International Association of Bridge, Iron Workers, Local 563

National Labor Relations Board - Board Decisions

Jun 19, 1974

211 N.L.R.B. 736 (N.L.R.B. 1974)

736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Bridge, Structural and
Ornamental Iron Workers, Local No. 563,
AFL-CIO and International Brotherhood of Car-
penters and Joiners of America , Local No. 361,
AFL-CIO and Fabcon, Incorporated and Bricklay-
ers, Cement Block, Stone and Marble Masons,
Pointers , Cleaners and Caulkers Union No. 2 of
Minnesota; Construction and General Laborers
Local No. 563, Affiliated with Laborers Interna-
tional Union of North America, AFL-CIO; Brick-
layers and Masons and Plasterers International
Union , Local No. 3, of Duluth, Minnesota,
AFL-CIO; Hod Carriers, Building and General
Laborers, Local 1091 , AFL-CIO.Case 18-CD-161
June 19, 1974
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Fabcon, Incorporated, herein
called the Employer, alleging that International
Association of Bridge, Structural and Ornamental
Iron Workers, Local No. 563, AFL-CIO, herein
called Iron Workers, and International Brotherhood
of Carpenters and Joiners of America, Local No.
361, AFL-CIO, herein called Carpenters, violated
Section 8(b)(4)(D) of the Act by engaging in certain
proscribed activities with an object of forcing or
requiring the Employer to assign certain work to
employees represented by Iron Workers and Carpen-
ters rather than to employees represented by Con-
struction and General Laborers Local No. 563,
affiliated with Laborers International Union of
North America, AFL-CIO, herein called Laborers
No. 563, and Bricklayers, Cement Block, Stone and
Marble Masons, Pointers, Cleaners and Caulkers
Union No. 2 of Minnesota, herein called Bricklayers
No. 2.
Pursuant to notice, a hearing was held before
Hearing Officer Morris E. Peterson on January 7-11,
22-25, and February 4-5, 1974. All parties, including
the Employer, Laborers No. 563, Bricklayers No. 2,
Iron Workers, Carpenters, and Hod Carriers, Build-
ing and General Laborers, Local 1091, herein called
Laborers No. 1091, and Bricklayers and Masons and
Plasterers International Union, Local No. 3 of
Duluth, Minnesota, herein called bricklayers No. 3,
appeared at the hearing and were afforded full
opportunity to be heard, to examine and cross-exa-
mine witnesses , and to adduce evidence bearing on
the issues. Thereafter, briefs were filed by the
Employer and by the Iron Workers and Carpenters.
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 rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, including the
briefs of the parties, the Board makes the following
findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the
Employer is a Minnesota corporation engaged in the
manufacturing and installation of prestressed con-
crete wall panel, floor slab, and other prestressed
concrete products, and, during the 12 months
preceding the hearing, the Employer sold and
installed goods and materials valued in excess of
$50,000 outside the State of Minnesota. Accordingly,
we find that the Employer is an employer within the
meaning of Section (2) of the Act and that the
Employer is engaged in commerce within 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.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Iron
Workers, Carpenters, Laborers No. 563, Bricklayers
No. 2, Laborers No. 1091, and Bricklayers No. 3 are
labor organizations within the meaning of Section
2(5) of the Act.
III. THE DISPUTE
A. Background and Facts
At the time the dispute herein arose, the Employer
was engaged in the erection and installation of
precast, prestressed concrete products such as wall
panels, floor planks, and stairways, at four locations
in the Duluth, Minnesota, area. At three of the four
locations, the Employer also supplied the materials.
In addition, the Employer was also responsible for
various finishing tasks at the four locations. The
work to be performed at these locations was assigned
by the Employer to composite crews of its employees
who are represented by Laborers No. 563 and
Bricklayers No. 2. In a telephone call from Iron
Workers Business Agent Rawn on November 19,
1973, however, Employer's president, Hansen, was
made aware of the desire of the Iron Workers to have
its members assigned to erection crews. Rawn
211 NLRB No. 105
INTERNATIONAL ASSOCIATION OF BRIDGE, IRON WORKERS, LOCAL 563
threatened that failure to do so would result in work
stoppages on Employer's projects. On November 26,
Rawn again called Hansen and demanded that Iron
Workers and Carpenters, whose representative,
Lindstrom, was then in his office, be assigned to the
erection crews.
Upon Employer's refusal to comply with the
demands of the Iron Workers and Carpenters, both
entrances to, one of the four locations, the Ordean
site, were picketed on November 29. The sign at each
entrance stated, "Fabcon, Inc. is unfair to Carpenters
361, Iron Workers 563." The following day picketing
resumed with signs reading, "Fabcon, Inc., has
substandard working conditions, does not pay
prevailing wage rates, Iron Workers, Local 563,
Carpenters Local 361." The picketing continued until
December 11 and had the effect of shutting down the
Ordean site. In addition, no work was performed
during that time period by the Employer at the other
three sites although these sites were not picketed or
shut down.
B. Work in Dispute
The work in dispute as described in the notice of
hearing consists of all erection and installation of
prestressed concrete on all current and future jobs of
Fabcon, Incorporated, in the Duluth, Minnesota,
area, within the territorial jurisdiction of Iron
Workers Local No. 563 and/or Carpenters Local No.
361. The process typically involved in such erection
and installation once the products are delivered to
the site, with some variation, includes movement of
the material, permanent placement, and finishing
work. More specifically, the products, such as wall
panels, floor planks, and stairways, are moved by
cranes run by operators and oilers. Assistance in
signaling directions to the crane operator, in the
attachment and detachment of spreaders, or in lifting
frames to lifting loops, bolted connections, or nylon
slings is furnished by the erection supervisor and
other employees. After movement, the products are
placed, plumbed, aligned, leveled, and temporarily
shored where appropriate. Connections, such as of
wall panels and floor planks, are pinned, cemented,
bolted, and/or welded. In addition, certain finishing
tasks such as dry-pack cement work, caulking,
grouting, patching, and latexing are then performed.
C. Contentions of the Parties
The Employer, supported by Laborers No. 563 and
I The Employer is a party to a statewide collective-bargaining agreement
made between the Laborers District Council of Minnesota and North
Dakota on behalf of its affiliated local unions and the multiemployer
association of which the Employer is a member.
2 Iron Workers Local No. 563, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO (Spancrete Midwest
737
Bricklayers No. 2, who claim the work, takes the
position that the work should be awarded in
accordance with the Employer's assignment. This, it
is asserted, is consistent with the Employer's past
practice and contract obligations,' and with econo-
my, efficiency, skills, and safety. The Employer
further contends that such an award should apply to
future projects, as well as to present projects in the
Duluth, Minnesota, area, citing the propensity of
Iron Workers for becoming involved in such jurisdic-
tional disputes2 and its own prior difficulties with a
different local of the Iron Workers .3
Laborers No. 1091 makes a claim for the work
based on Laborers District Council of Minnesota's
multiemployer statewide collective-bargaining agree-
ment. The record discloses, however, that no repre-
sentative of Laborers No. 1091 was signatory to the
contract. The record further discloses that members
of Laborers No. 1091 have been employed by the
Employer to supplement its own crews in the Duluth
area.
Iron Workers and Carpenters contend that the
precast prestressed concrete erection and installation
should be performed by a composite crew of
ironworkers, carpenters, and bricklayers, assisted by
laborers where required. Specifically, Iron Workers
and Carpenters contend that the hook, rigging, and
signaling involved in movement of the precast,
prestressed materials be assigned to ironworkers, that
placement, alignment, and leveling of precast floor
planks be assigned to carpenters, and that placement
of wall panels, particularly where mortar or grouting
are required, be assigned to bricklayers to set, plumb,
level, align, point, caulk, or secure. The Iron Workers
and Carpenters further assert that several factors,
including an interunion agreement between the
Bricklayers and Iron Workers Internationals, skill
and safety, area practice, efficiency, and decisions of
the National Joint Board or the new Impartial
Disputes Board, would support such an award.
Bricklayers No. 3 supports the position of Iron
Workers and Carpenters and claims the work of
alignment and placement of wall panels. The record
discloses that the Employer employs some members
of Bricklayers No. 3 at projects herein considered.
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
Company), 175 NLRB 260 ; Iron Workers Local No. 563, International
Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO
(Spancrete Midwest Company), 183 NLRB 1105.
3 Local 512, International Association of Bridge, Structural and Ornamen-
tal Iron Workers, AFL-CIO (Fabcon, Incorporated), 203 NLRB No. 177.
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
believe that Section 8(b)(4)(D) has been violated, and
that there is no agreed-upon method for the
voluntary settlement of the dispute.
As stated, it is undisputed that Ironworkers and
Carpenters demanded the disputed work and picket-
ed the Ordean jobsite in support of their demand.
Based on the foregoing and the record as a whole, we
find that an object of the threats by Rawn on behalf
of Iron Workers and Carpenters and Iron Workers
members' picketing was to force or require the
Employer to assign the disputed work to employees
represented by Iron Workers and Carpenters.
The record shows that the Employer is not a party
to an agreed-upon method for the voluntary adjust-
ment of jurisdictional disputes. We therefore further
find that at the time of the instant dispute there did
not exist any agreed-upon method to which all
parties herein were bound for the voluntary adjust-
ment of the dispute.
Based on the above, we find that there is
reasonable cause to believe that a violation of
Section 8(b)(4)(D) of the Act has occurred and that
the dispute is properly before the Board for determi-
nation under Section 10(k) of the Act.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after
giving due consideration to various relevant factors.
1. Certification and collective-bargaining
agreements
None of the labor organizations involved herein
has been certified by the Board as the collective-
bargaining representative for a unit of the Employ-
er's employees. The Employer does , however, have
contracts with Laborers District Council of Minneso-
ta and North Dakota on behalf of its affiliated local
unions and with Bricklayers Nos. 1 and 2 of St. Paul
and Minneapolis, Minnesota, respectively.4 The
contracts specifically discuss the work in dispute
herein. We therefore find that the collective-bargain-
ing agreements favor the Employer's assignment.
2. Company and industry practice
The record discloses that it has been Employer's
4 The relevant portion of the Laborers District Council 's contract with
the Employer provides in art . XIV as follows:
A. On beams , columns, floors and roofs , one or more preformed
concrete masons shall be integrated with laborers in a construction
crew at the discretion of the Employer.
B. On wall panels there shall be an integrated crew consisting of
members of the Bricklayers and Laborers Unions.
(1) The actual setting, plumbing, leveling , pointing, caulking, or
grouting shall be performed by two or more masons or pre-cast
masons. The balance of the crew shall be composed of members
of one or the other of the building laborers Unions.
practice to assign erection and installation of precast,
prestressed concrete materials to its employees
represented by Laborers No. 563 and Bricklayers
Nos. 1 and 2. This has also been the practice of other
specialty contractors engaged in erection and instal-
lation of precast, prestressed concrete materials in
the Duluth area. The record further discloses,
however, that the practice of general or steel erection
contractors in the Duluth area has been to assign the
work as requested by Iron Workers and Carpenters
herein. Thus, area practice does not clearly favor or
disfavor the assignment as made by the Employer.
The Employer's past practice, however, does favor
the assignment as made.
3. Skills and safety
The record discloses that the skills required for the
erection and installation of precast, prestressed
concrete products are taught to employees of the
Employer, if they do not already possess the
necessary skills, in training classes , both off the job
and on the job. As a result of this training,
Employer's employees are able to work in an
integrated and interchangeable fashion in the various
phases of erection and installation.
Iron Workers and Carpenters maintain that their
members possess greater skills than do Employer's
employees represented by Laborers No. 563 and
Bricklayers Nos. 1 and 2 as a result of apprenticeship
programs and years of experience. In support of this
contention they cite two accidents which occurred on
Employer's projects. The record shows, however, that
the accidents were isolated in nature . One was the
result of bad judgment by experienced personnel,
and the other was the result of a faulty lifting loop or
panel. Thus, while members of Iron Workers and
Carpenters may possess the skills required to perform
the erection and installation involved herein, the
record does not disclose that Employer's employees
represented by Laborers No. 563 and Bricklayers
Nos. 1 and 2 do not possess the required skills. The
factors of skill and safety therefore support the
Employer's assignment.
4. Efficiency and economy of operation
As noted above, Employer's employees are trained
All welding shall be performed by either qualified masons or qualified
laborers who are employed on the crew . The work jurisdiction of
construction laborers interchangable and integrated with preformed
concrete masons at the discretion of the Employer shall consist of
hooking up, erection, grouting , welding, patching, grinding and
applying latex floor and other work requirements associated with the
work of the job crew.
The relevant portion of the contract with Bricklayers Nos. 102 provides
that "one or more performed concrete masons shall be integrated with
laborers in a construction crew at the discretion of the Employer."
INTERNATIONAL ASSOCIATION OF BRIDGE , IRON WORKERS, LOCAL 563 739
to be familiar with the entire erection process.
Therefore, the record discloses , they can be used to
help in other areas of erection if materials they may
need for their own work are not available at that
moment . Thus, the factors of efficiency and resultant
economy of operation also favor Employer's assign-
ment.
Conclusion
Upon the record as a whole, and after full
consideration of all relevant factors involved, we
determine the instant jurisdictional dispute in favor
of Laborers No. 563 and Bricklayers No. 2 and
conclude that Fabcon's employees, represented by
Laborers No. 563 and Bricklayers No. 2, are entitled
to perform the work in dispute. The Employer's
practice , the collective-bargaining agreements, effi-
ciency and economy of operations, and the skills
involved favor this result . Our present determination
to award the work to the Employer's employees who
are represented by Laborers No. 563 and Bricklayers
No. 2, but not to those Unions or their members, is
limited to the controversy which gave rise to this
proceeding. While Iron Workers has been party to
similar proceedings with another employer, and
while the Employer herein has been a party to a
similar proceeding with a different local of the Iron
Workers Union, we do not believe that the broad
order requested by the Employer is appropriate at
this time.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and on the basis of the
foregoing findings and the entire record in this
proceeding , the National Labor Relations Board
makes the following Determination of Dispute:
1. Employees of Fabcon , Incorporated, who are
currently represented by Construction and General
Laborers Local No. 563, affiliated with Laborers
International Union of North America, AFL-CIO,
and by Bricklayers, Cement Block, Stone and Marble
Masons , Pointers, Cleaners, and Caulkers Union No.
2 of Minnesota , are entitled to perform the work of
erection and installation of prestressed concrete on
all current jobs of Fabcon, Incorporated, in the
Duluth , Minnesota, area.
2. International Association of Bridge , Structural
and Ornamental Iron Workers, Local No. 563,
AFL-CIO, and International Brotherhood of Car-
penters and Joiners of America, Local No. 361,
AFL-CIO, are not entitled by means proscribed by
Section 8(b)(4)(D) of the Act to force or require
Fabcon , Incorporated , to assign the above work to
employees represented by them.
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 No. 563, AFL-CIO, and Internation-
al Brotherhood of Carpenters and Joiners of Ameri-
ca, Local No. 361, AFL-CIO, shall notify the
Regional Director for Region 18, in writing, whether
or not they will refrain from forcing or requiring the
Employer by means proscribed by Section 8(b)(4)(D)
of the Act, to assign the work in dispute to employees
represented by Iron Workers and Carpenters , rather
than to employees represented by Laborers No. 563
and Bricklayers No. 2.