Loc. Un. No. 417, Intl. Assn. of Bridge, Etc.

National Labor Relations Board - Board DecisionsAug 5, 1975

219 N.L.R.B. 986 (N.L.R.B. 1975)

986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union Number 417, International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO' and Spancrete Northeast, Inc. and Con- struction and General Laborers Union , Local 190, Laborers International Union of North America, AFL-CIO and Local 17, Laborers International Union of North America, AFL-CIO. Case 3- CD-468 August 5, 1975 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER Spancrete is a New York coporation engaged in the manufacture and installation of precast, pre- stressed concrete beams and planks with its principal place of business located in South Bethlehem, New York. It also operates other facilities in Rochester, New York, and Aurora, Ohio. It annually purchases goods and materials valued in excess of $50,000 from points outside the State of New York. The parties stipulated, and we find, that Spancrete 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. This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Spancrete Northeast, Inc., here- inafter called Spancrete, alleging that Local Union Number 417, International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, hereinafter called Ironworkers, violated Section 8(b)(4)(D) of the Act by engaging in certain pro- scribed activity with an object of forcing Spancrete to assign certain work to the employees represented by Ironworkers rather than to employees represented by Construction and General Laborers Union, Local 190, Laborers International Union of North Ameri- ca, AFL-CIO, and Local 17, Laborers International Union of North America, AFL-CIO, hereinafter called Laborers Local 190 and 17, respectively, or Laborers, collectively. Pursuant to notice, a hearing was held before Hearing Officer Christopher G. Roach on April 24 and May 8, 1975.2 All parties, except Laborers Local 17,3 appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-exam- ine witnesses , and to adduce evidence bearing on the issues . Thereafter, a brief was filed by Spancrete. 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 rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding, the 1 The names of Ironworkers Local 417 and Laborers Local 190 appear as amended at the hearing. 2 All dates are in 1975 unless otherwise indicated. 3 Although it was duly served with a copy of the notice of hearing , Labor- ers Locai 17 did not enter an appearance or otherwise participate in the hearing. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Laborers Local 190 and the Ironworkers are labor organiza- tions within the meaning of the Act. While it was not so stipulated at the hearing, the record shows, and it is uncontradicted by the parties, that Laborers Local 17 is an organization in which employees participate and which exists for the purpose of dealing, and has in fact dealt, with employers over matters set forth in Section 2(5) of the Act. Accordingly, we find that Laborers Local 17 is a labor organization within the meaning of the Act. III. THE DISPUTE A. The Work in Dispute The work in dispute consists of the work of rigging and placing precast, prestressed concrete planks at the Ulster, New York, town office building construc- tion site. B. Background In early 1975 Spancrete contracted with Eberhardt Construction Company to manufacture and install precast, prestressed hollow core planks known by the trade name "Spancrete," at the town office building in Ulster, New York. Spancrete's president, Howard Blosser, described the work of installing the planks as follows: "Rigging and placing would commonly be defined as the work that's related to the physical and actual rigging or set up of the crane, the actual and physical work related to the rigging or securing of a chocker of a lifting device or a belt to the item that's to be picked up by the crane; placing would refer to the guiding and hand handling and signaling to di- 219 NLRB No. 115 LOC. UN. NO. 417, INTL. ASSN. OF BRIDGE, ETC. 987 rect that piece to its final location on the structural frame of the building and removal of said chockers or sling from the member permitting the crane boom then to swing back to its beginning position over the load. . . . Upon completion of the rigging and plac- ing, the material would be aligned. That means it's aligned into its final half-inch of position by pry bars or some other method of moving it slightly; leveling it, so that it's level with the member that's adjacent to it; the grouting . . . ; the cutting of any structural chases . . . ; and further the caulking of the under- side joints to enhance the ultimate appearance; the application of latex concrete underlayment to prop- erly smooth the top surface . . . ." The final phase of the erection process-namely, the aligning of the precast, prestressed concrete products-is performed by employees represented by Laborers and it is not here in dispute. On February 14, before 8 a.m., Spancrete shipped five truckloads of its Spancrete product to the jobsite and ordered a crane from the Kingston Crane Ser- vice Company to provide the power equipment nec- essary for rigging and placing the planks. At about the same time, Spancrete dispatched to the construc- tion site an erection crew consisting of three of its permanent employees, all represented by Laborers Local 190, and two local area employees, both repre- sented by Laborers Local 17. At or about 8 a.m., Spancrete's erection superintendent, Ivan Millet, ob- served Ironworkers business agent, Floyd Marks, at the jobsite with two pickets carrying a sign or signs, which read, "This contractor does not employ mem- bers of the Ironworkers, Local 417 on this job. We wish to inform employees and the public that we do not ask anyone to refuse to cross our picket line, re- fuse to perform work or refuse to patronize any ser- vice or prodict." The crane operator and the oiler refused to work. A few minutes later Marks told Blosser that Ironworkers was demanding the work of rigging and placing the planks and threatened to picket the site if ironworkers did not get the disputed work. Blosser did not agree to Marks demands and Ironworkers continued to picket the jobsite until ear- ly March, when a district court issued an injunction against the picketing. Spancrete contends that Ironworkers picketing ac- tivities of February 14, Marks' threat to picket the jobsite unless Spancrete assigned the disputed work to ironworkers, and Ironworkers subsequent picket- ing of the jobsite, provide reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated and that a determination of dispute under Section 10(k) of the Act is necessary. On the merits, Span- crete contends that its assignment of the disputed work to the two Laborers locals should be upheld by the Board on the basis of factors normally consid- ered by the Board in making such jurisdictional awards. Laborers Local 190 contends that the work herein dispute should be awarded to the Laborers locals for the same reasons set forth by Spancrete. D. Applicability of the Statute Before the Board may proceed to the determina- tion of a dispute pursuant to Section 10(k) of the Act, it must be satisified 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 any method for the voluntary adjustment of the dispute. As to (1) above, there is evidence- that Ironworkers threatened to picket, and did picket, the town office building of Ulster, New York, from February 14 un- til early March in order to protest Spancrete's assign- ment of the work in dispute to an erection crew com- posed entirely of laborers rather than a crew composed of ironworkers. Accordingly, we find that reasonable cause exists to believe that Ironworkers violated Section 8(b)(4)(D) of the Act. With respect to (2) above, the record establishes that there is no agreed-upon method, to which all the necessary parties to the dispute are bound, for the voluntary adjustment of the dispute. Accordingly, we find that the matter is properly before the Board for resolution .4 E. Merits of the Dispute 1. Certifications and collective -bargaining agreements C. Contentions of the Parties Ironworkers claims that "Spancrete was not coerced in any way," and, thus, that no reasonable cause exists to believe that Section 8(bX4)(D) of the Act has been violated. As to the merits of the dispute, Ironworkers contends that the disputed work should be awarded to the employees whom it represented on the basis of area practice. Laborers Locals 190 and 435 have been certified by the Board as collective-bargaining representatives of Spancrete's employees at its South Bethlehem and Rochester facilities, respectively. Neither certifica- tion, however, makes specific reference to the crews which Spancrete uses to perform erection work such 4N.L.R.B. v. Plasterers Local Union No. 79,-Operative Plasterers'& Ce- ment Masons ' International Association, AFL-CIO (Southwestern Construc- tion Co.), 404 U.S. 116 (1971). 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as the one here in dispute. Since it commenced doing business in 1963, how- ever, Spancrete has executed a national agreement with the International Laborers Union of North America, AFL-CIO which specifically covers ". . . all field construction . . . and all work performed by the Employer. . . ." Additionally, that agreement provides that the covered work jurisdiction is that specified in article III, section 1(b), of the Interna- tional Laborers Union's constitution which, in turn, encompasses the work outlined in the International Laborers Union "Manual of Jurisdiction." That manual includes within the Laborers jurisdiction the following work: Where pre-stressed or pre-cast concrete slabs, walls or sections are used, all loading, unload- ing, stockpiling, hooking, setting, and barring into place of such slabs, walls, or sections. All mixing, handling, conveying, placing, and spreading of grout for any purpose. Spancrete has also executed separate agreements with the various Laborers locals representing em- ployees at each of its facilities. These agreements cover the manufacture and installation of Spancrete's concrete products. On the other hand, Spancrete has no agreement with Ironworkers regarding the work in dispute. Ir- onworkers and Eberhardt and signatories to an agreement wherein Ironworkers claims jurisdiction over the fabrication, production, erection, and con- struction of ". . . precast, prestressed, and post- stressed concrete structures...." However, neither Laborers nor Spancrete is bound to said agreement. Thus, we find that this factor favors awarding the disputed work to employees represented by Laborers. 2. The Employer's preference, assignment , and past practice It has been Spancrete's practice to assign the in- stallation of its products to an erection crew typically consisting of three permanently based Spancrete em- ployees represented by the Laborers Union and two employees hired locally for the particular job. The local employees are represented by the Laborers lo- cal with jurisdiction over the particular geographical area in which the job is located.5 Such practice is consistent with the specific provisions of the national agreement mentioned above, and Spancrete has ex- pressed its satisfaction with this arrangement. In the instant case, as noted previously, the crew's perma- 5 The record shows that some of these employees hold dual membership in the Laborers Union and the Masons Union as the result of an agreement between the two labor organizations designed to preserve labor peace. nent employees were represented by Laborers Local 190, while the two employees hired locally were rep- resented by Laborers Local 17. The record shows that the only exception to Spancrete's practice of utilizing laborer crews has oc- curred in New York City, as the result of the Board's 1972 award of similar work to ironworkers.b We note, however, that the circumstances underlying the Board's determination in the New York City case are not present here inasmuch as, in that case, Spancrete had admittedly never completed a job in New York City with a crew of laborers; ironworkers had histori- cally performed the disputed work in that area; and the Laborers locals with jurisdiction in New York City refused to supply Spancrete with the necessary personnel because of a longstanding Building Trades Employer Association award in favor of Ironwork- ers. In these circumstances, this one exception does not detract significantly from Spancrete's otherwise consistent practice. We conclude, therefore, that Spancrete's preference, assignment, and past practice militate in favor of awarding the work here in dispute to employees represented by Laborers. 3. Industry and area practice Marks testified that the area contractors, with the exception of Spancrete, use ironworkers to perform work similar to the work here in dispute and that masons or laborers are normally hired to perform the final portion of the installation process-namely, the aligning, leveling, grouting, etc. In support of its posi- tion, Ironworkers introduced into evidence letters from area contractors to the effect that they assign this type of work to ironworkers. The record also contains documentary evidence of several area pro- jects where ironworkers were employed to perform similar functions, as well as several Joint Board awards from other areas of the United States award- ing this type of work to Ironworkers. Spancrete does not dispute the evidence produced by Ironworkers. However, it claims that, since it commenced doing business in 1963, 95 percent of the 20 million square feet of Spancrete which it has pro- duced has been installed by crews of laborers under the arrangement described above. Of that total, about 1,065,000 square feet were installed in Ulster County (the town of Ulster is located in Ulster Coun- ty) and the three neighboring counties of Greene, Dutchess, and Orange. Thus while there is evidence of area and industry practice to support the Iron- workers claim, it is also clear that, in the areas where 6 Local Union No. 40, International Association of Bridge, Structural and Ornamental Iron Workers , AFL-CIO (Spancrete Northeast , Inc.), 197 NLRB 822 (1972). LOC. UN. NO. 417, INTL. ASSN . OF BRIDGE , ETC. 989 Spancrete operates, it has been its practice to assign the disputed work to employees represented by La- borers.' Furthermore, Spancrete's share of the work in these areas is substantial. Accordingly, the area practice favors neither group of employees. 4. Skills, economy, and efficiency Spancrete employs permanent installation crews of laborers who are required to go through work orien- tation and safety sessions, as well as through a 6- month on-the-job training period in order to perform the disputed work efficiently and safely. As to the laborers hired locally to supplement the permanent crew, Spancrete tries whenever possible to hire local laborers whom it employed before. When, by neces- sity, inexperienced local men must be hired, however, they are tutored about Spancrete's safety rules and are assigned to perform the less dangerous facets of the installation work. Ironworkers runs a 3-year apprenticeship program which includes on-the-job and classroom instructions covering all phases of the disputed work. Thus, the employees represented by both parties appear to pos- sess the required skills to perform the work here in dispute. Accordingly, we find that the factor of skill favors neither group of employees. As to the factors of efficiency and economy, Blos- ser testified that the degree of work coordination and scheduling, as well as the speed of erection, would be augmented if the disputed work were awarded to la- borers. In this respect, Spancrete points to the advan- tage of using a permanent crew of specialized work- men who are accustomed to handling its products and are familiar with the best tools and procedures to achieve the desired results. In contrast, Blosser stated that ironworkers are less familiar with Spancrete's products and that an award in favor of them would result in a less effective and more costly operation. In this respect, Blosser testified that ironworkers would utilize more manpower to perform the same amount of work. Also, the assignment of the work to iron- workers would entail the utilization of a composite crew-ironworkers to perform the rigging and plac- ing phase of the installation process, and laborers or masons to perform the alignment-thereby affecting the efficiency of the operations. From the foregoing, we conclude that the factors of efficiency and econo- my tend to favor the employees represented by La- borers. 7 The exception is New York City, discussed above . In considering indus- try practice , we have treated Spancrete 's New York City practice as weigh- ing in favor of Ironworkers. Conclusion Upon the entire record in this proceeding and after full consideration of all the relevant factors, we con- clude that Spancrete's employees who are repre- sented by Laborers Locals 190 and 17 are entitled to perform the work here in dispute. We reach this con- clusion on the basis of Spancrete's long-established practice of assigning the work here in question to employees represented by the appropriate Laborers locals, the collective-bargaining agreements, the rela- tive economy and efficiency of operations, and Spancrete's preference. (The factors of area practice, skills, and Board certification, in our view, do not weigh in favor or either group of employees.) Ac- cordingly, we shall determine the dispute by award- ing the disputed work to Spancrete's employees rep- resented by Laborers Locals 190 and 17, but not to any labor organization of which these employees are members. Scope of the Award Spancrete requests that the Board issue a broad work award on behalf of Laborers to be applicable throughout the area in which Spancrete conducts business . Spancrete contends that such an order is necessary in order to avoid further jurisdictional work interruptions in the areas where it operates. In this respect, Spancrete claims that it has been the target of jurisdictional disputes in every location in which it does business. In four instances, the jurisdic- tional disputes culminated in Board determinations under Section 10(k) of the Act. We note, however, that the Respondent herein was not party to any of those proceedings. Spancrete has made similar requests in prior cases.' However, as we said in one of those cases, "the fact that other unions, including affiliates of the Ironworkers in other localities, have engaged in such unlawful conduct in the past, does not demonstrate a proclivity on the part of this Respondent to engage in further unlawful conduct. Nor does Respondent's al- leged interest in obtaining work similar to that in dispute here, as such work becomes available on fu- ture Spancrete jobs, demonstrate the likelihood that it will again resort to unlawful means to obtain it." 9 Accordingly, we find that the issuance of the broad order sought herein by Spancrete is not warranted in 8 Local 42, Bricklayers, Masons and Plasterers International Union of Amer- ica, AFL-CIO (Spancrete Northeast, Inc.), 192 NLRB 64 (1971); Local 10, Bricklayers, Masons and Plasterers International Union of America. AFL- CIO (Spancrete Northeast, Inc), 191 NLRB 638 (1971); Local No. 6, Interna- tional Association of Bridge, Structural & Ornamental Ironworkers (Spancrete Northeast, Inc), 196 NLRB 1182 (1972). 9 Local 6, Ironworkers, supra at 1185. 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this case . Therefore our present determination is lim- ited 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 employed by Spancrete Northeast, Inc., who _are currently represented by Construction and General Laborers Union, Local 190, Laborers International Union of North America, AFL-CIO, and Local 17, Laborers International Union of North America , AFL-CIO, are entitled to perform the work of rigging and placing precast , prestressed concrete planks at the Ulster, New York, town office building construction site. 2. Local Union Number 417, International Asso- ciation 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 the Employer to award the above work to its members or employees it represents. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local Union Number 417, International Association of Bridge , Structural and Ornamental Ironworkers, AFL-CIO, shall notify the Regional Director for Region 3, in writing, whether it will or will not refrain from forcing or requiring Spancrete Northeast, Inc., by means pro- scribed by Section 8(b)(4)(D) of the Act, to award the work in dispute to its members rather than to employees represented by Locals 190 and 17 of the Laborers International Union of North America, AFL-CIO.