Structural Steel and Bridge Painters, NY

National Labor Relations Board - Board Decisions

Feb 10, 1965

150 N.L.R.B. 1672 (N.L.R.B. 1965)

1672 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD
. 2. Shopmen's Local 509, International Association of Bridge, Structural and Orna-
mental Ironworkers is, and during all times material was, a labor organization
within the meaning of Section 2(5) of the Act.
3. All employees covered by the contract between Adot and the Union which was
in effect on June 7, 1963, during all times material constituted, and now constitute, a
unit appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
4. At all times material the Union has represented the majority of employees in
the appropriate unit and by virtue of Section 9(a) of the Act has been, and now is,
the exclusive representative of all the employees in the aforesaid appropriate unit
for the purposes of collective bargaining with respect to grievances, labor disputes,
rates of pay, wages, hours of employment, and other terms and conditions of
employment.
5. By refusing to answer all pertinent inquiries on and after June 7, 1963, of the
Union and of its counsel about Ador's intention to discontinue any of its operations,
Respondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (1) and (5) of the Act. -
6. By unilaterally discontinuing its window and inexpensive door operations on
June 10, 1963, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) and (5) of the Act.
7. By refusing to discuss and negotiate with the Union on and after June 7, 1963,
its intention to discontinue its window and inexpensive door operations, Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Sec-
ton 8 (a) (1) and (5) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Structural Steel and Bridge Painters of Greater New York,
Local 806, AFL-CIO and Steele & Associates , Inc. Case No.
29-CD-6 (formerly 2-CD-307). February 10, 1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following a charge filed by Steele &
Associates, Inc., herein called the Employer, alleging that the Struc-
tural Steel and Bridge Painters of Greater New York, Local 806,
AFL-CIO, herein called the Painters, had violated Section 8(b) (4)
(D) of the Act. Pursuant to notice, a hearing was held before-
Hearing Officer Jacques Schurre between August 19 and October 19,
1964. The Employer, the Painters, and United Slate, Tile and
Composition Roofers, Damp & Waterproof Workers Association,
Local Union No. 8, herein called the Waterproofers, appeared at
the hearing and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce evidence bear-
ing on the issues.' The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the
National Labor Relations Board has delegated its powers in connec-
1 Waterproofers Local Union No. 154 did not enter an appearance at the hearing.
150 NLRB No. 164.
STRUCTURAL STEEL AND BRIDGE PAINTERS, N.Y. 1673
tion with this case to a 1 three-member panel [Chairman McCulloch
and Members Fanning and Jenkins].
Upon the entire record in this case, the Board makes the follow-
ing findings :
A. The business of the Employer ; -Y
The Employer, a Georgia corporation with its principal office .and
place of business in Atlanta, Georgia, is engaged in business as cor-
rosion engineers and contractors, specializing in the field of pro-
tective coating applications. Several- years ago the Employer
opened a branch in, Glen Head, Long Island, New York, which it
calls • its Northeastern Division.. The Employer's -business is con-
ducted in several States, and during the past year the value of the
materials purchased by it and shipped from outside the State in
which the work was performed amounted to more .than $300,000.
We find that the Company is engaged in commerce" within,the.mean-,
ing,of Section 2(6) and (7) of the Act, and that it will effectuate
the purposes of the Act to assert jurisdiction herein.
B. The labor organizations involved
The parties stipulated, and we find, that the Painters and the
Waterproofers are labor organizations within the meaning of Sec-
tion 2 (5) . of the Act.
C. The dispute
1. The work in issue
The disputed work which. gave rise to this proceeding concerns
the surface cleaning of steel pipe piles and sheet piling by sand or
grit blasting, to be followed by the application of two coatings of
"coal tar epoxy resin similar and -equal to Tarset as manufactured
by the Pittsburgh Coke and Chemical Company or Arocoat as
manufactured by the Brooklyn Paint and Varnish Company." The
piling is destined to be driven into the Flushing Bay bed as the
foundation for runway extensions at La Guardia Airport.
2. The background facts
On April 9, 1964, Steers-Spearin-Tully-Gerwick (herein called
Steers), a joint venture holding the prime contract from the Port
of New York Authority for the construction of runway extensions at
La Guardia Airport, subcontracted the above-described work to the
Employer. The work is being performed in the yard of 'Sound Ship
Building Corporation (herein called Sound), at College Point, Long
Island, New York. The work commenced April 21, 1964, and was as-
signed to employees who are represented by the Waterproofers.
1674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After the Employer : had been, awarded the contract it' ordered a
grit-blasting machine, called the, Pangborn Rotoblast, to be used, in
cleaning the piles.' The machine was delivered, in parts, on June 23
and was assembled by members of the Waterproofers and other
employees of the Employer. under the guidance of a Pangborn rep-
resentative who, at the same time, instructed the employees in the
functioning of the various parts and in the operation of the ma-
chine. The Employer began full-scale operation of the Rotoblast
machine on August 8. Prior to that time the piles had been cleaned
in the conventional manner by sandblasting.
Before Steers subcontracted the disputed work to the Employer'
a jurisdictional dispute had arisen between the Painters and the
Waterproofers over similar work at a pier job on the East River.
The dispute was referred to the executive committee of the Build-
ing Trades Employers Association of the City of New York (herein
called BTEA) and on January 17, 1964, the committee awarded the
work of applying protective coating to steel piles to the Water-
proofers. On February 6 the BTEA decided, following a request
for an interpretation, that the intent of its January 17 decision was
also to assign any preparatory work, including sandblasting, to the
Waterproofers. The decision was reaffirmed on March 5. The
Painters then appealed to the National Joint Board for Settlement
of Jurisdictional Disputes and on May 28 the Joint Board reversed the
BTEA decision and assigned the disputed work to the Painters,
effective only as to that particular pier job. Thereafter, on June 19,
the BTEA rescinded its prior decision, adopted the decision of the
Joint Board, and in accordance with its policy, made the decision
applicable areawide.
After the BTEA had adopted the decision of the Joint Board the
business representative of the Painters, James Bishop, presented a
claim to the Employer for the disputed work. Herbert Schmidt,
the Employer's manager, told Bishop that the Employer had in-
vested-$75,000 in the Rotoblast machine and asked Bishop whether
the Painters would have any objection to using the machine. Bishop
replied that the Painters would not use the machine. Schmidt then
stated that the Painters would not be employed since, apart from
any other consideration, the Employer had purchased the Roto-
blast machine specifically for the La Guardia job and failure to
use it would result in serious financial loss to the Employer.
In the latter part of June, Bishop 'informed Schmidt that since
the Employer had failed to reassign the disputed work to the Paint-
ers, Sound's premises, as well as the La Guardia jobsite, would be
2 This is one of four Pangborn Rotoblast machines in use in the country at the time
of the hearing.
STRUCTURAL STEEL AND BRIDGE PAINTERS, N.Y. 1675
picketed. On June 30 Painters sent a telegram to Steers, the gen-
eral contractor, stating that because of, the Employer's refusal to
reassign the disputed work to Painters, the union would be com-
pelled to picket the jobsite to protect its, jurisdiction. A similar
telegram was sent to the Port of New York Authority.
The Painters began picketing at Sound's premises on July 2, and
on the same date the Employer filed a charge alleging violations of
Section 8(b) (4) (i) and (ii) (D) of the Act. On July 17 the Paint-'
ers voluntarily terminated the picketing. On July 30 a petition
for an injunction was filed by the Board in the United States 'Dis-
trict Court for the Southern District-of New York. On August 4
the Painters executed a stipulation agreeing to the entry of a 'tem-
porary injunction 'pending the Board's final disposition of this case.
On August 5 it was "so ordered" by the court.
3. Contentions of the parties
The Employer contends that it is in the waterproofing business
and has always employed waterproofers to perform-this work and
that its assignment of work should be honored. The Employer
also contends that at the time it bid for the La Guardia job the
BTEA had assigned the work to the Waterproofers, whose rates of
pay for the work are substantially lower than those required by
the Painters, and that, it would be inequitable now to require the
hiring of Painters on the La Guardia job.
The Waterproofers contends, as did the Employer, that the Em-
ployer's past practice in hiring only Waterproofers is,indicative of
their ability to perform the work and that the Employer's practice
is a factor in favor of assignment of the work to them. The Water-
proofers further contends that custom and practice in the industry
in the area is to assign the work to them. ,
The Painters contends that Tarset is a protective coating which
may be applied with a brush and therefore traditionally, and by
virtue of an agreement between the Painters and the Waterproof-
ers, falls within the ambit of,the jurisdiction of the Painters. The
Painters also relies on the Joint Board decision and the subsequent
adoption of that decision by the BTEA which made the decision
areawide.
D. Applicability of the statute
Section 10(k) of the Act empowers the Board to determine the
dispute out of which an 8(b) (4) (D) charge has arisen. However,
before the Board proceeds with a determination of dispute, it must
be satisfied that there is reasonable cause to ' believe that Section
8(b) (4) (D) has been violated. We are satisfied, on the facts set
1676 DECISIONS OF NATIONAL LABOR RELATIONS.BOARD
forth above, that there is reasonable cause to believe that the Paint-
ers engaged in conduct proscribed by Section 8 (b) (4) (i) and (ii)
of the Act for an object proscribed by clause (D) thereof; namely,
to- force the assignment of work to its members which was being
performed by, employees represented by the Waterproofers. , We
conclude, accordingly, that the • dispute is properly before the
Board for determination under Section 10 (k) of the Act.
E. Merits of the dispute
Section 10(k) of the Act requires the Board to make an affirma-
tive award of disputed work after giving due consideration to the
various relevant factors, and as the Board has stated, its determina-
tion in a jurisdictional dispute case is an ' act of judgment based
upon commonsense and experience and a balancing of such factors .3
In this case the factors discussed below are determinative.
1. Collective-bargaining agreements
The Employer has a collective-bargaining agreement with the
Waterproofers covering the employees to whom the Employer
assigned the work in dispute. It has no collective-bargaining agree-
ment with the Painters. Its agreement with the Waterproofers is
clearly intended to cover the application of epoxy. protective coat-
ings to steel piling, the work here in dispute. Thus by its terms
it covers : V
Article. II (a)-The application and the installation of all
... waterproofing on or in all types of structures or any ,part
thereof; such as '... beams, pipes. . . .
The application and installation of the above work with the
following materials, whether applied, by use of brush, trowel,
mop, roller, spray or any other method; Tar Asphalt, Pitch,
Plastic Slate ... or any, other bituminous material or bitumen
saturated or bitumen coated materials, including all kind of
Epoxy Coatings... .
Article II (f)- ... The application of bituminous materials
or pitch enamels on steel or metal where used for protection
from corrosive action by water, acids, or other chemicals ' or
fluids.
This constitutes a specific assignment of the disputed work to the
Waterproofers.
s N L.R.B. v. Radio & Television Broadcast Engineers Union, Local 1212, IBEW
(Columbia Broadcasting System), 364 U.S. 573; International Association of Machinists,
Lodge No. 17 4 8 (J. A. Jones Construction Company ), 135 NLRB 1402, 1411.
STRUCTURAL STEEL AND BRIDGE PAINTERS , N.Y. - 1677
2. Efficiency and economy Of operation
The Employer has declared a definite preference for the assign-
ment of the disputed work to the Waterproofers *based upon the
efficiency of operations and upon willingness of the Waterproofers
to operate the Pangborni machine. The, record shows that the
Employer has always employed Waterproofers on'this type of work
and that he bid for and received his subcontract on the assumption,
based on the original BTEA decision, that Waterproofers would be
employed at a rate substantially lower than that demanded by the
Painters. Moreover, the Employer purchased the Pangborn ma-
chine specifically for this job, and at a time when the original
BTEA decision was still outstanding, and the Waterproofers helped to
assemble the machine and have been trained in its use. The Painters,
on the other hand, has indicated that it would not permit the use of
the machine in performing the work in dispute. We find, therefore,
that efficiency of operation clearly favors the Waterproofers.
3. Company, area, and industry practice
It appears that the Painters has performed the work of coating
steel piles in the New York City area,' but the evidence shows that
a preponderance of this type of work is done by waterproofing
contractors employing members of the Waterproofers. The Em-
ployer has always employed Waterproofers, and never Painters, to
perform the work in dispute. We find that Company and area
practice favor the assignment of work to employees represented
by the- Waterproofers.
4. Other considerations
The Painters relies upon the Joint Board 'award in the contro-
versy at the pier job on the East River. Inasmuch as the Employer
had not agreed to be bound by a decision of the Joint Board in
this matter, the decision by that body is only one of the factors
'which we must consider in assigning the, disputed work. Both
unions submitted evidence of other Joint Board' awards, but 'the
result of such evidence is inconclusive. Neither' union has been
certified by the Board as -the exclusive bargaining representative
for any of the Employer's employees. The skills necessary in sand-
blasting and spraying steel piling are possessed by employees rep-
resented by both unions. And since the record does not establish
that the coating, Tarset, used on the steel piling herein is one to
be applied with a brush, the 1920 agreement between the Painters
and the Waterproofers is of no value in making an assignment of
the disputed work. '
1678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. Conclusions, as to the merits of the dispute
'Upon consideration of all pertinent factors in the entire record,
we shall not disturb the assignment of the disputed work to em-
ployees represented by the Waterproofers. This assignment is con-
sistent with contractual obligations, follows the predominant cus-
tom and practice in the area, and promotes efficiency and economy
of operation. Accordingly, we shall determine the existing juris-
dictional dispute by deciding that employees represented , by the
Waterproofers, rather than employees represented by the Painters,
are entitled to the work of cleaning steel pipe piles and sheet piling
by. sand or grit blasting and applying the coatings specified in the
Employer's subcontract under the La Guardia Airport runway
extensions contract. In making this determination we are award-
ing the work in question to employees represented by the Water-
proofers, but not to the Waterproofers or its members. Our present
determination is limited to the particular controversy which gave
rise to this proceeding.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings and the entire record in
this proceeding, the Board makes the following determination of
dispute pursuant to Section 10(k) of the Act :
1. Employees employed by Steele & Associates , Inc., who are
represented by the United Slate , Tile & Composition Roofers, Damp
& Waterproof Workers Association , Local Unions No. 8 and No.
154, are entitled to the work of surface cleaning of steel piles and
sheet piling by sand or grit blasting , and the application of coat-
ings of coal tar epoxy resin similar and equal to Tarset as manu-
factured by the Pittsburgh Coke and Chemical Company or Aro-
coat as manufactured by the Brooklyn Paint and Varnish Company
as specified in the Employer's subcontract under the contract for
the La Guardia Airport runway extensions.
2. Structural Steel and Bridge Painters of Greater New York,
Local 806 , AFL-CIO, is not entitled , by means proscribed by Sec-
tion 8(b) (4) (D ) of the Act , to force Steele & Associates , Inc., to
assign the above work to employees who are currently represented
by it.
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute , Structural Steel and Bridge Painters of Greater
,New York, Local 806, AFL-CIO, shall notify the Regional Direc-
tor for Region 29, in writing , whether or not it will refrain from
forcing or requiring the Employer , by means proscribed by Section
8(b) (4) (D ), to assign the work in dispute to employees represented
by it rather than to employees represented by the Waterproofers.