Bldg. & Constr. Trades Council of Las Vegas

National Labor Relations Board - Board Decisions

Oct 21, 1969

179 N.L.R.B. 251 (N.L.R.B. 1969)

BLDG . & CONSTR. TRADES COUNCIL OF LAS VEGAS
Building and Construction Trades Council of Las
Vegas; International Association of Bridge,
Structural and Ornamental Iron Workers, Local
433, AFL-CIO and International Alliance of
Theatrical Stage Employees and Moving Picture
Machine Operators of the United States and
Canada , AFL-CIO , and its Affiliated Local 720'
and Hoffend & Sons, Inc. Case 31-CD-37
October 2 1, 1969
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
This is a proceeding under Section 10(k) of the
National Labor Relations Act , as amended,
following an amended charge by the International
Alliance of Theatrical Stage Employees and Moving
Picture Machine Operators of the United States and
Canada, AFL-CIO, herein called the Charging
Party or IATSE, alleging a violation of Section
8(b)(4)(D ) by Building and Construction Trades
Council of Las Vegas, herein called the Council, and
by International Association of Bridge, Structural
and Ornamental Iron Workers , Local 433,
AFL-CIO, herein called Iron Workers Local 433.
Pursuant to notice, a hearing was held on June 11,
17, and 18, 1969, in Las Vegas, Nevada, before Paul
J. Driscoll, Hearing Officer . The Employer , Hoffend
& Sons, Inc., IATSE and its Local 720; the Council
and Iron Workers Local 433, 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. IATSE
and its Local 720, and Iron Workers Local 433 have
filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
this case 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:
'Local 720 was permitted to intervene at the hearing on the basis of its
claim to the disputed work
'A motion by counsel for IATSE and its Local 720 to strike the
testimony of Lansford, the business agent of Iron Workers Local 433, on
the ground that such testimony was based on his belief , opinion, or
impression as to the work performed by Local 433 at the Frontier Hotel,
was referred to the Board by the Hearing Officer This motion is hereby
denied as the instant proceeding is not limited by strict rules of evidence,
being in the nature of an investigatory proceeding
1. THE BUSINESS OF THE EMPLOYER
251
The Employer is engaged in the business of
furnishing and installing stage equipment for
theatrical stages. As a subcontractor of Taylor of
Nevada, Inc , it was engaged in installing the stages
at the International Hotel being constructed in the
Las Vegas, Nevada metropolitan area. During the
preceding year the Employer received products
valued in excess of $50,000 from outside of Nevada,
which products were used in the International Hotel
project. We find, accordingly, that the Employer is
engaged in commerce within the meaning of the Act
and that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find, that IATSE,
its Local 720, the Council, and Iron Workers Local
433 are labor organizations within the meaning of
Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The dispute concerns the work of installing stage
rigging (including counter weights ) and curtains and
draperies , 95 percent of which involves bolting and
welding, on three stages at the International Hotel
construction project in Las Vegas. It has recently
been the Employer ' s nationwide practice to assign
this type of work to members of Iron Workers
because on most such jobs, Iron Workers could
supply the only qualified workers necessary for this
work , including certified welders. The Employer
therefore entered into a collective - bargaining
contract with the Iron Workers International Union
on September 3, 1968. However , because IATSE
Local 720 informed the Employer that it had
performed all the work of this kind within recent
years in the Las Vegas metropolitan area, and
assured the Employer that it could furnish sufficient
certified welders to complete this work, the
Employer entered into a contract on April 28, 1969,
with, and on the following day assigned the
unloading of stage equipment to, that Local.
When , on April 29, 1969 , Iron Workers Local 433
discovered members of Local 720 unloading stage
rigging equipment at the International Hotel job
site, it called a meeting of the Council at which
representatives of other building trades unions were
also present, and it was decided that the Iron
Workers were entitled to the work in question. The
next day, April 30, a meeting was held at the job
site attended by Arnold (a representative of the
Council ), a Taylor official, Lansford (the Iron
Workers Local 433 business agent ), representatives
of other building trades unions, and representatives
of the Employer . At this meeting, representatives of
179 NLRB No. 41
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other building trades unions made inquiry about the
scope of the work but no claim was made by them
or on their behalf. However, Arnold threatened that
if the stagehands were not removed from the job,
the entire job would be closed down. Thereafter, the
Employer notified the members of IATSE Local
720 working on the job that they were terminated
because Arnold or Lansford had threatened to shut
down the job unless stage rigging work was assigned
to the Iron Workers. At a subsequent meeting on
May 3 in the office of Local 720, attended by the
Employer and Lansford, Nicholson, an officer of the
Employer, stated that the decision to replace
members of Local 720 with members of Iron
Workers on stage rigging work was made because of
the threat by the Iron Workers, whereupon
Lansford said "that's right."
The Employer then executed an agreement with,
and assigned the work of rigging the stage to, Iron
Workers Local 433. Subsequent thereto, IATSE
filed the amended charge in the instant case.
B. The Work in Dispute
IATSE and its Local 720, and Iron Workers
Local 433 now agree, and we find, that the work in
dispute is the installation of stage rigging (including
counterweights), curtains, and draperies for the three
stages at the International Hotel construction
project in Las Vegas, Nevada.
C. Contentions of the Parties
issues.
D Applicability of the Statute
The charges herein allege violations of Section
8(b)(4)(D) of the Act by the Council and Iron
Workers Local 433 As set forth above, the record
contains evidence that on April 30, 1969, Arnold, an
agent of the Council, in the presence of Lansford,
an agent of Iron Workers Local 433, threatened to
shut down the job if the disputed work was
performed by members of IATSE Local 720. At a
subsequent meeting, Lansford ratified that threat as
emanating from Iron Workers Local 433. On the
basis of the foregoing and the entire record, we
conclude that there is reasonable cause to believe
that a violation of Section 8(b)(4)(D), by both the
Council and Iron Workers Local 433, has occurred
and that the dispute over whether the work should
be assigned to members of Iron Workers Local 433
or IATSE Local 720 is properly before the Board
for determination.
Nor do we regard the proposed settlement
agreement as a bar to a finding that there is viable
dispute before us. Thus, although the agreement was
signed by Iron Workers Local 433 in the form
proposed by the Regional Director, by its terms it
was not binding unless executed by all parties and
approved by the Regional Director, and as conceded
by Iron Workers Local 433, it was never executed
by the Charging Party nor approved by the
Regional Director.3
Iron Workers Local 433 preliminarily contends
that the notice of hearing should be quashed because
(I) it had agreed to the terms of a settlement
prepared by the Regional Director, and thus there
was no dispute to be determined; and (2) there is no
probable cause to find that it committed an
8(b)(4)(D) violation because Arnold, who had no
authority to act, made the sole threat of stoppage of
work. On the merits Iron Workers Local 433
contends that the Employer's assignment of work to
it should be affirmed, as it had the effect of giving
jobs to unemployed ironworkers, while members of
IATSE Local 720 had full employment as
stagehands. Additionally, Iron Workers Local 433
argues that the Employer preferred to assign the
work to members of that Local because of safety
and economy, and its members' ability to do
welding; it also relies on the Employer's recent
practice of assigning such work in connection with
new construction to the Iron Workers, and the
Employer's contracts with the Iron Workers.
In contending that the work should be awarded to
members of Local 720, IATSE and Local 720 rely
chiefly on the Las Vegas metropolitan area practice
of having such work performed by members of
Local 720, and the Employer's contract of April 29,
1969, with, and its original assignment to, that
Local. The Employer takes no position on these
E The 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 relevant factors.4
We have considered the various contentions of the
parties and the entire record, and find that the
following are pertinent to our determination herein.
1. Neither Union has been certified by the Board
as the exclusive bargaining representative of
employees engaged in performing the work in
question.
2. Both Unions obtained from the Employer
contract language which appears to have been
intended to cover the work in dispute, although such
language does not refer specifically to new
construction. The Employer's 1968 contract with the
Iron Workers International provides that it "covers
all work coming under the jurisdiction of (Iron
Workers) " The Iron Workers International
constitution refers generally to Iron Workers'
we find no merit in the contention of Iron Workers Local 433 that the
Regional Director should have approved the informal settlement
agreement, as this matter was within the Regional Director's discretion
IN L R B v Radio Television Broadcast Engineers Union Local 1222,
International Brotherhood of Electrical Workers (Columbia Broadcasting
System). 364 U S 573 , International Association of Machinists, Lodge
No 1743, AFL-CIO (JA Jones Construction Companv). 135 NLRB
1402, 1411
BLDG. & CONSTR. TRADES COUNCIL OF LAS VEGAS
jurisdiction as iron work in connection with
construction, and specifically to welding and to
"stage equipment, and counterweight system and
rigging . ." The Employer's 1969 contract with
IATSE Local 720 does not refer specifically to
welding but contains occupational classifications
pertaining to the installation (1) of theatrical
"properties" as that term has been used in the
"entertainment" industry, (2) "theatrical stage
counterweight systems", and (3) metal and allied
components "at places of entertainment "
3. Although incomplete, the evidence submitted as
to industry practice shows that most stage rigging is
performed by ironworkers or carpenters, and some
by laborers or stagehands
4 The Employer's recent practice has been to
employ ironworkers
5 The predominant Las Vegas metropolitan area
practice has been for stagehands to perform stage
rigging involving counterweight systems, but, where
new construction is involved ironworkers and
carpenters have also performed such work in this
area.
6. The testimony of the Employer's
representatives indicates the Employer prefers to
employ ironworkers rather than stagehands where
greater heights and welding are involved. The
instant job involved greater than normal heights and
welding IATSE Local 720 assured the Employer
that it could furnish sufficient qualified workmen
including welders, and the evidence reveals that it
had "some" certified welders Four or five welders
were referred by Iron Workers Local 433 to the
instant fob and performed the work to the
Employer's satisfaction, and in a manner considered
quick, safe, and efficient.
7. IATSE Local 720 members were fully
employed as stagehands in the area, and if they had
performed the construction work in dispute they
would have required a later starting time, whereas
ironworkers who were referred by Iron Workers
Local 433 were unemployed and started work at the
customary starting time Thus an award of work to
253
stagehands would have resulted in ironworkers being
without jobs and would have required the Employer
to arrange special working schedules, whereas the
assignment to ironworkers did not cause
unemployment among stagehands, or inconvenience
to the Employer.
We have considered all the above factors, and
particularly in view of the Employer's present
practice, its preference for employing ironworkers to
perform installation work at great heights on new
construction, the stagehands' possession of full
employment apart from this construction project,
and the considerations of safety and economy
inherent in these factors, we conclude that they
predominate in favor of ironworkers represented by
Iron Workers Local 433, and we shall determine the
dispute in their favor `
In making this determination, we are assigning
the disputed work to ironworkers who are
represented by Iron Workers Local 433, but not to
Iron Workers Local 433 or its members. As there
have been no instances of prior disputes between the
parties, we shall limit our determination to the
particular dispute 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
proceeding, the National Labor Relations Board
hereby makes the following determination of the
dispute:
Ironworkers employed by the Employer and
represented by Iron Workers Local 433 are entitled
to the work of installing stage rigging (including
counterweights), curtains, and draperies in the three
stages at the International Hotel construction jobsite
in the Las Vegas metropolitan area.
'As our determination of the disputed work , based on all factors, is
adverse to IATSE Local 720, we find it unnecessary to pass on the
contention of Iron Workers Local 433 that IATSE Local 720's contract
violates Section 302 of the Act