International Assn. of Bridge, Local 803

National Labor Relations Board - Board Decisions

Jul 9, 1976

225 N.L.R.B. 644 (N.L.R.B. 1976)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Bridge, Structural & Or-
namental Ironworkers , Local 803, AFL-CIO and
Honolulu Welding , Inc. and International Associa-
tion of Bridge , Structural & Ornamental Ironwork-
ers, Local 625 , AFL-CIO. Case 37-CD-35
from points located outside the State of Hawaii. We
find that the Employer is engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act and
that it will effectuate the purposes of the Act to assert
jurisdiction herein.
11. THE LABOR ORGANIZATIONS INVOLVED
July 9, 1976
DECISION AND DETERMINATION OF
DISPUTE
The parties stipulated, and we find, that Local 803
and Local 625 are labor organizations within the
meaning of Section 2(5) of the Act.
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, based on
a charge filed by Honolulu Welding, Inc., herein
called the Employer. The charge alleges that Interna-
tional Association of Bridge, Structural & Ornamen-
tal Ironworkers, Local 803, AFL-CIO, herein called
Local 803, violated Section 8(b)(4)(D) of the Act by
engaging in certain activity in order to force the Em-
ployer to assign certain work to individuals repre-
sented by Local 803 rather than to employees of the
Employer represented by International Association
of Bridge, Structural & Ornamental Ironworkers, Lo-
cal 625, AFL-CIO, herein called Local 625.
A duly scheduled hearing was held on April 26
and May 18, 1976, before Hearing Officer Eileen H.
Hamamura. All parties appeared at the hearing and
were afforded full opportunity to be heard, to exam-
ine and cross-examine witnesses, and to adduce evi-
dence bearing on the issues. Thereafter briefs were
filed by the Employer, Local 803, and Local 625.
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 case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer is a Hawaii corporation engaged in
the operation of a metal fabrication shop and a field
metal fabrication and erection business. During the
calender year 1975, total sales of the Employer were
in excess of $500,000. During this same period, the
Employer purchased and received goods and materi-
als valued in excess of $50,000 directly or indirectly
III. THE DISPUTE
A. The Work in Dispute
The work in dispute consists of the loading by
hand and servicing of the Employer 's 1/2-ton,
3/4-ton, and 1-ton field pickup trucks when used by
employees represented by Local 625.
B. Background and Facts of the Dispute
The Employer manufacturers and erects prefabri-
cated metal products in the Honolulu, Hawaii, area.
Of the Employer's 24 workers, 12 work in the
Employer's metal fabrication shop and 12 perform
fabrication and erection operations in the field. The
"shop" employees are represented by Local 803. The
"field" employees are represented by Local 625.
The Employer owns and maintains one 1/2-ton
pickup truck, four 3/4-ton pickup trucks, and one
1-ton flatbed truck, all of which are used to deliver
persons and materials to the Employer' s jobsites.
On the morning of March 5, 1976, Warren Tsark,
shop steward for Local 803, protested the Employer's
assignment of the work in dispute to employees rep-
resented by Local 625 and demanded that Katsuro
Kubota, manager and president of the Employer,
stop two employees represented by Local 625 from
servicing the field trucks. That same day Kubota met
with Tsark and Marvin Sakata , business agent for
Local 803, in an attempt to resolve the controversy.
Kubota, with the approval of Henry Young, assistant
business agent for Local 625 , suggested a compro-
mise solution which consisted of letting employees
represented by Local 803 perform the servicing work.
This compromise was rejected by Local 803, howev-
er, and on March 11 Local 803 struck in protest of
the work assignment. The strike was subsequently
enjoined in a U.S. District Court proceeding and the
striking workers returned to work on March 22.1
1 The above findings are based on the uncontradicted testimony of Katsu-
ro Kubota
225 NLRB No. 84
INTERNATIONAL ASSN. OF BRIDGE, LOCAL 803 645
C. Contentions of the Parties
The Employer contends that a jurisdictional dis-
pute exists and that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) of the Act has been vio-
lated. The Employer further contends that the
disputed work should be awarded to employees rep-
resented by Local 625 on the basis of past practice,
economy, and efficiency.
Local 625 agrees with the Employer that reason-
able cause exists to believe that a violation of Section
8(b)(4)(D) has occurred and contends that the work
should be assigned to employees it represents on the
basis of the Employer's assignment of the work,
economy, efficiency, and past practice.
Local 803 contends that should a statutory dispute
exist, employees represented by it should be assigned
the disputed work on the basis of its collective-bar-
gaining agreement with the Employer, the Employ-
er's past practice, efficiency of operations, skills, and
the work involved.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of 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 there is no agreed-upon method for voluntary
adjustment of the dispute.
The Board is not required to find that a violation
did in fact occur but only that there is reasonable
cause to believe that a violation has been committed.
Considering the matter in this light, we find that
there is reasonable cause to believe that Local 803
picketed the Employer's plant with the intent of
causing the Employer to assign the work in dispute to
employees represented by Local 803.
There is no contention that there is an agreed-
upon voluntary method for the resolution of the dis-
pute. Accordingly, we find that there is reasonable
cause to believe that Section 8(b)(4)(D) of the Act
has been violated and that the dispute is properly
before the Board for determination under Section
10(k).
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of the disputed work af-
ter giving due consideration to all relevant factors
involved. The following factors are relevant in mak-
ing a determination of the dispute before us:
1. Collective-bargaining agreements
Local 803's current collective-bargaining agree-
ment with the Employer contains several provisions
that are of potential applicability to this dispute. Sec-
tion I, which describes the scope of the bargaining
unit, provides:
(a) The provisions of this agreement shall apply
to all employees of the Company who are as-
signed to work in connection with the manufac-
turing and fabrication of the Company's prod-
ucts which is done in or about the Company's
plant or plants located in the State of Hawaii,
and to employees of the Company who are en-
gaged in the ordinary upkeep and repair of the
Company's machinery, plant and property. For
the purpose of this agreement, the aforemen-
tioned employees of the Company shall be rec-
ognized as "production and maintenance em-
ployees," and this agreement shall be applicable
to all work done by such production and main-
tenance employees in connection with the man-
ufacture, fabrication and maintenance work
which is done in or about the Company's plant
or plants covered by this agreement.
Section 13 of the agreement provides:
(B) Members of Ironworker Local 625 will not
be permitted to perform shop work except by
agreement with the Business Representative of
Local 803 or his authorized representative. In
such cases the Company shall notify the Union
of the name, classification, rate of pay and date
of assignment of the employee(s) involved.
Finally, Exhibit "A" to the agreement sets forth
several job classifications, including the classifica-
tions of maintenance mechanic and utihtyman.
Local 625's collective-bargaining agreement with
the Employer also contains a provision that is of po-
tential applicability to this dispute.
Article 3 of that agreement, which describes the
agreement's jurisdiction, provides:
Employees covered under the terms of this
Agreement shall do all work with field fabrica-
tion, erection and construction of all iron, steel,
ornamental, lead, bronze, brass, copper, alumi-
num, all ferrous and non-ferrous metals; and all
loading, unloading, handling, rigging, placing,
welding, bolting, setting, plumbing, aligning,
stressing and securing, in connection with all
work mentioned above. . . .
Although that portion of Local 803's collective-
bargaining agreement which delineates the job classi-
fications of maintenance mechanic and utilityman
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would seem to support Local 803's claim to the ser-
vicing work here in dispute, the agreement is certain-
ly not determinative of the matter in view of its
ambiguity and in view of the fact, admitted by Saka-
ta, that the Employer does not have a full-time utili-
tyman.2
Conversely, the jurisdictional provision in Local
625's collective-bargaining agreement would seem to
favor Local 625's contention that the loading work in
dispute belongs to employees represented by it, but
again the contract language is not sufficiently specif-
ic to force this conclusion upon us.
This factor, therefore, favors neither employees
represented by Local 803 nor employees represented
by Local 625.
2. Employer and area practice
Kubota testified that ever since the Employer was
unionized in 1962, employees represented by Local
625 have performed the servicing and loading work
in dispute, with the exception that occasionally em-
ployees represented by Local 803 have loaded pre-
fabricated steel onto the 1-ton flatbed truck.
Sakata, on the other hand, testified that there was
no set practice with regard to the performance of the
work in dispute and that both employees represented
by Local 803 and employees represented by Local
625 performed the disputed work in accordance with
whoever was available.
Both Sakata and Kubota agreed that other em-
ployers in the area differed with regard to their as-
signment of servicing and loading work-some as-
signing it to employees represented by Local 803 and
others assigning it to employees represented by Local
625.
In view of the conflicting testimony concerning the
Employer's practice and the admittedly diverse prac-
tices of the other area employers, we conclude that
this factor favors neither employees represented by
Local 803 nor employees represented by Local 625.
4. Economy and efficiency
The trucks in question are driven to the jobsite by
employees represented by Local 625 and carry equip-
ment and materials for use by these same employees.
Efficiency considerations therefore dictate assign-
ment of the work to Local 625 employees, since em-
ployees represented by Local 625 presumably know
better than their Local 803 counterparts what materi-
al needs to be loaded and what minor servicing needs
to be performed.
Reinforcing our conclusion in this regard is the
fact that Marvin Sakata, Local 803's business agent,
was unable at the hearing to draw a distinct line be-
tween the disputed work he claimed for Local 803
employees and disputed work he admitted would be
more efficiently performed by employees represented
by Local 625. Sakata, for example, agreed that it
would be impractical for employees represented by
Local 803 to load small quantities of equipment and
materials destined for use by Local 625 members, but
argued that employees represented by Local 803
should perform any "sizable" loading jobs.
This factor, consequently, favors the employees
represented by Local 625.
Conclusions
Upon the record as a whole, and after full consid-
eration of all relevant factors involved, we conclude
that the employees of the Employer who are repre-
sented by Local 625 are entitled to perform the work
in dispute. In reaching this conclusion, we have par-
ticularly relied on the Employer's assignment of the
disputed work to its employees and the efficiency of
operations which results from such assignment. We
shall therefore determine the dispute before us by
awarding the work involved herein to employees rep-
resented by Local 625, but not to that union or its
members.
DETERMINATION OF DISPUTE
3. Employer's assignment of the work
It is undisputed that the Employer presently as-
signs the work in dispute to employees represented
by Local 625. This factor therefore favors employees
represented by Local 625.
2
The servicing work in dispute involves checking gas, oil, water, and tire
pressure , adding gas , oil, water, and air as needed , and making visual
checks to assure proper functioning of the vehicle Such work is not of the
kind that a maintenance mechanic would necesarily be expected to perform,
but is instead work that a utilityman might be expected to perform
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 pro-
ceeding, the National Labor Relations Board makes
the following Determination of Dispute:
1. Employees of Honolulu Welding, Inc., repre-
sented by International Association of Bridge, Struc-
tural & Ornamental Ironworkers, Local 625, AFL-
CIO, are entitled to perform the work in dispute
which consists of the loading by hand and servicing
of the Employer's 1/2-ton, 3/4-ton, and 1-ton field
INTERNATIONAL ASSN. OF BRIDGE, LOCAL 803
pickup trucks, when used by employees represented
by Local 625.
2. International Association of Bridge, Structural
& Ornamental Ironworkers, Local 803, AFL-CIO, is
not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force or require the assign-
ment of the above work to its members or to the
employees it represents.
3. Within 10 days from the date of this Decision
647
and Determination of Dispute, International Associ-
ation of Bridge, Structural & Ornamental Ironwork-
ers, Local 803, AFL-CIO, shall notify the Officer-in-
Charge for Subregion 37, in writing, whether it will
refrain from forcing or requiring, by means pro-
scribed by Section 8(b)(4)(D) of the Act, the assign-
ment of the work in dispute to employees represented
by Local 803, rather than to employees represented
by Local 625.