Iron Workers Local 433

National Labor Relations Board - Board Decisions

Mar 21, 1990

297 N.L.R.B. 964 (N.L.R.B. 1990)

964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Iron Workers Local 433, affiliated with Internation-
al Association of Bridge, Structural and Orna-
mental Iron Workers, AFL-CIO and Otis Ele-
vator Company, a subsidiary of United Technol-
ogies and Marnell-Corrao Associates, Inc. and
Dover Elevator Company and International
Union of Elevator Constructors, Local 18,
AFL-CIO. Cases 31-CD-313, 31-CD-314, 31-
CD-315, and 31-CD-316
March 21, 1990
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
The charges in this Section 10(k) proceeding
were consolidated for hearing because they involve
the same underlying dispute The charges in Case
31-CD-313 and Case 31-CD-314 were filed by
Otis Elevator Company, a subsidiary of United
Technologies (Otis) on October 6 and 13, 1989, re-
spectively, alleging that the Respondent, Iron
Workers Local 433, affiliated with International
Association of Bndge, Structural and Ornamental
Iron Workers, AFL-CIO (Iron Workers) violated
Section 8(b)(4)(D) of the National Labor Relations
Act by engaging in proscribed activity with an
object of forcing Otis to assign certain work to em-
ployees it represents rather than to employees rep-
resented by International Union of Elevator Con-
structors, Local 18, AFL-CIO (Elevator Construc-
tors) The charge in Case 31-CD-315 was filed by
Marnell-Corrao Associates, Inc (Marnell-Corrao)
on September 22, 1989, and the charge in Case 31-
CD-316 was filed by Dover Elevator Company
(Dover) on October 11, 1989 These two cases had
been transferred from Region 28, and alleged simi-
lar violations of Section 8(b)(4)(D) by the Iron
Workers The hearing was held November 28 and
29, 1989, before Hearing Officer Bernard T Hop-
kins
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The National Labor Relations Board affirms the
hearing officer's rulings, finding them free from
prejudicial error On the entire record, the Board
makes the following findings
I JURISDICTION
Otis Elevator Company, a New Jersey corpora-
tion, with headquarters in Farmington, Connecti-
cut, and a district office in Glendale, California, is
engaged in manufacturing, installation, and mainte-
' Otis Elevator's unopposed motion to correct the transcript is granted
nance of elevators and escalators throughout Cali-
fornia, where it annually purchases and receives
goods and materials valued in excess of $50,000 di-
rectly from points located outside California Mar-
nell-Corrao Associates, Inc , a Nevada corporation,
with an office and principal place of business in
Las Vegas, Nevada, is engaged as a contractor in
the building and construction industry, where it an-
nually purchases and receives goods and services
valued in excess of $50,000 directly from points lo-
gated outside Nevada Dover Elevator Company, a
Delaware corporation, with an office and place of
business in Las Vegas, Nevada, is engaged in the
business of constructing, servicing, repairing, and
modernizing elevators, escalators, and moving
walkways in Nevada, where it annually purchases
and receives goods and services valued in excess of
$50,000 directly from points located outside
Nevada The parties stipulate, and we find, that
Otis, Marnell-Corrao, and Dover are each engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act and that Iron Workers and Ele-
vator Constructors are labor organizations within
the meaning of Section 2(5) of the Act
II THE DISPUTE
A Background and Facts of Dispute
Marnell-Corrao is the general contractor for the
construction of the Excalibur Hotel and Casino, a
4000-room structure with 38 elevators The subcon-
tractor for the installation of the elevators is
Dover, which is signatory to a national master
agreement with the Elevator Constructors, but has
no agreement with Iron Workers On September
21, 1989, Iron Workers began picketing at the main
entrance to the project with approximately 100
people The signs read "Unfair Dover Elevator is
doing our work" The presence of these picketers
had the effect of shutting down the job for that
day Iron Workers Steward Tom Carney told Mar-
nell-Corrao officials that the installation of elevator
fronts was ironworkers' work, and that the em-
ployees would return to work if Dover was taken
off the job The following day, Iron Workers Busi-
ness Agent Max Price confirmed the Union's posi-
tion that the installation of elevator fronts was
ironworkers' work Price further told a Dover offi-
cial that he was going to tell the other trades not
to cooperate with Dover The picketing did not
resume after September 21, 1989
Otis is the elevator subcontractor at two Los
Angeles jobsites, 1999 Avenue of the Stars and the
Manual Life building Otis has a collective-bargain-
ing agreement with Elevator Constructors, but not
with Iron Workers There was mass picketing by
297 NLRB No 154
IRON WORKERS LOCAL 433 (OTIS ELEVATOR) 965
ironworkers between October 6 and 9, 1989, at the
1999 Avenue of the Stars (1999) ' project Jim
Butner, an Iron Workers business agent, was
present with the picketers The picket signs stated,
inter aim, "Otis Elevator Unfair," "Otis Elevator
no contract with Ironworkers," and "If you want
our work, we'll fight you for it"
The day before the picketing began, Butner, in a
telephone conversation with Otis Project Manager
Pepin, stated that he was very upset that Otis had
elected to use elevator constructors and not iron-
workers to install elevator fronts, and that he
would do anything he could to protect the work
for ironworkers That same day, Butner ap-
proached Chuck Bruce, the general contractor's
job superintendent, to demand that the elevator
fronts be removed from Otis' contract so that he
could put ironworkers to work on that job He told
Bruce that a picket line would go up the next day
if nothing was done 2
At the Manual Life project, ironworkers picket-
ed between October 13 and 18, 1989, with signs
stating "Ottis [sic] Unfair Local 433" and "Ottis
[sic] Elevator - Unfair/No agreement with Iron-
workers" Butner was present with the picketers
there as well
B Work in Dispute
The disputed work is the installation of that por-
tion of the elevator affixed to the building structure
on each floor (the fronts) at the Excalibur jobsite in
Las Vegas, Nevada, and the 1999 Avenue of the
Stars and Manual Life jobsites in Los Angeles,
California
C Contentions of the Parties
Marnell-Corrao contends that the work in dis-
pute should be awarded to employees represented
by Elevator Constructors at the Excalibur jobsite
It asserts that the object of the Iron Workers' pick-
eting was clearly to force or require Marnell-
Corrao to change the work assignment, an unlaw-
ful object under the Act Dover also contends that
its employees represented by Elevator Constructors
should be awarded the work, as Iron Workers has
engaged in proscribed conduct to force a reassign-
ment of the work Dover asserts that the factors of
collective-bargaining agreements, economy and ef-
ficiency of operations, practice in the area and in
the industry, and the Employer's preference, all
favor an award to its employees represented by the
Elevator Constructors
2 There was some testimony that the picketers themselves indicated
that the cause of the picketing was Otis' transfer of its two Iron Workers-
member employees from the 1999 jobsite, but Butner did not mention this
(see discussion In 4, Infra)
Similarly, Otis contends that the work in dispute
at the two Los Angeles jobsites should be awarded
to its employees represented by Elevator Construc-
tors, for the reasons discussed above, and requests
a broad, areawide award, covenng the geographi-
cal areas wherever Otis' business and the junsdic-
tion of the Iron Workers coincide
Elevator Constructors contends that the work at
all three jobsites should be awarded to employees
it represents, and that a broad award should issue
Iron Workers contends that there is insufficient
evidence in the record to give the Board cause to
believe that Section 8(b)(4)(D) has been violated
and that, accordingly, the charges at all three job-
sites should be dismissed In the alternative, Iron
Workers contends that the work in dispute should
be awarded to employees it represents on the basis
of area and industry practice, relative skills, and
economy and efficiency of operations
D Applicability of the Statute
In a 10(k) proceeding, the Board must determine
whether there is reasonable cause to believe that a
violation of Section 8(b)(4)(D) has occurred, i e,
that there are competing claims to disputed work
between rival groups of employees and that there
is reasonable cause to believe that at least one party
has used proscribed means to enforce its claim
As set forth above, ironworkers engaged in pick-
eting at the Excalibur jobsite in an attempt to force
Marnell-Corrao to reassign the work in dispute to
employees it represents 3 At the 1999 Avenue of
the Stars and Manual Life jobsites, ironworkers
picketed in a similar attempt to obtain work being
performed by Elevator Constructors 4 Consequent-
3 We find no merit to Iron Workers' contention that the evidence does
not establish to whom the picketing was directed or its responsibility for
the picketing at the Excalibur project The picket signs, "Dover
doing our work' and the statements by Steward Carney and Business
Agent Price to representative of Marnell-Corrao and Dover, respectively,
clearly disclose the nature of the dispute, the Iron Workers' responsibility
for the picketing and the identity of the primary employer
4 We find no merit to Iron Workers' contention that the picketing at
Otis' Los Angeles jobsites was solely to protest the prepicketmg transfer
by Otis of its two Iron Workers-represented employees from the 1999
Avenue of the Stars project and to obtain a contract concerning their
employment No request that the two be returned to the project was ever
made and no contract was sought relating to them Instead, Business
Agent Butner made It clear to the superintendent of the job and to an
Otis representative in separate conversations (without mentioning the two
Iron Workers-represented employees), that he would do what he could
to disrupt the job to protect the work for Ironworkers Butner specifical-
ly stated that he wanted the fronts removed from Otis' contract so he
could put Ironworkers to work on the job At most, we conclude that
seeking to have the two Iron Workers-represented employees put back
on the 1999 project might have been an additional object of the Iron
Workers' picketing, however, only one proscnbed object is necessary to
bring a union's conduct within the meaning of Sec 8(b)(4)(D) Plasterers
Local 594 (Tectonics Engineering), 286 NLRB 259 (1987)
Although the record is silent as to what specific demands for the dis-
puted work were made by Iron Workers regarding the Manual Life job-
Continued
966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ly, we find that there are competing claims to the
work in dispute between rival employee groups,
and that ironworkers, in furtherance of its claims,
picketed the above jobsites with an object pro-
scribed by Section 8(b)(4)(D) of the Act
We find reasonable cause to believe that a viola-
tion of Section 8(b)(4)(D) has occurred and that
there exists no agreed method for voluntary adjust-
ment of the dispute within the meaning of Section
10(k) of the Act 5 Accordingly, we find that the
dispute is properly before the Board for determina-
tion
E Merits of the Dispute
Section 10(k) requires the Board to make an af-
firmative 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 bal-
ancing the factors involved in a particular case
Machinists Lodge 1743 (J A Jones Construction),
135 NLRB 1402 (1962)
The following factors are relevant in making the
determination of the dispute
1 Certifications and collective-bargaining
agreements 6
No party claims that there are Board certifica-
tions applicable to the work in dispute
Both Dover and Otis are signatory to collective-
bargaining agreements with Elevator Constructors
that cover installation of the complete elevator, in-
cluding the fronts Neither Dover nor Otis has an
agreement with Iron Workers We find that this
factor favors an award of the disputed work to em-
ployees represented by Elevator Constructors
2 The Employers' preference and
past practice
Both Dover and Otis have assigned installation
of elevator fronts to employees represented by Ele-
vator Constructors in the past and prefer to contin-
ue to use them Dover did occasionally subcontract
to outside firms that might have used ironworkers
to perform this work, however, this subcontracting
has now ceased Otis employs two employees rep-
site, we are persuaded by the presence there of Butner on the picket line
and the proximity of location and time to the 1999 Jobsite, that the
Manual Life picketing of Otis by Iron Workers was part and parcel of
the same jurisdictional dispute
5 There is no evidence or contention that all parties are bound to an
agreed-on method committing them to the resolution of this jurisdictional
dispute
8 There was some testimony at the hearing about a document purport-
ing to support Iron Workers claim to the disputed work, however, this
document was never made a part of the record
resented by Iron Workers 7 who work on front in-
stallation along with employees represented by Ele-
vator Constructors, and it occasionally subcon-
tracts the work, however, it was clear from the
evidence that Otis' Elevator Constructors-repre-
sented employees perform the vast majority of
front installation work Accordingly, these factors
favor an award to employees represented by Eleva-
tor Constructors
3 Area practice
Testimony presented at the hearing shows that it
is standard practice in the southern parts of both
California and Nevada for employees represented
by Elevator Constructors to install elevator fronts
in conjunction with their installation of the rest of
the elevator Accordingly, this factor favors an
award of the disputed work to employees repre-
sented by Elevator Constructors
4 Economy and efficiency of operations
A Dover representative testified that the quality
of the work performed by employees represented
by Elevator Constructors was much higher than
that performed by subcontractors, who he believed
employed employees represented by Iron Workers
Because of this, less rework was required and more
fronts could be installed in a day An Otis repre-
sentative testified that there are several advantages
of using employees represented by Elevator Con-
structors rather than emplciyees repraented by
Iron Workers Only employees represented by Ele-
vator Constructors are authorized to operate eleva-
tor cars during the installation process In addition,
because Elevator Constructors-represented employ-
ees perform all elements of elevator construction
(and thus can be used elsewhere when elevator
frontwork is not being performed), they are more
accountable for the materials involved, including
inspecting them for damage on their arrival at the
site Also, unlike Iron Workers-represented em-
ployees, who often arrive for work without the
proper tools, thereby disrupting the continuity of
the job, employees represented by Elevator Con-
structors possess the appropriate tools for all
phases of elevator installation Finally, he testified
that Iron Workers-represented employees tend to
weld things together, making it much more diffi-
cult to correct errors, while employees represented
by Elevator Constructors use bolts, which are
easier to adjust should rework be necessary Ac-
cordingly, these factors favor an award of the dis-
7 Their employment is apparently an attempt to keep the peace with
the Iron Workers Further, they constitute only a token number of the
employee complement employed by Otis in the Los Angeles area
IRON WORKERS LOCAL 433 (OTIS ELEVATOR) 967
puted work to employees represented by Elevator
Constructors
5 Relative skills and safety
Elevator Constructors-represented employees are
trained for safe job practices by the National Ele-
vator Industry Education Program This training is
not available to employees represented by Iron
Workers There was also testimony that in subcon-
tracting the work of installing elevator fronts, there
were no guarantees that safety rules observed by
Elevator Constructors-represented employees, such
as tying off with a safety belt, would be followed
by the subcontractors' employees Both Dover and
Otis representatives testified that they believed that
their employees represented by Elevator Construc-
tors possessed the skills necessary to perform the
elevator front installation Iron Workers presented
no evidence concerning the skills and experience of
the employees it represents to perform the disputed
work safely Thus, these factors favor an award of
the disputed work to employees represented by El-
evator Constructors
Conclusions
After considering all the relevant factors, we
conclude that employees represented by Interna-
tional Union of Elevator Constructors, Local 18,
AFL-CIO are entitled to perform the work of in-
stalling . elgvator froRts ..at the Excalibur, 1999
Avenue of the Stars, and Manual Life jobsites We
reach this conclusion relying on the factors of col-
lective-bargaining agreements, Employers' prefer-
ence and past practice, area practice, economy and
efficiency of operation, and relative skills and
safety In making this determination, we are award-
ing the work to employees represented by Interna-
tional Union of Elevator Constructors, Local 18,
AFL-CIO and not to that Union or its members
The determination is limited to the controversy
that gave rise to this proceeding 8
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute
1 Employees of Dover Elevator Company, rep-
resented by International Union of Elevator Con-
structors, Local 18, AFL-CIO are entitled to per-
form installation of elevator fronts at the Excalibur
project in Las Vegas, Nevada
2 Employees of Otis Elevator Company, repre-
sented by International Union of Elevator Con-
structors, Local 18, AFL-CIO are entitled to per-
form installation of elevator fronts at the 1999
Avenue of the Stars and Manual Life projects in
Los Angeles, California
3 Iron Workers Local 433, affiliated with Inter-
national Association of Bndge, Structural and Or-
namental Iron Workers, AFL-CIO is not entitled
by means proscribed by Section 8(b)(4)(D) of the
Act to force Marnell-Corrao Associates, Inc,
Dover Elevator Company, or Otis Elevator Com-
pany, a subsidiary of United Technologies to assign
the disputed work to employees represented by it
4 Within 10 days from this date, Iron Workers
Local 433 shall notify the Regional Director for
Region 31 in writing whether it will refrain from
forcing the Employers, by means proscribed by
Section 8(b)(4)(D), to assign the disputed work in a
manner inconsistent with this determination
8 We deny the request of Otis and Elevator Constructors for a broad
areawide award There are two prerequisites for such an award first, evi-
dence that the disputed work has been a continuous source of controver-
sy in the relevant geographic area and that similar disputes may recur
and, second, evidence demonstrating that the charged party has a pro-
clivity to engage in unlawful conduct in order,to obtain work similar to
the work in dispute See Laborers Local 22 (AGC of Massachusetts), 283
NLRB 605 (1987) Here, there is no evidence that the charged union has
engaged in any picketing for the disputed work other than the Instances
Involved in the present case, and there is no evidence to suggest that It
will continue to picket for similar work Because there is no showing of a
proclivity of the charged party to engage in unlawful conduct to obtain
work similar to the disputed work, we find insufficient grounds to Issue a
broad award, and we limit our determination accordingly