Iron Workers Union Local No. 84

National Labor Relations Board - Board Decisions

Jul 31, 1974

212 N.L.R.B. 721 (N.L.R.B. 1974)

IRON WORKERS UNION LOCAL NO. 84 721
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-318
July 31, 1974
DECISION AND DETERMINATION OF
DISPUTE
industry as a masonry contractor. During the past 12
months, the Employer has purchased goods and ma-
terials valued in excess of $50,000 which were shipped
directly to the Employer from points located outside
the State of Texas.
The parties stipulated, and we find, that the Em-
ployer is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will effectu-
ate the purposes and policies of the Act to assert
jurisdiction herein.
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by Smith Southern Corporation, herein
called the Employer, alleging that Iron Workers
Union Local No. 84, herein called Iron Workers or
Respondent, 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 it represents
rather than to employees represented by Bricklayers,
Masons and Plasterers' International Union of Amer-
ica, AFL-CIO, Local No. 7, herein called Bricklayers.
Pursuant to notice, a hearing was held in Houston,
Texas, on January 29, 1974, before Hearing Officer
William H. Helms. 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. Thereafter, the Em-
ployer, Iron Workers, and Bricklayers filed briefs in
support of their respective positions.
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.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. The rulings are hereby af-
firmed.
Upon the entire record in this case,' including the
briefs, the Board makes the following findings:
I THE BUSINESS OF THE EMPLOYER
The Employer is a corporation organized under
pertinent statutes in Texas with its offices and princi-
pal place of business located in Houston, Texas,
where it is engaged in the building and construction
i Following the close of the hearing, the Respondent filed a motion for
leave to reopen the record herein for the purpose of introducing additional
exhibits to be identified as Charged Party's Exhs 3, 4, 5, 6, 7, 8, and 9 The
Employer filed a response in opposition to Respondent's motion We hereby
deny Respondent's motion because Respondent has not amply justified its
failure to present this evidence before the record was closed See Rules and
Regulations, Series 8, as amended, Sec 102 48(d)(1)
11 THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the Iron
Workers and Bricklayers 2 are labor organizations
within the meaning of Section 2(5) of the Act.
III THE DISPUTE
A. Background and Facts of the Dispute
Early in 1973, the Employer obtained a subcontract
from the McGregor Construction Company to per-
form certain masonry work, including the installation
or erection of prefabricated brick wall panels on the
Sperry Rand Building in Houston, Texas. On April
23, 1973, the Employer assigned the work involved in
performing this construction contract to its own em-
ployees represented by the Bricklayers, with necessary
assistance to be furnished by employees represented
by Laborers. On November 15, 1973, the Iron Work-
ers made its initial demand that the Employer award
the work to employees it represented, and on Decem-
ber 17, 1973, it commenced picketing the worksite.
Picketing continued on December 18 and 19, 1973,
with the legend on the picket sign reading as follows:
Smith Southern is unfair to Iron Workers Local
84 in violation of the joint board agreement. Dis-
pute is against no one else.
B. The Work in Dispute
The disputed work concerns the unloading, stock-
piling, and erection of preassembled brick wall panels
on the Sperry Rand Building fob in Houston, Texas.
These wall panels, numbering in excess of 200, are in
varying dimensions, e.g., 9 feet by 8 feet; 4 feet by 30
feet; and 7 feet by 30 feet; and they are installed by
being set in mortar, or they are caulked, prior to being
' In assigning the disputed work, the Employer granted it to members of
Bricklayers who were to be assisted by employees represented by Laborers'
International Union of North America, Local No 18 The Laborers did not
participate in the instant hearing
212 NLRB No. 94
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
welded or bolted to the basic structure of the build-
ing.' The Iron Workers primarily claims the rigging,
hooking on, signaling, and landing functions involved
in the erection of these prefabricated brick wall pan-
els.
C. The Contentions of the Parties
The Employer argues that this dispute is properly
before the Board on the basis of evidence showing
that the Employer is not a party to any agreed-upon
method of settling this matter which would be binding
on the principals. In this connection, the Employer
maintains that the 1972 interunion agreement be-
tween the Iron Workers and the Bricklayers, alleged
by the Iron Workers to be controlling, has been violat-
ed by both of these Unions in the past and there is no
convincing evidence to demonstrate that this agree-
ment is operative in the Houston, Texas, area, the
situs of the instant dispute. Also, the Employer notes
that it has never consented to be bound by this agree-
ment. On the merits of the dispute, the Employer
argues that it assigned the work incidental to the in-
stallation of these prefabricated wall panels to em-
ployees represented by the Bricklayers because they
have repeatedly shown that they can perform the
work more safely, economically, and capably than
those represented by Iron Workers. The Bricklayers
position is essentially the same as that of the Employ-
er.
The Iron Workers argues that this dispute should
not be resolved by the Board since all parties are
bound by agreements providing machinery for the
adjustment of jurisdictional disputes. Alternatively,
the Iron Workers asserts that its members are able to
perform the disputed work as efficiently and safely as
those of Bricklayers, particularly as it encompasses
the functions of rigging, hooking on, signaling, and
landing which are involved in the installation of these
preassembled brick wall panels. It also claims that an
award in its favor is dictated by the 1962 agreement
executed by International officials of the Iron Work-
ers and Bricklayers apportioning between these
Unions the work involved in the erection "of all types
of pre-cast, pre-stressed concrete stone, or imitation
stone, or other fabricated units when installed as wall
panels by means of bolting and/or welding to structu-
ral steel or concrete frame construction."
tion of dispute pursuant to Section 10(k) of the Act,
it must be convinced that there is reasonable cause to
believe that Section 8(a)(4)(D) has been violated.
The first issue to be resolved arises from the Iron
Workers claim that there exists an agreed-upon proce-
dure for resolving this dispute which is binding on all
the parties. In this connection, the evidence shows
that the Employer is an associate member of the
Houston Chapter, Associated General Contractors of
America, Inc. (AGC), and a party to the existing col-
lective-bargaining agreement between AGC and the
Iron Workers. This agreement does not expressly deli-
neate the work jurisdiction of Iron Workers, but it
does provide that in the event of jurisdictional dis-
putes occurring between the signatories such contin-
gencies shall be submitted either to the National Joint
Board 4 or "to any agency established by law or mutu-
al agreement to settle such disputes." The Iron Work-
ers contends that the foregoing language in the
agreement obligates the Employer to submit such dis-
putes to the National Joint Board. However, in a prior
proceeding, involving these same parties, we rejected
this identical contention I pointing out that the afore-
stated language of the agreement contemplates alter-
native methods for the resolution of such disputes,
including the submission of the dispute to this Agen-
cy; and, thus, there is no mandatory requirement that
disputes of thisnature be submitted to the National
Joint Board. Accordingly, we find that there is no
agreed-upon method for resolving this dispute which
is binding on the parties, and hence, this dispute is
properly before the Board.
As already shown by the description of the back-
ground of this dispute, the record shows that the Iron
Workers demanded that the Employer reassign part
of the work connected with the installation of prefab-
ricated brick wall panels on the Sperry Rand Building
job to Iron Workers. Following this demand, on De-
cember 17, 18, and 19, 1973, the Respondent picketed
thejobsite in an attempt to coerce compliance wiffits
work demand.
Accordingly, we find that there is reasonable cause
to believe that violations of Section 8(a)(4)(D) have
occurred, and that the dispute is properly before the
Board for determination under Section 10(k) of the
Act.
D. Applicability of the Statute
Before the Board may proceed with a determina-
3 The subject work is nearly identical to that involved in a prior dispute
involving these same parties which was recently before this Board for resolu-
tion, Iron Workers Union Local No. 84 (Smith Southern Corporation), 208
NLRB 208 (1974).
E. Merits of "the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after duly
4 The present National Joint Board is denominated as the New Impartial
Jurisdictional Disputes Board.
5Iron Workers Union Local No. 84 (Smith Southern Corporation), supra.
IRON WORKERS UNION LOCAL NO. 84 723
considering all of the relevant factors.' As the Board
has stated, its determination in a jurisdictional dispute
case is an act of judgment based upon commonsense
and experience in measuring the weight to be accord-
ed various factors.?
1. Certifications
The labor organizations involved in this case have
not been certified by the Board as the collective-bar-
gaining representative for a unit , or units, of the
Employer's employees.
2. Collective-bargaining agreements
The Employer is a member of the Mason Contrac-
tors Association of America (MCA) and is bound by
the current labor agreement in effect between MCA
and the Bricklayers parent International Union. Arti-
cle IV, paragraph c, of this agreement states:
the Bricklayers and the Iron Workers Union. We have
already decided in the previous case, involving these
parties, that this interunion agreement does not serve
to justify the Iron Workers 8(b)(4)(D) action in seek-
ing to enforce its demand for the work in dispute.8 We
find nothing in the instant record to justify any modi-
fication of the Board's prior conclusion. No evidence
has been adduced to show that the Employer ever
consented to be bound by this agreement between
these two labor organizations. It is now settled be-
yond doubt that an employer picketed in the context
of a jurisdictional dispute is a necessary party to the
dispute for purposes of Section 10(k) of the Act .9 Not
only does the evidence fail to establish that the Em-
ployer is in any way bound by this interunion agree-
ment, there is no showing that the agreement has
generally been abided by in the Houston, Texas, area.
Consequently, we find that the 1962 agreement be-
tween the Iron Workers and Bricklayers is not a factor
to which weight can be given in determining the mer-
its of this dispute.
. . . the Employers agree to assign [to the
Bricklayers] .. . all work . . . including, but not
limited to, all masonry (brick and concrete ma-
sonry units made from any materials, stone, mar-
ble, structural tile, terra cotta, prefabricated or
pre-assembled components or panels, glass
blocks, all forms of substitute materials thereto)
utilized in all forms of construction, mainte-
nance, repair and renovation. [Emphasis sup-
plied.]
As previously indicated, the Employer, through its
membership in the Houston Chapter of the Associat-
ed General Contractors of America, Inc., also has a
collective-bargaining agreement with the Iron Work-
ers. However, that agreement does not expressly de-
lineate the work jurisdiction of the Iron Workers
and, as a practical matter, no ironworkers are being
carried on the Employer's payroll for this job.
Accordingly, we conclude that the collective-bar-
gaining agreement between the Employer and the
Bricklayers favors an award of the disputed work to
members of that Union.
3. The interunion agreement
The Iron Workers, in claiming the disputed work,
lays great stress upon an agreement executed in De-
cember 1962 between the International presidents of
6 N L R B v Radio and Television Broadcasting Engineers Union, Local
1212, IBEW [Columbia Broadcasting System], 364 U S 573 (1961)
7 International Association of Machinists, Lodge No 1743, AFL-CIO (J A
Jones Construction Company), 135 NLRB 1402 (1962)
4. Employer practice
The Employer's consistent and unbroken practice
has been to assign the disputed work to its own em-
ployees represented for collective bargaining by the
Bricklayers. It is also the Employer's practice to as-
sign any auxiliary or related work to its employees
represented by the Laborers Union, who serve to as-
sist the Bricklayers. Accordingly, this factor favors an
award to employees represented by the Bricklayers.
5. Area and industry practice
The principal witness for the Employer, Turner
Smith, Jr., president and majgrity stockholder, has
been engaged in the masonry contracting industry for
over 23 years and has performed construction work
throughout many of the Southern States. He testified
that he has never assigned any part of the duties of
installing prefabricated, nonstructural masonry wall
panels to the Iron Workers. Smith further testified
that he believes that, as regards the Houston area, his
subject work assignments to the Bricklayers are con-
sistent with the prevailing area practice. On the other
hand, C. Laird, Iron Workers business agent, during
his testimony graphically identified, through the win-
dows of the hearing room, various downtown Hous-
ton buildings, either completed or under construction,
where the work in dispute 10 assertedly was performed
8 208 N LRB 208, supra
9 N L R B. v Plasterers ' Local Union No 79, Operating Plasterers' and
Cement Masons ' international Association [Southwestern Construction Compa-
ny]. 404 U S 116 (1971)
10 The record is not clear as to whether mortar was used in pinioning the
Con tin ued
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by composite crews of ironworkers and bricklayers,
presumably in conformity with the 1962 agreement
between the two Unions. However, there is counter-
vailing record evidence which lead us to conclude that
this 1962 agreement frequently does not control the
work-assignment practices relating to precast wall
panels in the Houston area." Consequently, on the
basis of the equivocal state of the record concerning
pertinent area work-assignment practices, we find
that this factor is inconclusive as a determinant of the
dispute.
6. Relative skills and efficiency of operation
It is clear from the record that bricklayers possess
all of the requisite skills for capably performing the
disputed work of unloading, stockpiling, and erecting
precast or preassembled brick or other masonry wall
panels. As previously described, these panels are at-
tached to the structure by means of a mortar base with
clip angle and are welded or bolted at the top, and the
bricklayers, according to the Employer, have always
accomplished such work satisfactorily. As for the
ironworkers, it also appears that they are capable of
performing that part of the disputed work which they
claim . Thus, we find that the factor of comparative
skills between employees represented by each of these
two Unions favors neither the Iron Workers nor the
Bricklayers as an element in our determination of this
jurisdictional dispute.
According to the Employer, the firm regularly em-
ploys between 40 to 50 bricklayers year round and
considerably smaller numbers of laborers and operat-
ing engineers on the same basis. The Employer does
not employ any ironworkers. The record shows that
since the Employer is a masonry subcontractor, the
bricklayers, when not directly engaged in the disputed
work of installing preassembled wall panels, are avail-
able to execute other tasks that may be required by
the contract. If the Employer were to utilize ironwork-
ers in composite crews along with the bricklayers only
for the purpose of erecting wall panels, company op-
erations would be less efficient 12 because ironworkers
would have to be called in for comparatively short
periods of time.
Accordingly, it appears from the record that the
panels to the buildmgs pointed out by Laird
ii See, e.g, Laird's testimony concerning Amtex Erectors and Riggers
which apparently employs ironworkers exclusively to do all of the disputed
work. Also, H. Brown, Local 7 Bricklayers business agent, testified that
neither of these Local Unions faithfully complies with the 1962 agreement
because of the absence of enforcement machinery . Consequently, it appears
that these work assignments are determined by the rapport each Local Union
has with various area employers , in addition to other ad hoc factors
12 Although the Iron Workers contends that the erection process would be
completed with greater safety if ironworkers were involved , the record does
not contain sufficient evidence to sustain this contention.
assignment of the work in dispute to the Employer's
employees represented by the Bricklayers , results in
the most efficient method of carrying on the
Employer's business.
Conclusion
Having considered all relevant portions of the rec-
ord, we conclude that employees of the Employer
represented by the Bricklayers are entitled to perform
the disputed work. We arrive at this conclusion princi-
pally because the Bricklayers has demonstrated to the
Employer's satisfaction that the Employer' s assign-
ment of the work to it has always resulted in its mem-
bers performing this work skillfully and efficiently.
Further, the Employer's assignment has not been
shown to be at variance with industry practice in the
area. Finally, the Employer's various labor agree-
ments do not militate against the' Employer's right to
award the disputed work to employees represented by
the Bricklayers. Therefore, we shall determine the dis-
pute before us by awarding the disputed work at the
Employer's Sperry Rand Building job in Houston,
Texas, to those employees represented by the Brick-
layers, but not to that Union or its members. Our
determination of dispute is limited to the particular
controversy 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 pro-
ceeding, the National Labor Relations Board hereby
makes the following Determination of Dispute:
1. Employees of Smith Southern Corporation who
are represented by Bricklayers, Masons and Plas-
terers' International Union of America, AFL-CIO,
Local No. 7, are entitled to perform the work of un-
loading, stockpiling, and erection of preassembled
brick wall panels of varying dimensions which are set
in a mortar joint prior to being welded or bolted to the
structure, at the Employer's Sperry Rand Building
job, Houston, Texas.
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 repre-
sented 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
IRON WORKERS UNION LOCAL NO. 84 725
Act, to assign the disputed work to its members, or of Smith Southern Corporation represented by Brick-
employees represented by it, rather than to employees layers, Masons and Plasterers' International Union of
America, AFL-CIO, Local No. 7.