Iron Workers Local 27 (Commercial Building)

National Labor Relations Board - Board Decisions

Oct 31, 1990

300 N.L.R.B. 682 (N.L.R.B. 1990)

682
300 NLRB No. 76
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1990 unless otherwise stated.
2 Trona is an extracted raw material used in the manufacture of sodium bi-
carbonate.
3 Neither FMC nor CBS had any collective-bargaining agreements with Iron
Workers Local 27 or Sheet Metal Workers Local 207.
4 The ‘‘skinning’’ work involved installing corrugated metal panels on the
building’s frame.
5 Although Peters could not recall who called him, he testified that it prob-
ably was ‘‘Christian.’’
International Association of Bridge, Structural and
Ornamental Iron Workers Local 27 and Com-
mercial Building System Corp. and Sheet
Metal Workers International Association Local
207. Case 27–CD–226
October 31, 1990
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
The charge in this Section 10(k) proceeding was
filed January 29, 1990,1 by the Employer, Commercial
Building System Corp. (CBS), alleging that the Re-
spondent, International Association of Bridge, Struc-
tural and Ornamental Iron Workers Local 27 (Iron
Workers Local 27) violated Section 8(b)(4)(D) of the
National Labor Relations Act by engaging in pro-
scribed activity with an object of forcing the Employer
to assign certain work to employees it represents rather
than to employees represented by Sheet Metal Workers
International Association Local 207 (Sheet Metal
Workers Local 207). The hearing was held February
16 before Hearing Officer Michael J. Belo.
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
The Employer, a Wyoming corporation, is engaged
in the sales and installation of buildings constructed of
metal and other materials. During the past 12 months
it purchased and received goods and materials valued
in excess of $50,000 directly from places outside the
State of Wyoming. The parties stipulate, and we find,
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
Iron Workers Local 27 and Sheet Metal Workers Local
207 are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
In December 1989, CBS signed a contract with
FMC Wyoming Corporation (FMC) to erect a metal
building on FMC’s trona2 mining site near Green
River, Wyoming. At that time, Allen Christian, FMC’s
purchasing agent, told David Peters, vice president of
sales for CBS, that FMC had employed ironworkers in
the past to erect buildings at the FMC site and that it
was FMC’s understanding that CBS would employ
ironworkers if its bid were accepted. Peters stated that
he had used both ironworkers and sheet metal workers
to do such work.3 Christian told Peters, ‘‘[D]on’t do
anything in terms of going from one union to another
that will create any problems without getting it to us
in writing that it’s okay and it’s not going to create a
problem.’’ Peters agreed that he would.
Peters decided to subcontract the framework con-
struction to Moriarity Construction and to use its own
employees to do the ‘‘skinning’’ work.4 Peters then
sought advice from various individuals about whether
the skinning work should be done by ironworkers or
sheet metal workers. Peters spoke to Gaylord Allen, a
representative of the Wyoming Building and Construc-
tion Trades Council, who told Peters that both the
ironworkers and sheet metal workers had done skin-
ning work and that Peters could assign the work to ei-
ther Union. Peters also talked to Dale Hill, a Sheet
Metal Workers business agent, who claimed that the
skinning work belonged to his Union and assured Pe-
ters that assigning the work to sheet metal workers
would not create problems.
On January 5, Peters wrote a letter to Sheet Metal
Workers Local 207, assigning the skinning work to
sheet metal workers. CBS did not inform FMC in writ-
ing of its assignment, nor did Peters conduct a ‘‘pre-
job conference,’’ which was normally held with the
contractors and competing unions before a work as-
signment was made.
On January 16 or 23, the sheet metal workers to be
used by CBS were scheduled to receive safety training
at the FMC site. Peters testified that before starting the
training ‘‘someone’’ from FMC5 called and informed
him that problems were developing with the Iron
Workers, who were making jurisdictional claims on the
skinning work, and ‘‘if we put Sheet Metal Workers
on the job site there would be a wild cat strike.’’ Pe-
ters decided to postpone the safety training and the
skinning work until the jurisdictional problem could be
resolved.
On January 24 Allen attempted to call Peters, who
could not be reached, and left a message that he had
spoken to Gene Bryant, FMC human resources man-
ager, about problems involving the Sheet Metal Work-
ers and that, ‘‘[I]t’s okay now.’’ That same day Chris-
tian called Peters and said that Peters had evidently
gotten the assignment straightened out. But on January
26 Christian called again and informed Peters that
683IRON WORKERS LOCAL 27 (COMMERCIAL BUILDING)
6 Steelworkers Union Local 13/214 is the collective-bargaining representa-
tive of FMC’s production and maintenance employees.
7 Lindemood’s first name does not appear in the record.
8 Lindemood did not appear at the hearing.
9 Both Sheet Metal Workers Local 207 and Iron Workers Local 27 rely on
a May 26, 1923 decision made under the Plan for the Settlement of Jurisdic-
tional Disputes in the Construction Industry. That decision awards ‘‘the erec-
tion of corrugated metal sheeting on steel frames construction when the sheets
are simply end and side lapped’’ to ironworkers and all other corrugated metal
sheeting to sheet metal workers. The record is unclear, however, whether the
disputed work in the instant case involves the use of corrugated metal sheet-
ing. We thus find the May 26, 1923 decision to be inapplicable to this pro-
ceeding.
there were still problems with the skinning work as-
signment.
Al Battisti, president of Steelworkers Union Local
13/214,6 testified that during January several iron-
workers approached him about the skinning work.
They had heard that sheet metal workers would be
doing the work and were concerned that there had
been no prejob conference before the assignment was
made. They warned Battisti that ‘‘there was some rum-
bling going on with the Iron Workers if the Sheet
Metal Workers came in.’’ Other ironworkers ap-
proached Battisti during this period at a coffeeshop and
told him that they might not come to work if sheet
metal workers came on the job.
On the morning of January 29, Lindemood,7 the
Iron Workers steward on the FMC site, met with
Battisti. Lindemood was troubled by the skinning work
assignment and asked Battisti to arrange a meeting
where Lindemood, representing the Iron Workers,
could discuss the problem. Sometime that morning,
Battisti called Bryant and Tony Dunn, FMC projects
manager, and arranged a meeting for that afternoon.
In attendance at the meeting were Lindemood,
Battisti, Dunn, Dean Stover, an FMC manager, and
Sam Johnson, a supervisor for Mountain West Con-
struction Co., a contractor on the FMC site. According
to Battisti,8 Lindemood stated that he had
worked out here at FMC for over ten years as an
Ironworker, and I do not want to have any disrup-
tions with us, as contractors, towards FMC, so I
am trying to get you to understand that this was
was not handled properly, and there should have
been a pre-job on it. And we feel if there—if we
can get this to a pre-job, then the Council will
give us this work, which is justifiably ours.
Battisti further testified that at some point during the
meeting, Lindemood also said that he ‘‘was afraid that
if the Sheet Metal people come in, the Ironworkers
would not come to work.’’ At the conclusion of the
meeting Dunn agreed to contact Gaylord Allen and
find out why there had not been a prejob conference
and to talk to CBS.
Peters testified that he received a call from Dunn on
the afternoon of January 29. Dunn told him that there
was still a problem and that ‘‘if he brought sheetmetal
workers on the jobsite they heard there was going to
be problems on the site.’’ In response to being asked
what those problems might be, Peters testified that
Dunn replied that the ironworkers ‘‘would stay in the
parking lot and not go on to the plant site if Sheet
Metal Workers arrived.’’
A prejob conference was held on January 31 at
which CBS decided to subcontract the skinning work
to Moriarity Construction, a contractor whose employ-
ees were represented by the Iron Workers. Thereafter,
Peters called Sheet Metal Workers Business Agent
Dale Hill and told him that the Sheet Metal Workers
were not going to do the work. Hill replied that if the
Sheet Metal Workers did not get the work, CBS would
be open to a lawsuit and that the Sheet Metal Workers
would strike or picket the plant. Hill called Peters
shortly thereafter and told him to disregard the threat.
B. Work in Dispute
The work in dispute involves the erection of the
walls, roof, and insulation, known as ‘‘skinning,’’ of a
predesigned steel warehouse building for FMC at its
Green River trona minesite.
C. Contentions of the Parties
Iron Workers Local 27 contends that there is no rea-
sonable cause to believe that it or its representatives
violated Section 8(b)(4)(D) of the Act and that the
present dispute is not properly before the Board. Alter-
natively, it contends that the factor of area practice fa-
vors a jurisdictional award to employees represented
by the Iron Workers.
Sheet Metal Workers Local 207 contends that there
is reasonable cause to believe that Iron Workers Local
27 violated Section 8(b)(4)(D) of the Act and that the
factors of collective-bargaining agreements, efficiency
and economy of operations, relative skills and safety,
area practice, industry practice, employer preference
and practice, and decisions9 favor a jurisdictional
award to employees represented by the Sheet Metal
Workers.
FMC contends that the factors of area practice and
employer preference favor a jurisdictional award to
employees represented by the Iron Workers.
D. Applicability of the Statute
Before the Board may proceed with a determination
of the dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) of the Act has been vio-
lated. To satisfy this requirement the evidence ‘‘must
relate to conduct or speech of the Respondent or its
684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Operating Engineers Local 106 (E. C. Ernst), 137 NLRB 1746, 1751
(1962).
11 We thus find it unnecessary to pass on Sheet Metal Workers Local 207’s
remaining contentions in this regard.
12 At the same meeting Lindemood made an oral claim to the ‘‘skinning’’
work, which had been assigned to employees represented by Sheet Metal
Workers Local 207.
13 See Teamsters Local 543 (Gencorp Automotive), 296 NLRB 798 (1989)
(the union chief steward’s remarks to the employer that they had to resolve
the work dispute quickly because ‘‘the guys are getting real anxious out there,
and I don’t know what I can do to stop them. I don’t know how much longer
we’ll hold this together,’’ and the union international representative’s state-
ment to the employer that ‘‘there are some times when I cannot control the
anger of my people, especially when they feel very strongly about the actions
going on,’’ provided reasonable cause to believe Sec. 8(b)(4)(D) had been vio-
lated).
Our dissenting colleague’s reliance on Sheet Metal Workers Local 38
(Corbesco), 295 NLRB 1069 (1989), and Teamsters Local 82 (Champion Ex-
position), 292 NLRB 794 (1989), is misplaced. In Corbesco the union rep-
resentative stated, ‘‘I could not stand idly by and watch another trade perform
our work’’ and ‘‘I’ll just take whatever steps I have to necessary to get this
work for my members.’’ In Champion the union representative stated that
there would be ‘‘a problem’’ if another employer was used for a certain job.
The Board found these statements ‘‘too vague and insubstantial to establish
reasonable cause,’’ because they did not indicate a threat of illegal conduct.
In the present case, however, Lindemood’s statement conveyed a specific
threat of an illegal job action.
14 Iron Workers Local 27 contends that on February 22, 1990, CBS and Iron
Workers Local 27 became signatory to the Wyoming Construction Stabiliza-
tion Agreement, which provides for the voluntary settlement of jurisdictional
disputes, and asserts that in light of that agreement the Board should refer the
instant case to the settlement procedure set forth in the agreement. Sheet Metal
Workers Local 207 filed a motion to strike this contention, and Iron Workers
Local 27 filed a motion to supplement record, for rehearing and response to
motion to strike. Because this agreement was not signed by the Employer until
after Lindemood’s January 29, 1990 comment, which we have found to have
provided reasonable cause to believe that Sec. 8(b)(4)(D) has been violated,
we find that the agreement is not applicable to the instant proceeding. Accord-
ingly, we deny Iron Workers Local 27’s motion to supplement record, for re-
hearing and response to motion to strike and grant Sheet Metal Workers Local
207’s motion to strike.
15 Peters testified that the Employer had not previously employed sheet
metal workers to do the disputed work.
representatives.’’10 Sheet Metal Workers Local 207
contends that there is reasonable cause to find that Iron
Workers Local 27 violated Section 8(b)(4)(D) in light
of Christian’s January 16 or 23 call to Peters in which
Christian referred to a wildcat strike by the Iron Work-
ers if the Sheet Metal Workers did the skinning work;
various ironworkers’ statements to Battisti that they
might not come to work if sheet metal workers per-
formed the disputed work; Lindemood’s comment at
the January 29 meeting that he was ‘‘afraid that if the
Sheet Metal people came in, the Ironworkers would
not come to work’’; and Dunn’s call to Peters after
that meeting informing him that if sheet metal workers
came on the job the ironworkers would stay in the
parking lot.
We find merit in Sheet Metal Workers Local 207’s
contention that Iron Workers Local 27 Steward
Lindemood’s comment at the January 29, 1990 meet-
ing satisfies the standard of reasonable cause to believe
that the Act was violated.11 As noted above, at that
meeting, Lindemood stated that he ‘‘was afraid that if
the sheet metal people came in, the ironworkers would
not come to work.’’12 We find that Lindemood’s state-
ment constitutes a veiled threat of a work stoppage if
the work were not reassigned to ironworkers and thus
provides reasonable cause to believe that Section
8(b)(4)(D) has been violated.13 We further find that
there exists no agreed-on method for voluntary adjust-
ment of the dispute within the meaning of Section
10(k) of the Act.14 Accordingly, we find that this dis-
pute 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. Certification and the collective-bargaining
agreements
There is no evidence that the Board has certified ei-
ther Iron Workers Local 27 or Sheet Metal Workers
Local 207 as the collective-bargaining representative
for any of the employees involved here. Further, nei-
ther Iron Workers Local 27 nor Sheet Metal Workers
Local 207 had a collective-bargaining agreement with
the Employer to perform the disputed work at the time
of Lindemood’s January 29, 1990 comment, which we
have found to have provided reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated. We
therefore find that the factors of certification and the
collective-bargaining agreements do not favor an
award of the work in dispute to employees represented
by either Union.
2. Economy and efficiency of operations
Peters testified that the Employer’s general super-
intendent thought that sheet metal workers would per-
form the disputed work better than ironworkers,15 and
that Ron Perkins, who worked with a plumbing and
heating company in Casper, Wyoming, advised him
that sheet metal workers had erected siding faster than
ironworkers when both Unions were working on a con-
struction site in Rock Springs, Wyoming. Peters fur-
ther testified, however, that he had heard that iron-
worker apprentices had erected 80 linear feet of siding
on their second day at a job on the FMC Green River
site, which Peters ‘‘didn’t consider bad for a second
day.’’ On this record, we find that the factor of econ-
omy and efficiency of operation does not favor an
award of the work in dispute to the employees rep-
resented by either Union.
685IRON WORKERS LOCAL 27 (COMMERCIAL BUILDING)
1 It is clear that this is the only basis for finding reasonable cause to believe
that there has been an 8(b)(4)(D) violation and, therefore, that the Board has
jurisdiction in this proceeding because it is the only evidence that relates to
‘‘conduct or speech of the Respondent or its representatives,’’ Operating Engi-
neers Local 106 (E. C. Ernst), 137 NLRB 1746, 1751 (1962). There is no evi-
dence linking the purported statements of Dunn or Christian in any way to
statements made by any Iron Workers Local 27 representative, nor did they
testify that they at any time received threats of job action by Local 27 if sheet
metal workers performed the disputed work. Similarly, any ‘‘rumblings’’ re-
ferred to by Steelworkers President Battisti were by rank-and-file employees,
and were not linked in any way to Iron Workers Local 27 representatives.
3. Relative skills
Peters testified that the disputed work was repetitive
and did not require special skills to perform. Accord-
ingly, we find that the factor of relative skills does not
favor an award of the work in dispute to the employ-
ees represented by either Union.
4. Safety
Sheet Metal Workers Local 207 conducts a safety
program in connection with work assigned to employ-
ees it represents. There is no evidence in the record
that Iron Workers Local 27 administers such a pro-
gram. We therefore find that the factor of safety favors
the awarding of the work in dispute to the employees
represented by Sheet Metal Workers Local 207.
5. Areawide practice
Battisti, Dunn, and Thomas Lavery, FMC plant en-
gineering superintendent, testified that for approxi-
mately 40 years only ironworkers have erected siding
at the FMC Green River site when unions were in-
volved, except for two occasions during which this
work was performed by crews composed of both iron-
workers and sheet metal workers. Thus, we find that
the factor of areawide practice favors awarding the
work in dispute to the employees represented by Iron
Workers Local 27.
6. Industrywide practice
The record indicates that sheet metal workers per-
form work similar to the disputed work on jobsites in
14 to 24 States, while ironworkers do this work in
Wyoming and in Utah. Therefore, we find that the fac-
tor of industrywide practice favors an award of the
work in dispute to the employees represented by Sheet
Metal Workers Local 207.
7. Employer preference
As stated above, Peters testified that, after con-
sulting with the Employer’s general superintendent and
with Ron Perkins, he preferred that sheet metal work-
ers perform the disputed work, and on January 5,
1990, the Employer assigned the disputed work to em-
ployees represented by Sheet Metal Workers Local
207. We find, therefore, that the factor of employer
preference favors an award of the disputed work to
Sheet Metal Workers Local 207.
Conclusions
After considering all the relevant factors, we con-
clude, based on the facts in the record before us, that
the employees represented by Sheet Metal Workers
Local 207 are entitled to perform the work in dispute.
We reach this conclusion relying on the factors of
safety, industrywide practice, and employer preference.
In making this determination, we are awarding the
work to employees represented by Sheet Metal Work-
ers Local 207, not to that Union or its members. 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 Commercial Building System
Corp., represented by Sheet Metal Workers Inter-
national Association Local 207 are entitled to perform
the erection of the walls, roof, and insulation, known
as ‘‘skinning,’’ of a predesigned warehouse building
for FMC Wyoming Corp. at its Green River, Wyoming
trona minesite.
2. International Association of Bridge, Structural and
Ornamental Iron Workers Local 27 is not entitled by
means proscribed by Section 8(b)(4)(D) of the Act to
force Commercial Building System Corp. to assign the
disputed work in a manner inconsistent with this deter-
mination.
3. Within 10 days from this date International Asso-
ciation of Bridge, Structural and Ornamental Iron
Workers Local 27 shall notify the Regional Director
for Region 27 in writing whether it will refrain from
forcing the Employer, by means proscribed by Section
8(b)(4)(D), to assign the disputed work in a manner in-
consistent with the determination.
MEMBER OVIATT, dissenting.
Contrary to my colleagues, I would quash the notice
of hearing. My colleagues rely on a single statement
attributed to Iron Workers Steward Lindemood that he
was ‘‘afraid . . . ironworkers would not come to
work’’1 to find reasonable cause to believe Section
8(b)(4)(D) has been violated.
Lindemood’s statement must be considered in con-
text. Lindemood asked Steelworkers President Battisti
to arrange a meeting so that Lindemood could discuss
the jurisdictional problem with FMC. Battisti arranged
a meeting for the afternoon of January 29, 1990. At
that meeting, according to Battisti, Lindemood stated
that he ‘‘did not want to have any disruptions,’’ and
was ‘‘trying to get you to understand that this was not
handled properly, that there should have been a pre-job
[conference] on it.’’ He said that if there were a prejob
conference, then the Council (the Wyoming Building
686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 See Sheet Metal Workers Local 38 (Corbesco), 295 NLRB 1069 (1989);
Teamsters Local 82 (Champion Exposition), 292 NLRB 794 (1989).
Teamsters Local 543 (Gencorp Automotive), 296 NLRB 798 (1989), relied
on by my colleagues, is clearly distinguishable. In that case the respondent
made repeated comments that the Board found provided reasonable cause to
believe that the Act had been violated. In contrast, in the instant case, as ex-
plained above, Lindemood’s single observation, that he was afraid that iron-
workers would not come to work if sheet metal workers came in, can not rea-
sonably be construed as a threat to take unlawful action.
and Construction Trades Council) would give the iron-
workers the work, which the Local believed was jus-
tifiably its.
At the conclusion of that meeting, FMC Project
Manager Dunn agreed to contact Gaylord Allen (the
Building and Construction Trades Council representa-
tive) and find out why there had not been a prejob
conference, and to talk to CBS. Two days later, on
January 31, a prejob conference was held, at which
CBS decided to subcontract the skinning work to
Moriarity, to whom it had already subcontracted the
framework construction.
The entire thrust of Lindemood’s comments at the
January 29 meeting was aimed at CBS’ failure to hold
the customary prejob conference before assignment of
the disputed work. Indeed, it appears that his point was
well taken, for Project Manager Dunn then agreed to
find out why no conference had been held, and 2 days
later a conference was held.
In this context, I find that Lindemood’s comment re-
garding his fear that ironworkers would not come to
work if sheet metal workers came in does not indicate
that he was communicating a threat of an illegal stop-
page because of the assignment—but rather the fact
that the employees were upset because there was no
prejob conference.2 Indeed, there is no showing that
his comment pertained to anything other than the em-
ployees’ concern over the failure to hold the prejob
conference. It certainly, does not in my view, con-
stitute a veiled threat that the Iron Workers would take
unlawful action after the holding of such a conference.
Accordingly, I dissent from my colleagues failure to
quash the notice of hearing.