Bridge, Structural & Ornamental Iron Workers, Local 12

National Labor Relations Board - Board Decisions

Jun 19, 1979

242 N.L.R.B. 1263 (N.L.R.B. 1979)

BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS. LOCAL. 12
International Association of Bridge, Structural and
Ornamental Iron Workers, Local Union No. 12,
AFL-CIO and Associated General Contractors of
Massachusetts, Inc. and Pittsfield General Contrac-
tors Association and George E. Emerson, Inc. and
Laborers Labor Union No. 473, a/w the Massachu-
setts District Council and the Laborers Interna-
tional Union of North America, AFL-CIO.' Case I
CD-544
June 19, 1979
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS PENEI.LO, MURPHY, AND TRUESDAL.E
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following a
charge filed by the Associated General Contractors of
Massachusetts, Inc. and the Pittsfield General Con-
tractors Association on behalf of George E. Emerson,
Inc., herein called the Employer or Emerson, alleging
that the International Association of Bridge, Struc-
tural and Ornamental Iron Workers, Local Union
No. 12, AFL-CIO, herein called Iron Workers, has
violated Section 8(b)(4)(D) of the Act by engaging in
certain proscribed activity with an object of forcing
or requiring Emerson to assign certain work to its
members rather than to employees represented by La-
borers Labor Union No. 473, a/w the Massachusetts
District Council and the Laborers International
Union of North America, AFL-CIO, herein called
Laborers.
Pursuant to notice, a hearing was held before Hear-
ing Officer Thomas J. Flynn on December 4, 1978.
All the parties appeared and were afforded a full op-
portunity to be heard, to examine and cross-examine
witnesses, and to adduce evidence bearing on the is-
sues. Thereafter, the Employer and Iron Workers
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 rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, includ-
ing the briefs, the Board makes the following find-
ings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer, a Massachusetts corporation with its principal
The name of this labor organization appears as amended at the hearing.
place of business in Pittsfield, Massachusetts, is en-
gaged as a contractor in the construction business. It
annually derives gross revenues in excess of $500,000
and annually receives goods valued in excess ot
$50,000 from points located outside the Common-
wealth of Massachusetts. On the basis of these stipu-
lated facts, 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 jurisdiction herein.
II. THE LABOR OR(iANIZATI()NS IN\ )l.lIl)
Upon the record. we find that Iron Workers. La-
borers, and Berkshire County Carpenters Local 260,
a/w the United Brotherhood of Carpenters and Join-
ers of America, AFI.--CIO. herein called Carpenters,
are labor organizations within the meaning otf Section
2(5) of the Act.
111. l1! DiSPItIF
A. Background and Facts of the Dis.lute
As a member of the Pittsfield General Contractors
Association, Emerson is a signatory to a collective-
bargaining agreement with Laborers. As a general
building contractor, Emerson contracted to construct
a parking garage on Columbus Avenue in the city of
Pittsfield, Massachusetts. Pursuant thereto, Emerson
performed, inter alia, the excavation and related con-
crete foundation work such as sidewalks and ramps.
It assigned the work of installing reinforcing wire
mesh in the concrete to its own employees represent-
ed by Laborers and subcontracted to Superior Bridge
and Iron Works, herein called Superior, the miscella-
neous iron work of furnishing stair nosings and in-
stalling bollards, railings, steel stairs, and handrails.
In furtherance of its subcontracting duties, Superior
hired, inter alia, two members of Iron Workers. Nei-
ther Emerson nor Superior has a collective-bargain-
ing agreement with Iron Workers.
On or about August 1, 1978,2 John Gamulla, one of
the two ironworkers employed by Superior at the job-
site, telephoned Thomas Mullen, business agent for
Iron Workers, and informed him that Emerson had
assigned the work of installing reinforcing wire mesh
at the Columbus Avenue jobsite to employees repre-
sented by Laborers. Shortly thereafter, during a tele-
phone conversation, Mullen advised Emerson's pres-
ident, Ralph Emerson, of Iron Workers claim to the
work of installing wire mesh on that particular job-
site. Emerson advised Mullen that the work would
not be reassigned to members of Iron Workers and
2 All dates herein refer to 1978
242 NLRB No. 158
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mullen reiterated his claim, stating that employees
represented by Iron Workers had historically per-
formed the laying of wire mesh. Emerson testified
that the conversation terminated when Mullen threat-
ened to picket the jobsite until Emerson "ran out of
money" unless the disputed work was assigned to
members of Iron Workers. However, contrary to the
testimony of Emerson, Mullen testified that the tele-
phone conversation terminated when he advised Em-
erson that he would have to take "appropriate ac-
tion" if the disputed work was not assigned to
members of Iron Workers. Mullen further testified
that, under the circumstances, the appropriate action
consisted of advising the International Union of Iron
Workers of the existence of a dispute between Iron
Workers and Laborers concerning the installation of
reinforcing wire mesh at the Columbus Avenue job-
site.
Later, on August 1, Emerson visited the jobsite and
testified that there was no work being done by "Supe-
rior Bridge & Iron People." On the morning of Au-
gust 2, Emerson returned to the jobsite and observed
that all trades were working, with the exception of the
Superior employees represented by Iron Workers.
However, John Gamulla testified that, on the morn-
ing of August 2, the employees of Superior represent-
ed by Iron Workers were on the jobsite performing
the assigned task of erecting stairwells, but that there
was a slowdown as a result of problems with the ma-
terials.
Thereafter, the employees of Emerson who are rep-
resented by Carpenters were assigned to perform a
portion of the disputed work. The record indicates
that carpenters occasionally perform such work as an
incidental duty to the installation of wood bulkheads.
B. The Work in Dispute
The work in dispute involves unloading, handling,
placing, and fitting reinforcing wire mesh in prepara-
tion for pouring concrete at the Columbus Avenue
jobsite in Pittsfield, Massachusetts.
C. The Contentions of the Parties
Emerson contends that the work in dispute should
be assigned to employees represented by Laborers be-
cause it has a collective-bargaining agreement with
Laborers covering the disputed work. It further con-
tends that such an assignment is supported, inter alia,
by considerations of company and area practice,
skills, and economy and efficiency of operation.
Iron Workers takes the position that its motion to
quash the 10(k) proceeding should be granted as the
record is devoid of evidence indicating that Iron
Workers threatened, coerced, or restrained any per-
son or engaged in any conduct in violation of Section
8(b)(4)(D). Iron Workers also contends that the hear-
ing failed to comport with due-process requirements
because Superior, an alleged material and necessary
party to the dispute, failed to appear. In support
thereof, Iron Workers asserts that Superior is the only
party able to provide testimony concerning the al-
leged unfair labor practice since the charge alleged
the illegal threat was made against Superior. As to
the merits, Iron Workers maintains that any award of
the disputed work must be limited solely to thejobsite
in question.
Laborers maintains that the work in question was
properly assigned to its members and that such as-
signment is consistent with company and area prac-
tice. Carpenters does not claim the work in dispute.
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 no agreed-upon method exists for the voluntary
resolution of the dispute.
As stated above, there is testimony that, on August
1, business agent Mullen, in a telephone conversation
with the Employer's president, threatened to picket
the Columbus Avenue jobsite and halt the job unless
the work in dispute was assigned to employees repre-
sented by Iron Workers. There is also testimony that,
on August 1 and 2, employees at the jobsite repre-
sented by Iron Workers engaged in a work stoppage.
It is well established that in a jurisdictional dispute
proceeding the Board is not charged with finding that
the violation alleged in the charge did, in fact, occur,
but only that reasonable cause exists to so believe.
Therefore, notwithstanding the testimony of business
agent Mullen that Iron Workers did not threaten to
picket or otherwise interfere with the progress of
work on the jobsite, we find, without ruling on the
credibility of the contradicted testimony, that there is
sufficient probative evidence in the record as a whole
to established reasonable cause to believe that Section
8(b)(4)(D) has been violated.3 Additionally, the par-
ties have not submitted evidence that there is any
agreed-upon method for the voluntary adjustment of
this dispute. Accordingly, the dispute is properly be-
fore the Board for determination under Section 10(k)
of the Act.4
1 Local Union No. 134, International Brotherhood of Electrical Workers,
AFL-CIO (International Telephone & Telegraph Corporaion, Communica-
tions Equipment and Systems Division), 191 NLRB 828, 830 (1971).
' Iron Workers contends that the 10(k) hearing failed to comport with due-
process requirements because one of the essential parties to the dispute, i.e.,
Superior (the employer against whom the illegal threat was alleged to have
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BRIDGE. STRUCTLRAL AND ORNAMENTAL IRON WORKERS. LOCAL 12
E. Merits of the Dispute
Section 10(k) requires that the Board make an affir-
mative award of the disputed work after giving due
consideration to various relevant factors. The Board
has held that its determination in a jurisdictional dis-
pute case is an act of judgment based on common-
sense reached by balancing those factors involved in a
particular case.'
The following factors are relevant in making a de-
termination of the dispute before us:
1. Collective-bargaining agreements
Emerson is a signatory to a collective-bargaining
agreement with Laborers. That agreement applies, in-
ter alia, to "the loading, unloading, carrying. distrib-
uting, and handling of all rods, mesh, and material
for use in reinforcing concrete construction." Pursu-
ant to this agreement, Emerson assigned the disputed
work to its own employees represented by Laborers.
It is undisputed that Emerson is not a party to a col-
lective-bargaining agreement with Iron Workers.
2. Company and area practice
Emerson contends that its own practice favors an
assignment of the disputed work to employees repre-
sented by Laborers. In support of this contention,
Emerson relies on the uncontradicted testimony of its
president, Ralph Emerson, to the effect that since
1965 it has been Emerson's practice to assign the type
of work in dispute to its own employees represented
by Laborers. Moreover, the record evidence indicates
that in past years Emerson has made at least 33 as-
signments of the type of work in dispute to employees
represented by Laborers. There is no evidence that
Emerson has ever assigned such work to employees
represented by Iron Workers.
In support of its contention that established area
practice also favors an award of the work to employ-
ees represented by Laborers, Emerson relies primarily
on the uncontradicted testimony of Laborers business
manager, Patrick Mele, that, for the past 10 years, at
least six general contractors in the Berkshire County
been made) did not appear. We reject this contention. As the evidence ad-
duced at the heanng demonstrated, the threat, if made, was not made against
Superior, but against Emerson. And, the record shows that it is Emerson
which has control and authority over the assignnent of the work in dispute.
Accordingly. Emerson is properly considered the "employer" for purposes of
this proceeding. Inasmuch as Emerson was represented at the 10(k) heanng.
we conclude that all necessary parties to the determination of this jurisdic-
tional dispute appeared at the hearing. See. e.g.. International Union, United
Automobile, Aerospace and Agricultural Implement Workers of Anerica,
UA W (General Motors Corporation. Delco Moraine Divisionl, 239 NLRB 365
(1978).
5 International Association of Machinisis, Loage No 174J, AFL CIO (I A
Jones Construcrion Company), 135 NLRB 1402 (1962).
area have utilized employees represented by Laborers
to lay wire mesh. Iron Workers claims that its mem-
bers are entitled to perform the work in dispute on
the basis of established area practice. In support of
this claim. Iron Workers presented some evidence
that emploees represented by it have handled wire
mesh for two other contractors in and around Berk-
shire County.6 Moreover. an employee member of
Iron Workers testified that the general practice of
some area contractors is to assign the work of laying
large quantities of wire mesh to employees represent-
ed by Iron Workers.
The uncontradicted evidence of record establishes
to our satisfaction that the factor of company practice
favors an award of the disputed work to employees
represented by Laborers. However. inasmuch as the
record discloses that employees represented by both
Laborers and Iron Workers have performed the dis-
puted work in and around Berkshire County. we find
that considerations of area practice do not favor ei-
ther of the contesting Unions.7
3. Skills
The record does not indicate that the actual work
of installing wire mesh in the concrete entails the use
of any complicated tools or requires any special skill
or training not possessed by either iron workers or
laborers. Accordingly, we find that this consideration
does not favor an award to either of the contesting
Unions.
4. EfficiencN and economy of operation
The record indicates that the Columbus Avenue
Project involved the placing of reinforcing wire mesh
in 27-by-80-feet sections of 2-inch concrete topping.
The installation of wire mesh in each section of con-
crete involved approximately I hour and 15 minutes
of work. With the exception of the installation of the
bulkheads and some of the final finishing steps, all of
Emerson's work at the jobsite was assigned to em-
ployees represented by Laborers. Thus, upon com-
pleting the concrete work each day, employees repre-
sented by Laborers were assigned to perform
numerous other tasks on the jobsite. Emerson does
not employ employees represented by Iron Workers
and, if such employees were assigned the work of
placing the wire mesh, Emerson would still have to
employ members of Laborers to perform many other
tasks on the jobsite. Accordingly, we find that consid-
' The city of Pittsfield is located in Berkshire Count)
In its brief to the Board following the close of the heanng. Iron Workers
submitted wntten statements from various contractors in the Berkshire
County area in support of its contention that area practice favors an award
of the disputed work to employees represented by Iron Workers. We decline
to consider this evidence as it was not presented in a timel) fashion and there
was no showing of its pnor unavailability.
1265
D)ECISIONS OF NAT IONAL LABOR RELATIONS BOARD
erations of efficiency and economy of operation favor
assignment of the disputed work to the Employer's
employees represented by Laborers, noting that they
are present on the jobsite and are able to perform
other work at the site fr Emerson.
Conclusion
Upo)n the record as a whole, and after full consider-
ation of all relevant factors involved, we conclude
that the employees of Emerson who are represented
by Laborers, rather than workers represented by Iron
Workers, are entitled to perform the work in dispute.
We reach this conclusion based on the factors of col-
lective-bargaining agreements, company practice, and
efficiency and economy of operation. The present de-
termination is limited to the particular controversy
which gave rise to this proceeding. 8
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
'On the record before us, we find no merit in the Employer's request for a
broad award of the disputed work to employees represented by Laborers
The request is hereby denied.
foregoing findings and the entire record in this pro-
ceeding, the National Labor Relations Board makes
the following Determination of Dispute:
1. Employees of George E. Emerson, Inc.. who are
represented by Laborers Labor Union No. 473, a/w
The Massachusetts District Council and Laborers In-
ternational Union of North America, AFL-CIO. are
entitled to perform the work of unloading, handling,
placing, and fitting reinforcing wire mesh in prepara-
tion for pouring concrete at the Columbus Avenue
Parking Garage, Columbus Avenue. Pittsfield, Mas-
sachusetts.
2. International Association of Bridge, Structural
and Ornamental Iron Workers, Local Union No. 12,
AFL-CIO, is not entitled by means proscribed by
Section 8(b)(4)(D) of the Act to force or require
George E. Emerson, Inc., to assign the disputed work
to employees represented by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, International Associ-
ation of Bridge, Structural and Ornamental Iron
Workers, Local Union No. 12, AFL CIO, shall notify
the Regional Director for Region 1, in writing,
whether or not it will refrain from forcing or requir-
ing 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.
1266