Local Union No. 379, International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO (Owren Kirklin & Sons, Inc.)

National Labor Relations Board - Board DecisionsMay 13, 1982

261 N.L.R.B. 843 (N.L.R.B. 1982)

LOCAL UNION NO. 379, IRONWORKERS Local Union No. 379, International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO and Owren Kirklin & Sons, Inc. and Wabash Valley District Council of Carpenters, United Brotherhood of Carpenters & Joiners of America, AFL-CIO. Case 25-CD-216 May 13, 1982 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND HUNTER This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Owren Kirklin & Sons, Inc., herein called the Employer, alleging that Local Union No. 379, International Association of Bridge, Structural and Ornamental Ironworkers, AFL- CIO, herein called the Ironworkers, had violated Section 8(b)(4)(D) of the Act by engaging in cer- tain proscribed activity with an object of forcing or requiring the Employer to assign certain work to its members rather than to employees represent- ed by Wabash Valley District Council of Carpen- ters, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, herein called the Carpen- ters. Pursuant to notice, a hearing was held before Hearing Officer Frederick G. Winkler on Novem- ber 5, 1981. The Employer, the Ironworkers, and the Carpenters appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evi- dence bearing on the issues. Thereafter, the Em- ployer, the Ironworkers, and the Carpenters filed briefs. 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 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 proceeding, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER We find that the Employer, an Indiana corpora- tion with its principal offices located in Muncie, In- diana, is engaged in the construction of commercial and industrial facilities as well as in the setting, moving, and aligning of equipment in industrial plants. During the past year the Employer pur- chased goods from suppliers located outside the 261 NLRB No. 105 State of Indiana in excess of $50,000. Accordingly, we find that the Employer is an employer within the meaning of Section 2(2) of the Act. We further find that the Employer 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. 11. THE LABOR ORGANIZATIONS INVOI VED The parties stipulated, and we find, that the Iron- workers and the Carpenters are labor organizations within the meaning of Section 2(5) of the Act. I11. THE DISPUTE A. The Work in Dispute The disputed work involves the construction and erection of pre-engineered metal buildings at the Cabot Corporation jobsite in Kokomo, Indiana. B. Background and Facts of the Dispute The Employer has contracted with the Cabot Corporation to erect two pre-engineered metal buildings which are to be attached to a preexisting building at the Cabot facility in Kokomo, Indiana. The erection of pre-engineered metal buildings is comparable on a grand scale to working with a toy erector set. The building plans show, by number designation, how the prefabricated components fit together as well as their location on the foundation or footings. The different components are fastened to each other or to the foundation by nuts and bolts or screws. Generally, welding is not required. Although the Employer has erected many pre- engineered metal buildings in the State of Indiana, it has never erected one within the Ironworkers ju- risdiction. With the exception of part of one build- ing which was constructed by employees represent- ed by a different Ironworkers local, the Employer has not erected a pre-engineered metal building with employees represented by any Ironworkers local; it has used only employees represented by other Carpenters locals. Pursuant to a general col- lective-bargaining agreement as well as a specialty agreement which specifically mandates that pre-en- gineered metal buildings be erected by employees represented by the Carpenters, the Employer as- signed the work of erecting the buildings at the Cabot jobsite to employees represented by the Car- penters. The Ironworkers claimed this work and threatened to picket the jobsite if the Employer did not assign the work to employees represented by the Ironworkers. 843 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Contentions of the Parties The Employer contends that a jurisdictional dis- pute exists and that there is reasonable cause to be- lieve that Section 8(b)(4)(D) of the Act has been violated. It further contends that the disputed work should be awarded to employees represented by the Carpenters on the basis of its collective-bar- gaining agreement and specialty agreement with the Carpenters, its assignment of the work, its past practice, economy and efficiency, and the relative skills of the craft groups involved. The Carpenters agrees with the Employer that a jurisdictional dis- pute exists and that there is reasonable cause to be- lieve that Section 8(b)(4)(D) of the Act has been violated. In addition, it agrees that the work should be assigned to employees it represents for essential- ly the same reasons asserted by the Employer except that it claims that industry practice supports the assignment of work to employees represented by the Carpenters. The Ironworkers also agrees that a jurisdictional dispute exists and that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. However, it contends that employees represented by it should be awarded the work by virtue of an interunion agreement between the parent organiza- tions of the Ironworkers and the Carpenters, re- spectively, to which the Employer is bound by a provision in its agreement with the Ironworkers, and on the basis of relative skills, area and industry practice, and trade jurisdiction and substitution of functions. D. Applicability of the Statute Before the Board may proceed with a determina- tion of a 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 there is no agreed-upon method for the voluntary adjustment of the dispute. The threshold standard of "reasonable cause to believe" does not require the same degree of proof as is necessary to establish the actual commission of an unfair labor practice in violation of Section 8(b)(4)(D).' It is uncontested that the Ironworkers threatened to picket the Employer and the Cabot Corporation with the object of forcing the Em- ployer to assign the work to employees represented by the Ironworkers rather than to employees repre- sented by the Carpenters. Therefore, we find there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated. Southern California Pipe Trades District Council No. 168, Plumbers & Steamfitters Local No. 582 (Kimstock Division. Tridair Industries. Inc.), 198 NLRB 1240 (1972). Although the Ironworkers claims that an inter- union agreement controls the merits of the dispute herein, it does not contend that an agreed-upon method exists for its voluntary adjustment. Accord- ingly, we find that this dispute is appropriate for resolution by the Board under Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various factors. 2 The Board has held that its determination in a jurisdic- tional dispute is an act of judgment based on com- monsense and experience reached by balancing those factors involved in a particular case. 3 The following factors are relevant in making the deter- mination of the dispute before us: 1. Certification and collective-bargaining agreements Neither of the Unions involved herein has been certified by the Board as the collective-bargaining representative for a unit of the Employer's employ- ees. The Employer has collective-bargaining agree- ments with both the Ironworkers and the Carpen- ters. The pertinent language of the Employer's cur- rent contract with the Ironworkers reads as fol- lows: ARTICLE II CRAFT JURISDICTION: It is agreed that jurisdiction of work cov- ered by the Agreement is that provided for in the Charter Grant issued by the American Federation of Labor to the International Asso- ciation of Bridge, Structural and Ornamental Ironworkers, it being understood that the claims are subject to trade agreements and final decisions of the AFL-CIO as well as the decisions rendered by the National Labor Re- lations Board. Recognizing that the foregoing language does not explicitly refer to pre-engineered metal buildings, the Ironworkers relies on the reference to trade agreements. The Ironworkers and the Carpenters are affiliated with, respectively, the International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, and the United Brother- 2 NLR.B. v. Radio & Television Broadcast Engineers Union. Local 1212, International Brotherhood of Electrical Workers. AFL-CIO [Colum- bia Broadcasting System], 364 U.S. 573 (1961) 3 International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402 (1962). 844 LOCAL UNION NO. 379, IRONWORKERS hood of Carpenters and Joiners of America, AFL- CIO. These two parent organizations have a "trade agreement" which defines the jurisdiction of the two trades. One section of the "Stran Steel" article provides: On Rigid Frame Buildings, the Ironworkers shall erect the structural steel members (col- umns, trusses, purlines, or girts when structur- al members) and the exterior metal sheeting or metal paneling. The Carpenters shall erect any nailable stran-steel members. Since the uncontroverted evidence establishes that the buildings in dispute are "rigid frame" type buildings, the Ironworkers contends that the fore- going provision in the trade agreement requires the Employer, who was not a party to that agreement, to assign the work to employees represented by it. The Board has considered the applicability of the same section of this trade agreement to similar work in Local 361, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Concrete Casting Corp.), 209 NLRB 112 (1974). In that case we noted that the agreement would be ambiguous if it were true that structural steel members of rigid frame buildings were naila- ble. According to the Employer's uncontroverted testimony, nailable stran-steel members are, indeed, components of pre-engineered buildings. Therefore, as in Local 361, Iron Workers, supra, it is unclear here whether the trade agreement applies to the work in dispute. Even if we found no ambiguity in the trade agreement, we would still attach no weight to it because not all parties have agreed to be bound by it. Id. Only the Ironworkers has agreed to be bound. The Employer does not agree to be bound by it. While the Carpenters has not explicitly taken a position on the applicability of this agreement, by continuing to claim that its own agreements with the Employer apply, its position is apparent. There- fore, the agreement between the Ironworkers and Carpenters parent organizations does not support the Ironworkers claim that the work should be awarded to employees represented by the Carpen- ters. As noted above, the Employer has two agree- ments with the Carpenters, a general collective- bargaining agreement which, like the Ironworkers agreement cited above, binds the Employer to trade agreements, as well as a specialty agreement. The latter is entitled "Wabash Valley District Council of Carpenters, Pre-Engineered Metal Building Agreement." It provides in pertinent part: "This agreement covers the specialty work of erecting pre-engineered metal buildings." Since the work in dispute is the erection of pre-engineered metal buildings, the specialty agreement clearly supports the Employer's and the Carpenters claim. Indeed, the Ironworkers does not dispute the merits of their claim. However, the Ironworkers contends that the specialty agreement does not cover the work in dispute because it was executed a few days after the Employer executed a contract with the Cabot Corporation for the work in dis- pute. Since the specialty agreement was executed well before construction of the buildings was to begin, we see no reason why it could not cover the work in dispute. Accordingly, we find that the col- lective-bargaining agreements between the Em- ployer and the Carpenters favor an award of the work in dispute to employees represented by the Carpenters. 2. Employer practice and preference At the hearing and in its brief the Employer has expressed its preference that the disputed work be performed by employees represented by the Car- penters. This is consistent with the Employer's past practice, which has been to award the work to em- ployees represented by a different Carpenters local pursuant to a specialty agreement virtually identi- cal to the one executed by the Employer and the Carpenters here. Accordingly, we find that this factor favors an award of the disputed work to em- ployees represented by the Carpenters. 3. Relative skills and training The parties dispute whether employees repre- sented by the Ironworkers or by the Carpenters possess superior skills and training. From our ex- amination of the record we conclude that the evi- dence is equivocal. While the record contains evi- dence that both ironworkers and carpenters have successfully erected many pre-engineered metal buildings, there are difficulties with the evidence each side has adduced. The Carpenters attempted to prove that employees it represents possess great- er skills but its evidence was limited to construc- tion outside the jurisdiction of the Ironworkers. The Employer's evidence that employees repre- sented by the Ironworkers are not as skilled was based on a very limited experience with a different Ironworkers local. Similarly, although the Iron- workers presented testimony that employees it rep- resents possess superior skills and training because of their experience with conventional as well as pre-engineered buildings, one of their witnesses tes- tified that erecting pre-engineered buildings re- quires skills different from those required for con- ventional buildings because lighter steel is in- volved. Therefore, the factor of skills and training 845 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD does not favor an award of the work in dispute to either group of employees. 4. Area practice The Employer, the Ironworkers, and the Car- penters all rely on area practice to support their contentions. However, they rely on different areas. The Carpenters and the Employer rely on practice essentially within the State of Indiana, while the Ironworkers relies especially on the Cabot Corpo- ration site but also on practice within the Iron- workers jurisdiction which extends over several counties in central Indiana. Since the evidence is indeterminate, we find that this factor does not support an award of the work in dispute to either group of employees. 5. Economy and efficiency The Employer claims that it would be more eco- nomical and efficient to use employees represented by the Carpenters because only one crew would be required. If the Employer were required to use em- ployees represented by the Ironworkers, a crew of employees reprsented by the Carpenters would still be required for some parts of the buildings. Ac- cording to the Employer, two crews would neces- sarily cause coordination problems which would result in inefficiency and greater expense. The Ironworkers presented no evidence to support the Employer's claim. In the absence of specific evi- dence to support the Employer's argument, howev- er, we find that the evidence is insufficient to sup- port an award of the work to either group of em- ployees. 6. Trade jurisdiction and substitution of functions A large part of the work traditionally performed by the Ironworkers has involved the erection of metal buildings, albeit conventional structural steel buildings rather than pre-engineered metal build- ings. The Board has long recognized the difficulties created by the introduction of a new process when technological changes take place. Accordingly, we have considered the difficulties confronted by the Ironworkers in this case by the introduction of pre- engineered metal buildings. In this case, however, as noted in sections 3 and 5 infra, employees repre- sented by both the Ironworkers and the Carpenters have an extensive past practice of performing this kind of work. Accordingly, we find that this factor does not favor an award of the work in dispute to either group of employees. Conclusion Upon the record as a whole, and after full con- sideration of all relevant factors involved, we con- clude that employees represented by the Carpen- ters are entitled to perform the work in dispute. We reach this conclusion relying on the following factors: The Employer's past practice and prefer- ence, and the current collective-bargaining agree- ments. In making this determination, we are award- ing the disputed work to employees represented by the Carpenters, but not to that Union or its mem- bers. Our present determination is limited to the particular dispute which gave rise to this proceed- ing. 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. The employees of Owren Kirklin & Sons, Inc., who are represented by Wabash Valley District Council of Carpenters, United Brotherhood of Car- penters & Joiners of America, AFL-CIO, are enti- tled to perform the erection of pre-engineered metal buildings at the Cabot Corporation jobsite at Kokomo, Indiana. 2. Local Union No. 379, International Associ- ation of Bridge, Structural and Ornamental Iron- workers, AFL-CIO, is not entitled by means of conduct proscribed by Section 8(b)(4)(D) of the Act to force or require to assign the aforemen- tioned work to employees it represents. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local Union No. 379, International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, shall notify the Regional Director for Region 25, in writing, whether it will refrain from forcing or re- quiring Owren Kirklin & Sons, Inc., by means pro- scribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to employees represented by Local Union No. 379, International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, rather than to employees represented by the Wabash Valley District Council of Carpen- ters, United Brotherhood of Carpenters & Joiners of America, AFL-CIO. 846