Iron Workers Local No. 563

National Labor Relations Board - Board Decisions

Jun 25, 1970

183 N.L.R.B. 1105 (N.L.R.B. 1970)

IRON WORKERS LOCAL NO. 563 1105
Iron Workers Local No. 563, International Associa-
tion of Bridge , Structural and Ornamental Iron
Workers, AFL-CIO and Spancrete Midwest Com-
pany and Bricklayers, Cement Block , Stone and
Marble Masons , Pointers , Cleaners and Caulkers
Union No. 2 of Minnesota and Construction and
General Laborers Local 563, AFL-CIO. Case
18-CD-80
June 25, 1970
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, MCCULLOCH, AND JENKINS
is engaged in commerce within the meaning of the
Act, and that it will effectuate the policies of the
Act to assert jurisdiction herein.
H. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find , that Iron
Workers, Bricklayers, Cement Block , Stone and
Marble Masons, Pointers, Cleaners and Caulkers
Union No . 2 of Minnesota, herein called
Bricklayers ; and Construction and General
Laborers Local 563, AFL-CIO, herein called
Laborers, are labor organizations within the mean-
ing of Section 2(5) of the Act.
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Spancrete Midwest Company
alleging in substance that Iron Workers Local No.
563, International Association of Bridge , Structural
and Ornamental Iron Workers, AFL-CIO, herein
called Iron Workers, has violated Section
8(b)(4)(D) of the Act.
A hearing was held before Hearing Officer Ken-
neth W. Haan on June 3 and 4, 1969. All parties
appeared at the hearing and were afforded full op-
portunity to be heard, to examine and cross-ex-
amine witnesses, and to adduce evidence bearing
on the issues. Thereafter, Spancrete Midwest Com-
pany, herein called the Employer or Spancrete, and
Iron Workers filed briefs
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case 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. They are hereby af-
firmed.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated that Spancrete Midwest
Company, a Minnesota corporation with headquar-
ters in Osseo, Minnesota, is engaged in the sale and
erection of prestressed concrete products; that dur-
ing the calendar year 1968 it purchased, fiom
points outside the State of Minnesota, steel and ce-
ment valued in excess of $400,000; and that the
value of the contracts entered into by Spancrete for
the sale and installation of its products at the three
construction sites here in issue exceeds $50,000.
The parties stipulated, and we find, that Spancrete
183 NLRB No. 112
III. THE DISPUTE
A. Background and Facts of the Dispute
At various times between August 1, 1968, and
January 14, 1969, Spancrete obtained contracts for
the sale and installation of its concrete products at
several construction sites in Duluth, Minnesota, and
Superior, Wisconsin. The first, with Kranz-Ganley
Company, the general contractor, called for the in-
stallation of prestressed concrete plank to be used
in the construction of a new post office at Duluth.
Another agreement was negotiated with J. R. Jen-
sen & Son, Inc., which involved the performance of
similar work on the Midcontinent Warehouse,
otherwise known as the Duluth port authority job.
The third and last contract with which we are here
concerned was let by Lakehead Constructors, Inc.,
and involved the installation of certain concrete
materials on the roof of a new addition to the Rus-
sell Creamery at Superior, Wisconsin.
On February 18, 1969, Byron (Red) Rawn, Iron
Workers business representative, telephoned Con-
rad Bauer, Spancrete's erection manager, and
requested the latter to assign several ironworkers to
the Spancrete job at the Duluth post office. Bauer
rejected this request, stating that the agreements his
Company had negotiated with Bricklayers and
Laborers required the assignment of the specific
work sought by Rawn to employees represented by
those unions. On the following day, three men ap-
peared at the post office site where Jerry Akstetter,
a precast mason and working foreman for
Spancrete, was engaged in certain preparatory
work in connection with the installation of the
prestressed concrete. One of the men, whose identi-
ty is unknown, asked if Spancrete was going to hire
any ironworkers to perform the disputed work. He
threatened to use force to obtain the work if neces-
sary. The others, one of whom was subsequently
identified as Les Schuman, a member of the Iron
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Workers, took no part in this discussion . Following
this confrontation , Akstetter called David Hanson,
Spancrete 's vice president and general manager
Hanson instructed Akstetter to disregard the in-
cident and continue to work . However , activity
ceased shortly thereafter when a group gathered
around the Spancrete crane used to hoist concrete
slabs into position , making progress impossible.
About a dozen men comprised this group, one of
whom , Les Schuman , declared , according to Ak-
stetter : " He didn 't care how big I was , and my size
didn 't mean anything and not to let my gray hair
fool you ." On the same day, Akstetter was told by
an unnamed individual employed at the project that
unless he, Akstetter , put ironworkers on the
Spancrete job, ironworkers employed by the
general contractor would leave the project. The
same day , having been refused "permission" to un-
load materials , Akstetter dispatched the Spancrete
crane and three truckloads of Spancrete products
to the Company 's headquarters at Osseo, Min-
nesota . Akstetter and the laborer assisting him also
left the site. Thereafter on March 10, 1969, Ak-
stetter returned to the post office job with a
Spancrete laborer who was assigned to perform cer-
tain welding work . On that occasion , Business
Representative Rawn claimed the welding work for
the Iron Workers in a telephone conversation with
Hanson . Concerned about the delay, Kranz -Ganley
ultimately assigned two of its own employees, mem-
bers of the Iron Workers , to perform the disputed
work , the cost being borne by Spancrete.
On February 20, 1969, Akstetter arrived at the
Duluth port authority project to install Spancrete
plank. The Jensen Company provided several work-
ers to assist Akstetter . Business Representative
Rawn appeared at the site , claimed the work and,
according to Keith Jensen , president of the Jensen
Company, threatened to pull his other ironworkers
off the job in the event his claim was not honored.
Jensen testified that they were unable to proceed
with the Spancrete installation that day as a result
of the pressure exerted by Rawn. Akstetter left the
site. Thereafter , Jensen used a composite crew of
his own employees , including a carpenter , an iron-
worker and two laborers to perform the disputed
work.
On February 27, 1969, Akstetter and another
Spancrete employee were dispatched to the Russell
Creamery at Superior, Wisconsin, to perform work
under the subcontract agreement . He was observed
there by Rawn who subsequently visited the office
of Floyd Bernard, vice president of Lakehead Con-
structors , the general contractor on the project.
Bernard testified that Rawn told him area practice
required the use of ironworkers , and that if Bernard
did not put an ironworker on the job Rawn would
have to shut it down . Bernard replied that he would
just have to go ahead and do it . He then terminated
the conversation . The record indicates that the
Spancrete crew finished its work on the project and
departed that day.
B. The Work in Dispute
The parties are in general agreement that the
work in dispute involves the erection of prestressed
concrete slabs and beams , including the rigging,
signaling , and welding of such parts, and all other
related phases of the concrete unit erection work.'
Iron Workers limits its claim to the rigging , signal-
ing, and welding tasks involved in such work , essen-
tially the same position it took in the Brainerd,
Minnesota , dispute ( fn. 1, supra ). Specifically, Iron
Workers claims that at least one ironworker should
be assigned to any Spancrete crew engaged in the
installation of the prestressed concrete products
here involved.
C. Contentions of the Parties
Spancrete Midwest Company contends that the
controversy in this case is merely a continuation of
the Brainerd, Minnesota, dispute, which the Board
considered and determined in its favor in Spancrete
Midwest Company, 175 NLRB 260, and that the
award rendered in that case is controlling on all
aspects of the work here in question . Spancrete also
contends that the unlawful conduct alleged herein
constitutes the fulfillment of threats made by Iron
Workers in the course of the Brainerd dispute, and
that such Iron Workers conduct is widespread and
will continue in the absence of a broad work award
issued by the Board.
Bricklayers and Laborers support the position
taken by Spancrete.
Iron Workers claims that it is in compliance with
the Board 's earlier Decision and Determination of
Dispute ; that the alleged unlawful conduct here in
question occurred before the issuance of the afore-
mentioned Decision ; and that , in any event, the
hearing in this case was unfairly expanded to in-
clude allegations of unlawful conduct at projects
which were not mentioned in the charge filed
herein. Alternatively, Iron Workers contends that
reconsideration of the factors previously weighed
' See Spancrete Midwest Company, 175 NLRB 260, for a detailed
description of the aforementioned work
IRON WORKERS LOCAL NO. 563 1107
by the Board, including employees' skills and indus-
try and area practice, compels the assignment of
the work here in dispute to the 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 there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated. In this respect, Iron Workers urges that
the Board, in determining the sufficiency of
evidence tending to show unlawful conduct, over-
look the incidents which are alleged to have oc-
curred at the Duluth port authority and Russell
Creamery projects because no mention of these
projects was made in the charge filed by Spancrete.
We disagree. Although the only location mentioned
in the aforementioned charge was the post office
jobsite at Duluth, the Regional Director's petition
for an injunction under Section 10(1) of the Act2
contained specific reference to misconduct at all
three projects. Further, all three projects are en-
compassed within the settlement stipulation which
resulted from court proceedings in connection with
that petition, and the stipulation itself preceded by
several months the hearing held in this case. In
these circumstances, we cannot find that Iron
Workers was either surprised or prejudiced by the
admission of evidence pertaining to conduct al-
legedly occurring at all the projects here involved.
Further, we find that the incidents which are al-
leged to have occurred at the port authority and the
Russell Creamery projects were, as in the case of
the post office project, fully explored at the hear-
ing, at which time all parties had full opportunity to
ascertain the facts.' Accordingly, we shall consider
evidence of unlawful conduct at all three projects
in our determination herein. On the facts referred
to above, we find reason to believe that a violation
of Section 8(b)(4)(D) has occurred.
Iron Workers also contends that a voluntary
method of adjustment of the dispute here involved
is readily available to the parties. The record shows,
however, that Spancrete is bound to submit
disputes to the National Joint Board for the Settle-
ment of Jurisdictional Disputes only with respect to
the post office project. Neither Spancrete nor
Bricklayers nor Laborers has agreed to any method
of dispute resolution at the other projects here in-
volved. Although the agreement of all parties upon
a method for the voluntary adjustment of the
dispute at one of the projects might warrant the
quashing of the notice of hearing as to it under Sec-
tion 10(k) and leave the resolution of it there to the
voluntary processes selected by the parties, we find
that there is no agreed-upon method for the adjust-
ment of this basic dispute at all three projects in-
volved.
Accordingly, we find reasonable cause to believe
that a violation of Section 8(b)(4)(D) has occurred
and that the dispute is properly before the Board
for determination.
E. The 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. As the Board has stated, its determination
in a jurisdictional dispute case is an act of judgment
based on commonsense and experience in the
weighing of these factors. We have previously con-
sidered the following factors to be relevant to a
determination of the dispute here involved.' They
are in all essential respects relevant and unchanged
in the case now before us.
1. Collective-bargaining agreements
Spancrete's contracts with Bricklayers and
Laborers were scheduled to terminate on May 1,
1969. However, all parties to these contracts have
agreed to carry over intact the language previously
considered by the Board in its earlier determination.
We find that these contractual provisions favor an
award to employees represented by Bricklayers and
Laborers.
2. Other factors
No change in employer or area practice has been
shown to have occurred since our earlier decision,
wherein we held that such factors favor assignment
of the work here in question to Spancrete's regular
employees who are represented by Bricklayers and
Laborers.' Nevertheless, Iron Workers continues to
assert that other factors, such as skill, safety, effi-
ciency, and economy, favor the assignment of
disputed work to the employees it represents. In
this respect, Donald Frye, an Iron Workers foreman
for the general contractor on the post office pro-
ject, testified that on one occasion a crew member
2 Clarence A Meter v Iron Workers Local 563, Civil No 5-69-18
(D -C , Minn )
' In this respect we note that Iron Workers did not seek a continuance of
the hearing to avoid whatever prejudice it now claims
4 Spancrete Midwest Company, supra
" Brainerd , Minnesota , is included within the area referred to herein as
the Duluth , Minnesota , and the Superior, Wisconsin, area
427-258 O-LT - 74 - 71
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employed by Spancrete was unable to work
because he was intoxicated and was sent away from
the project. Frye also testified that a mistake at-
tributable to Akstetter, Spancrete's installation
foreman, resulted in concrete planks being "laid
the wrong way" and that some welds had to be
done over. However, neither the foregoing
testimony relating to a single project, nor the one
instance cited by Iron Workers when laborers em-
ployed by a general contractor assisted Akstetter,
warrants a departure from our original finding that,
whereas factors of skill and safety do not favor
either group of employees, efficiency and economy
favor the continued performance of the disputed
work by Spancrete's employees.
3. Conclusions as to the merits of the dispute
From the foregoing, it is clear that the same fac-
tors which favored the assignment of disputed work
at Brainerd are equally applicable with respect to
the projects here in question. Accordingly, we shall,
as in the earlier case, award this work to
Spancrete's regular employees who are represented
by Bricklayers and Laborers. In making this deter-
mination, we award the work to the employees of
Spancrete who are currently represented by
Bricklayers and Laborers Unions, but not to those
Unions or their members.
Scope of the Award
Spancrete is here, as in the earlier proceeding,
requesting a broad work award by the Board on be-
half of its employees, contending that such an
award is necessary in order to avoid further disrup-
tions at its construction sites. Iron Workers con-
tends that a broad award is not appropriate in the
circumstances of this case. In this respect they
point to the fact that no unlawful conduct is alleged
to have occurred at any of the projects here in-
volved after the Board issued its Decision and
Determination of Dispute in the Brainerd case. The
record before us, nevertheless, demonstrates that
the work in dispute has been a continuous source of
controversy in the Duluth, Minnesota, and the Su-
perior, Wisconsin, area, and that other similar
disputes may occur in the future. Therefore, we
shall not restrict the scope of our determination
herein to the specific jobs giving the rise to this
proceeding. Rather, our determination in this case
shall apply to all similar disputed work performed
in the Duluth, Minnesota, and the Superior,
Wisconsin, area by Spancrete Midwest Company.6
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 employed as precast masons and
laborers by Spancrete Midwest Company , currently
represented by Bricklayers , Cement Block, Stone
and Marble Masons, Pointers , Cleaners and Caulk-
ers Union No . 2 of Minnesota, and Construction
and General Laborers Local 563, AFL-CIO, are
entitled to perform the work of erecting , prestressed
concrete units in the Duluth , Minnesota , and the
Superior , Wisconsin , area , and particularly double
T concrete beams, including the rigging , signaling,
and welding of such and all other related phases of
Spancrete 's erection work heretofore performed by
them.
2. Iron Workers Local No. 563, International
Association of Bridge , Structural and Ornamental
Iron Workers , AFL-CIO, is not and has not been
entitled , by means proscribed by Section
8(b)(4)(D) of the Act, to force or require Spancrete
Midwest Company to assign the above work to
ironworkers who are currently represented by such
labor organizations.
3. Within 10 days from the date of this Decision
and Determination of Dispute , Iron Workers Local
No. 563, International Association of Bridge, Struc-
tural and Ornamental Iron Workers , AFL-CIO,
shall notify the Regional Director for Region 18, in
writing , whether it will or will not refrain from forc-
ing or requiring the Employer , by means proscribed
by Section 8(b)(4)(D ) of the Act, to assign the
work in dispute to employees represented by it
rather then to employees represented by
Bricklayers , Cement Block , Stone and Marble
Masons, Pointers , Cleaners and Caulkers Union
No. 2 of Minnesota and Construction and General
Laborers Local 563, AFL-CIO.
6 See Teamsters Local Union No. S (Hart-McCowan Foundation Co ,
Inc ), 147 NLRB 1216