Iron Workers, Local 568

National Labor Relations Board - Board DecisionsJun 12, 1973

204 N.L.R.B. 59 (N.L.R.B. 1973)

IRON WORKERS , LOCAL 568 Local 568, International Association of Bridge , Struc- tural and Ornamental Iron Workers, AFL-CIO and Dickerson Structural Concrete Corporation . Case 5- CD-181 June 12, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Upon a charge filed on February 16, 1972, by Dick- erson Structural Concrete Corporation, hereinafter called Dickerson, the General Counsel of the Nation- al Labor Relations Board, by the Regional Director for Region 5, issued a complaint and amended com- plaint dated December 12, 1972, and January 2, 1973, respectively, against the Respondent, Local 568, In- ternational Association of Bridge, Structural and Or- namental Iron Workers, AFL-CIO, alleging that the Respondent had engaged in and was engaging in un- fair labor practices affecting commerce within the meaning of Section 8(b)(4)(i) and (ii)(D) of the Na- tional Labor Relations Act, as amended. In sub- stance, the Respondent was alleged to have violated the Act by (1) inducing and encouraging employees of Dickerson to engage in a strike or a refusal in the course of their employment to perform any services, and (2) threatening, restraining, and coercing Dicker- son, an object in each case being to force or require Dickerson to assign certain work to individuals who are members of, or represented by, the Respondent and Bricklayers and Masons International Union, Local 6, AFL-CIO, hereinafter referred to as Brick- layers, working as a composite crew, rather than to Dickerson's employees who are members of, or repre- sented by, Local 1024, United Brotherhood of Car- penters and Joiners of America, AFL-CIO, hereinafter referred to as Carpenters Local 1024, and Local 616, Laborers' International Union of North America, AFL-CIO, hereinafter referred to as Labor- ers Local 616, working as a composite crew. On January 26, 1973, the parties involved herein and the General Counsel entered into a stipulation waiving a hearing before an Administrative Law Judge, the making of findings of fact and conclusions of law by an Administrative Law Judge, and the is- suance of an Administrative Law Judge's Decision, and agreeing to submit this case for findings of fact, conclusions of law, and order directly by the Board. The parties further stipulated that the entire record before the Board in this matter, in addition to their formal stipulation, should consist of the following ex- hibits: (a) the charge, filed February 16, 1972; (b) the 59 notice of charge filed; (c) the complaint and notice of hearing; (d) the affidavit of service of the complaint and notice of hearing; (e) the answer; (f) the amend- ment to complaint; (g) the affidavit of service of the amendment; (h) the answer to the amendment to complaint; (i) the official transcript and exhibits of the 10(k) proceeding; (j) the Board's Decision and Determination of Dispute; and (k) the letter dated December 8, 1972, from the Respondent to the Re- gional Director. On February 2, 1973, the Board is- sued an order approving the stipulation and transferring the case to itself. Thereafter, the Respon- dent and Dickerson filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the basis of the aforesaid stipulation and ex- hibits, the briefs, and the entire record in this case,' the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Dickerson, a Pennsylvania corporation having its principal office and plant in Youngwood, Pennsylva- nia, is engaged in the design and manufacture of pre- cast concrete structures which, pursuant to contracts awarded by general contractors, it ships to and installs at construction sites located in the States of Maryland and Pennsylvania. Among such contracts was one awarded to Dickerson by Crown Construction Com- pany, the general contractor for the construction of a Holiday Inn in Cumberland, Maryland, at a contract price of $365,000. During the past year, Dickerson purchased and received for use in the State of Mary- land goods valued in excess of $50,000 from sources outside the State of Maryland. The parties stipulated, and we find, that Dickerson is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. lI THE LABOR ORGANIZATION INVOLVED The parties stipulated , and we find , that the Re- spondent is a labor organization within the meaning of Section 2(5) of the Act. 1 The Respondent's request for oral argument before the Board is hereby denied as the record and briefs adequately present the issues and the posi- tions of the parties 204 NLRB No. 15 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE RESPONDENT'S UNFAIR LABOR PRACTICES After a hearing in this case pursuant to Section 10(k), the Board on October 20, 1972, issued its Deci- sion and Determination of Dispute (199 NLRB No. 156), in which the Board concluded, in relevant part, that the employees of Dickerson, who were repre- sented by Carpenters Local 1024 and by Laborers Local 616, working as a composite crew, were entitled to perform the work in dispute, i.e., the erection of precast concrete columns, beams, wall panels, stair and elevator shafts, stair landings, and stairs at Dickerson's Holiday Inn project in Cumberland, Maryland, and that the Respondent was not entitled by unlawful means to force Dickerson to assign the work to employees it represented. The decision fur- ther directed the Respondent to notify the Regional Director within 10 days whether it would refrain from the proscribed action. On or about December 8, 1972, the Respondent advised the Regional Director that it would not comply with the Board's Decision, where- upon the complaint and amended complaint were is- sued. In the Decision and Determination of Dispute, su- pra, the Board, as stated, based its determination upon the entire record and upon full consideration of all relevant factors, and directed the Respondent to notify the Regional Director for Region 5, by October 30, 1972, whether it would refrain from forcing Dick- erson to assign the work in a manner inconsistent with the Board's Determination. The Respondent did not notify the Regional Director by the specified date. On the contrary, by letter dated December 8, 1972, it advised the Regional Director that it did not intend to comply. The Respondent, in its brief filed on March 26, 1973, with the Board, makes no point of the fact that on February 28, 1973, about 2-1/2 months after the issuance of the complaint in the instant case and after Respondent had entered into the stipulation to the Board in this case, it advised the Regional Director by letter that it would comply with the Board's Determi- nation dated October 20, 1972. Thereafter, the Re- gional Director and the Charging Party notified the Board of their objections to consideration of the Respondent's letter of February 28. We agree with the Regional Director and the Charging Party that due to the untimeliness of the Respondent's advice, we should consider the merits of the complaint in the instant case, especially in view of the fact that Re- spondent continues to assert in its brief that the Board's 10(k) Determination was erroneous and that the work in dispute should have been assigned to the Iron Workers. It is uncontroverted, and in fact the Respondent joined in stipulating, that on February 14, 1972, and continuing until February 16, 1972, the Respondent, in furtherance and support of its claim for the disput- ed work, established and maintained a picket line at the construction site of the Holiday Inn at Cumber- land, Maryland. As a result of this picketing, employ- ees of Dickerson refused to cross the picket line and perform services. It is not contended that Dickerson was failing to conform to an order or certification of the Board determining the bargaining representative of the employees performing the disputed work. The arguments advanced here by the Respondent are limited essentially to contesting the correctness of the Board's Determination of Dispute in the 10(k) proceeding and do not otherwise bear on the allega- tions in the instant case. The Respondent asserts that the Board erred in its evaluation of the evidence as to the various relevant factors, erred in awarding the diputed work to employees not represented by the Respondent, and erred in finding that the other em- ployees could perform the work efficiently and eco- nomically. The Respondent claims that the other employees did not possess the requisite skills to per- form the work efficiently and economically because, when Dickerson's superintendent was absent from the job due to illness , none of these other employees could perform his job of signaling the crane. In addition, the Respondent argues that the Board erred in finding that area practice with respect to the disputed work did not favor it, and contends that the record reveals that the area practice has been to award the disputed work chiefly to ironworkers and that only occasional- ly had other employees performed this type of work. In support of its contention that the Board erred in awarding the work in dispute to other employees rath- er than to ironworkers, the Respondent cites Local Union No. 40, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Spancrete Northeast, Inc.), 197 NLRB No. 112, as a case factually identical to the instant case where the board, on the basis of the factors of area practice and an award of the work to ironworkers by the Building Trades Employers' Association of the city of New York, hereinafter called BTEA, found that Spancrete's assignment of the work to laborers could not be upheld and awarded the work to ironworkers. To the extent that the Respondent's arguments may be construed as a motion either for leave to adduce additional evidence or for reconsideration of the 10(k) decision, we deny the motion as presenting no reason- able grounds for the failure to adduce such evidence at the hearing and as presenting nothing not consid- ered by the Board in the 10(k) decision. In our view, Spancrete is clearly distinguishable from the instant case . There, the Board awarded the work to ironwork- IRON WORKERS , LOCAL 568 ers because, unlike here, only they had performed the type of work in dispute in New York City, without any exceptions over an extended period of time, and indeed BETA, which had a long history of successful- ly resolving jurisdictional disputes in New York City, had uniformly awarded the work to ironworkers on the basis of the well-defined area practice. Consequently, we find no basis for modifying our Decision and Determination of Dispute, Thus, we have here a situation in which Respondent initially stated it would not comply with our 10(k) award; then stated that it would, only to follow with a brief at this stage of the proceeding vigorously contending that our 10(k) decision was in error. In these circumstanc- es, we do not believe that the Respondent's course of conduct manifests a good-faith intent to abide by our determination and to refrain now or in the future from violating the award. Accordingly, we find that the Respondent by its entire course of conduct in this matter has violated Section 8(b)(4)(i) and (ii)(D) of the Act.2 In its brief to the Board, Dickerson requests that the Board's Determination dated October 20, 1972, be extended to apply to all similar work disputes which may occur in the future between it and the Respon- dent throughout the United States. Since the original Determination applied only to the disputed work at the Holiday Inn project in Cumberland, Maryland, and the complaint in the instant case did not expand upon that Determination, we find no merit in Dickerson's contention. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The conduct of the Respondent, as set forth above, occurring in connection with Dickerson's operations, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain affirma- tive action designed to effectuate the purposes of the Act. 2 See Local 157, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (Midwest Homes, Inc.), 160 NLRB 261, Local 595, International Association of Bridge, Structural and Ornamental Iron Workers, AFL (Bechtel Corporation), 112 NLRB 812. CONCLUSIONS OF LAW 61 1. The Respondent, Local 568, International Asso- ciation of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By inducing and encouraging employees of Dickerson to engage in a strike or a refusal in the course of their employment to perform any services, and by threatening, restraining, and coercing Dicker- son, an object in each case being to force or require Dickerson to assign to employees represented by or members of the Respondent, rather than to employees represented by Local 1024, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and Local 616, Laborers' International Union of North America, AFL-CIO, the work of erecting precast con- crete columns, beams, wall panels, stair and elevator shafts, stair landings, and stairs at the Holiday Inn project in Cumberland, Maryland, the members of Respondent not being lawfully entitled to perform such work, the Respondent has engaged in unfair la- bor practices within the meaning of Section 8(b)(4)(i) and (ii)(D) of the Act. 3. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Local 568, International Association of Bridge, Structural and Ornamental Iron Workers , AFL-CIO, Cumber- land, Maryland , its officers, agents , and representa- tives , shall: 1. Cease and desist from inducing or encouraging employees of Dickerson Structural Concrete Corpo- ration to engage in a strike or a refusal in the course of their employment to perform any services, and threatening , restraining , or coercing Dickerson Struc- tural Concrete Corporation, where an object is to force or require Dickerson Structural Concrete Cor- poration to assign the work of erecting precast con- crete columns , beams , wall panels, stair and elevator shafts, stair landings, and stairs at the Holiday Inn project in Cumberland , Maryland, to employees rep- resented by or members of the Respondent rather than to employees represented by Local 1024, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and Local 616 , Laborers ' International Union of North America, AFL-CIO , working as a composite crew , except insofar as such conduct is permitted under Section 8(b)(4)(D) of the Act. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act. (a) Post at its offices and meeting halls copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Direc- tor for Region 5, after being duly signed by the Respondent's representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be tak- en by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notice to the Regional Director for Region 5 for posting by Dickerson Structural Concrete Corporation, if it is willing, at all locations upon the premises where no- tices to its employees are customarily posted. (c) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. 3 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." engage in a strike or refusal in the course of their employment to perform any services, and WE WILL NOT threaten, restrain, or coerce Dicker- son Structural Concrete Corporation, where an object is to force or require Dickerson Structural Concrete Corporation to assign the members of or employees represented by Local 568, Interna- tional Association of Bridge, Structural and Or- namental Iron Workers, AFL-CIO, rather than to employees of Dickerson Structural Concrete Corporation represented by Local 1024, United Brotherhood of Carpenters and Joiners of Amer- ica, AFL-CIO, and Local 616, Laborers' Inter- national Union of North America, AFL-CIO, the work of erecting precast concrete columns, beams wall panels, stair and elevator shafts, stair landings, and stairs at the Holiday Inn project in Cumberland, Maryland, except insofar as such conduct is permitted under Section 8(b)(4)(D) of the Act. LOCAL 568, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNA- MENTAL IRON WORKERS, AFL-CIO (Labor Organization) APPENDIX NOTICE POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government To all members of Local 568, International Associa- tion of Bridge, Structural and Ornamental Iron Work- ers, AFL-CIO: WE WILL NOT induce or encourage employees of Dickerson Structural Concrete Corporation to Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Building, Room 1019, Charles Center, Baltimore, Maryland 21201, Telephone 301- 962-2822.