Local 405, Iron Workers

National Labor Relations Board - Board Decisions

Feb 26, 1974

209 N.L.R.B. 250 (N.L.R.B. 1974)

250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reinforced Rod Setters, Local 405, International
Association of Iron Workers , AFL-CIO and Glas-
gow, Inc. ; Contractors Association of Eastern
Pennsylvania ; and The Nyleve Company and
Laborers District Council of the Metropolitan Area
of Philadelphia and Vicinity, International Hod
Carriers Building and Common Laborers of Ameri-
ca. Case 4-CD-321
February 26, 1974
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Contractors Association of
Eastern Pennsylvania,' Glasgow, Inc.,2 and The
Nyleve Company,3 alleging that Reinforced Rod
Setters, Local 405, International Association of Iron
Workers,4 had violated Section 8(b)(4)(D) of the
National Labor Relations Act, as amended. A
hearing was duly held before Hearing Officer Jeffrey
C. Falkin on August 16 and on October 2 and 5,
1973. The Association, Glasgow, Nyleve, Iron
Workers, and Laborers District Council of the
Metropolitan Area of Philadelphia and Vicinity,
International Hod Carriers Building and Common
Laborers of America,5 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
Association, Glasgow, and Nyleve filed a joint brief
and Iron Workers filed a separate brief, both of
which have been duly considered.
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. They are hereby affirmed.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF GLASGOW
The parties stipulated that Glasgow is engaged in
the construction of a new highway and ancillary
bridges along Highway Route 202 in Bridgeport,
Pennsylvania, and that Glasgow annually purchases
Hereinafter referred to as the Association
2 Hereinafter referred to as Glasgow
3 Hereinafter referred to as Nyleve
4 Hereinafter referred to as the Iron Workers
and receives construction materials valued in excess
of $50,000 from sources outside of Pennsylvania.
We find that Glasgow is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
and that it will effectuate the purposes of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Iron
Workers and Laborers are labor organizations within
the meaning of Section 2(5) of the Act.
Ill. THE DISPUTE
A. Background Facts
Glasgow is the general contractor, pursuant to a $6
million contract let by the Commonwealth of
Pennsylvania, in the construction of a highway and
bridges on Route 202 at Bridgeport, Pennsylvania.
Glasgow retained the highway construction work for
itself, but subcontracted the construction of the
bridges to Nyleve, which specializes in that type of
work. Nyleve in turn subcontracted work to G & H
Steel, Inc.,6 which hired the employees represented
by Iron Workers. The ironworkers were given the
steelwork on the bridges, and Glasgow assigned
certain steel-reinforcing work on the approach slabs
to its employees represented by Laborers.
On June 14, 1973, when Glasgow began work on
the bridge approach slabs using laborers, certain
employees represented by Iron Workers informed
representatives of the Laborers and Glasgow's
paving superintendent, Payne, that the laborers were
doing work belonging to the ironworkers. Payne
initially told the laborers to continue working, but
later, trying to avoid any further difficulty or delay
on the job, contacted Mr. Dana of G & H and
requested some ironworkers to install and tie the
reinforcing rods on the approach slabs. Before this
request could be acted upon, however, Payne was
approached by Joseph Platania, the business agent of
Iron Workers, who told Payne to deal directly with
that Union and not through Dana. When Platania
threatened to shut down the job, Payne directed the
laborers to stop working on the approach slabs and
to work in other areas. On June 20, Platania directed
the ironworkers to walk off the job because as he
said, "We have a problem that hasn't been resolved
yet, with Glasgow." Following the issuance of an
injunction,7 the ironworkers resumed working for G
& H and the laborers returned to the work they had
5 Hereinafter referred to as the Laborers
6 Hereinafter referred to as G & H
7 The specifics of the injunction were not disclosed upon the record
Only passing reference to such injunction was made by counsel during the
209 NLRB No. 48
LOCAL 405. IRON WORKERS
been doing for Glasgow before the work stoppage.
The particular approach slab work in this dispute
eventually was completed by the laborers employed
by Glasgow.
B. Work in Dispute
The work in dispute involves the assignment of
work tasks in the placing and binding together of
steel rods used to reinforce the concrete portion of
bridge approach slabs.
C. Applicability of the Statute
In a proceeding under Section 10(k) of the Act, the
Board must first be satisfied that there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated.
Based upon the evidence, we conclude that there is
reasonable cause to believe that a violation of
Section 8(b)(4)(D) of the Act has occurred and that
the dispute is properly before us for determination
pursuant to Section 10(k) of the Act. We further find
no evidence that the Association, of which Glasgow
and Nyleve are members, is a party to the procedures
for settlement of jurisdictional disputes of the
National Joint Board or any other voluntary method
of settlement. Therefore, we find this matter to be
within the Board's jurisdiction to hear and deter-
mine.
D. 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 various relevant factors.
The following factors are relevant in support of the
contentions of the parties herein:
1. Collective-bargaining agreement
On May 1, 1971, Laborers entered into a collective-
bargaining agreement with the Association which by
uncontradicted testimony remains currently in effect.
Glasgow, as a member of the Association, is a party
to the agreement with Laborers. This agreement sets
forth classifications which cover the work of "carry-
ing and handling steel and steel mesh" and work
related to "relief joints and approach slabs." Labor-
ers business manager, Benjamin T. Irvin, testified,
without contradiction, that the work in dispute was
governed and controlled by these job classifications.
Iron Workers has no collective-bargaining agreement
with Glasgow. Although there is a current agreement
between Iron Workers and G & H, it is not suggested
by the testimony nor argued in Iron Workers brief
251
that said agreement has any applicability here.
Consequently, we find that the agreement between
Glasgow and Laborers favors the assignment to
employees represented by Laborers.
2. Company assignment of the work
It is undisputed that Glasgow initially assigned the
work to its employees who are represented by
Laborers. Iron Workers, however, contends that
Glasgow's request for ironworkers to do the job, after
an Iron Workers representative had made a claim for
the work being done by laborers, constituted a
reassignment to the ironworkers. Payne testified that
he and General Superintendent Minckler decided to
replace the laborers with ironworkers to avoid
trouble and delays. However, no such assignment
was actually made. On these facts, we find that
Glasgow's preference in assignment favors the award
of the disputed work to its employees who are
represented by Laborers.
I
3. Company and area practice
The record reveals that Glasgow has for a period of
at least 20 years assigned the type of approach slab
work now in dispute exclusively to employees
represented by Laborers. Therefore, we find Glas-
gow's consistent practice to be in favor of an award
to those employees.
Clyde Measey, an administrator with the James D.
Morrisey Co., which he asserted to be the largest
heavy and highway construction firm in the area of
the disputed work herein, stated that it is his
company's custom to assign the type of approach
slab work in question to employees represented by
Laborers. Charlotte Vollmer, the manager and an
officer of the L & R Construction Co., which does
reinforcing steelwork in the area, and Benny Pino,
the business manager of the Iron Workers, both
stated that they have known only ironworkers to do
this kind of work. Iron Workers contends that it is
common practice to include the approach slabs as
part of the bridge work contracts, that Iron Workers
represents employees performing the bridge work,
and that, consequently, area practice supports an
award to ironworkers. However, Iron Workers
witness Pino testified that bridge contracts some-
times include and sometimes exclude approach slabs.
On this testimony, we find that area practice is
inconclusive and thus not a determinative factor in
awarding the disputed work.
hearing and by the Hewing Officer in his report.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Skills
There is no showing that the work in dispute
requires a degree of skills not possessed by laborers.
That the ironworkers had the requisite skills to
perform the job was not questioned. Consequently,
this factor does not favor the employees represented
by either Union and is found to be inconclusive.
5. Economy and efficiency
Payne testified that three or four laborers could
complete a 24-foot approach slab area in approxi-
mately 8 hours. Pino stated, without contradiction,
that the same amount of work could be done by two
ironworkers in 3 to 4 hours, or by one ironworker in
8 hours. However, according to uncontradicted
testimony, Glasgow assigns laborers to perform the
disputed work during time when they would other-
wise be idle during their workday. Consequently, we
find that whatever advantage there may be to the use
of ironworkers because they can do the disputed
work in less time with fewer men is offset by the fact
that Glasgow derives more efficient and economical
use from its assignment to its employees who are
laborers because (1) it can utilize them to do the
disputed work as "fill-in work" during the time they
cannot perform their usual duties due to breakdowns
and the like, and (2) use of laborers eliminates the
need for hiring extra men for a limited job and
period of time, as would be the case if the assignment
were made to ironworkers.
Conclusion
Based upon the entire record and after full
consideration of all relevant factors, we conclude
that employees represented by Laborers are entitled
to perform the work in dispute. In reaching this
conclusion, we have placed weight upon the collec-
tive-bargaining agreement between Glasgow and the
Laborers, Glasgow's assignment, the established
practice of Glasgow in assigning the disputed
I
approach slab work to its employees represented by
Laborers, and the efficiency and economy available
to Glasgow by employing laborers on the disputed
work during their otherwise unproductive hours.
Accordingly, we shall award the work in dispute to
employees of Glasgow who are represented by
Laborers, but not to that labor organization or its
members.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and on the basis of the
foregoing findings and the entire record, the Nation-
al Labor Relations Board hereby makes the follow-
ing Determination of Dispute:
1. Employees of Glasgow represented by Labor-
ers District Council of the Metropolitan Area of
Philadelphia and Vicinity, International Hod Carri-
ers Building and Common Laborers of America, are
entitled to perform the work of constructing concrete
bridge approach slabs at the Glasgow, Inc., project in
Bridgeport, Pennsylvania.
2. Reinforced Rod Setters, Local 405, Interna-
tional Association of Iron Workers, AFL-CIO, is not
entitled by means proscribed by Section 8(b)(4)(D)
of the Act to force or require Glasgow, Inc., to assign
the approach slab work as described above to
employees represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Reinforced Rod
Setters, Local 405, International Association of Iron
Workers, AFL-CIO, shall notify the Regional
Director for Region 4, in writing, whether or not it
will refrain from forcing or requiring Glasgow, Inc.,
by means proscribed by Section 8(b)(4)(D) of the
Act, to assign the work in dispute to employees
represented by it, rather than to employees employed
by Glasgow, Inc., who are represented by Laborers
District Council of the Metropolitan Area of Phila-
delphia and Vicinity, International Hod Carriers
Building and Common Laborers of America.