Iron Workers, Local 401

National Labor Relations Board - Board Decisions

Jun 26, 1975

218 N.L.R.B. 940 (N.L.R.B. 1975)

940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Bridge, Structural &
Ornamental Iron Workers, Local 401 and Culbert-
son Caulking Company and The Employing Brick-
layers Association of Delaware Valley, Inc. and
Local 1, Bricklayers, Masons and Plasterers
International Union of America . Case 4-CD-369
June 26, 1975
DECISION AND DETERMINATION OF
DISPUTE
derived revenues in excess of $500,000 and pur-
chased and received goods valued in excess of
$50,000 directly from points located outside the
Commonwealth of Pennsylvania.
The parties stipulated, and we fmd, that the
Employer is engaged in commerce within the
meaning of Section 2(6) and (7) and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
H. THE LABOR ORGANIZATIONS INVOLVED
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Culbertson Caulking Company,
Inc., hereafter called the Employer, and The Em-
ploying Bricklayers Association of Delaware Valley,
Inc., hereafter called the Association, alleging a
violation of Section 8(b)(4)(D) by International
Association of Bridge, Structural & Ornamental Iron
Workers, Local 401, hereafter called the Iron
Workers. The charge alleges, in substance, that the
Iron Workers threatened to picket, and did picket,
the Employer with an object of forcing or requiring it
to assign the work in dispute, described infra, to its
members rather than to members of Local 1,
Bricklayers, Masons and Plasterers International
Union of America, hereafter called Bricklayers.
Pursuant to notice, a hearing was held on October 30
and November 18, 22, and 26, 1974, at
Philadelphia, Pennsylvania, before Hearing Officer
Margaret Berkowitz. All the parties appeared and
were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce
evidence bearing on the issues. All of the parties filed
briefs which have been duly considered by the
Board.
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 case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer is a Pennsylvania corporation
engaged in the business of waterproofing, caulking,
and roofing commercial buildings. During the past
12 months, a representative period, the Employer
1 All dates hereafter are 1974 unless otherwise indicated.
The parties stipulated, and we fmd, that the Iron
Workers and the Bricklayers are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background
The Employer is engaged in the business of
waterproofing, caulking, and roofing commercial
buildings. At the time the dispute in this proceeding
took place, the Employer was working on a job at the
Bell Telephone headquarters building in Philadel-
phia, Pennsylvania.
The record shows that the Bell building was
caulked when it was first built and that with the
passage of time the caulking deteriorated. In 1969 the
Employer was hired to recaulk the metal joints on
the east elevation of the Bell building and in 1970 the
Employer recaulked the north elevation of the Bell
building. On both occasions, the Employer used its
own employees, represented by the Bricklayers, to
perform this work. The disputed work here involves a
third elevation of the Bell building. More specifically,
the work that the Employer was hired to perform
involved the inspection of the caulking, the removal
of all defective caulking, the cleaning, caulking, and
tooling of the points, and the design and placement
of metal skirts over joints on the west elevation of the
Bell building.
The Employer assigned the work in dispute to two
of its employees who are represented by the
Bricklayers, in early August 1974.1 The Employer's
president, Edward Culbertson, testified that he had
intended to assign two more employees represented
by the Bricklayers to perform the disputed work.
Before he did so, he received a telephone can from an
Iron Workers business agent, Nick Craggs. Craggs
claimed the disputed work for the ironworkers. After
further discussions, Culbertson agreed to hire an
employee represented by the Iron Workers if Craggs
could find a qualified man. Culbertson also agreed to
obtain permits from the Iron Workers for its
employees already working on the job and did so. On
218 NLRB No. 143
IRON WORKERS, LOCAL 401 941,,
August 19, an ironworker showed up at the jobsite,
worked for 1 day, and was terminated because he
could not adequately perform the disputed work. On
August 28, another ironworker appeared and was put
to work. Later, Craggs told Culbertson that he
wanted at least three ironworkers on the job and
Culbertson refused. Craggs then threatened that
unless employees represented by the Iron Workers
were used exclusively he would put up a picket line.
Culbertson refused and said he intended to use
employees represented by the Bricklayers. There-
after, on September 13, the Iron Workers picketed
and caused a work stoppage at the jobsite.
At the time of the hearing there was no picketing
and the work was being performed by the Employer's
employees represented by the Bricklayers.
B. The Work in Dispute
As described in the notice of hearing issued by the
Regional Director on October 10, 1974, the work in
dispute involves:
The inspection of the caulking, partial recaulking,
and installation of bronze and stainless steel
covers on certain joints on the exterior of the west
side of the Bell Telephone Building, One Benja-
min Franklin Parkway, Philadelphia, Pa.
C. Contentions of the Parties
The Employer and the Bricklayers contend that the
assignment of the disputed work to employees
represented by the Bricklayers is consistent with their
collective-bargaining agreement and the Employer's
prior practice. The Employer and the Bricklayers
further contend that the skills involved and the
efficiency and economy of operations support the
continued assignment of the disputed work to
employees represented by the Bricklayers.
The Iron Workers contends that the Employer
assigned the disputed work to employees represented
by the Iron Workers and that a collective-bargaining
agreement exists between the Employer and the Iron
Workers which covers the disputed work. The Iron
Workers further contends that past and existing
practice support its claim, that -skills are not
determinative, and that the Board should assign the
work, to ironworkers in accordance with a decision
issued by the Impartial Jurisdictional Disputes
Board.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the dispute pursuant to Section 10(k) of the
2 International Association of Machinists, Lodge No. 1743, AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402 ( 1962).
Act, it must be satisfied that there is reasonable cause,,
to believe that Section 8(b)(4)(D) has been violated
and that the parties have not agreed upon a method
for the voluntary adjustment of the dispute.
The Employer's president, Edward Culbertson,
testified that the Iron Workers representative, Nick
Craggs, made several demands to have the disputed
work reassigned to employees represented by the
Iron Workers. In response to these demands, the
Employer did hire one ironworker, and then another
to replace the first one, and obtained permits from
the Iron Workers for two of its bricklayers. Later, the
Iron Workers threatened to put up a picket line if the
Employer refused to use a crew composed entirely of
employees represented by the Iron Workers. On
September 13, after the Employer refused, the Iron,
Workers carried out the threat and picketed and
cause a work stoppage at the jobsite.
We find no merit in the Iron Workers contention
that all the parties are bound by the same voluntary
method of resolving the dispute. In this connection,
there is no showing that the Employer has agreed to
be bound by the Impartial Jurisdictional Disputes
Board. Nor does the expired contract executed by
Charles P. Meyers on behalf of the Employer, with
the Iron Workers on May 4, 1962, bind the Employer
to this forum.
Accordingly, we conclude that, on the basis of the
entire record, there is reasonable cause to believe,,
that a violation of Section 8(b)(4)(D) has occurred"
and that, at the time of the instant dispute, there did
not exist any agreed-upon or approved method for
resolving the disputes to which all parties are bound.
Therefore, this matter is properly before the Board,
for determination.
E. Merits of the Dispute
As the Board stated in J. A. Jones Construction
Company, 2 we shall determine the appropriate
assignment of the disputed work in each case
presented for resolution under Section 10(k) of the
Act only after taking into account and balancing all
relevant factors.
We set forth below those factors which we find
relevant in determining the dispute herein.
1. Certification and collective-bargaining
agreements
There is no Board certification which covers the
work in dispute.
The record shows that the Employer is a member
of the Association which has a contract with the
Bricklayers. Although this contract does not make
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
specific reference to the type of work in dispute in
this proceeding, it does cover caulking work general-
ly.
The Iron Workers claims that the disputed work is
covered by a contract allegedly signed by Charles P.
Meyers on behalf of the Employer in 1962. The
record shows that the 1962 agreement has not been
replaced by any subsequent or current written
agreement between the parties . The Iron Workers
does not dispute this fact but instead relies on the
contention that certain payments made by the
Employer since 1962 show the continued existence of
a current and applicable agreement between the
Employer and the Iron Workers . We find no merit in
this contention.
2. Employer's assignment
The Employer assigned the disputed work to its
employees represented by the Bricklayers and it is
clear that the Employer wants these employees to
continue to perform this work.
3. Employer and area practice
The general practice of the Employer has been to
assign all caulking work to its employees represented
by the Bricklayers , including the earlier recaulking
work on the east and north elevations of the Bell
building . However, the record shows that, on one
occasion, the Employer did reassign , at the request of
a general contractor , the caulking work on one job
from bricklayers to ironworkers and that it has used,
at other times, a composite crew of bricklayers and
ironworkers.
The area practice is mixed . There is testimony to
support the claims of both Unions.
4. Skills
The record shows that the Employer's employees
represented by the Bricklayers possess the requisite
skills and are satisfactorily performing the disputed
work.
The Iron Workers claims that its members also
possess the requisite skills . In this connection, the
record shows that the first employee referred to the
Employer by the Iron Workers could not perform the
disputed work and was terminated on his first day
and that it was nearly 10 days before the Iron
Workers was able to provide another member to
perform the disputed work.
5. Economy and efficiency of the operation
The bricklayers utilized by the Employer are
experienced in the performance of the type of work
involved here, and hence they are able to carry out
their duties in an efficient manner . The Iron
Workers , on the other hand, has experienced
difficulties in being able to supply the Employer with
experienced personnel and there is a considerable
likelihood that the Employer would be required to
provide a certain amount of on-the-job training to
employees supplied by the Iron Workers.
Conclusions
Having considered all the pertinent facts, we
conclude that the Employer's employees represented
by the Bricklayers are entitled to perform the
disputed work . In reaching this conclusion , we rely
on the Employer's assignment and preference, the
fact that the Employer 's employees represented by
the Bricklayers possess the requisite skills and are
satisfactorily performing the disputed work, and the
economy and efficiency of the operation . We further
conclude that the evidence introduced by the parties
does not establish any clear and consistent practice
which would assist us in making a determination in
favor of one Union over the other . In making this
determination, we are assigning the disputed work to
employees of Culbertson Caulking Company, Inc.,
who are represented by Local 1, Bricklayers, Mason
and Plasterers International Union of America, but
not to the Union or its members. Our present
determination is limited to the particular controversy
which gave rise to this proceeding.
DETERMINATION OF THE DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended , and upon the basis of the
foregoing findings, the National Labor Relations
Board hereby makes the following Determination of
Dispute:
1. The employees represented by Local 1, Brick-
layers, Masons and Plasterers International Union of
America, are entitled to perform the inspection of the
caulking, partial recaulking , and installation of
bronze and stainless steel covers on certain joints on
the exterior of the west side of , the Bell Telephone
Building, One Benjamin Franklin Parkway, Philadel-
phia, Pennsylvania.
2. International Association of Bridge , Structural
& Ornamental Iron Workers , Local 401, is not
entitled by means proscribed by Section 8(b)(4)(D)
of the Act to force or require Culbertson Caulking
Company, Inc., to assign such work exclusively to
individuals represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute , International Associ-
ation of Bridge, Structural & Ornamental Iron
Workers , Local 401 , shall notify the Regional
Director for Region 4, in writing, whether or not it
IRON WORKERS, LOCAL 401 943
will refrain from forcing or requiring Culbertson dispute in a manner inconsistent with the above
Caulking Company, Inc., by means proscribed by determination.
Section 8(b)(4)(D) of the Act, to assign the work in