Iron Workers Local No 84

National Labor Relations Board - Board Decisions

Jan 8, 1974

208 N.L.R.B. 208 (N.L.R.B. 1974)

208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Iron Workers Union Local No. 84 and Smith
Southern Corporation and Bricklayers, Masons
and Plasterers' International Union of America,
AFL-CIO, Local No. 7. Case 23-CD-304
January 8, 1974
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
This is a proceeding under Section 10(k) of the
Natior al Labor Relations Act, as amended, follow-
ing charges filed by Smith Southern Corporation,
herein called the Employer, alleging that Iron
Workers Union Local No. 84, herein called Iron
Workers or Respondent, has violated Section
8(b)(4)(D) of the Act by seeking to force the
Employer to assign the work in dispute described
herein to employees represented by it rather than to
employees represented by Bricklayers, Masons and
Plasterers' International Union of America,
AFL-CIO, Local No. 7, herein called Bricklayers.
Pursuant to notice, a hearing was held in Houston,
Texas, on April 17 and April 18, 1973, before
Hearing Officer Clayton Corley. All parties 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.
There fter, the Employer, Iron Workers, and Brick-
layers filed briefs in support of their respective
positions. On August 9, 1973, the Board issued a
Notice To Show Cause why the Board should not
reopen the record to receive certain exhibits prof-
fered by Iron Workers and to thereafter find that all
parties have agreed to be bound by the National
Joi,it Board for the Settlement of Jurisdictional
Disputes, herein called the National Joint Board.
Thereafter the Employer and Bricklayers filed briefs
in response.
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 Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed.
Upon the entire record in this case, including the,
briefs, the Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer is a Texas corporation with offices
and principal place of business located at 9142
Scranton, Houston, Texas, where it is engaged in the
building and construction industry as a masonry
subcontractor. During the past 12-month period, the
Employer has purchased goods and materials valued
in excess of $50,000 which were shipped directly to
the Employer's Houston locations from points
located outside the State of Texas.
The parties stipulated, and we find, that the
Employer 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.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find, that Iron
Workers and Bricklayers are labor organizations
within the meaning of Section 2(5) of the Act.
Ill. TILE DISPUTE
A. Background and Facts of the Dispute
In December 1972, the Employer was awarded a
subcontract by the Baxter Construction Company to
perform the masonry work, including the installation
of precast concrete panels, at the Hildebrandt
Intermediate School, Klein, Texas. In connection
therewith, the Employer assigned this work to its
own employees, represented by Bricklayers. On
March 5, 1973, when the Employer initiated work on
the project, Iron Workers made a demand for the
aforesaid work, and on March 9 began picketing the
jobsite. Picketing continued on March 10 and 12,
1973. The picket signs bore the following legend:
No Contract Picketing
Smith Southern subcontractor on this job does
not have a contract with nor employ members of
Iron Workers Local 84.
There is no dispute between other contractors or
subcontractors on this Job.
B. The Work in Dispute
The parties stipulated, and we find, that the work
in dispute involves the unloading, stockpiling, and
erection of cast stone panels approximately 4 inches
wide, 2 feet 10 inches high, and 15 feet long, which
are set in a mortar joint tack-welded at the top of a
clip angle. In this connection, Iron Workers, at the
hearing, only claimed the power work of rigging,
hooking on, signaling, and loading of the cast stone
panels.
208 NLRB No. 36
IRON WORKERS LOCAL NO 84
C. The Contentions of the Parties
The Employer contends that the Board should
confirm its assignment of the disputed work to its
employees represented by Bricklayers, since there is
no agreed-upon method for resolution of this dispute.
The Employer argues that the Board should rely on
such factors as its contract with Bricklayers covering
the disputed work, which reflects its personal
preference; its past practice of assigning the work to
bricklayers; and the fact that bricklayers can
perform the work more safely, skillfully, economical-
ly, and efficiently than ironworkers. Bricklayers
position is substantially the same as the Employer's.
Iron Workers argues that its picketing at the jobsite
does not give rise to a jurisdictional dispute cogniza-
ble by the Board since all of the parties to this
dispute are bound by agreements providing machin-
ery for the adjustment of jurisdictional disputes.
Alternatively, Iron Workers urges that the relevant
factors favor an award to employees it represents.
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 (1) there is reasonable cause
to believe that Section 8(b)(4)(D) has been violated,
and (2) the parties have not agreed upon methods for
the voluntary adjustment of the dispute.
As to (1) above, the parties stipulated that on
March 5, 1973, Iron Workers made a demand upon
the Employer to reassign the work in dispute to
ironworkers, and that thereafter on March 9, 10, and
12, Iron Workers picketed the jobsite. Based on the
foregoing and the record as a whole, we find
reasonable cause to believe that an object of the Iron
Workers picketing was to force or require the
Employer to assign the disputed work to employees
represented by Iron Workers. Accordingly, we find
that reasonable cause exists to believe that the
picketing of Iron Workers violated Section
8(b)(4)(D) of the Act.'
With respect to (2) above, following the close of the
hearing, Iron Workers proffered two exhibits: one
showing that the Employer had designated the
Houston Chapter of the Associated General Con-
tractors, herein called the Houston Chapter, as its
negotiating representative for jobsite labor agree-
ments with Iron Workers; 2 and the other showing
that Iron Workers and Bricklayers were bound to the
i Bricklayers & Stonemasons Union Local No 3 of Arizona (Concrete
Erection). 195 NLRB 232
2 At the hearing the Employer denied having designated the Houston
Chapter as its bargaining representative and Iron Workers motion was
based on newly discovered evidence contradicting the denial.
3 We note that the National Joint Board for the Settlement of
Jurisdictional Disputes was termina ted on September 30, 1969. Thereafter,
209
Joint Board procedures by their membership in the
AFL-CIO Building and Construction Trades De-
partment.3
In response to our Notice To Show Cause, the
Employer now stipulates that on February 23, 1972,
it did in fact designate the Houston Chapter as its
collective-bargaining representative to negotiate job-
site labor agreements with Iron Workers, and that on
April 1, 1972, the Houston Chapter and Iron
Workers executed a collective-bargaining agreement
which provides in relevant part:
Craft Jurisdiction
The work of Ironworkers and other labor that
the Union may lawfully represent shall be all
work recognized as such by the Building and
Construction Trades Department, AFL-CIO, and
the National Joint Board for the Settlement of
Jurisdictional Disputes.
Procedural Rules and Regulations of the
National Joint Board for the Settlement of
Jurisdictional Disputes of the Building and
Construction Trades Department AFL-CIO shall
be considered a part of this Agreement as though
set forth at length. Contractors subletting work
shall stipulate that subcontractors be bound by
the above named procedural rules.
In the event a jurisdictional dispute shall arise,
such dispute shall be settled in accordance with
the practice of the Building and Construction
Trades Department, AFL-CIO, and the National
Joint Board for the Settlement of Jurisdictional
Disputes, or any agency established by law or
mutual agreement to settle such disputes. There will
be no stoppage of work because of a jurisdictional
dispute. [Emphasis supplied.]
Respondent urges that the foregoing contractual
provision binds the Employer to the National Joint
Board procedures. We disagree.
The parties' contractual language, written in the
disjunctive, provides that any jurisdictional dispute
arising between the parties can be submitted either to
the Joint Board or to other forums, i.e., in the words
of the contract, "to any agency established by law or
mutual agreement to settle such disputes." Hence,
the contractual language does not require the
Employer to submit the instant dispute to the Joint
Board. Furthermore, that the parties intended Joint
Board submission to be wholly voluntary is consist-
an interim agreement between the Building and Construction Trades
Department . AFL-CIO , and certain contractors ' associations extended the
Joint Board procedure until February 28, 1970 On April 3, 1970, a new
National Joint Board for Settlement of Jurisdictional Disputes (hereinafter
called the second Joint Board) was established On June 1, 1973, a third
Joint Board , the New Impartial Jurisdictional Disputes Board , hereinafter
called the New Impartial Joint Board, came into existence
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent with the AGC's, Houston Chapter ' s, and the
Employer 's failure to sign the New Joint Board of
New Impartial Joint Board agreements .- According-
ly, as the parties ' agreement does not provide that the
Joint Board is the exclusive forum to resolve disputes
of this kind , and is at best ambiguous on this issue,
we find that there is no agreed -upon method for the
resolution of this dispute and that the dispute is
properly before the Board.5
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after
giving due consideration to all relevant factors. As
the Board has stated, its determination in a jurisdic-
tional dispute case is an act of judgment based upon
commonsense and experience in the weighing of
these factors.(;
1. Certifications
Neither of the labor organizations involved herein
has been certified by the Board as the collective-
bai gaining representative for a unit of the Employ-
er's employees.
2. Collective-bargaining agreements
There is of record a 1962 agreement between Iron
Workers and Bricklayers which would seem to lend
support to Iron Workers claim for a composite crew
to do the installation and erection of all types of
precast, prestressed concrete stone or imitation stone,
or other fabricated masonry units, when installed as
wall panels by means of bolting and/or welding to
structural steel or concrete framed construction. This
agreement, inter alia, gives Iron Workers the work of
rigging, hooking on, signaling, and loading. Howev-
er, George A. Miller, executive vice president of the
Mason Contractors Association of America, testified
that the Masonry Contractors Association, which
numbers 1,500 members, is not a party to this
agreement and has not abided by it.7 Miller further
testified that, based on his experience nationally in
the masonry contract field, the disputed work is
traditionally performed by bricklayers with the help
4 On the present record we find no evidence that the AGC, the Houston
Chapter, or the Employer participated in the negotiation or execution of the
interim agreement , the reconstituted (second) Joint Board agreement, or the
New Impartial Joint Board agreement Nor is there any evidence that any of
these parties have agreed to, or expressed any intention of agreeing to, refer
jurisdictional disputes to the New Impartial Board See Bricklayers, Masons
and Plasterers ' International Union of America, Local No 1, AFL-CIO
(Lembke Construction Company of Colorado, Inc), 194 NLRB 649
5 The Employer is also a member of the Masonry Contractors
Association , which has an agreement with Bricklayers however. that
agreement makes no reference to the resolution of disputes by the Joint
Board
of the cement mason tenders who are members of the
Laborers International Union.8 It is apparent,
therefore, that this agreement generally has not been
followed in situations involving the assignment and
performance of the type of work in dispute. Moreo-
ver, assuming arguendo that the agreement was
adhered to by both Iron Workers and Bricklayers,
the Employer never agreed to be bound by it.9
In view of the foregoing, we find that little, if any,
weight can be given to the Iron Workers-Bricklayers
1962 agreement as a factor in determining the merits
of this dispute.
3. Employer practice
The practice of the Employer, without exception,
has been to assign the disputed work to its own
employees represented by Bricklayers, with assist-
ance from its own cement masons, who are members
of the Laborers International Union.
4. Area practice
Turner Smith, president of the Employer, testified
that in his experience of over 17 years, covering
about 20 to 30 jobs, Iron Workers had never been
assigned the work involving the installation, as in the
instant case, of small flat type panel. He further
testified that local masonry contractors assigned the
work in dispute to a crew of bricklayers and an
operating engineer. George Miller testified that
based on his experience nationally in the masonry
contract field, the work in dispute is traditionally
assigned to Bricklayers, tended by masons who are
members of the Laborers International Union. On
the other hand, a witness for Iron Workers, Frank
Gunnels, president of the Empire Construction
Company, testified that area contractors generally
utilize a composite crew to perform the disputed
work; however, on cross-examination, he stated that
his company had never installed the specific type and
nature of the cast stone involved in the instant case.
5. Skills, efficiency, and economy of
operation
The record reflects that the Employer's own
employees, represented by Bricklayers and assisted
6 International Association of Machinictc, Lodge No 1743, AFL-CIO (J
A Jones Construction Company), 135 NLRB 1402
r Furthermore there is no evidence that the Employer , who is a member
of the MCA. has entered into this 1962 agreement.
s In addition to its other contracts , the Employer also has an agreement
with Laborers International Union for its employees who are members of
that union and do part of the disputed work as cement mason tenders.
Bricklayers if Stonemacons Union Local No 3 of Arizona (Concrete
Erection), 195 NLRB 232; also International Association of Bridge, Structural
and Ornamental Iron Workers, Local No 465, AFL-CIO (Hansen & Hempel,
Inc ), 202 NLRB 1041
IRON WORKERS LOCAL NO. 84
by mason tenders, members of Laborers Internation-
al Union, possess all the necessary skills to perform
the disputed work and have always done such work
for the Employer satisfactorily. It also appears that
ironworkers possess the necessary skills to perform
that portion of the disputed work claimed by them.
We find, therefore, that the factor of skills favors
neither the present assignment nor an assignment to
a composite crew.
With regard to the efficiency and economy of
operations, the record reflects that the Employer
employs approximately 45 to 50 bricklayers, 40
mason tenders, and 4 to 5 operating engineers on a
year-round basis. In the event one of the Employer's
employees, a member of Bricklayers, does not have
work to do, he can be shifted to other tasks or to
other jobs. Further, bricklayers can perform work in
a continuous fashion, whereas ironworkers can be
employed only for relatively short intervals of time.
On the other hand, the Employer employs no
members of Iron Workers. Were we to award a
portion of the disputed work to ironworkers, it would
appear that the Employer would have to hire an
ironworker under a minimum call contract provision
and that the Employer would not be able to keep
such employee busy the full day, all of which would
require delay with the project.
Under the foregoing circumstances, it appears that
the assignment of the disputed work to the Employ-
er's own employees, represented by Bricklayers, is
clearly the most efficient and economical manner of
operation.
Conclusion
Upon the entire record in this case, and after full
consideration of all relevant factors involved, we
conclude that the Employer's employees who are
represented by Bricklayers are entitled to perform
the work in dispute. We reach this conclusion based
on the Employer's past practice of assigning the
disputed work to its employees; the facts that the
assignment is not inconsistent with the practice of
area contractors, that the Employer's employees
possess the necessary skills and experience to
10 While the Employer and Bricklayers urge the Board to extend its
determination to all smular disputes occurring, with some exception, within
211
perform the work, and that such assignment will
result in greater efficiency and economy. We shall,
therefore, determine the dispute before us by
awarding the work in dispute at the Employer's
Hildebrandt Intermediate School project 'in Klein,
Texas, to those employees represented by the
Bricklayers but not to that Union or its members.
Our present determination is limited to the particular
controversy which gave rise to this proceeding.10
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:
1. Employees of Smith Southern Corporation
who are represented by Bricklayers, Masons and
Plasterers' International Union of America,
AFL-CIO, Local No. 7, are entitled to perform the
work of unloading, stockpiling, and erection of cast
stone panels approximately 4 inches wide, 2 feet 10
inches high, and 15 feet long, which are set in a
mortar joint tack-welded at the top of a clip angle, at
the Employer's Hildebrandt Intermediate School,
Klein, Texas, project.
2. Iron Workers Union Local No. 84 is not
entitled, by means proscribed by Section 8(b)(4)(D)
of the Act, to force or require Smith Southern
Corporation to assign the above-described work to
employees represented by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Iron Workers Union
Local No. 84 shall notify the Regional Director for
Region 23, in writing, whether or not it will refrain
from forcing or requiring Smith Southern Corpora-
tion, by means proscribed by Section 8(b)(4)(D) of
the Act, to assign the disputed work to its members,
or employees represented by it, rather than to
employees of Smith Southern Corporation represent-
ed by Bricklayers, Masons and Plasterers' Interna-
tional Union of America, AFL-CIO, Local No. 7.
a 100-mule radius of Houston , we find no warrant in this record for such a
broad determination