Iron Workers Local 55

National Labor Relations Board - Board Decisions

Nov 30, 1972

200 N.L.R.B. 643 (N.L.R.B. 1972)

IRON WORKERS LOCAL 55 643
International Association of Bridge , Structural and
Ornamental Iron Workers Local No 55, AFL-CIO
and E H Hayne Co , Inc and Lake Erie District
Council of Carpenters, United Brotherhood of
Carpenters and Joiners of America , AFL-CIO'
and Local 480, Laborers ' International Union of
North America , AFL-CIO 2 Case 8-CD-232
effectuate the policies of the Act to assert jurisdiction
in this proceeding
II THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the Iron
Workers, the Carpenters, the Laborers, are labor
organizations within the meaning of the Act
November 30, 1972
DECISION AND DETERMINATION OF
DISPUTE
By MEMBERS FANNING, KENNEDY, AND
PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by E H Hayne, Co, Inc, hereinaft-
er referred to as the Employer, alleging a violation of
Section 8(b)(4)(i)(ii)(D) by International Association
of Bridge, Structural and Ornamental Iron Workers
Local No 55, AFL-CIO, hereinafter referred to as
the Iron Workers Pursuant to notice, a hearing was
held on June 1, 1972, in Toledo, Ohio, before
Hearing Officer Marc Bloch The Employer and the
Iron Workers, Carpenters, and Laborers 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
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 rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are
hereby affirmed
Upon the basis of the entire record in this case, the
Board makes the following findings
I THE BUSINESS OF THE EMPLOYER
The parties stipulated that E H Hayne Co , Inc, is
a State of Ohio corporation with its principal place of
business and offices at 770 West Madison Street,
Post Office Box 5, Gibsonburg, Ohio, where it is
engaged in the general contracting business During
the past calendar year, a representative period, it has
had gross revenues in excess of $500,000 During the
same period, it received goods valued in excess of
$50,000 through interstate commerce We find,
accordingly, that the Employer is engaged in a
business affecting commerce within the meaning of
Section 2(6) and (7) of the Act and that it will
i Hereinafter referred to as Carpenters
2 Hereinafter referred to as Laborers
III THE DISPUTE
A Background and Facts of the Dispute
The Employer is a general contractor engaged in
the construction of schools, churches, and commer-
cial buildings At the time of the proceeding, the
Employer was the general contractor for Latham's
Super Market in Genoa, Ohio The Employer is not
affiliated with any association of contractors and is
not at present a party to any contract with a labor
organization
At the end of March 1972 the Employer started
work on the Latham's market with five of its
permanent employees The Employer pays the
prevailing wage rate as prescribed by the Department
of Industrial Relations of the State of Ohio The
Employer assigned the disputed work to two carpen-
ters and a laborer
The Latham Super Market project involves a one-
story building with a mezzanine, covering 20,000
square feet The Employer is the general contractor
and it contracted out most of the work except for the
erection of structural steel , the laying of mesh, the
setting of the structural and bar joists, and the
installation of the steel deck, which it performed with
its own employees
On April 17, Stephen Takacs, business representa-
tive of the Iron Workers Local 55, telephoned Hayne
and stated "You're not using my men to put steel up
on that supermarket" He also stated that he was
going to picket the next day and shut the job down
On April 19, approximately 40 pickets appeared all
over the property As a result of the picketing, the
Employer's regular employees and a subcontractor's
masons, the only other employees on the job at the
time, refused to cross the picket line
The structural and bar joist work involves the
installation of columns, the intersecting beams which
lay on the outside walls, the bar joists between the
beams, and bridging at the top and bottom web of
the joists which are tack welded into position Only
$5,004 worth of labor is involved in the erection of
the structural and bar joists and the laying of the
steel deck, while the total job is worth approximately
$277,000 The steel mesh is laid over a vapor barrier
200 NLRB No 96
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so that it will be in the top third of the poured
concrete When a footing is poured and before the
concrete sets, vertical rods of 12 to 10 inches are
inserted After the concrete is set, horizontal bars are
installed by attaching with small strands of wire The
installation of bar joists requires the use of a
qualified welder and the Employer has two employ-
ees who are qualified Whenever a crane is needed on
a particular job, the Employer subcontracts to an
employer, who coincidentally employs Local 55
members
B The Work in Dispute
The disputed work involves the erection of struc-
tural steel, laying of steel mesh, installation of
reinforcing rods and foundations, and installation of
roof sheeting at the construction site at Latham's
Super Market in Genoa, Ohio
C The Contentions of the Parties
The Iron Workers contends that the work in
dispute traditionally falls within the jurisdiction of
the Iron Workers, that ironworkers are trained in
such work through an apprenticeship program, and
that the Iron Workers should be assigned the work in
the interests of the general safety of the public
The Employer contends that its work assignment
was in accordance with the proven skill and
efficiency of its employees, that it was economically
beneficial as the Employer is a small contractor
struggling to remain in the construction business
while faced with a competitive squeeze between
nonunion contractors and large high-volume con-
tractors who have agreements with all of the crafts,
that the Employer has the right to maintain an open
shop of qualified workers without regard to union
membership or traditional claims to particular work,
and that it is the right of an employer to furnish his
own employees with steady employment and that he
should not be faced with the threat that his job will
be shut down unless he lays off his employees and
hires others
The Carpenters contends that the disputed work
was properly assigned to its members who are
employees of the Employer, that those employees
possessed the requisite skill and experience, and that
they were capable of doing the work
The Laborers offered no position other than its
stated agreement with the Employer's assignment
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
The record shows that shortly after the Employer
commenced construction on the Latham's job with
its own employees who were members of the
Carpenters and Laborers, the Iron Workers, through
its Business Representative Takacs, telephoned the
Employer and stated "You're not using my men to
put steel up on that supermarket " In addition,
Takacs said he was going to picket and shut the job
down On April 19, approximately 40 pickets
appeared at thejob and picketed for a 10-day period
As a result of the picketing, the Employer's regular
employees and the masons who were employed by a
subcontractor refused to cross the picket line
We find that the Iron Workers, through its
Business Representative Takacs, threatened to picket
and picketed the Employer with an object of forcing
or requiring the Employer to assign the disputed
work to members of the Iron Workers rather than to
the Employer's own employees who are members of
the Carpenters and the Laborers On the basis of the
entire record, we conclude 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 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 disputed work after giving
consideration to various relevant factors The Board
has held that its determination in a jurisdictional
dispute is an act of judgement based on common-
sense and experience, reached by balancing those
factors involved in a particular case 3
1 Certification and collective-bargaining
agreements
The record shows that none of the unions involved
herein, nor any other labor organization, has been
certified to represent any of the Employer's employ-
ees Nor does the Employer now have a contract with
the Iron Workers or any other labor organization 4 It
is clear from the record that the factors of certifica-
tion and contract are not relevant herein
2 Company and industry practices
The record shows that the Employer's employees,
two of whom are members of the Carpenters and one
of whom is a member of the Laborers, have worked
for him for a period of years During this period, the
Employer has consistently assigned the disputed
work to its employees Only when the Employer is in
3 International Association of Machinists Lodge No 7743 AFL-CIO (J A
Jones Construction Company) 135 NLRB 1402
4 The Employer was signatory to an agreement with the Carpenters
extending May 1969 to May 1971
IRON WORKERS LOCAL 55 645
need of a crane for jobs involving more than two
stories does it subcontract some of the structural steel
work A subcontractor who has been used by the
Employer in the past for such purposes employs
members of the Iron Workers as part of its crew
However, even at those times when the Employer
hires a crane or subcontracts, his own employees
continue to perform some of the disputed work The
record establishes that the Employer used members
of the Iron Workers to lift mesh and tie reinforce-
ment rods on a school job in Toledo, Ohio, in 1969,
and that it considers that those employees were not
qualified and were inefficient and that their use
forced a rise in its construction costs
Although the Iron Workers contends that the
disputed work is traditionally assigned to ironwork-
ers, the record shows that such assignment has not
been traditional with this Employer, particularly with
respect to construction jobs of two stories or less
Moreover, the record does not contain conclusive
evidence that other employers involved in the same
work have traditionally assigned the disputed work
to the Iron Workers
It would appear that the factor of company
practice favors the assignment of the disputed work
to the Employer's employees who are members of the
Carpenters and Laborers Accordingly, we find that
company practice favors the continued assignment of
the work to the Employer's employees
3 Relative skills, economy, and
efficiency of operations
The record reveals that the Employer's employees
have the necessary skills to perform the disputed
work and that the ironworkers also possess the
necessary skills Although the Employer's employees
have not qualified by way of an apprenticeship
program such as offered by the Iron Workers, the
record indicates that the Employer's employees have
gained the necessary skills through years of perform-
ing the same tasks for the Employer Hayne, the
president of the Employer, testified that he was a
certified welder and fully qualified to judge the skills
of his employees performing the limited welding jobs
on structural steel In addition, Hayne testified that
his employees were qualified to install mesh and
reinforcement rods and that no special skills were
required for these tasks Moreover, Hayne testified
that his employees were more efficient in the
performance of the disputed work in view of their
long experience
As to the economy of operations factor, the record
shows that the constant availability of the Employ-
er's employees to perform the disputed work permits
him to bid competitively for work which he could not
acquire if he had to hire a crew of seven ironworkers
plus a crane operator, as required by the Iron
Workers contract, rather than the two carpenters and
the laborer who are currently performing the
disputed work The Employer also presented evi-
dence that the estimate it had received for certain
structural steel work from a subcontractor who
employed ironworkers was considerably higher in
cost than what the Employer was able to perform the
job for The Employer's figures showed that the
subcontractor using a crane and seven ironworkers
estimated that his price, based on 4 hours' work for
the job, would be $460 The Employer subsequently
completed the same job with one crane, a carpenter,
and a laborer at a total cost of only $72
Thus, it would appear that the factor of economy
favors the assignment of the disputed work to the
Employer's employees who are members of the
Carpenters and the Laborers
Conclusions
Having considered all pertinent factors, we con-
clude that the factors, including company practice,
economy, and efficiency of operations, favor award-
ing the work to the employees of the Employer who
are presently performing the disputed work, and we
shall determine that they are entitled to perform the
work in dispute
Accordingly, on the basis of the entire record, we
shall determine the existing jurisdictional controver-
sy by awarding to the employees presently employed
by the Employer, rather than to members of the Iron
Workers, the work of erecting structural steel, laying
steel mesh, installing reinforcing rods and founda-
tions, and installing roof sheeting at the construction
site at Latham's Super Market in Genoa, Ohio In
making this determination, we are assigning the work
to the employees who perform the disputed work for
the Employer and not to any union which may
represent them or to its members
DETERMINATION OF DISPUTE
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
proceeding, the National Labor Relations Board
hereby makes the following Determination of Dis-
pute
1 Employees of E H Hayne Co, Inc, who are
currently performing the disputed work are entitled
to perform the work of erecting structural steel,
laying steel mesh, installing reinforcing rods and
foundations, and installing roof sheeting at the
construction site at Latham's Super Market in
Genoa, Ohio
2 International Association of Bridge, Structural
and Ornametal Iron Workers Local No 55,
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AFL-CIO, is not entitled , by means proscribed by
Section 8 (b)(4)(D) of the Act, to force or require E H
Hayne, Co, Inc, to assign such disputed work to
ironworkers represented by that labor organization
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 55 , AFL-CIO, shall notify the
Regional Director for Region 8, in writing, whether
or not it will refrain from forcing or requiring E H
Hayne Co, Inc, by means proscribed in Section
8(b)(4)(D), to assign the disputed work to its
members rather than to employees who are presently
working for the Employer and who are members of
the Carpenters and the Laborers