Laborers (Ii In One)

National Labor Relations Board - Board Decisions

Jan 31, 1990

297 N.L.R.B. 651 (N.L.R.B. 1990)

LABORERS (II IN ONE) 651
Construction and General Laborers' District Council
of Chicago and Vicinity, and its Constituent
Member Sewer and Tunnel Miner's Union
Local No. 2 and II In One Contractors, Inc.
and Bridge, Structural and Reinforcing Iron
Workers, Local Union No. 1, affiliated with
International Association of Bridge, Structural
and Ornamental Iron Workers, AFL-CIO. Case
13-CD-419
January 31, 1990
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
The charge in this 10(k) proceeding was filed on
September 22, 1989, 1 by the Employer, II In One
Contractors, Inc (Contractors), alleging that the
Respondent, Construction and General Laborers'
District Council of Chicago and Vicinity, and its
Constituent Member Sewer and Tunnel Miner's
Union Local No 2 (Laborers), violated Section
8(b)(4)(D) of the National Labor Relations Act by
engaging in proscribed activity with an object of
forcing or requiring the Employer to assign certain
work to employees it represents rather than to em-
ployees represented by Bridge, Structural and Re-
inforcing Iron workers, Local Union No 1, affili-
ated with International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-
CIO (Iron Workers) The hearing was held Octo-
ber 16 before Hearing Officer Jessica T Willis
Iron Workers' Motion to Quash the Hearing was
denied by the heanng officer Iron Workers chose
not to attend the 10(k) hearing Contractors and
Laborers filed postheanng briefs
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board affirms the heanng officer's rulings,
finding them free from prejudicial error On the
entire record, the Board makes the following find-
ings
I JURISDICTION
II In One Contractors, Inc , an Illinois corpora-
tion, is a construction firm engaged in the concrete
contracting business with its principal office in
Lyons, Illinois, where it annually purchases and re-
ceives goods and materials valued in excess of
$50,000 directly from suppliers located outside the
State of Illinois We find that Contractors is en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act and that Laborers and Iron
1 All events are In 1989
Workers are labor organizations within the mean-
ing of Section 2(5) of the Act
H THE DISPUTE
A Background and Facts of Dispute
In mid-July, general contractor Cameron Con-
struction Company awarded Contractors work pro-
viding the poured-in-place electrical traction power
underground manholes and the precast under-
ground manholes for the electnfication of the track
on a rapid transit extension project (contract SW-
301) On July 25, Contractors assigned the work to
employees represented by Laborers Two days
later work commenced
On August 15 or 16, employees represented by
Iron Workers visited the jobsite and inquired who
was tieing the steel in the manhole work Contrac-
tors' vice president, Richard Seidel, told the visi-
tors that the Laborers had been assigned the work
pursuant to the parties' contract but that he was
willing to discuss any disagreement with the Iron
Workers business agent On August 18 and 21, Iron
Workers business agents visited the jobsite and
claimed the work for the employees represented by
Iron Workers On August 24, Iron Workers filed a
Section 301 suit in Federal district court against the
Employer regarding the assignment of the work
On September 13, Laborers notified Contractors by
letter that it objected to "any reassignment of
tieing of rebar work under the SW-301 contract
from Laborers to Ironworkers and will strike and
picket to preserve its work jurisdiction if the com-
pany reassigns the work"
At the time of the hearing, Contractors was still
performing the disputed work with employees rep-
resented by Laborers who had not struck or pick-
eted Contractors
B Work in Dispute
The disputed work involves the placement of
steel mats and precast manholes and the tieing of
rebars in conjunction with the poured-in-place
manholes adjacent to 57th and Kilpatrick Streets,
Chicago, Illinois, assigned to employees represent-
ed by the Laborers by Contractors, subcontractors
for Cameron Construction Company, pursuant to
contract SW-301 for extension of the rapid transit
system
C Contention of the Parties
Both Contractors and Laborers contend that the
disputed work should be awarded to employees
represented by Laborers based on Contractors'
preference, its collective-bargaining agreement
with the Laborers, its prevailing practice, as well
297 NLRB No 101
652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
as area and industry practice, economy, and effi-
ciency
D Applicability of the Statute
Before the Board may proceed with a determina-
tion of the 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 and that the parties have not agreed on a
method for voluntary adjustment of the dispute
In a letter dated September 13, Laborers notified
Contractors that should the disputed work be reas-
signed to employees represented by Iron Workers,
Laborers would "stnke and picket to preserve its
work jurisdiction" Iron Workers has not dis-
claimed interest in the disputed work We find rea-
sonable cause to believe that a violation of Section
8(b)(4)(D) has occurred, and that there exists no
agreed method for voluntary adjustment of the dis-
pute within the meaning of Section 10(k) of the
Act 2 Accordingly, we find that the dispute is
properly before the Board for determination
E Merits of the Dispute
Section 10(k) requires the Board to make an af-
firmative award of disputed work after considering
vanous factors Electrical Workers IBEW Local
1212 (Columbia Broadcasting) v NLRB, 364 U S
573 (1961) The Board has held that its determina-
tion in a jurisdictional dispute is an act of judgment
based on common sense and experience, reached
by balancing the factors involved in a particular
case Machinists Lodge 1 743 (J A Jones Construc-
tion), 135 NLRB 1402 (1962)
The following factors are relevant in making the
determination of this dispute
1 Certifications and collective-bargaining
agreements
The Board has not certified either the Laborers
or the Iron Workers as collective-bargaining repre-
sentative of any of Contractors' employees Con-
tractors is a member of the Underground Contrac-
tors Association, which maintains a contract with
Laborers The current contract's term is June 1,
1989, to May 31, 1991 Article II, section (3)(a), in-
dicates that the agreement applies to employees en-
gaged in "digging and excavating for sewers, catch
basins, manholes, test holes, shafts, and subways
handling, placing and bracing in position of all
sheeting forms and steel reinforcing and all
common labor performed on or about, or in con-
nection with the mixing or handling of materials on
2 Contractors and Laborers so stipulated at the hearing, which Iron
Workers did not attend
any of the work" described Contractors' vice
president, Richard Seidel, testified that Contractors
also became bound to a collective-bargaining
agreement with Iron Workers during the summer
of 1986 Contractors, as a subcontractor for Mellon
Stuart Company, used ironworkers to reinforce
steel as part of the concrete work on a sewage
treatment plant project The area practice is to
classify sewage treatment plant work as "building"
rather than "underground," thereby necessitating
the use of ironworkers to place the reinforcing
steel However, Contractors has never used iron-
workers for underground work, and no provision
in Contractors' agreement with the Iron Workers
refers to or provides for work performed on man-
holes Thus the factor of collective-bargaining
agreements favors finding that employees repre-
sented by Laborers are entitled to perform the dis-
puted work because it clearly falls within the cur-
rent agreement's jurisdictional provision
2 Company preference and past practice
Seidel testified that Contractors preferred using
employees represented by Laborers and that Con-
tractors always used employees represented by La-
borers when it was engaged in similar underground
construction projects (e g, Chicago's Deep Tunnel
Project) Accordingly, this factor favors an award
of the disputed work to employees represented by
Laborers
3 Area practice
John E Kenny Jr, vice president of operations
of Kenny Construction Company, which engages
in heavy highway and underground construction in
the nine counties surrounding Chicago, testified
that in the 20 years he had been in the industry, it
was standard practice to assign the type of work at
issue to employees represented by Laborers Ac-
cordingly, this factor favors an award of the dis-
puted work to employees represented by Laborers
4 Relative skills
Both Seidel and Kenny testified that no special
skill was necessary in tieing rebars and placing
steel mats Specifically, Seidel testified that, "[T]he
ability to make a good tie requires less than five
minutes work One to two days work, and one be-
comes efficient in the tying" Similarly, Kenny tes-
tified "I could teach anybody in five minutes,
or less, on how to tie steel in two days you
could be very, very good at it" Accordingly, the
factor of relative skills favors neither employees
represented by Laborers nor employees represented
by Iron Workers because both groups of employees
LABORERS (II IN ONE) 653
would be capable of performing this essentially un-
skilled work -
5 Economy and efficiency of operation
Seidel testified that the use of employees repre-
sented by Laborers was more economical and effi-
cient for Contractors than the use of ironworkers
The record shows that the use of ironworkers with
their inflexible schedule adversely affects their abil-
ity to work through designated noontime lunch
breaks, whereas laborers take lunch breaks flexibly
around noon and no discontinuation of concrete
pouring need occur The use of two ironworkers in
a crew requires that one be designated a foreman,
whereas Contractors may use up to seven laborers
in a crew without needing to designate one as the
foreman Seidel indicated that on the SW-301 con-
tract there had been no necessity to designate a La-
borers' foreman, and that the general flexibility of
the laborers had been critical Iron Workers would
have been restricted to the placing of reinforcing
steel According to Seidel, the Laborers, by con-
trast,
have manned any temporary pumps that we
needed to keep water from the holes They
have aided the Carpenters in the placing of
forms, and they bring material to the Carpen-
ters for the manufacturing and placing of
forms They have helped the Carpenters in the
removal of forms, and the transporting of the
forms away from the area They have placed
all of the ready mix concrete That would
include getting the concrete off of the ready
mix truck into the buckets, signalling the oper-
ator to swing the bucket to the proper loca-
tion, emptying the bucket, operating the vibra-
tor to consolidate the concrete, and rough
placing the concrete to grade preparatory to
the Cement Finisher's final operations and
they have placed and tied, and unloaded all of
the reinforcing steel for the project
Accordingly, the evidence shows that this factor
favors an award of the disputed work to employees
represented by Laborers
Conclusions
After considering all the relevant factors, we
conclude that employees represented by Laborers
are entitled to perform the disputed work We
reach this conclusion relying on the factors of col-
lective-bargaining agreements, employer preference
and past practice, area practice, and economy and
efficiency of operation In making this determina-
tion, we are awarding the work to employees rep-
resented by Laborers and not to that Union or its
members The determination is limited to the con-
troversy that gave rise to this proceeding
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute
Employees represented by Construction and
General Laborers' District Council of Chicago and
Vicinity, and its Constituent Member Sewer and
Tunnel Miner's Union Local No 2, are entitled to
perform the placement of steel mats and precast
manholes and the tieing of rebars in conjunction
with the poured-in-place manholes adjacent to 57th
and Kilpatrick Streets, Chicago, Illinois