Iron Workers, Local 272

National Labor Relations Board - Board Decisions

May 31, 1973

203 N.L.R.B. 1021 (N.L.R.B. 1973)

IRON WORKERS , LOCAL 272
International Association of Bridge , Structural & Or-
namental Iron Workers , Local 272 and P & G Erec-
tors, Inc. and Local 1394 , United Brotherhood of
Carpenters & Joiners of America and Broward
County Carpenters' District Council , United Broth-
erhood of Carpenters & Joiners of America, AFL-
CIO. Case 12-CD-183
May 31, 1973
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS , KENNEDY, AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by P & G Erectors, Inc., herein called
the Employer or P & G, alleging that Local 272, Inter-
national Association of Bridge, Structural & Orna-
mental Iron Workers, herein called Respondent or
Iron Workers, violated Section 8(b)(4)(D) of the Act.
A hearing was held before Hearing Officer Carl A.
Peterson on March 21, 22, and 30, and April 6, 1972.
The Employer, Iron Workers, and Broward County
Carpenters' District Council, United Brotherhood of
Carpenters & Joiners of America, AFL-CIO, and its
Local 1394, herein called Carpenters, appeared at the
hearing, were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to ad-
duce evidence bearing upon the issues. Thereafter, the
Employer and Iron Workers 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 Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They 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 P & G Erectors, Inc., is
a Florida corporation engaged in the delivery and
erection of precast and prestressed concrete building
material as a subcontractor for precast manufacturers
and that during the 12 months preceding the hearing
P & G Erectors performed services valued at more
than $800,000 for a number of Florida precast manu-
facturers including services in excess of $500,000 for
Stresscon International, Inc., of Miami, Florida. The
parties also stipulated that Caldwell-Scott Engineer-
ing and Construction Co., Inc., a Florida corporation,
1021
a general contractor in the building and construction
industry, engaged in that capacity in the construction
of a building for the Motorola Corporation in Fort
Lauderdale, Florida, and Stresscon International,
Inc., of Miami, a manufacturer of precast and pre-
stressed concrete building material, both purchased
supplies and materials in excess of $50,000 from sup-
pliers located outside the State of Florida during the
12-month period preceding the hearing. The parties
stipulated and we find that P & G is engaged in com-
merce within the meaning of the Act; and we find that
it will effectuate the policies of the Act to assert juris-
diction herein.
II THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find , that the Iron
Workers and the Carpenters are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
For several years, P & G has been actively engaged
in the business of hauling and installing precast and
prestressed concrete on various building construction
projects in the Broward County, Florida, area. Pur-
suant to its agreement with the Carpenters and in
accord with an understanding with Local 31 of the
Bricklayers and Masons Union, P & G has installed
precast and prestressed concrete slabs on a number of
construction projects in the Broward County area,
assigning the installation work to members of the Car-
penters and Masons. For several years, the Iron
Workers has been interested in obtaining this work
for its members, and in late 1970, while P & G was
engaged in phase I of the project, the Iron Workers
commenced picketing the jobsite. P & G withdrew
from the job filing an unfair labor practice charge
against the Iron Workers (12-CD-164). Thereafter,
the Iron Workers ceased picketing, P & G returned to
the job, and phase I work by P & G was completed
in January 1971. Following this, Caldwell-Scott be-
came the general contractor on phase II of the Moto-
rola job, subcontracting the phase II precast contract
work to Stresscon International who in turn subcon-
tracted to P & G to do the installation work. John
Nord, business agent for the Iron Workers, inquired
of Caldwell-Scott who was going to do the installation
work and was told P & G was again scheduled to do
the work. Nord then contacted Tom Griffin of P & G
asking what crafts would be used to do the work, and
was advised by Griffin that carpenters and masons
would do the work.
203 NLRB No. 178
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After P & G commenced erecting and installing
concrete panels, Nord came onto the jobsite and took
photographs of the work being done. Following this,
both P & G and Caldwell-Scott received requests
from the National Joint Board for Settlement of Juris-
dictional Disputes for information regarding the work
in question. Caldwell-Scott requested that P & G sub-
mit the information to the Joint Board, which P & G
did by letter dated January 3, 1972. Thereafter, the
Joint Board awarded the work in question to the
members of the Iron Workers and on January 11,
1972, Nord came to the jobsite stating that the work
belonged to the members of the Iron Workers and
demanding that P & G use ironworkers on the job.
Nord also stated the iron workers could not work on
the job unless P & G signed a contract with the Iron
Workers Union. On January 12, 1972, Nord met with
representatives of Caldwell-Scott and P & G, again
repeating his demand that the work be assigned to
ironworkers. Griffin told Nord that P & G would not
sign a contract with the Iron Workers and that they
would continue to use the regular crew of employees.
On January 17, 1972, Iron Workers commenced pick-
eting the jobsite with a sign reading:
Caldwell-Scott Engineering & Construction Co.,
Inc. refuse to abide by National Joint Board Pro-
cedures and Awards.
The Iron Workers admitted that the picketing was
directed at Caldwell-Scott for the purpose of having
the work assigned to Iron Workers under the Joint
Board award. Caldwell-Scott's position was that it
could not contractually force P & G to comply with
the Joint Board award. The pickets were removed
after the Iron Workers received assurance from Cald-
well-Scott that P & G was off the job and that the
Union would be notified when and if P & G was to
return to finish the work.
B. The Work in Dispute
The work in dispute is the installation of precast
and prestressed concrete slabs and panels at the Mo-
torola jobsite.
C. Contentions of the Parties
The Employer and the Carpenters contend that
pursuant to the contract between P & G and the Car-
penters, P & G has assigned to the Carpenters practi-
cally all of its hauling and installation work since it
began its operations in Florida. The assignment to the
Carpenters, they contend, is further supported by the
area practice, safety, economy, and efficiency realized
by the use of the trained, experienced, permanent
crews consisting of the carpenters and masons.
The Iron Workers contends that the work should be
awarded to its members based on the award of the
Joint Board, area practice, safety considerations, and
the skills of its members.
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
believe that Section 8(b)(4)(D) has been violated, and
that there is no agreed-upon method for voluntary
adjustment of the dispute.
The Iron Workers contends that, although it would
characterize its picketing as being in support of the
award of the Joint Board, its object was to secure the
work in dispute. The record establishes that this work
was claimed and was being performed by employees
represented by the Carpenters. There is little question
then that, by its picketing, the Iron Workers sought to
force P & G to assign the work to its own members
or employees whom it represents. We find that rea-
sonable cause exists to believe that the picketing vio-
lated Section 8(b)(4)(D) of the Act.
The Iron Workers contends that P & G's letter of
January 3, 1972, is a submission of the dispute to the
Joint Board thus bringing this dispute within the rule
that where there is an agreed-upon method for volun-
tary adjustment of the dispute, Section 10(k) does not
apply. The Employer contends that although it sub-
mitted the facts of the dispute to the Joint Board, it
did so at the request of Caldwell-Scott, the general
contractor on the job, and not with the intention of
submitting itself to the jurisdiction of the Joint Board.
While it is true that P & G did in fact communicate
with the Joint Board, submitting therewith certain
facts and figures relating to the dispute, the record
does not support the Iron Workers contention that
this one correspondence binds P & G to any award
the Joint Board might render. There is no contract or
agreement in existence between P & G and any of the
parties involved that requires submission to the Joint
Board jurisdiction. In addition, the record shows that
in an earlier case involving the Iron Workers, P & G,
and Stresscon, P & G made it perfectly clear to Stress-
con that it was not and would not be bound by an
award of the Joint Board. Finally, in our opinion, the
January 3, 1972, letter from P & G to the Joint Board
does not establish a commitment to be bound by any
award. Cooperation is not synonymous with submis-
sion, and, while the final paragraph in the January 3
letter is somewhat ambiguous,' an equally valid inter-
The last paragraph of the letter reads as follows:
Enclosed is a partial list of fobs performed in this area with carpenters
and masons , which are now trained for this work We would like to
IRON WORKERS , LOCAL 272
pretation of that sentence would be that "we intend
to operate with our present crew, and would like to do
so with your approval or concurrence." Accordingly,
we find that there is no agreed-upon method to volun-
tarily settle the dispute .2
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 and balancing all relevant fac-
tors. The following factors are relevant in making the
determination of the dispute before us:
1. Certifications and collective-bargaining
agreements
There is no Board certification determining the bar-
gaining representative for the employees assigned to
perform the work in dispute. None of the labor orga-
nizations involved herein has been certified by the
Board as the collective-bargaining representative for
a unit of the Employer's employees.
At no time material herein has the Employer been
a party to a collective-bargaining agreement with Lo-
cal 272 of the Iron Workers. The Employer has been
a party to collective-bargaining agreements with the
Carpenters and Masons Unions for the past 5 years,
and during this period of time, the Employer has per-
formed the disputed work with carpenters and ma-
sons pursuant to its contracts with the two unions.
2. Employer's assignment and past practice
As noted above, the Employer during the entire
period of its existence has assigned the work in ques-
tion to carpenters and masons. This assignment was
predicated in part on its evaluation of the skills pos-
sessed by individuals represented by the labor organi-
zations involved and its conclusion that its practice
and the practice of the industry in general involving
similar work favored the award of work to the individ-
uals represented by the Carpenters and Masons.
3. Relative skills, efficiency, and economy
of operations
The Employer strongly favors an award to its em-
continue using these crafts with your approval.
Advise us of your decision as soon as possible.
2 For the reasons stated in Local 423, Laborers' International Union of North
America, AFL-CIO (V& C Brickcleanmg Co.), 203 NLRB No. 176, Members
Jenkins and Penello reject the contention of the Carpenters that the parties
are not bound to submit the dispute to the Joint Board because the Carpen-
ters are in "noncompliance " status with the Joint Board.
1023
ployees represented by the Carpenters and the Ma-
sons because of their skills, experience, and their
availability to the Employer. The work involved con-
sists of hauling, handling, rigging into position, level-
ing, plumbing, aligning, and anchoring by bolting or
welding the precast concrete wall panels attached to
steel frame construction, using the traditional tools of
the carpenters including the level, a square, and
plumb bobs. While it is true that Iron Workers also
employ these same skills with similar tools, we are
persuaded that the factors of skill, availability of
workers,' efficiency, and economy of operations favor
the award of the work to employees who are members
of or are represented by the Carpenters and Masons.
4. The Joint Board award
Although we do not consider the Joint Board award
to Iron Workers binding on the Employer, we do
consider it as a factor in determining the proper as-
signment of the work in dispute. However, in view of
all of the circumstances, we are of the opinion that the
Joint Board award should not be given controlling
weight herein.
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 the Carpenters and the Masons, the
Employer's practice, the nature of the work involved,
and the skills required, we conclude that the employ-
ees of the Employer who are members of or are repre-
sented by the Carpenters and the Masons 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 represented by the Carpenters and the Ma-
sons but not to those unions or their members.
5. Scope of the determination
The Iron Workers contends that any award of the
work in dispute should be limited to that work which
was being performed at the time ,of the picketing here-
in. We do not agree. The record before us makes it
clear that the dispute between the Unions cannot be
so narrowly defined and that, in fact, a dispute be-
tween them exists, and has existed for several years,
J We also note that during the discussions between P & G and the Iron
Workers, the Iron Workers made it clear that P & G would have to sign a
contract with the Iron Workers, that members of the Union would have to
be hired, and that the current employees represented by the Carpenters and
Masons would have to be let go or put on other work, assuming such other
work was available.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
over the erection and installation of precast items in
general . In addition , our prior decision in Local Union
No. 272, International Association of Bridge, Structural
and Ornamental Iron Workers, AFL-CIO (Prestress
Erectors, Inc.), 152 NLRB 269, clearly shows that the
Iron Workers has in the past carried this dispute
through the 10(k) proceedings, thereafter ignoring the
award to the Carpenters and Bricklayers in that case,
necessitating the issuance of a complaint followed by
the finding of a violation of Section 8(b)(4)(i) and
(iiXD) and (B) 4 with ultimate enforcement of the
cease-and-desist order by the United States Court of
Appeals for the Fifth Circuits Accordingly , we shall
not restrict the scope of the determination to the par-
ticular dispute which gave rise to this proceeding. We
hold that the work in dispute subject to our award is
the erection and installation of all precast concrete
items performed by the Employer in its building con-
struction work in Broward County, Florida 6
4 172 NLRB 207.
3 NLRB. v. Local Union No. 272, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO (Prestress Erectors, Inc J.
427 F.2d 211 (1970).
6 This definition is subject to the division of the work heretofore agreed
upon by the Employer with the Carpenters and Masons This definition is
not to be construed in any way as infringing on any rights Local 402 of the
Iron Workers now has or may hereafter obtain under its contract or agree-
ments with the Employer covering work in West Palm Beach County
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 pro-
ceeding, the National Laboi Relations Board hereby
makes the following Determination of Dispute:
1. Employees employed by P & G Erectors, Inc.,
who are members of or are represented by Carpenters,
Local 1394, affiliated with Broward County District
Council of Carpenters, AFL-CIO, assisted by em-
ployees who are members of or are represented by
Bricklayers Local 31, are entitled to perform the work
in dispute which involves the erection and installation
of prestressed concrete panels by the Employer in its
building construction work within Broward County,
Florida.
2. Local 272, Bridge, Structural and Ornamental
Iron Workers, AFL-CIO, is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force
or require P & G Erectors, Inc., Miami, Florida, to
assign the above work to ironworkers represented by
it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local 272, Bridge,
Structural and Ornamental Iron Workers, AFL-CIO,
shall notify the Regional Director for Region 12, in
writing, whether or not it will refrain from forcing or
requiring P & G Erectors, Inc., by means proscribed
by Section 8(b)(4)(D), to assign the work in dispute in
a manner inconsistent with the above determination.