Boilermakers Local 374 (Vogt & Conant)

National Labor Relations Board - Board Decisions

Feb 28, 1985

274 N.L.R.B. 487 (N.L.R.B. 1985)

BOILERMAKERS LOCAL 374 (VOGT & CONANT)
Local Lodge No. 374, International Brotherhood of
Boilermakers , Iron Ship Builders, Blacksmiths,
Forgers & Helpers, AFL-CIO and The Vogt
and Conant Company and Local Union No. 395,
International Association of Bridge , Structural
and Ornamental Iron Workers , AFL-CIO. Case
25-CD-237
28 February 1985
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
The charge in this Section 10(k) proceeding was
filed 15 June 1984 by the Employer, alleging that
the Respondent, Boilermakers Local Lodge No.
374, violated Section 8(b)(4)(D) of the National
Labor Relations Act by engaging in proscribed ac-
tivity with an object of forcing the Employer to
assign certain work to employees it represents
rather than to employees represented by Iron
Workers. The hearing was held 18 September 1984
before Hearing Officer Arroll A. Phipps.
The Board affirms the hearing officer's rulings,
finding them free from prejudicial error. On the
entire record, the Board makes the following find-
ings.
1. JURISDICTION
The Company, an Ohio corporation, is engaged
in the business of erecting structural steel, mechani-
cal equipment, and overhead cranes from its re-
gional office in Cleveland, Ohio, and annually per-
forms contract work outside the State of Ohio
valued in excess of $50,000. It also purchases and
receives materials directly from points outside the
State of Ohio valued in excess of $50,000 per year.
We find that the Employer is engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act. We further find that Boilermakers
Local Lodge No. 374 and Iron Workers Local No.
395 are labor organizations within the meaning of
Section 2(5) of the Act.'
' There is no evidence in the record regarding the status of the two
unions involved herein as labor organizations within the meaning of Sec
2(5) of the Act However, based on the following decisions in which
Boilermakers Local 374 and Iron Workers Local 395, respectively, were
found to be "labor organizations," we conclude that the Board's jurisdic-
tional standards have been satisfied American Ship Building Co, 142
NLRB 1362 (1963), and Iron Workers Local 395 (Telander Bros Contrac-
tors), 196 NLRB 119 (1972)
II. THE DISPUTE
487
A. Background and Facts of Dispute
In February 19842 the Company was awarded
work as a subcontractor for the Missouri Boiler
and Tank Company for the erection of structural
steel and duct work in a building which comprises
part of the Northern Indiana Public Service Com-
pany's R.M. Schahfer Generating Station in
Wheatfield, Indiana. The building in question is
part of a Flue Gas Desulphurization system known
as Unit 18 (hereinafter FGD system).
At a prejob conference held on 9 April, Compa-
ny Vice President and General Manager Fred P.
Haas provided representatives of the Boilermakers
and Iron Workers unions with copies of a letter he
had prepared earlier, the pertinent portions of
which follow:
I have discussed jurisdiction of the structural
steel erection with both the Boilermakers and
the Iron Workers. I have accumulated substan-
tial historical information from each. The Boil-
ermakers feel that any steel supporting duct
work or breeching (which are not part of the
building structure) should be assigned to the
Boilermakers. The Iron Workers feel that any
structural steel which is multi- purpose should
be assigned to the Iron Workers.
. . . Vogt and Conant has the responsibility to
erect F.G.D. building structures under a sepa-
rate contract. The structures are supported by
center columns provided under this contract.
The structural steel in the . . . job supports
electrical conduit, piping, stairs and walkways
throughout the structure, under, above and on
all sides of the duct. The center row of col-
umns which support the duct also supports a
monorail system at the top of the structure.
The structural steel for this project is part of
the building . . . .
It is not efficient nor economically wise to
have separate trades plumbing and bolting
steel columns, bracing and beams which inter-
connect, many with common bolts. To split
the erection of the structure between two
trades would be inefficient and not economi-
cal. . . .
Haas' letter concluded with the announcement
that the Company was assigning the unloading and
erection of the support steel, stairs, walkways, and
monorail system to the Iron Workers and the un-
loading and installation of all duct work, slide
2 All dates are 1984 unless otherwise indicated
274 NLRB No. 69
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plates, dampers, expansion joints, and other like
components to the Boilermakers . On learning of
the assignments , Boilermakers ' representatives in-
formed Haas that they considered the erection of
the structural steel on the FGD system to be their
work and that the Union would "contest the as-
signment " and "follow whatever procedure was re-
quired to reverse the decision ." On several occa-
sions following the prejob conference , Haas unsuc-
cessfully attempted to resolve the Boilermakers'
claim that all the work contemplated by the sub-
contract should be assigned to employees it repre-
sents. In early May, Boilermakers Business Manag-
er Clayton Lucas warned Haas that there would be
problems on the job if the work assignments were
not changed.
On 12 June the first shipment of steel arrived at
the jobsite and, as planned , the material was un-
loaded by members of the Iron Workers. Although
a Boilermakers business agent contacted Haas and
informed him that "there were going to be prob-
lems" if the boilermakers were not allowed to
unload the next load of steel , Haas refused to reas-
sign the work . On 13 June the Boilermakers shut
down all work on the site by arriving prior to
starting time, setting up a picket line, and blocking
the constructior+ entrance gate with vehicles be-
longing to its members . When Haas contacted
Lucas regarding the picket line, Lucas responded
that the job would be shut down for 2 to 3 weeks
unless Haas assigned all the work to the Boilermak-
ers. Several hours later , however , the pickets dis-
persed after the Company agreed not to unload an-
other shipment of steel for several days . Despite
that agreement , a Boilermakers picket line was es-
tablished again on the morning of 14 June and, al-
though a few individuals crossed the picket line, no
work was done that day.3 The Company filed
unfair labor practice charges against the Boilermak-
ers on 15 June and members of that Union thereaf-
ter returned to work . Progress on the project con-
tinued after that date without interruption.
B. Work in Dispute
The disputed work involves the erection of
structural steel at Flue Gas Desulphurization Unit
18 of the R.M. Schahfer Generating Station in
Wheatfield, Indiana.
C. Contentions of the Parties
The Employer and the Iron Workers contend
that the work in dispute should be assigned to em-
ployees represented by Iron Workers Local 395,
3 The pickets reassembled the morning of 14 June despite a telegram
from the president of the Boilermakers ' International Union to Lucas on
13 June directing him to return the members to work immediately
arguing that the completed steel structure will be a
multipurpose facility designed to support, in addi-
tion to duct work, several floors, walkways, stairs,
ladders, piping, electrical equipment , hydraulic
equipment , and fans. They further contend that the
structural steel in issue is part of the building and
not merely a breeching support. Finally, the Em-
ployer and the Iron Workers claim that the Em-
ployer's preference, economy, skills, and efficiency
favor an award in favor of the Iron Workers.
The Boilermakers did not file an appearance at
the hearing in this proceeding nor submit any evi-
dence to support its position . Based on the record,
however, it is evident that the Boilermakers consid-
ered the structural steel in question to be duct sup-
port material properly characterized as breeching
supports . In seeking the assignment , the Boilermak-
ers claimed that erecting breeching supports was
work within its jurisdiction.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the 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 the parties have not agreed on a
method for the voluntary adjustment of the dis-
pute.
No party contends that there is an agreed-upon
method for voluntary adjustment of the dispute to
which all parties are bound.
As stated above, Boilermakers Local 374 estab-
lished and maintained a picket line at the Wheat-
field, Indiana jobsite on learning that the Employer
had assigned the disputed work to employees rep-
resented by another union . We find that an object
of the Boilermakers ' conduct was to force the Em-
ployer to assign the disputed work to employees it
represents.
We find reasonable cause to believe that a viola-
tion of Section 8(b)(4)(D) has occurred and that
there exists no agreed method for voluntary adjust-
ment of the dispute within the meaning of Section
10(k) of the Act. Accordingly, we find that the dis-
pute is properly before the Board for determina-
tion.
E. Merits of the Dispute
Section 10(k) requires the Board to make an af-
firmative award of disputed work after considering
various factors. NLRB v. Electrical Workers IBEW
Local 1212 (Columbia Broadcasting), 364 U.S. 573
(1961). The Board has held that its determination in
a jurisdictional dispute is an act of judgment based
on common sense and experience , reached by bal-
ancing the factors involved in a particular case.
BOILERMAKERS LOCAL 374 (VOGT & CONANT)
Machinists Lodge 1743 (J. A. Jones Construction),
135 NLRB 1402 ( 1962).
The following factors are relevant in making the
determination of this dispute.
1. Certification and collective -bargaining
agreements
There is no evidence that either the Boilermak-
ers or the Iron Workers has been certified as the
exclusive collective-bargaining representative of
any of the Employer 's employees . Likewise, there
is no evidence that the Employer has at any time
been a party to a collective -bargaining agreement
with either Union.
Accordingly , we find that the certification and
collective-bargaining agreement factors do not
favor an award of the disputed work to employees
represented by either the Boilermakers or the Iron
Workers.
2. Company preference and past practice
Vogt and Conant has assigned all of the disputed
work to employees represented by the Iron Work-
ers since 9 April and prefers this assignment.
We find the Employer 's assignment and prefer-
ence favors an award to employees the Iron Work-
ers represent.
3. Area and industry practice
Although there is some evidence in the record
regarding the assignment of work by a competitor
of the Employer responsible for the erection of
structural steel for Unit 18 of the Wheatfield gener-
ating station , we find that evidence insufficient to
favor an award of the disputed work to either
group of employees.4
4. Relative skills
The Company argues that the skills required for
the erection of structural steel are traditionally
those of employees represented by the Iron Work-
ers in that its members are trained to raise large
pieces of steel, place them, fit up joints, bolt, and
weld. The unrefuted evidence indicates that boiler-
makers, on the other hand, are trained to fit duct
work , build boilers and install boiler tubes, and
weld tanks, boilers, and silos. The evidence further
establishes that boilermakers generally do not
unload , stack , or erect large pieces of structural
4 The Employer acknowledged that there is no established company or
industry practice regarding the erection of FGD systems The only prior
example of similar work was its competitor's experience with Unit 18 Al-
though we are aware that on Unit 18 the boilermakers erected the center
two lines of columns and the framing directly under the duct work, we
have insufficient evidence to conclude that , given the differences in the
structural compositions of the two buildings, the assignment of work on
Unit 18 is indicative of an established "area practice "
489
steel . We agree with the Employer and the Iron
Workers that the boilermakers do not have the
skills necessary to perform structural steel work of
the magnitude contemplated by the subcontract in-
volved here.5
Accordingly, we find that this factor favors as-
signing the disputed work to employees the Iron
Workers represent.
5. Economy and efficiency of operations
The Employer maintains that it is more economi-
cal and efficient to have employees represented by
the Iron Workers perform the disputed work be-
cause ironworkers are accustomed to handling
structural steel , using chokers, limbing steel, and
working off "floats" (scaffolding platforms tied off
to steel structures). Boilermakers , on the contrary,
prefer to work from "skip boxes" (baskets suspend-
ed from a crane ) which practice is inefficient in
that the crane being utilized for this function is
thus unavailable for other uses. Further , the Em-
ployer contends that , whereas the ironworkers are
trained to unload large truckloads of steel and
stack the pieces so that they can be efficiently lo-
cated when needed, boilermakers perform very
little work of this sort.
Accordingly, we conclude that this factor favors
an award to employees represented by the Iron
Workers.
Conclusions
After considering all the relevant factors, we
conclude that employees represented by Ironwork-
ers are entitled to perform the work in dispute. We
reach this conclusion relying on relative skills,
economy and efficiency of operations , and the Em-
ployer's assignment and preference . In making this
determination , we are awarding the work to em-
ployees represented by Iron Workers, but not to
that Union or its members. The current determina-
tion is limited to the particular controversy that
gave rise to this proceeding.
5 According to the unrefuted testimony of Iron Workers Business
Agent Fred G Summers, the Boilermakers ' claim was based on a joint
agreement between the Boilermakers and the Iron Workers dated 15 Oc-
tober 1928 which characterized breeching supports "which are not part
of the building structure " as Boilermakers ' work Summers explained that
as technology improved and pollution controls increased , generating sta-
tions changed drastically and simple breeching supports (or two-legged
stands supporting sections of duct work between smoke stacks) gave way
to powerhouses several stories high containing electrical equipment, hy-
draulic systems and more, as described above We have reviewed Sum-
mers' testimony and documentation in the form of ",jurisdictional deci-
sions" submitted by the Boilermakers to the Company prior to the prejob
conference (admitted into evidence during the hearing in this proceeding
as Board exhibits), and find the evidence sufficient to support the Iron
Workers ' claim that the work in dispute is properly characterized as
"part of the building structure " and not as breeching supports as argued
by the Boilermakers
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. Employees of the Vogt and Conant Company
represented by Local Union No. 395, International
Association of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO are entitled to perform
the structural steel erection work at the R.M.
Schahfer Generating Station in Wheatfield, Indi-
ana.
2. Local Lodge No. 374, International Brother-
hood of Boilermakers , Iron Ship Builders , Black-
smiths, Forgers & Helpers, AFL-CIO is not enti-
tled by means proscribed by Section 8(b)(4)(D) of
the Act to force the Vogt and Conant company to
assign the disputed work to employees represented
by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local Lodge No.
374, International Brotherhood of Boilermakers,
Iron Ship Builders , Blacksmiths, Forgers & Help-
ers, AFL-CIO shall notify the Regional Director
for Region 25 in writing whether it will refrain
from forcing the Employer, by means proscribed
by Section 8(b)(4)(D), to assign the disputed work
in a manner inconsistent with this determination.