Iron Workers Local 118 (Clark & Sullivan)

National Labor Relations Board - Board Decisions

Oct 4, 1991

305 N.L.R.B. 395 (N.L.R.B. 1991)

395
305 NLRB No. 34
IRON WORKERS LOCAL 118 (CLARK & SULLIVAN)
International Association of Bridge, Structural and
Ornamental Iron Workers, Local Union No.
118 and Clark & Sullivan Constructors, Inc.
Case 32–CD–127
October 4, 1991
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed on May 1, 1991, by Clark & Sullivan Construc-
tors, Inc. alleging that Respondent Iron Workers Local
118 violated Section 8(b)(4)(D) of the National Labor
Relations Act by engaging in proscribed activity with
an object of forcing Clark & Sullivan to assign certain
work to employees it represents rather than to employ-
ees represented by Carpenters Local 971. The hearing
was held on July 10, 1991, before Hearing Officer
Barbara D. Davison. Clark & Sullivan filed a
posthearing brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.
I. JURISDICTION
Clark & Sullivan, Inc., a Nevada corporation, is a
general contractor engaged in the construction of pub-
lic buildings and other facilities. In the 12 months pre-
ceding the hearing, it purchased and received at con-
struction jobsites within the State of Nevada goods
valued in excess of $50,000 directly from points out-
side the State of Nevada. We find that Clark & Sul-
livan is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
Iron Workers Local 118 and Carpenters Local 971 are
labor organizations within the meaning of Section 2(5)
of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
In mid-1990, Clark & Sullivan began work as the
general contractor on the Supreme Court Courthouse
Building and parking structure in Carson City, Nevada.
The parking structure and courthouse were to be built
largely out of precast concrete panels manufactured by
Con-Force Structures. The panel installation process
involves: (1) precise building site survey and layout of
the work; (2) prewelding of iron supports to the struc-
tural steel skeleton; (3) off-loading and lifting of a
panel to the point of installation; (4) positioning of the
panel; (5) bolting the panel; (6) final alignment.
On November 5, 1990, various employer and union
representatives met for a prejob conference concerning
a jobsite other than the courthouse building site.
Among those present were Clark & Sullivan President
B. J. Sullivan, Carpenters Local 971 Business Agent
Dana Wiggins, and Iron Workers Local 118 Business
Agent Richard Ciesynski. Roland Christenson, Michael
Busick, and Jack Chesney also attended the meeting on
behalf of their respective unions.
Sullivan testified that during the prejob conference
Ciesynski accused Wiggins of taking work from the
Iron Workers. When Sullivan commented that Wiggins
was very good about getting out to meet with employ-
ers, Ciesynski told Sullivan there would be picketing
if carpenters performed the welding work on precast
panels at the courthouse jobsite. Ciesynski testified that
he did not threaten to picket Clark & Sullivan.
Christenson testified that he did not hear Ciesynski
threaten to picket. Busick and Chesney both testified
that Ciesynski made no such threat.
The Employer subsequently subcontracted the pre-
cast panel installation work to Con-Force Structures.
Con-Force assigned all installation work, including the
welding work, to employees represented by Carpenters
Local 971.
On about December 28, 1990, Iron Workers Local
118 filed a lawsuit in Nevada state court alleging that
Clark & Sullivan and Con-Force were violating the
State’s prevailing wage law by using employees other
than members of Iron Workers or nonunion employees
of that craft to perform the precast panel welding and
installation work at the courthouse building site. The
suit sought a permanent injunction against ‘‘the use of
non-skilled laborers in a jurisdictional area which has
by custom, practice and agreement been assigned to
the Iron Workers, members of Local Union 118 and
those other similar non-members who would otherwise
be paid the prevailing wage rates for their skilled
labor.’’ The suit also sought an award of general dam-
ages for members of Iron Workers and a similar class
of nonmembers for the loss of wages and skilled posi-
tions allegedly resulting from the defendants’ use of
other employees to perform the precast panel work.
By a series of letters dated May 21, June 13, and
July 5, 1991, counsel for Iron Workers Local 118 pur-
ported to deny or repudiate the alleged threat to picket
and to disclaim interest in the precast panel welding
work at the courthouse jobsite. On July 5, 1991, Iron
Workers Local 118 attempted to amend its prevailing
wage law complaint so that the requested injunction
would not preclude the employment of employees
other than ironworkers but would preclude the pay-
ment of wages less than the alleged prevailing wage of
skilled ironworkers. Iron Workers Local 118 continues
396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Neither Con-Force nor Carpenters Local 971 appeared at hearing
or filed posthearing statements of position.
2 Although Ciesynski and other union witnesses testified that he
did not threaten to picket, it is well established that a conflict in tes-
timony does not require resolution or preclude proceeding to a con-
sideration of the merits of the jurisdictional dispute under Sec. 10(k)
because the Board is only required to find evidence supporting a rea-
sonable cause to believe that Sec. 8(b)(4)(D) has been violated. E.g.,
Electrical Workers IBEW Local 400 (E. T. Electrical), 285 NLRB
1149, 1150 (1987).
to assert in the amended complaint that the work at
issue is within its craft jurisdiction, and it continues to
seek general compensatory damages for its members,
as well as for nonunion ironworkers.
B. Work in Dispute
The disputed work involves the welding on precast
concrete panels at the Supreme Court Building project
in Carson City, Nevada.
C. Contentions of the Parties
Clark & Sullivan contends that: (1) Iron Workers
Local 118 violated Section 8(b)(4)(D) of the Act by its
agent’s November 5, 1990 demand for the disputed
work and threat to picket; (2) the attempted disclaimer
of interest in the work in dispute by Iron Workers
Local 118 is invalid and ineffective because it is in-
consistent with the maintenance of the prevailing wage
lawsuit; and (3) the disputed work should be awarded
to employees represented by Carpenters Local 971 on
the basis of the factors of collective-bargaining agree-
ments, employer preference and past practice, area
practice, relative skills, and economy and efficiency of
operations. Iron Workers Local 118 denies that it has
threatened to picket and further asserts that the Section
10(k) notice of jurisdictional dispute should be
quashed because it has effectively disclaimed any in-
terest in the work in dispute.1
D. Applicability of the Statute
Before the Board may proceed with a determination
of the dispute pursuant to Section 10(k), it must be sat-
isfied that there is reasonable cause to believe that Sec-
tion 8(b)(4)(D) has been violated and that the parties
have not agreed on a method for voluntary adjustment
of the dispute.
Based on the testimony of Clark & Sullivan Presi-
dent Sullivan, there is reasonable cause to believe that
Iron Workers Local 118 Business Agent Ciesynski
threatened to picket the courthouse jobsite if the dis-
puted work were assigned to employees represented by
Carpenters rather than by Iron Workers.2 Furthermore,
we find that attempts by Iron Workers Local 118 to
disclaim interest in the work in dispute are ineffective
because they are inconsistent with continuing claims in
its prevailing wage lawsuit that this work ‘‘is within
the craft jurisdiction of Iron Workers’’ and that com-
pensatory damages should be awarded to its members
and nonmember employees of its craft for the loss of
work.
Based on the foregoing, we find reasonable cause to
believe that a violation of Section 8(b)(4)(D) has oc-
curred and that there exists no agreed method for vol-
untary adjustment of the dispute within the meaning of
Section 10(k) of the Act. Accordingly, we find that the
dispute is properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative award of disputed work after considering various
factors. NLRB v. Electrical Workers IBEW Local 1212
(Columbia Broadcasting), 364 U.S. 573 (1961). The
Board has held that its determination in a jurisdictional
dispute is an act of judgment based on common sense
and experience, reached by balancing the factors in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of the dispute.
1. Collective-bargaining agreements
Neither Clark & Sullivan nor its subcontractor Con-
Force have a collective-bargaining agreement with Iron
Workers Local 118. Both employers are signatory to a
multiemployer association collective-bargaining agree-
ment with Carpenters Local 971. This agreement, ef-
fective from July 1, 1988, through June 30, 1993, pro-
vides that its terms shall apply, inter alia, to ‘‘All
building construction, including but not limited to the
construction, erection, alteration, repair, modification,
demolition, addition or improvement in whole or in
part of any building structure.’’ We find that the factor
of collective-bargaining agreements favors an award of
the work in dispute to employees represented by Car-
penters Local 971.
2. Company preference and past practice
Clark & Sullivan President Sullivan testified that his
company’s preference and past practice was for the
disputed work to be performed by employees who are
represented by Carpenters Local 971. Wilford McKee,
manager of the engineering department for Con-Force
Structures, gave similar testimony with respect to that
employer’s preference and past practice. Accordingly,
this factor favors an award of the disputed work to em-
ployees represented by Carpenters Local 971.
3. Area practice
Carpenters Local 971 Business Agent Wiggins testi-
fied that the overwhelming majority of precast panel
welding jobs in the Reno area during the preceding 2-
1/2 years had been performed by carpenters. We find
397IRON WORKERS LOCAL 118 (CLARK & SULLIVAN)
that this factor favors an award of the disputed work
to employees represented by Carpenters Local 971.
4. Relative skills and economy and efficiency
of operations
Sullivan testified that carpenters have extensive ex-
perience in the welding function associated with the in-
stallation of precast concrete panels. He also testified
that the Carpenters provides over 100 hours of welding
training for apprentices as well as welding refresher
training programs for journeymen. McKee testified that
it was more efficient to use carpenters for the entire
precast panel manufacture and installation process. If
ironworkers performed the disputed welding work,
they would work only briefly and would not be able
to assist in other phases of the process. Accordingly,
we find that the factor of relative skills and economy
and efficiency of operations favors an award of the
disputed work to employees represented by Carpenters
Local 971.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by Carpenters Local
971 are entitled to perform the work in dispute. We
reach this conclusion by relying on the factors of col-
lective-bargaining agreements, employer preference
and past practice, relative skills, and economy and effi-
ciency of operations. In making this determination, we
are awarding the work to employees represented by
Carpenters Local 971 not to that Union or its mem-
bers. The determination is limited to the controversy
that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of Clark & Sullivan Constructors, Inc.
and/or Con-Force Structures, Inc. represented by the
United Brotherhood of Carpenters and Joiners of
America, Local No. 971, are entitled to perform the
welding on precast concrete at the Supreme Court
Building project in Carson City, Nevada.
2. International Association of Bridge, Structural and
Ornamental Iron Workers, Local Union No. 118 is not
entitled by means proscribed by Section 8(b)(4)(D) of
the Act to force Clark & Sullivan Constructors, Inc. or
Con-Force Structures, Inc. to assign the disputed work
to employees represented by it.
3. Within 10 days from this date, International Asso-
ciation of Bridge, Structural and Ornamental Iron
Workers, Local Union No. 118 shall notify the Re-
gional Director for Region 32 in writing whether it
will refrain from forcing Clark & Sullivan or Con-
Force Structures, Inc., by means proscribed by Section
8(b)(4)(D), to assign the disputed work in a manner in-
consistent with this determination.