Iron Workers, Local 3

National Labor Relations Board - Board Decisions

Feb 25, 1972

195 N.L.R.B. 575 (N.L.R.B. 1972)

IRON WORKERS , LOCAL 3
International Association of Bridge , Structural and
Ornamental Iron Workers , Local Union No. 3,
AFL-CIO and Dickerson Structural Concrete Cor-
poration and United Brotherhood of Carpenters and
Joiners of America , Carpenters' District Council of
Western Pennsylvania , AFL-CIO. Case 6-CD-401
February 25, 1972
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following
charges filed by Dickerson Structural Concrete Corpo-
ration, hereinafter called the Employer, alleging that
the International Association of Bridge, Structural and
Ornamental Iron Workers, Local Union No. 3, AFL-
CIO, hereinafter called Iron Workers, has violated Sec-
tion 8(b)(4)(D) of the Act. A hearing was held before
Hearing Officer Daniel Silverman on October 13 and
18, 1971.
The United Brotherhood of Carpenters and Joiners
of America, Carpenters' District Council of Western
Pennsylvania, AFL-CIO, hereinafter called Carpen-
ters, 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 Em-
ployer, Iron Workers, and Carpenters 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 rulings of the Hearing Officer made at the hear-
ing 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
The parties stipulated that the Employer is engaged
in the building and construction industry and, during
the past 12-month period, received directly from points
outside of the Commonwealth of Pennsylvania goods
valued in excess of $50,000. The parties also stipulated
that the Employer's contract for work involved in this
case is valued in excess of $750,000. We find that the
Employer is engaged in commerce within the meaning
of the Act and that it will effectuate the purposes of the
Act to assert jurisdiction herein.
195 NLRB No. 90
II. THE LABOR ORGANIZATIONS INVOLVED
575
The parties stipulated, and we find, that Iron Work-
ers and Carpenters are labor organizations within the
meaning of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is a subcontractor for the erection of
precast structural concrete girders , columns, and
beams at the Interim Terminal Facilities at the Greater
Pittsburgh Airport, which is located in Moon Town-
ship, Allegheny County , Pennsylvania . To perform the
work at the airport , the Employer used its own em-
ployees, who were represented by Carpenters and were
covered by two agreements : a collective-bargaining
agreement between the Employer and Carpenters,
which does not provide for the submission of jurisdic-
tional disputes to the National Joint Board for Settle-
ment of Jurisdictional Disputes , herein called the Joint
Board ; and an agreement between Carpenters and the
Master Builders Association of Western Pennsylvania,
herein called MBA, of which the Employer is a mem-
ber.
Prior to the present dispute , the MBA-Carpenters
agreement provided that the members of MBA and
Carpenters would be bound by the jurisdictional dis-
pute decisions of the Joint Board . However, that agree-
ment had expired , and the agreement between MBA
and Carpenters in effect at the time of the dispute con-
tained no provision for the submission of jurisdictional
disputes to the Joint Board; instead , the agreement
simply provided that both parties agreed to be bound
by the provisions of a plan for settlement of jurisdic-
tional disputes as mutually adopted by the parties. At
the time of this dispute , no such plan had been adopted.
On August 3, 1965, the Employer and Iron Workers
had entered into an agreement wherein the Employer
agreed to discontinue a civil action against Iron Work-
ers and to enter into an informal settlement of its unfair
labor practice charges against Iron Workers . Inter alia,
the agreement provided that the parties agreed to abide
by the rules of the Joint Board in the event that Iron
Workers challenged the propriety of any job assign-
ment made by the Employer "over which they [Iron
Workers] now or hereafter assert jurisdiction." The
agreement contained no termination date.
In December 1970, Iron Workers Business Agent
Sullivan had orally and in writing expressed an interest
in work similar to that now in dispute . On December
21, 1970, the Employer informed Carpenters that it
planned to assign the disputed work to it . On January
5, 1971, Employer 's Vice President Butts, by letter to
Iron Workers , stated that the Employer no longer
recognized the Joint Board since two associations of
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which it was a member, MBA and Associated General
Contractors, had ceased to recognize the Joint Board.
In February 1971, representatives of Iron Workers and
Carpenters met at the jobsite and discussed the assign-
ment of the disputed work. Sullivan and Butts also
discussed the assignment of the disputed work by
phone. When the Employer persisted in refusing to
assign the disputed work to members of Iron Workers,
Iron Workers submitted the dispute to the Joint Board
on April 23, 1971, allegedly in accordance with the
agreement entered into between the Employer and Iron
Workers in 1965. The Joint Board thereupon requested
information from the Employer concerning the dis-
pute; but the Employer refused, responding that it was
no longer bound by the decisions of the Joint Board. On
April 30, the Joint Board notified all parties concerned
that it had awarded the disputed work to Iron Workers.
Thereafter, on May 25, Iron Workers sent a letter to
the Employer requesting information on how many
Iron Workers personnel it would need to complete its
subcontract. The Employer made no reply to that letter
and closed down its operations at the airport until Sep-
tember 1971.
On September 20, the Employer resumed its work at
the airport, and immediately thereafter, Iron Workers
established a picket line at the airport site. The pickets
carried signs which read:
DICKERSON CO. REFUSES TO ABIDE BY
THE NATIONAL JOINT BOARD DECISION
FOR PRECAST CONCRETE
IRON WORKERS LOCAL NO. 3
The picketing continued until September 29, when it
ceased pursuant to the settlement of 10(1) proceedings.
The work was thereafter completed by Carpenters.
B. The Work in Dispute
The parties agree that the work in dispute involves
the erection of precast concrete structural members
composed of columns , girders, and beams at the In-
terim Terminal Facilities at the Greater Pittsburgh
Airport, Moon Township , Pennsylvania.
C. Contentions of the Parties
1. Contentions relating to whether the Joint Board
decision was binding on the parties
The Employer contends that the 1965 agreement
between it and Iron Workers expired after a reasonable
time; that since the Associated General Contractors, an
organization of which the Employer is a member, with-
drew from the Joint Board on September 30, 1969, it
was not bound by the Joint Board decision . and that it
that it no longer recognized the Joint Board and would
not be bound by its decisions. Carpenters contends
that, at the time of the dispute, the MBA's agreement
with Carpenters contained no provision that the mem-
bers of the MBA, including the Employer, would be
bound by the decisions of the Joint Board, and that
Carpenters is not bound either by the 1965 agreement
between the Employer and Iron Workers, since it was
not a party to it, or by the Joint Board decision, since
it was not a participant therein. Iron Workers contends
that it received no notice from the Employer that it had
withdrawn from the 1965 agreement, because the Em-
ployer's letter of January 5, 1971, specifically dealt with
a work dispute pertaining to work located in West-
moreland County, while the disputed work in this case
involves work in Allegheny County; that the 1965
agreement is still binding on the Employer; and that
Carpenters was bound by the Joint Board's decision.
2. Contentions relating to a demand by Iron
Workers for the disputed work
The Employer contends that Iron Workers de-
manded the disputed work orally on several occasions
and by letter on May 25, 1971. Carpenters contends
that Iron Workers made a formal claim for the dis-
puted work by demanding that the Employer comply
with the Joint Board's decision. Iron Workers contends
that it made no written or oral demand for the disputed
work; it contends that it merely sought to pressure the
Employer into complying with the Joint' Board's award
to it, and that its picketing was solely for the purpose
of informing the public of the Employer's noncompli-
ance.
D. Applicability of the Statute
Before the Board may proceed with a determination
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 settlement of the
dispute.
All parties stipulated and agreed that Iron Workers
picketed or caused to be picketed the worksite from
September 20 to 29 , 1971. There was no stipulation by
the parties as to the objects of the picketing . Iron Work-
ers moved to quash the notice of the hearing on the
ground that there was an agreed -upon method for the
voluntary settlement of the dispute.'
The evidence also establishes that Iron Workers did,
in fact, make a demand for the disputed work by caus-
ing the Employer to be picketed , and that the object of
the picketing was to force the Employer to assign the
Iron Workers supported this motion by introducing a copy of the 1965
gave Iron Workers notice, by letter on January 5, 1971, agreement into evidence
IRON WORKERS, LOCAL 3 577
disputed work to Iron Workers. It is well established
that although the unions involved may be bound to
settlement procedures such as those provided by the
Joint Board, if, as here, the Employer has not agreed
to be bound, the Board is empowered and directed,
under Section 10(k) of the Act, to make a binding
determination on all the parties, including the Em-
ployer.' The Employer, though bound to the Joint
Board which was dissolved in September 1969, is not
shown to have signified an intention to be bound to the
new Joint Board which existed at all times material to
the instant controversy. Accordingly, and in view of
the Board's decision in Bricklayers, Masons and Plas-
terers' International Union of America, Local No. 1,
AFL-CIO (Lembke Construction Company of
Colorado, Inc.), 194 NLRB No. 98, we find that all
parties are not bound by an agreed-upon or alternative
method for voluntary adjustment of this dispute.
In these circumstances, we find that there is reasona-
ble cause to believe that Iron Workers has violated
Section 8(b)(4)(D) of the Act. Iron Workers' motion to
quash the notice of hearing is denied, since there is no
agreed-upon method for voluntary settlement of the
dispute.
3. Relative skills, efficiency, and economy of
operations
The record shows that the carpenters presently em-
ployed by the Employer possess sufficient skills to per-
form satisfactorily the work in dispute, and the Em-
ployer is fully satisfied with the productivity, efficiency,
and safety record of its carpenters and desires to con-
tinue assigning such work to them. In those instances
when the Employer subcontracted similar work to a
subcontractor who used ironworkers for the work, the
Employer found that the skills, productivity, and effi-
ciency of those employees were unsatisfactory, espe-
cially with regard to placing the 'work "plumb and in
line" within the time periods allocated for such work.
The economy of operations to be derived from the Em-
ployer's use of its carpenters is obvious.
4. The Joint Board award
Although we do not consider the Joint Board award
to Iron Workers binding on the Employer, we do con-
sider it as a factor in determining the proper assignment
of the work in dispute. However, in view of all the
circumstances, we are of the opinion that the Joint
Board award should not be given controlling weight
herein.
E. Merits of the Dispute
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.
1. Collective-bargaining agreements
The Employer has no employees represented by Iron
Workers, nor does it have a Collective-bargaining
agreement with Iron Workers either directly or
through its affiliation with the MBA. On the other
hand, the Employer has had a series of collective-bar-
gaining agreements with Carpenters for 14 years cover-
ing the disputed work.
2. Company and area practice
The Employer's consistent practice when it has per-
formed the work has been to assign the disputed work
to Carpenters.
Inasmuch as the area practice is mixed, it favors
neither party.
2 N.L R.B. v Plasterers' Local Union No 79 [Texas State Tile], 404 U S.
116 (December 6, 1971); Lathers Union Local 104, The Wood Wire and
Metal Lathers International Union, AFL-CIO (Associated General Contrac-
tors), 186 NLRB No 70.
CONCLUSION
Upon the entire record in this proceeding and after
a full consideration of all of the relevant factors, in
particular the contractual relationship between the
Employer and Carpenters and the Employer's practice,
we conclude that the employees of the Employer who
are represented by Carpenters are entitled to the work
in question and we shall determine the dispute in their
favor. In making this determination, we award the
work to the employees of the'Employer who are repre-
sented by Carpenters but not to that Union or its mem-
bers.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Re-
lations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this proceed-
ing, the National Labor Relations Board makes the
following determination of the dispute:
1. Employees of Dickerson Structural Concrete Cor-
poration who are currently represented by United
Brotherhood of Carpenters and Joiners of America,
Carpenters' District Council of Western Pennsylvania,
AFL-CIO, are entitled to perform the erection of pre-
cast structural concrete members composed of col-
umns, girders, and beams at the Interim Terminal
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Facilities at the Greater Pittsburgh Airport, Moon
Township, Pennsylvania.
2. International Association of Bridge , Structural
and Ornamental Iron Workers, Local Union No. 3,
AFL-CIO, is not entitled, by means proscribed by Sec-
tion 8(b)(4)(D) of the Act, to force or require Dicker-
son Structural Concrete Corporation to assign such
work to ironworkers represented by that labor organi-
zation.
3. Within 10 days from the date of this Decision and
Determination of Dispute, International Association of
Bridge, Structural and Ornamental Iron Workers, Lo-
cal Union No . 3, AFL-CIO, shall notify the Regional
Director for Region 6, in writing , whether or not it will
refrain from forcing or requiring Dickerson Structural
Concrete 'Corporation, by means proscribed by Section
8(b)(4)(D), to assign the disputed work to employees it
represents rather than to employees represented by
Carpenters.
i