in relation to the disputed work. The relative skills of members of both unions are sufficiently satisfactory to the Employer. 6. Employer preference In making the original assignment of the work to the Carpenters, the Employer did not rely on any contract, past practice, or on any of the factors which we employ in determining the dispute. While the Employer's project manager indicated that he would have continued to use carpenters for the work if the ironworkers had not complained about the assign- ment, he admitted , that the skills possessed by members of either union are sufficient to satisfy the Employer. INTL. ASSN . OF BRIDGE, ETC., LOC. NO. 229 1149 Conclusion As was present in United Brotherhood of Carpenters and Joiners of America, Local No. 171, AFL-CIO (Knowlton Construction Company),1 we have a situa- tion "in which the Employer 's assignment of the disputed tasks to [Carpenters ] instead of to [Iron Workers ] is in conflict with well-defined area practice and is affirmatively supported only by the difference in wage scales," which is not regarded by us as a determinative factor . As we noted in Knowlton, we are reluctant to disturb area practice in making our awards , absent some compelling reason, which we do not find in the present case . Additional- ly, the factor of efficiency provides further support for an award of the work to ironworkers. We therefore conclude that employees represented by the Iron Workers are entitled to the work in question, and we shall determine the dispute in their favor. In making this determination , however, we are assign- ing the disputed work to ironworkers represented by Local No. 229, and not to the Iron Workers or its members. Further, we shall confine this award to the Employer's project located at 225 Broadway, San Diego, California, the site at which this dispute arose. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceeding, the National Labor Relations Board hereby makes the following Determination of Dis- pute: Iron Workers employed by the Employer who are currently represented by International Association of Bridge, Structural and Ornamental Iron Workers, Local No. 229, AFL-CIO, are entitled to perform the work of installing the clip angle system at the Employer's project located at 225 Broadway, San Diego, California. 1 207 NLRB 406 (1973).