Iron Workers, Local 172

National Labor Relations Board - Board Decisions

Feb 14, 1973

201 N.L.R.B. 848 (N.L.R.B. 1973)

848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Bridge , Structural and
Ornamental Ironworkers , Local 172, AFL-CIO
and Whalen Erecting Company of Ohio, Inc.' and
Wander, Inc. and R. J. Mason , Inc. and Local 200,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO. Cases 9-CD-268, 9-CD
-269, and 9-CD-270
February 14, 1973
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 Whalen Erecting Company of
Ohio, Inc., herein called Whalen ; Wander, Inc.,
herein called Wander ; and R . J. Mason , Inc., herein
called Mason , alleging that International Association
of Bridge , Structural and Ornamental Ironworkers,
Local 172, AFL-CIO, herein called Respondent, has
violated Section 8(b)(4)(D ) of the Act . A hearing was
held before Hearing Officer William C. Mittendorf
on November 15, 1972. Whalen , Wander, Mason,
Respondent , and Local 200, United Brotherhood of
Carpenters and Joiners of America , AFL-CIO,
herein called Carpenters , appeared at the hearing
and were afforded full opportunity to be heard, to
examine and cross-examine witnesses , and to adduce
evidence bearing on the issues . Thereafter, a brief
was filed by Wander and Mason , the Employers
herein, which has been duly considered.
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 rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in this proceeding the
Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYERS
The parties stipulated, and we find, that Wander
and Mason, Employers and Charging Parties herein,
are Ohio corporations engaged in the building and
construction industry as general contractors. During
the past calendar year, which is a representative
period, gross sales of each exceeded $500,000, and
during the same period each purchased goods from
outside the State of Ohio of an amount in excess of
I At the hearing , the attorney for Whalen signed a request to withdraw
its charge , and both Respondent and the Carpenters agreed that this was
$50,000. Accordingly, we find that Wander and
Mason are engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and it will
effectuate the purposes of the Act to assert jurisdic-
tion herein.
II. THE LABOR ORGANIZATIONS INVOLVE
The parties stipulated, and we find, that the
Respondent and the Carpenters are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts
Wander has a contract with the city of Columbus
at the Scioto River Treatment Plant to perform the
concrete work and piping on an addition to the plant.
In addition, Wander has a contract at the Southerly
Sewage Treatment Plant for sewage treatment
facilities . The work of installing metal water stops,
sluice gates, and thimbles, the work in dispute
described below, is being performed at both projects.
Mason is a subcontractor at the Southerly Sewage
Treatment Plant performing process piping, includ-
ing the installation of sluice gates and thimbles.
On September 8, 1972, James Malloy, president of
Respondent, told Lawrence Davy, Wander's project
superintendent, that he was shutting down until he
received a letter from Davy stating that all embedded
items would be done by ironworkers. In addition,
Malloy said that if he did not receive that letter, the
Frank Road job, another of Wander's projects,
would be shut down the next day, and if still no letter
came , the following day the Trabue Road project
would be shut down. When Wander did not send the
requested letter, it suffered walkouts of ironworkers
at its other projects, including the Southerly Sewage
Treatment Plant.
On the same day, Malloy, accompanied this time
by Pat Richards, business agent of the Respondent,
went to the Southerly treatment plant and confront-
ed Russell Mason, president of Mason. Prior to this
time, Mason had informed Malloy that the rigging of
the sluice gates had been assigned to carpenters. On
September 8, Malloy stated that if there was no
change in the assignment there would be no
ironworkers reporting to the job on the following
Monday. Mason answered by saying that they had
been following the practice of previous contracts and
it was their decision to leave the work with the
Carpenters. On Monday, September 11, James
Mason, vice president and general manager, was at
the Southerly project when Malloy again claimed the
not inconsistent with any action taken by Whalen
201 NLRB No. 121
IRON WORKERS , LOCAL 172 849
sluice gates and thimbles as the work of ironworkers.
Mason informed him that it had been delegated to
carpenters and would continue to be done by them.
At noon that day the ironworkers on the payroll of
Whalen, the subcontractor , left that project and
remained off for about 5 working days.
that the assignment enhances the efficiency of the
Employers ' operations.
The Respondent contends that both Employers
should be bound by the work assignment agreed
upon between the Internationals of the Carpenters
and Respondent.
B. The Work in Dispute
The work in dispute involves the installation of
embedded metal water stops at the city of Columbus,
Ohio , jobsite at its Scioto River plant, and the rigging
of sluice gates and thimbles at the city of Columbus,
Ohio , jobsite at its Southerly plant.
The water stops, made from a flat sheet of 1/8 by 8
inch steel which comes in varying lengths up to
approximately 30 feet, go into the joint of a concrete
wall to keep tanks from leaking. The stop is first
centered in a concrete pour and located in a position
which permits the pouring concrete in the bottom
pour up to a level of 4 inches. When the second pour
is made, the other 4 inches of the stop- falls in the
upper half of the wall section.
A sluice gate is a water -control gate used to control
water flow between tanks in water and sewage
treatment plant projects. Prior to its installation, a
thimble is incorporated into the form and imbedded
in concrete for the subsequent installation of the
sluice gate . Upon arrival of the sluice gates and
thimbles at the jobsite , the carpenters put a cable
choker around each item, hook it up, and remove it
from the truck with the use of a crane . When the item
is needed a carpenter , with the aid of a laborer, puts
a choker around it and hooks it, and then it is picked
up with the crane and set on the back of a boom
truck. The truck is then driven to the point of
installation where the item is rehooked by a
carpenter, hoisted into the air, and swung into
position . Before the thimble is installed, a carpenter
puts chalk marks on the wall where it will be located
and then places a template on the wall. The
carpenter next takes a bracing bit to drill through the
forms and bolts the thimble into position . Following
the insertion of the sluice gate into the thimble, the
two components are then bolted together to form a
permanent water seal. The record discloses that
sluice gates and thimbles come in varying sizes
ranging from 8 feet to 6 inches , but it is only the
heavier ones that are claimed by the Respondent.
C. Contentions of the,Parties
The Employers contend that the work should be
left as assigned to a composite crew of carpenters
and laborers , that the assignment is consistent with
the Employers' contracts with the Carpenters, that
the assignment follows the Employers' practice, and
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of 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 there is no - agreed-upon method for the
voluntary adjustment of the dispute.,
As noted, the record discloses that Malloy made
various demands that the Employers reassign the
work to ironworkers, and he threatened to (and did)
shut down the job if that assignment was not made.
Accordingly, and without ruling on the credibility of
the testimony in issue , we are satisfied that there is
reasonable cause to believe a violation of Section
8(b)(4)(D) did occur.
The record shows that neither Employer herein is
bound to the National Joint Board . However, the
Respondent contends that Wander had previously
agreed to assign the attaching of embedded metal to
reinforcing steel to ironworkers, and Respondent
introduced a jurisdictional dispute form submitted
by an individual claimed at the hearing to be James
Bunch, a representative of Respondent, naming the
Ironworkers , Carpenters , and Wander Representa-
tive C. Smith , in support of its position. When
questioned about the form, Smith denied that he ever
saw it or even participated in any discussion about
the subject. The hearing officer received the form
into evidence "notwithstanding the fact that [it is] an
intra-union communication between the Internation-
al and 172." In our opinion , this form does not
constitute an agreement to assign this work to
members of Respondent , and we therefore find that
this dispute is properly before the Board for
determination.
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work
after giving due consideration to various relevant
factors.
1. Certification and collective-bargaining
agreements
Neither of the-labor organizations involved -herein
has been certified as collective-bargaining represent-
ative for a unit of the Employers ' employees.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While, neither , Employer has a contract with
Respondent, each has signed collective-bargaining
agreements with both the Carpenters and Local 423,
Laborers International Union of North America,
AFL-CIO. The contract with the Carpenters pro-
vides that carpenters are to perform "milling,
fashioning, joining , assembling, erecting , fastening or
dismantling of all material of wood , plastic , metal,
fiber , cork and composition , and all other substitute
materials," together with "the handling, cleaning,
erecting , installing and dismantling of . . . all
materials used by" members of the Carpenters. In
addition , the contract specifies that jurisdiction
includes the "welding , rigging and the use of any
instrument or tool for layout work incidental to the
trade ." The Respondent contends that an agreement
between the Ironworkers and Carpenters Interna-
tionals awards the work in dispute to members of
Respondent , but we note that the Employers herein
are not parties to the agreement . We therefore find
that the contract with the Carpenters favors the
Employers' assignment.
-2. Employer and area practice
It is uncontradicted that both Wander and Mason
for the past 20 years have assigned the work in
dispute to a composite crew of carpenters and
laborers . In addition, the record discloses that other
contractors in the area utilize carpenters to perform
this work. The employer and area practice , there-
fore, favor the Employers' assignment.
3. Skills, efficiency , and economy of
operation
It appears from the record that either craft is
capable of performing the work in dispute and each
has available to it the tools necessary to do the job,
so that the factor of skill is not useful in making our
determination herein . In addition, the record shows
that the rigging and installation of the embedded
metal stop is an intermittent process, and there will
be days on which none of these items will be
installed . Thus, it was asserted that the Employers
will receive a different ironworker each time they
seek a referral . Currently, the Employers hire a
carpenter at the beginning of a project and train him
for the duration of that work ; in contrast , each time a
new ironworker would be referred he would have to
be trained in the installation of the materials. Thus,
the use of carpenters would be more efficient. We
therefore find that the efficiency factor favors the
Employers' assignment.
Conclusions
Having considered all pertinent factors present
herein, we conclude that employees who are repre-
sented by the Carpenters are entitled to perform the
work in dispute. This assignment is consistent with
the initial assignment, the contracts, the Employer
and area practice, and the efficiency of operation. In
making this determination, we are awarding the work
in question to employees employed by the Employers
who are represented by the Carpenters, but not to
that Union or its members. The present determina-
tion is limited to the particular controversies which
gave rise to this proceeding.
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
makes the following Determination of Dispute:
1. Employees of Wander, Inc., and R. J. Mason,
Inc., who are currently represented by Local 200,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, are entitled to do the installa-
tion of embedded metal water stops at the city of
Columbus, Ohio, jobsite at its Scioto River plant, and
the rigging of sluice gates and thimbles at the city of
Columbus, Ohio, jobsite as its Southerly plant.
2. International Association of Bridge , Structural
and Ornamental Ironworkers , Local 172, AFL-CIO,
is not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force or require Wander,
Inc., or R. J. Mason, Inc., to assign the above work
to its members or employees whom it represents.
3. Within 10 days from the date of this Decision
and Determination of Dispute , the labor organiza-
tion listed in the preceding paragraph shall notify the
Regional Director for Region 9, in writing, whether
or not it will refrain from forcing or requiring
Wander, Inc., or R. J. Mason, Inc., by means
proscribed by Section 8(b)(4)(D) of the Act, to assign
the work in dispute to its members or employees
whom it represents rather than to employees of
Wander, Inc., or R. J. Mason, Inc., represented by
Local 200, United Brotherhood ' of Carpenters and,
Joiners of America, AFL-CIO.