Iron Workers Local 350 (Cornell & Co.)

National Labor Relations Board - Board Decisions

Aug 23, 1984

271 N.L.R.B. 1182 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Iron Workers Local Union No. 350 and Cornell &
Company, Inc. and Perini Corporation and
South Jersey District Council of Carpenters and
its Local 623. Case 4-CD-625
23 August 1984
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
The charge in this Section 10(k) proceeding was
filed 27 February 1984 by Perini Corporation
(Perini), alleging that the Respondent (the Iron
Workers) had violated Section 8(b)(4)(D) of the
National Labor Relations Act by threatening to
engage in a work stoppage with an object of forc-
ing Cornell & Company (Cornell) to assign certain
work to employees it represents rather than to em-
ployees represented by the Carpenters. The hearing
was held 11 April 1984 before Hearing Officer
Steven M. Plon.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board affirms the hearing officer's rulings,
finding them free from prejudicial error.' On the
entire record, the Board makes the following find-
ings.
I. JURISDICTION
The parties stipulated, and we find, that Perini, a
Massachusetts corporation, is engaged in the con-
struction business in Atlantic City, New Jersey.
During the 12-month period preceding the hearing,
Perini purchased materials valued in excess of
$50,000 directly from points outside the State.
The parties also stipulated, and we find, that
Cornell, a New Jersey corporation, is engaged in
the steel erection and construction business out of
its New Jersey facility. During the 12-month
period preceding the hearing, the Employer pur-
chased goods valued in excess of $50,000 directly
from points outside the State. Accordingly, we find
that Perini and Cornell are each engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act. The parties further stipulated, and we
find, that the Iron Workers and the Carpenters are
I We deny Perini's motion to reopen hearing and to consolidate. In its
motion, Perini contends that the hearing should be reopened to allow
consolidation of this case with an 8(b)(4)(D) charge it filed on 12 April
1984 against the Carpenters, alleging that the Carpenters threatened a
work stoppage unless the work in dispute was reassigned to them. Ac-
cording to Perini, it became aware of this threat in the course of the
hearing in the instant case. As Perini acknowledges, however, no com-
plaint has issued in that proceeding. Under the circumstances we see no
reason to delay the instant case while the General Counsel is reviewing
the new charge. We therefore deny Perini's motion.
271 NLRB No. 183
labor organizations within the meaning of Section
2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Perini is the construction manager for the Sands
Hotel and Casino project in Atlantic City. As con-
struction manager, Perini oversees all the work at
the construction site. Perini has no employees and
does no construction work. Rather, it subcontracts
all construction work. Perini subcontracted the
work in dispute, the installation and erection of the
"Dryvit" Systems prefabricated panels, to the
Jersey Panel Corporation (Jersey Panel). Jersey
Panel then subcontracted the disputed work to
Cornell. Cornell is a member of the Iron Workers
District Council (Philadelphia and Vicinity) Em-
ployers Association which had a collective-bargain-
ing agreement with the Iron Workers effective I
July 1981 to 30 June 1984. Section 22 of the collec-
tive-bargaining agreement gives the Iron Workers
jurisdiction over the erection of all precast con-
crete structures, although it does not refer specifi-
cally to Dryvit Systems. Cornell employs only
members of the Iron Workers to do this type of
work. Cornell does not employ any members of the
Carpenters, nor is it a party to any agreement with
the Carpenters. The work in dispute, which began
in December 1983 and was completed in March
1984, was done by Cornell solely with employees
who were members of the Iron Workers.
Perini is a member of the Building Contractors
Association of New Jersey (the BCANJ). The
BCANJ is a party to a collective-bargaining agree-
ment with the Carpenters. Article XIII of the
agreement covers work jurisdiction. It states that
the Carpenters District Council claims jurisdiction
over the "installation and erection of the Drivit
[sic] and similar systems." On 21 December 1983
the Carpenters demanded, by telegram to Perini,
that the work be assigned to it. On 26 January 1984
the Carpenters filed for arbitration with the Ameri-
can Arbitration Association requesting that Perini
make whole the union members who allegedly
should have been assigned the work in dispute.
Perini's position is that it is not a party to this col-
lective-bargaining agreement. On both 10 August
1979 and 14 October 1981 Perini informed the
BCANJ that it had no authority to enter into any
contracts on Perini's behalf. No arbitration of the
Carpenters' grievance had been scheduled as of the
hearing.
After the Carpenters demanded that the work be
assigned to them, Frank Gross, the director of
labor relations for Perini, contacted Thomas F.
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IRON WORKERS LOCAL 350 (CORNELL & CO.)
Kepner, the business manager of the Iron Workers.
Kepner stated that if the work was to be assigned
to members of the Carpenters he would have all
the members of the Iron Workers walk off every
Perini construction site in the Atlantic City area.
Perini is currently managing at least one other con-
struction site in Atlantic City which is using mem-
bers of the Iron Workers.
B. Work in Dispute
The work in dispute here involves the installa-
tion and erection of large prefabricated panels to
the top floor of the 240-foot-tall Sands Hotel and
Casino in Atlantic City. These panels measure as
large as 40 feet by 11 feet and weigh over 2000
pounds. They are commonly referred to as the
"Dryvit" System because of their exterior coating
with a patented surface material called Dryvit. The
panels are delivered from the factory to the con-
struction site via truck and subsequently are hoist-
ed by a 225-ton crawler crane to a height of ap-
proximately 240 feet up the hotel building. The
actual installation and erection of the Dryvit
System entails the welding of steel braces onto the
building's steel shell, the loading of the panels onto
a crane and unloading of the same on the hotel's
top floor, and the welding of the panels onto the
steel braces attached to the building's shell.
C. Contentions of the Parties
Perini and Cornell contend that Cornell properly
assigned the disputed work to members of the Iron
Workers, based, inter alia, on Cornell's past prac-
tice, relative skills and safety, economy and effi-
ciency of operations, and Cornell's preference.
Thus, they agree that this assignment of the work
is in accordance with Cornell's established practice,
and that the ironworkers have been assigned to this
type of work in the great majority of instances.
Secondly, they contend that the work involved is
quite dangerous and the ironworkers have greater
skill and experience in performing this work. Tasks
involved in completing the work include "walking
the iron" unprotected 240 feet in the air. More-
over, the installation work at this jobsite is much
more difficult than the normal installation of pre-
fabricated panels because of the height of the struc-
ture and because the work is in an already com-
pleted building that is being used by the public.
Next, they argue that the assignment of the work
to members of the Iron Workers is more efficient,
because the ironworkers are also assigned to the
erection and subsequent disassembling of the crane
necessary to haul the panels to the top of the hotel.
By contrast, assignment of the work to members of
the Carpenters would force Cornell to use two sep-
arate crews. Perini also asks for an areawide deci-
sion, arguing that the dispute is a recurring one and
that the Carpenters has a propensity to engage in
8(b)(4)(D) conduct in an effort to obtain the work
in dispute.
At the hearing the Carpenters asserted that it has
no interest in the work at issue, and that it has ef-
fectively disclaimed it. In addition, the Carpenters
moved to quash the notice of hearing on the
grounds that the proceeding was a sham and moot
because the threat to strike was made by the Union
whose members had already been assigned the
work and because the work had been completed.
Following presentation of the arguments, and the
hearing officer's refusal to quash the notice of hear-
ing, the Carpenters removed itself from the pro-
ceeding, and refused to participate further.
D. Applicability of the Statute
Before the Board proceeds with a determination
of a 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 the
voluntary adjustment of the dispute.
As noted above, the Iron Workers threatened
Perini that, if the work were assigned to members
of the Carpenters, the Iron Workers would strike
every Perini construction site in the Atlantic City
area. There is no evidence in the record that the
strike threat was anything but genuine. Under set-
tled Board policy, reasonable cause to believe that
a violation of Section 8(b)(4)(D) has occurred
exists if a labor organization which represents em-
ployees who are assigned the disputed work puts
improper pressure on an employer to continue such
assignment. 2 Based on the foregoing, and the
record as a whole, we find that there is reasonable
cause to believe that an object of the Iron Work-
ers' action in threatening to strike Perini was to
force Cornell to continue to assign the disputed
work to employees represented by the Iron Work-
ers and that a violation of Section 8(b)(4)(D) has
occurred.
Further, we find that the completion of the work
does not render the dispute moot, because the
record here contains evidence of a similar dispute
in the past and nothing to indicate that such dis-
putes will not occur in the future.3 Additionally, it
2 See. e.g., Machinists District Lodge 27 (Joseph E. Seagram & Sons),
198 NLRB 407, 408 (1972); Laborers Local 1184 (H. M. Robertson Pipeline
Constructors), 192 NLRB 1078, 1079 (1971).
3 Sheet Metal Workers Local 541 (Kingery Construction Co.), 172 NLRB
1046, 1049 (1968), and cases cited therein at fn. 9.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is clear that the Carpenters has not effectively dis-
claimed the work, for its pursuance of the griev-
ance for breach of contract against Perini for fail-
ing to give the work to members of the Carpenters
is inconsistent with the putative disclaimer.4
Finally, the parties stipulated and we find that
there is no agreed-upon method for voluntary ad-
justment of the work in dispute. Accordingly, the
matter is properly before the Board for determina-
tion under Section 10(k) of the Act.6
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 various factors.
1. Certifications and collective-bargaining
agreements
The parties stipulated that neither labor organiza-
tion has been certified as the collective-bargaining
representative for a unit of either of the Employ-
er's employees. As noted previously, section 22 of
Cornell's agreement with the Iron Workers gives
the Iron Workers work jurisdiction over the erec-
tion of all precast concrete structures. The Carpen-
ters' contractual claim to the work is presently
being arbitrated. Perini claims that its membership
in the BCANJ does not reflect the granting of au-
thority to the BCANJ to enter into binding collec-
tive-bargaining negotiations, and that therefore it is
not bound by the Carpenters' agreement, which
states that the Carpenters District Council claims
jurisdiction over the "installation and erection of
the Drivit [sic] and similar systems."
Because there are conflicting collective-bargain-
ing agreements, both of which suggest that installa-
tion and erection of Dryvit Systems is within the
work jurisdiction of the respective Unions, we find
that this factor does not favor an award to employ-
ees represented by either Union.
2. Company past practice
Cornell has performed approximately 10 subcon-
tracting jobs in the Atlantic City area involving the
installation of prefabricated panels, and the record
reveals that, with one exception, the Employer
always has assigned such work to employees repre-
sented by the Iron Workers.6 Record testimony
' See Electrical Workers IBEW Local 486 (New England Power Service
Co.), 219 NLRB 692, 693 (1975).
s In view of our decision herein, the motion to quash the notice of
hearing, referred to the Board by the hearing officer, is hereby denied.
6 In that one exception, the Employer commenced the job with em-
ployees represented by the Carpenters, under the supervision of employ-
ees represented by the Iron Workers. According to the testimony of an
employer official, the Employer was forced to employ carpenters on this
one occasion, but was unable to complete the job, partly because of the
also reveals that only employees represented by the
Iron Workers have been utilized for installation
and erection of the Dryvit System on the Sands
Hotel and Casino project in dispute. Accordingly,
we find that the predominant past practice of Cor
nell favors an award of the work to employees rep
resented by the Iron Workers.
3. Safety and relative skills
According to the record, the "connectors" on
the Sands Hotel and Casino project are those em-
ployees who are required to work off a beam at the
top of the building in order to receive and direct
the prefabricated panels from the cranes. The
record indicates that the crane used on the Sands
Hotel and Casino project is unusual and requires
the use of more complex than normal hand signals
to the crane operator by the connectors. Compre-
hension of the requisite signals is a matter generally
acquired through on-the-job experience, rather than
through special training. According to the record
testimony, employees represented by the Iron
Workers would be familiar with the signals, where-
as employees represented by the Carpenters would
not. Additionally, because of the height at which
the installation and erection of the prefabricated
panels is performed, and because a number of the
employees work off unprotected beams 240 feet in
the air, the work involved is dangerous and re-
quires laborers skilled in the task. The difficulty of
performing the work in dispute is exacerbated both
by the height of the structure being refurbished, as
well as the fact that the work is performed on a
completed building in constant use by the public.
Therefore, the safety of the public walking beneath
the construction areas is an additional consider-
ation. The safety of the "connectors" on the
narrow iron beams is compromised further by pow-
erful ocean winds and, on this particular job, icy
winter conditions. According to the record, the
employees represented by the Iron Workers have
much greater experience in the skills required and
will agree to "walk on iron" (i.e., work on unpro-
tected beams at great heights), whereas the em-
ployees represented by the Carpenters are unwill-
ing to perform such work without the erection of
protective scaffolding. We therefore find that
safety and relative skills favor an award of the
work to employees represented by the Iron Work-
ers.
excessive costs resulting from the use of employees represented by the
Carpenters.
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IRON WORKERS LOCAL 350 (CORNELL & CO.)
4. Economy and efficiency of operation
As noted above, employment of employees rep-
resented by the Carpenters for the work in dispute
would require the erection of scaffolding, because
employees represented by the Carpenters have in
the past refused to work off unprotected beams of
great heights. According to the record, the cost of
erecting protective scaffolding on this job would
be uneconomical. Moreover, assignment of the
work in dispute to employees represented by the
Carpenters would force the Employer to employ
two separate crews: one for the installation and
erection of the prefabricated panels, the other for
the assembling/disassembling of the crane. There-
fore, the factors of economy and efficiency favor
an award of the work to employees represented by
the Iron Workers.
5. Company preference
Cornell has assigned the disputed work to em-
ployees represented by the Iron Workers and has
expressed its preference that the disputed work be
performed by them. Cornell's present assignment
and preference therefore favor an award to em-
ployees represented by the Iron Workers.
Scope of the Award
As noted, Perini is requesting a broad work
award by the Board on behalf of the employees
represented by the Iron Workers, contending that
such an award is necessary in order to avoid future
disruptions at its construction sites. While the work
in dispute has been a source of controversy in the
Atlantic City area on one prior occasion, and while
it is possible that similar disputes may occur in the
future, on the record before us we are nevertheless
unable to conclude that the dispute here is a regu-
larly recurring one in the geographic area and,
more particularly, that the labor organization in-
volved here-the Iron Workers-has a propensity
to engage in prohibited 8(b)(4)(D) conduct on an
areawide scope for this particular work. 7 There-
fore, our determination in this case shall be restrict-
ed to the particular work and parties giving rise to
this proceeding.
Conclusions
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that employees who are represented by the
Iron Workers are entitled to perform the work in
dispute. We reach this conclusion relying on the
factors of past practice, safety and relative skills,
economy and efficiency of operation, and Cornell's
preference. In making this determination, we are
awarding the work in question to employees who
are represented by the Iron Workers, but not to
that Union or its members. The present determina-
tion is limited to the particular controversy which
gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
Employees of Cornell & Company, Inc., who are
represented by Iron Workers Local Union No. 350,
are entitled to perform the installation and erection
of Dryvit Systems for Cornell & Company, Inc., at
the Sands Hotel and Casino construction site in At-
lantic City, New Jersey.
I Iron Workers Local 3 (Spancrete Northeast), 243 NLRB 467. 470
(1979).
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