Boilermakers Local 744 (William Crane Service)

National Labor Relations Board - Board Decisions

Sep 20, 1977

232 N.L.R.B. 164 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers and Helpers, AFL-
CIO, Local 744 and Williams Crane Service
International Union of Bridge, Structural and Orna-
mental Iron Workers, AFL-CIO, Local 17 and
Williams Crane Service. Cases 8-CD-342 and 8-
CD-341
September 20, 1977
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Williams Crane Service, herein
called the Employer, alleging that the International
Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers, AFL-CIO, Local
744, herein called the Boilermakers, and the Interna-
tional Union of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO, Local 17, herein called the
Iron Workers, and collectively called the Unions,
had violated Section 8(b)(4)(D) of the Act by
engaging in certain proscribed activity with an object
of forcing or requiring the Employer to assign certain
work to the employees represented by them rather
than to the Employer's own employees.
Pursuant to notice, a hearing was held before
Hearing Officer Charles Z. Adamson on June 20 and
21, 1977. All parties appeared and were afforded full
opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing
on the issues.
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 proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the
Employer, a Maryland corporation with its principal
place of business in Baltimore, Maryland, is engaged
in the business of renting cranes and erecting and
I The record revealed that on Aprl 5, 1977, extensive damage was done
to the Employer's equipment including the firebombing of one of its cranes.
2 Respondents' representatives, while denying that their members
picketed prior to April 5, 1977, admitted that the members of their
232 NLRB No. 16
dismantling production equipment and machinery.
During the past year, the Employer shipped goods
valued in excess of $50,000 from its Ohio jobsite
directly to points outside the State of Ohio. The
parties also stipulated, and we find, that the
Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will
effectuate the purposes of the Act to assert jurisdic-
tion herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the
Boilermakers and the Iron Workers are labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer began the work in dispute of
dismantling a concrete storage plant on March 23,
1977. The Employer assigned this work to the
unrepresented employees employed by it.
On March 30, 1977, Lawrence McManamon,
president of the Boilermakers, visited the jobsite and
threatened to close the job down with a picket line if
the Employer did not use boilermakers on the job.
The Employer advised McManamon that it had no
union members working on the job and intended to
complete the job with its employees. On March 31,
1977, Thomas Palumbo, the business representative
for the Iron Workers, visited the jobsite, demanded
the work for his union members, and threatened to
blow the Employer out of Cleveland if it continued
to conduct the job on a nonunion basis. On April 1,
1977, pickets arrived at the jobsite. These incidents
prompted the Employer to file 8(b)(4)(D) charges
with the Cleveland Regional Office. On April 5, 1977,
after several occurences of mass picketing and
violence I at the jobsite, the Employer went into the
Common Pleas Court of Cuyahoga County, Ohio,
seeking an injunction to limit the picketing. At that
proceeding, an injunction was issued which con-
tained an agreement that the Boilermakers and Iron
Workers would limit their picketing to three pickets
at each of the Employer's two front gates and two
pickets at the back gate and the Employer would
drop the 8(b)(4)(D) charges against the Respondents
which were pending. The Employer withdrew those
charges. Thereafter, the picketing continued 2 in
accordance with the restricted terms of the injunction
respective unions participated in picketing at the jobsite after April 5, 1977,
in accordance with the injunction, for the purpose of informing people in the
area that the job was nonunion. The pickets carried signs which stated
"Unfair to Boilermakers 744," but made no reference to the Iron Workers.
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BOILERMAKERS, LOCAL 744
until the job was completed on April 19, 1977, at
which time the Employer removed all its employees
and equipment and returned to Baltimore, Mary-
land. Upon returning to Baltimore, the Employer
filed the instant charges against the Boilermakers
and Iron Workers alleging violations of Section
8(b)(4)(D) based on the above incidents and work
dispute.
B. The Work in Dispute
The work in dispute involves the dismantling of a
concrete storage plant at 4401 West 130th Street,
Cleveland, Ohio.
C. The Contentions of the Parties
The Boilermakers and Iron Workers contend that
the disputed work, which their members perform
together as a team, falls within their jurisdiction
based on area practice, skill, and training, and on the
fact that they have previously been awarded this
work in decisions handed down by the National
Joint Board for the Settlement of Disputes. They
further contend that: (1) there is insufficient evidence
to establish reasonable cause to believe that Section
8(b)(4)(D) has been violated and (2) the parties have
agreed upon a method for the voluntary settlement of
the dispute, relying on the Employer's agreement to
withdraw the prior charges at the earlier state court
proceeding for injunctive relief.3
The Employer contends that there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated and that there exists no voluntary method of
settling the dispute inasmuch as its agreement in the
state court to withdraw its earlier 8(b)(4)(D) charges
is irrelevant to the proceeding now before the Board.
The Employer also contends that the work should be
assigned to the unrepresented employees employed
by it on the basis of job assignment, preference, past
practice, and the factors of skill, training, efficiency,
and economy of operations.
D. Applicability of the Statute
With respect to (1) above, according to the
testimony of Howard Williams, president of the
Williams Crane Service, Lawrence McManamon,
president of the Boilermakers, approached Williams
Respondents' representatives were forbidden by the terms of the injunction
from participating in the picketing, but continued to remain in close vicinity
of the jobsite in order to direct and organize the pickets.
3 Neither the Boilerworkers nor the Iron Workers contends that the
dispute in question is moot because the job is finished, and this issue was not
litigated at the hearing. Furthermore, we note that the Employer performs
the kind of work here in dispute throughout the country, and there is
nothing to indicate that such a dispute will not arise in the future if the
Employer again obtains similar work in the jurisdictional area of these two
labor organizations. See, e.g., Local 581, International Brotherhood of
at the jobsite on or about March 30, 1977, and, as
noted above, threatened to close the job down with a
picket line if Williams did not use members of the
Boilermakers on the job. According to the testimony
of Sal Scavone, the Employer's project supervisor, on
the following day Thomas Palumbo, a representative
of the Iron Workers, visited the jobsite and threat-
ened to blow the Employer out of Cleveland if he
continued to operate nonunion. As discussed, supra,
the Unions organized the picketing which began
April 1 and continued through April 19, 1977, when
the job was completed. Both McManamon and
Palumbo admit demanding the work for members of
their respective unions, but deny making the threats
attributed to them in furtherance of their demands.4
With respect to the testimonial conflict as to
whether any threats were made, in a proceeding
under Section 10(k) of the Act the Board is required
only to find that there is reasonable cause to believe
that Section 8(b)(4)(D) has been violated before
proceeding to make a determination of the dispute
out of which the alleged unfair labor practice has
arisen. In doing so, we need not conclusively resolve
conflicts in testimony.5 On the basis of the entire
record, and as the picketing was admitted, we
conclude that there is reasonable cause to believe
that both the Boilermakers and the Iron Workers
violated Section 8(b)(4)(D) of the Act by making
threats and engaging in picketing with an object of
forcing the Employer to assign the work in dispute to
employees represented by them.6
With respect to (2) above, we find no merit in the
Unions' claim that there has been or exists a
voluntary settlement of the dispute. The court
agreement between the parties leading to withdrawal
of the prior charges filed under this Act, arising out
of the same events, did not constitute an agreement
or method to resolve the dispute within the meaning
of Section 10(k) of the Act. At best it represented a
quid pro quo between the parties allowing the
Employer and his employees to proceed with the
work with a minimum amount of interference from
the Unions while permitting the latter to continue
picketing in furtherance of their objectives without
the threat of further and complete injunctive relief
being obtained under Section 10(1) of the Act. In any
event, the agreement did not and could not settle the
question as to which group of employees the work in
Electrical Workers, A FL-CIO (National Telephone and Signal Corporation).
223 NLRB 538, 539 (1976). Accordingly, for all the above reasons, we shall
not treat this dispute as moot.
4 As for the picketing that followed these demands. the Unions contend
that it was "informational" in nature.
I International Brotherhood of Electrical Workers, Local Union 103 of
Greater Boston (Maki Electric, Inc.), 227 NLRB 59 (1977).
6 Even if no threats were made, the picketing that commenced the day
after the last demand for the work provides a firm basis for our finding of
reasonable cause to believe that Sec. 8(bX4XD) has been violated.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dispute should be awarded. To that question the
agreement was wholly irrelevant. Thus, we find that
there was, and is, no voluntary method of settlement
between the parties which binds all of them to a
determination of the work in dispute or a procedure
by which the dispute may be resolved.
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.7 The Board has
held that its determination in a jurisdictional dispute
is an act of judgment based on commonsense and
experience reached by balancing those factors
involved in a particular case.8
The following factors are relevant in making the
determination of the dispute before us:
1. Collective-bargaining agreements
The Employer has no contracts with any labor
organizations and has always conducted its business
on a nonunion basis. Neither the Boilermakers nor
the Iron Workers has any collective-bargaining
agreement with the Employer. Therefore, this factor
has no bearing on our determination of the dispute.
2. Employer and area practice
The Employer introduced evidence through its
project supervisor which establishes that since 1963 it
has used its own employees, hired at its Baltimore
place of business, to perform the kind of work here in
dispute on this job and similar jobs throughout the
country. It has not used employees represented by
the Boilermakers or the Iron Workers for the work.
Thus, the Employer's practice favors an award of the
disputed work to the unrepresented employees
employed by it. On the other hand, the Boilermakers
and the Iron Workers perform the same work for
other employers in the Cleveland area and take the
position that since the job was being run in their
geographical jurisdiction the work should be award-
ed to their respective members. Thus, the factor of
area practice seems to favor the award of the work to
employees represented by the Boilermakers and the
Iron Workers.
Employer and area practice, therefore, appear to
neutralize each other and thus we do not rely on
these factors in awarding the work.
7 N.L.R.B. v. Radio d Television Broadcast Engineers Union, Local 1212.
International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 U.S. 573 (1961).
Internalional Association of Machinists, Lodge No. 1743, AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402 (1962).
3. Relative skills
Both the unrepresented employees and the employ-
ees represented by the Boilermakers and the Iron
Workers possess the ability to do the work in dispute.
Therefore, this factor favors neither group of employ-
ees.
4. Economy and efficiency of operation
The unrepresented employees hired by the Em-
ployer perform work for the Employer other than
that in dispute, such as operating cranes, driving
trucks, burning, welding, and assembling structures.
As a result, their versatility permits the Employer to
perform both the disputed and other work tasks with
one work force. There is no evidence, on the other
hand, that employees represented by the Boilermak-
ers and the Iron Workers could perform work other
than that in dispute. Thus, if the work were assigned
to these employees the Employer would be required
to hire two work complements, one to do the
disputed work and a second to perform the other
work described above. The contrast in economy and
efficiency achieved by awarding the work to the
Employer's own unrepresented employees is there-
fore substantial.
We therefore find that this factor favors the award
of the disputed work to the unrepresented employees
employed by the Employer.
5. Employer's job assignment and preference
The Employer assigned the complete job to its own
employees when it arrived at the jobsite on or about
March 21 and advised both Unions to this effect
when they claimed the work within the following
week. The Employer continues to prefer that the
work be assigned to the unrepresented employees
employed by it. Thus, this factor favors the award of
the disputed work to the unrepresented employees
employed by the Employer.
6. Joint Board determinations
According to the Boilermakers president, Law-
rence McManamon, his union has previously submit-
ted a dispute such as this to the National Joint Board
for the Settlement of Disputes and, in the decision
that followed, this type of work was awarded to the
Boilermakers and the Iron Workers.9 That decision,
however, was not binding on the Employer which
was not a party thereto. Nevertheless, since the
decision awards the work to boilermakers and
9 McManamon also made it clear that ironworkers and boilermakers
traditionally work together onjobs of this type.
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BOILERMAKERS, LOCAL 744
ironworkers, this factor favors the award of the
disputed work to such employees. However, it is
outweighed by the factors described above which
favor an award to the unrepresented employees
employed by the Employer.
Conclusion
Upon the record as a whole, and after full
consideration of all relevant factors involved, we
conclude that the unrepresented employees em-
ployed by the Employer are entitled to perform the
work in dispute. We reach this conclusion relying on
the Employer's preference and assignment and
economy and efficiency of operations, all of which
favor an award of the disputed work to the
unrepresented employees employed by Williams. The
present determination is limited to the particular
controversy 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
makes the following Determination of Dispute.
I. Employees of Williams Crane Service, who are
unrepresented, are entitled to perform the work of
dismantling a concrete storage plant at 4401 W. 30th
Street, Cleveland, Ohio. International Brotherhood
of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers and Helpers, AFL-CIO, Local 744, and
International Union of Bridge, Structrual and Orna-
mental Iron Workers, AFL-CIO, Local 17, are not
entitled by means proscribed by Section 8(b)(4)(D)
of the Act to force or require Williams Crane Service
to assign the disputed work to employees represented
by those labor organizations.
2. Within 10 days from the date of this Decision
and Determination of Dispute, International Broth-
erhood of Boilermakers, Iron Ship Builders, Black-
smiths, Forgers and Helpers, AFL-CIO, Local 744,
and International Union of Bridge, Structrual and
Ornamental Iron Workers, AFL-CIO, Local 17,
shall each notify the Regional Director for Region 8,
in writing, whether or not it will refrain from forcing
or requiring the Employer, by means proscribed by
Section 8(b)(4)(D) of the Act, to assign the disputed
work in a manner inconsistent with the above
determination.
167