Iron Workers Local 70

National Labor Relations Board - Board Decisions

Mar 25, 1971

189 N.L.R.B. 318 (N.L.R.B. 1971)

318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Bridge , Structural and
Ornamental Iron Workers Local No. 70,
AFL-CIO, and Its Agents , James E. Daly and
Corky Cravens and Pankow Construction Company
and United Brotherhood of Carpenters and Joiners
of America , Local Union No. 64 and Bricklayers,
Masons and Plasterers ' International Union Local
No. 1 of Kentucky and Labors ' International Union
of North America, AFL-CIO, Local Union No. 576.
Cases 9-CD-213 and 9-CD-214
March 25, 1971
DECISION AND DETERMINATION OF
DISPUTES
BY MEMBERS FANNING, BROWN, AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
charges filed by Pankow Construction Company,
hereinafter referred to as the Employer, alleging that
International Association of Bridge, Structural and
Ornamental Iron Workers Local No. 70, AFL-CIO,
hereinafter referred to as Iron Workers, had violated
Section 8(b)(4)(D) of the Act. A hearing was held
before Hearing Officer Daniel J. Roketenetz on
September 28 and 29, 1970.i
United Brotherhood of Carpenters and Joiners of
America, Local Union No. 64, hereinafter referred to
as Carpenters; Bricklayers, Masons and Plasterer's
International Union, Local No. I of Kentucky,
hereinafter referred to as Bricklayers; Laborers'
International Union of North America, AFL-CIO,
Local Union No. 576, hereinafter referred to as
Laborers; Iron Workers; and the Employer appeared
at the hearing and were afforded full opportunity to
be heard, to examine and cross-examine witnesses,
and to adduce evidence bearing on the issues.
Thereafter, the Employer and Iron Workers filed
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Acts, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, the Board makes
the following findings:
1. THE BUSINESS OF THE EMPLOYER
Pankow Construction Company is a California
corporation engaged in building and construction,
All dates hereinafter refer to 1970, unless otherwise specified
with its principal office in Altadena, California.
During the past year, a representative period, the
Employer has performed services for customers
located outside the State of California valued in
excess of $50,000. The Employer is engaged in a joint
venture with Whittenberg Engineering and Construc-
tion Company for the construction of the Citizens
Fidelity Bank Building in Louisville, Kentucky, a
project valued in excess of $15 million. We find that
Pankow Construction Company is engaged in com-
merce within the meaning of the Act and that it will
effectuate the purposes of the Act to assert jurisdic-
tion here.
11. THE LABOR ORAGANIZATION INVOLVED
The parties stipulated, and we find, that Iron
Workers, Carpenters, Laborers, and Bricklayers are
labor organizations within the meaning of the Act.
III. THE DISPUTE
A. The Work in Dispute
Case 9-CD-213
The work in dispute, in Case 9-CD-213, is the
erection and installation of structural precast floor
beams, floor slabs, and wall panels at the Employer's
construction site for the Citizens Fidelity Bank
Building in Louisville, Kentucky.
Case 9-CD-214
The work in dispute, in Case 9-CD-214, is the
removal of concrete slabs and beams at the
Employer's casting yard from the stressing bed to the
stockpile and from the stockpile to trucks for
transport to the Employer's construction site for the
Citizens Fidelity Bank Building in Louisville, Ken-
tucky.
B. Background and Facts of the Dispute
Case 9-CD-213
The Citizens Fidelity Bank Building is to be
constructed of concrete, with poured-in-place con-
crete columns, cove walls, precast and prestressed
floor beams and slabs, and precast exterior wall
panels. Pankow manufactures the precast prestressed
slabs and beams at a casting yard that it has
established for this purpose in Louisville. The precast
wall panels are manufactured and supplied by an
outside contractor, Dolt and Dew, Inc. The
Company's method of construction is unique in the
Louisville area.
Precast beams support each floor of the building.
The precast slabs are used as the basis for the
189 NLRB No. 45
IRON WORKERS LOCAL 70 319
building's floors. The precast wall panels enclose the
building for structural purposes. The building is to be
built floor by floor. The Employer has assigned the
job of installation and erection of precast beams,
slabs, and wall panels to a composite crew consisting
of carpenters and ironworkers. The Employer em-
ploys carpenters and has a collective-bargaining
agreement with the Carpenters.
When beams are brought to the jobsite, the
composite crew attaches lifting plates to anchors in
the beams. The beams are then lifted, while a
carpenter and an ironworker assure that they are
properly aligned and placed in the correct position.
Slabs are set into position with the composite crew
making sure that they are placed in the correct
locations. Prior to the installation of wall panels,
carpenters establish a line on which the panels will be
placed. The carpenters do all of the preerection
setting and alignment. The panels are then placed
into position by the composite crew. Later the panels
are joined to the building by poured-in-place
concrete columns. The carpenters build the forms for
these columns and perform any posterection align-
ment.
In February, James Daly, Iron Workers business
agent, visited the job site. The Employer's general
superintendent, Tice, told Daly that the erection and
installation of beams, slabs, and panels would be
assigned to a composite crew of ironworkers and
carpenters. Daly objected to the assignment and
stated that Iron Workers would claim the work
exclusively. On April 27, the Employer entered into a
subcontract with Universal Steel Erectors of Kentuc-
ky, inc., whereby Universal agreed to furnish
ironworker labor to the Employer. Iron Workers is
party to a collective-bargaining agreement with
Universal, but does not have a contract with the
Employer.
Construction, using the precast materials, was
scheduled to begin on July 13. At 8 a.m., Daly visited
Tice at the jobsite office. Daly told Tice that he did
not want the composite crew performing the work.
Tice answered that the assignment would not be
changed. Tice testified that Daly then threatened to
"throw up a picket." Daly, accompanied by Tice,
then left the office to speak to Herb Whitt,
Universal's job foreman. Daly told Whitt that he was
going to get a picket. Daly left the jobsite and was
followed by the eight ironworkers who were assigned
to the job.
On July 14, at 8 a.m., the Iron Workers began
picketing both entrances to the jobsite. The legend
on the picket sign was "informational Picket-Iron
Work On This Job Is Being Performed By Others
Than Members of the International Ass'n of Bridge,
Structural and Ornamental Iron Workers." No
ironworkers or operating engineers reported to work
that day. The picketing continued on July 15 and 16.
On July 17, there was no picketing and all of the
workers reported to the jobsite. The work is proceed-
ing, with the installation and erection of beams,
slabs, and panels performed by a composite crew of
carpenters and ironworkers, under protest from Iron
Workers and Bricklayers.
In February, Norbert Stich, the Bricklayers busi-
ness agent, visited Tice. Tice told Stich that he
intended to assign the erection and installation of the
wall panels to a composite crew. Stich claimed the
work for the Bricklayers and stated that he would file
a claim with the National Joint Board for the
Settlement of Jurisdictional Disputes in the Building
and Construction Industry, hereinafter referred to as
the Joint Board. Tice informed Stich that the
Employer would not participate in, or recognize, any
Joint Board proceedings. The Employer employs no
bricklayers and is not party to any agreement which
requires it to be bound by a Joint Board decision. On
May 22, the Joint Board sent a letter to the Employer
stating that it had held a hearing and had assigned
the plumbing, aligning, leveling, and anchoring of
exterior precast panels to Bricklyers instead of
Carpenters. The Employer replied to the Joint Board,
stating that it would not recognize the award. Stich
visited Tice and insisted that the Employer honor the
award. When Tice refused, Stich threatened to put a
picket on the job. At the hearing herein, Laborers
asserted a claim to the installation and erection of
the beams, planks, and wall panels.
Case 9-CD-214
The Employer's casting yard manufactures precast
and prestressed, structural floor beams and slabs.
The beams and slabs are made in stressing beds.
Strands of high tensile steel are stretched across the
beds by ironworkers. The ironworkers then place
reinforcing steel bars across the strands, tying them
into place with the wire. The carpenters install the
forms around the beds. The carpenters and laborers
place lifting anchors in the beds and then the
laborers pour concrete into the beds. After a period
of "curing," the slabs and beams are "destressed" by
the ironworkers.
Removal of slabs and beams involves the attaching
of eyebolts to slabs and pickup plates to beams,
attaching a crane sling to the eyebolt or pickup plate,
and signaling the crane operator as to where to
stockpile the material. The same operation is used to
move the material from the stockpiles to a truck for
transport to the jobsite. This work is unskilled.
The Employer assigned the work of removal and
stacking to a composite crew of carpenters and
laborers. On May 8, Iron Workers Business Agents
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Daly and Cravens visited Tice at the casting yard.
Cravens told Tice that the area practice in Louisville
was that ironworkers did all of the handling of the
precast concrete. Tice said that the work had been
assigned to a composite crew. Tice testified that Daly
then threatened to shut down the job, that Daly
would pull the ironworkers off the jobsite, and
Cravens would stop the work at the casting yard.
Tice immediately reassigned the work to the iron-
workers exclusively. At the time of the hearing, the
work was still being performed by the ironworkers,
under protest by the Carpenters and Laborers.
C. The Contentions of the Parties
Case 9-CD-213
The Employer contends that the assignment of the
work to the composite crew of carpenters and
ironworkers should not be changed because the skills
of both the carpenters and the ironworkers are
needed for this operation. The Employer has a
consistent history of assigning the disputed work to a
composite crew. The work performed by the Em-
ployer is unique in the area and for this reason the
Employer asserts that area practice should not be
considered controlling. The Employer also argues
that this assignment is efficient, economical, pro-
motes safety, and has proven satisfactory.
Iron Workers contends that all of the work in
dispute (except aligning and plumbing of wall
panels) should be performed exclusively by its
members. It cites their special skills and the area
practice as the reasons for the work to be assigned to
them. Bricklayers claims the handling and setting
and erection of precast panels, based upon the Joint
Board award. Carpenters cites the Employer's work
history as a basis for awarding the work to a
composite crew of carpenters and ironworkers.
Laborers also asserted a claim to the handling of all
precast material at the jobsite.
Case 9-CD-214
The Employer contends that the original assign-
ment of the work, to a composite crew of carpenters
and laborers, should be enforced. In support of that
assignment, the Employer cites the following factors:
a past history of similar assignments, job efficiency
and economy, no skill required, and dissatisfaction
with the ironworkers' performances in this assign-
ment.
Iron Workers asserts that it should perform the job
exclusively because of the area practice. Carpenters
and Laborers cite the Employer's past practices as
the reason for assigning the work to a composite
crew.
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.
In this case, Iron Workers formally claimed the
disputed work contemporaneously with alleged
threats of work stoppages and picketing. We find
that Ironworkers threatened to picket, and did
picket, the Employer with the object of requiring the
Employer to assign particular work to its members.
We conclude that the Joint Board award was not an
effective voluntary adjustment of the dispute, within
the meaning of Section 10(k), since all of the parties
did not participate in the proceedings, did not join in
the submission to the Joint Board, and did not agree
to be bound by the decision.
On the basis of the entire record, we find that there
is reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred and that the dispute
is properly before the Board for determination.
E. Merits of the Disputes
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work after giving
due consideration to various relevant factors.2 The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based upon
common sense and experience, reached by balancing
those factors involved in a particular case.3
The following factors are relevant in making the
determination of the disputes before us:
1. Collective-bargaining agreements
The Employer does not have a collective-bargain-
ing agreement with Iron Workers. The Employer has
a contract with Universal Steel in which Universal
agrees to supply workers that are members of Iron
Workers to the Employer. The contract specifies that
the ironworkers are to work under the direction and
assignment of the Employer. The subcontract does
not provide that the disputed work would be
assigned exclusively to ironworkers. The Employer is
a member of the Louisville Association of General
Contractors and is bound by the Association's
collective-bargaining agreements with Carpenters,
Bricklayers, and Laborers.
2. Company practice
The Employer presented evidence that since its
formation, in 1963, it has consistently assigned the
2 N L R B v Radio & Television Boradcast Engineers Union , Local 1212,
Internation Brotherhood of Electrical Workers (Columbia Broadcasting
Svstem), 364 U S 573
i International Association of Machinists (J A Jones Construction Co
135 NLRB 1402
IRON WORKERS LOCAL 70
disputed work (in 9-CD-213) to a composite crew of
carpenters and ironworkers. Evidence of similar
assignments by the Employer in 21 jobs was
introduced. The Employer also introduced evidence
that it has consistently awarded the disputed work
(in 9-CD-214) to a composite crew of carpenters and
laborers. The record contains 17 instances in which
the Employer made such an assignment.
3. Area and industry practice
The Employer contends that its method of con-
struction, using poured-in-place concrete to affix
concrete elements to a building, is unique in the
Louisville areas, and, therefore, area practice should
not be deemed controlling. The record indicates that
other companies using similar construction tech-
niques in other areas of the country assign their
installation and erection of precast elements to
composite crews of carpenters and ironworkers. Iron
Workers presented evidence that contractors in the
Louisville area traditionally assign similar work
exclusively to ironworkers. However, many of these
job assignments involved a different construction
technique, affixing concrete elements to a building
by welding or bolting.
Laborers introduced evidence that it has also
installed and erected precast elements. Bricklayers
introduced evidence that a composite crew of
ironworkers and bricklayers had performed similar
work. However, those jobs involved elements which
were bolted or welded into place. Carpenters
presented evidence that it has performed identical
work exclusively and as members of a composite
crew.
In regard to the handling of precast elements at the
Employer's casting yard, Iron Workers adduced
evidence that the area practice was to assign all
power rigging to it. The Employer emphasizes that it
is one of the few general contractors that establishes
a casting yard to manufacture precast materials for
its own use.
4. Economy and efficiency
The Employer states that the skills of both
ironworkers and carpenters are used in the erection
and installation of the precast elements. and that it
would be uneconomical and inefficient to assign the
work only to Iron Workers.
Laborers wage rate is $4.85 an hour. The employer
testified that a carpenter or laborer must be present
to strip the chamfer strip off the planks when they
are removed from the stressing beds. Therefore, the
Employer argues that it would be inefficient and
uneconomical to assign the work only to Iron
Workers.
5. Skills of the employees
From the description above , it is clear that the
erection and installation of the precast elements use
321
skills possessed by both carpenters and ironworkers.
The handling of the elements in the casting yard
requires no specific skills and could be performed by
any construction worker.
CONCLUSIONS
Based upon the entire record, and after full
consideration of all relevant factors, we conclude
that the work in dispute in Case 9-CD-213 should be
assigned to a composite crew of employees represent-
ed by Carpenters and by Iron Workers, and that the
work in dispute in Case 9-CD-214 should be
assigned to a composite crew of employees represent-
ed by Carpenters and Laborers. We reach these
conclusions relying on the Employer's assignments of
the disputed work to the composite crews, the fact
that the assignments are consistent with the
Employer's past practices, the Employer' s satisfac-
tion with the performance of the composite crews,
and the efficiency and economy of operations that
will result from such assignments.
In making these determination, we are awarding
the disputed work to employees who are represented
by Carpenters, Iron Workers, and Laborers, but not
to those Unions or to their members.
DETERMINATION OF DISPUTES
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 case,
the National Labor Relations Board makes the
following Determination of Disputes:
A. Employees of Pankow Construction Company,
currently represented by United Brotherhood of
Carpenters and Joiners of America, Local Union No.
64, and by International Association ofBridge, Struc-
tural and Ornamental Iron Workers, Local No. 70,
AFL-CIO, are entitled to perform the following
work:
Erection and installation of structural pre-cast
floor beams, floor slabs, and wall panels at the
Employer's construction site for the Citizens
Fidelity Bank Building in Louisville, Kentucky.
Employees of Pankow Construction Company
currently represented by United Brotherhood of
Carpenters and Joiners of America, Local Union No.
64, and by Laborers' International Union of North
America, AFL-CIO, Local Union No. 576, are
entitled to perform the following work;
The removal of concrete slabs and beams, at the
Employer's casting yard, from the stressing bed to
the stockpile and from the stockpile to trucks for
transport to the Employer's construction site for
the Citizens Fidelity Bank Building in Louisville,
Kentucky.
321A DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. International Association of Bridge , Structural
and Ornamental Iron Workers Local No. 70, Local
No. 70, AFL-CIO, is not entitled by means prescribed
by Section 8(b)(4)(D) of the Act to force or require
Pankow Construction Company to assign all the
above-described work to its members or to employees
that it represents.
C. Within 10 days from the date of this Decison
and Determination of Disputes, International Associ-
ation of Bridge , Structural and Ornamental Ironwork-
ers Local No. 70, AFL-CIO, shall notify the Regional
Director for Region 9 , in writing , whether it will
refrain from forcing or requiring Pankow Construc-
tion Company , by means proscribed by Section
8(b)(4)(D) of the Act , to assign the work in dispute
exclusively to individuals that it represents , rather
than to employees of Pankow Construction Company
represented by United Brotherhood of Carpenters
and Joiners of America , Local Union No. 64, and
International Association of Bridge , Structural and
Ornamental Iron Workers Local No. 70, AFL-CIO,
and Laborers International Union of North America,
AFL-CIO, Local Union No. 576.