Iron Workers Local 46 (A.F.C. Enterprises)

National Labor Relations Board - Board Decisions

Feb 9, 1995

316 N.L.R.B. 271 (N.L.R.B. 1995)

271
316 NLRB No. 56
IRON WORKERS LOCAL 46 (A.F.C. ENTERPRISES, INC.)
Local No. 46, Metallic Lathers Union and Reinforc-
ing Iron Workers of New York City and Vicin-
ity and A.F.C. Enterprises, Inc. and District
Council of New York City and Vicinity of the
United Brotherhood of Carpenters and Joiners
of America, AFL–CIO. Case 2–CD–867
February 9, 1995
DECISION AND ORDER QUASHING NOTICE
OF HEARING
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The charge in this Section 10(k) proceeding was
filed on September 24, 1993, by A.F.C. Enterprises,
Inc. (A.F.C.), alleging that the Respondent, Local No.
46, Metallic Lathers Union and Reinforcing Iron
Workers of New York City and Vicinity (Lathers),
violated Section 8(b)(4)(D) of the National Labor Re-
lations Act by engaging in proscribed activity with an
object of forcing the Employer to assign certain work
to employees it represents rather than to employees
represented by the District Council of New York City
and Vicinity of the United Brotherhood of Carpenters
and Joiners of America, AFL–CIO (Carpenters). The
hearing was held on January 26 before Hearing Offi-
cers Esther Morales and Mary Mooney, and before
Mary Mooney on February 4 and March 25 and 28,
1994, in New York City. Thereafter, all parties filed
briefs in support of their positions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board affirms the hearing officers’ rulings, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.
I. JURISDICTION
A.F.C. is a New York corporation engaged in the
operation of a highway construction and building ren-
ovation business. Annually, the Employer derives gross
revenues in excess of $500,000 and purchases and re-
ceives goods and supplies valued in excess of $50,000
directly from suppliers located outside the State of
New York. We find that the Employer is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act. The parties stipulated, and we find, that the
Lathers and the Carpenters are labor organizations
within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts in Dispute
The Employer was a member of the General Con-
tractors Association of New York, Inc., which had a
series of collective-bargaining agreements with the
Lathers. The last agreement to which the Employer ac-
knowledges that it was a party expired by its terms on
June 30, 1993. That collective-bargaining agreement
was extended by a memorandum of agreement for the
term from July 1, 1993, to June 30, 1996. However,
by letter dated June 16, 1992, the Employer had with-
drawn the Association’s authority to bargain on its be-
half. The Employer also had sent a followup letter to
the Association, dated January 26, 1993, advising the
Association not to include A.F.C. in any collective-bar-
gaining negotiations. By letter dated April 30, 1993,
the Employer had notified the Lathers of ‘‘its proposed
intent to terminate or modify the existing terms of its
collective-bargaining agreement.’’ The letter had ad-
vised further that the Employer would ‘‘not be utiliz-
ing the General Contractors Association of New York,
Inc., to serve as its collective bargaining representa-
tive.’’ That letter was received by the Lathers on May
5, 1993.
The Employer is a current member of the Associa-
tion of Wall, Ceiling & Carpentry Industries of New
York, Inc., and has been a party to a series of collec-
tive-bargaining agreements with the Carpenters. The
Employer is signatory to the current agreement that is
effective by its terms from July 1, 1993, until June 30,
1996.
In January 1991, A.F.C. began the renovation and
construction work on the North Building of Hunter
College. During the entire period of the work, the
North Building was utilized by day and evening stu-
dents and faculty. Specifically, A.F.C.’s contract with
the New York State Dormitory Authority involved the
demolition and reconstruction of the fourth and fifth
floors of the North Building for the purpose of con-
structing a music and theater department (including TV
studios, a recital hall-theater, music practice rooms,
and offices) and further involved the renovation and
reconstruction of the eighth and ninth floors for the
purpose of constructing scientific laboratories and of-
fices.
In August 1992, following the initial demolition of
the existing walls and ceilings, and the removal of de-
bris, A.F.C. assigned the black iron ceiling suspension
work to the Lathers. The work was performed on a
sporadic basis, ending a few days after it began, and
resuming again for a few days in September 1992. The
work was again suspended until February 6, 1993, but
was thereafter performed continuously until April
1993. During the periods when the black iron work
was not being performed, the Lathers were laid off.
The Lathers were never assigned any work other than
black iron ceiling suspension work.
A.F.C. began utilizing Carpenters at the site continu-
ously from early 1991, assigning to them all other
types of work from their trade including drywall,
sheetrock, and woodwork.
272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On September 1, 1993, the Employer recalled the
Lathers to work. The Employer’s construction super-
visor, Alan Charlip, informed the Lathers’ foreman, Jo-
seph Scanlon, that the Employer no longer had a con-
tract with the Lathers. Charlip advised Scanlon that the
employees would not receive benefits under the Asso-
ciation contract but would be paid the prevailing wage.
Although Scanlon was not sure what the term ‘‘pre-
vailing wage’’ meant, he told Charlip that the offer
was unacceptable and that he needed to consult with
the Lathers. Following that consultation, Scanlon in-
formed Charlip that the Lathers would not work for the
Employer unless the Employer applied the current
1993–1996 Association contract to them. Charlip then
offered to sign a site specific agreement for the Hunter
College job. Scanlon refused, and walked off the job-
site. Charlip then assigned the disputed work to the
Carpenters.
A.F.C.’s general superintendent, John Mikuszewski,
asserts that the Employer never intended to assign the
work to the Lathers, but felt compelled to do so after
repeated threats by the Lathers’ business agent, Robert
Ledwith, to disrupt the job. Mikuszewski testified that
prior to recalling the Lathers in September 1993, he
had arranged with Ledwith for the Employer to honor
a site specific agreement and pay the Lathers’ benefits
according to the terms of the current General Contrac-
tor’s Association agreement. When the employees ar-
rived at the site to work, Ledwith insisted that the Em-
ployer become a signatory to the current 1993–1996
agreement. The Employer refused and assigned the
work to the Carpenters.
Ledwith disputes Mikuszewski’s recollection of the
events. Ledwith asserts that when he called the Em-
ployer to find out its intent with respect to an agree-
ment, Mikuszewski stated ‘‘my actions will speak for
themselves.’’
On September 20, 1993, and for several days there-
after, members of the Lathers picketed the entrance to
the jobsite. The legend on the picket signs read:
On Strike
A.F.C./Catapano
No Dispute With Any
Other Employer
Local #46
Metallic Lathers Union
and Reinforced Ironworkers
The picket line was honored by several trades and the
progress of the work slowed.
B. The Work in Dispute
The work in dispute involves the installation of a
black iron ceiling suspension system on several floors
of A.F.C.’s jobsite at Hunter College (695 Park Ave-
nue, New York, New York). The work consists of
drilling anchors into the ceiling, hanging a pencil rod,
and attaching it to a channel clip. The channel clip is
then attached to a black iron rod that stretches laterally
across the ceiling.
C. Contentions of the Parties
A.F.C. contends that the work in dispute should be
assigned to the Carpenters based on the Employer’s
preference; efficiency and economy of operations; and
its collective-bargaining relationship with the Car-
penters. Further, although there have been prior dis-
putes between the parties involving this type of work,
there have been no decisions, arbitration awards, or
agreements in which all parties have agreed to be
bound. A.F.C. asserts there has been no binding award
assigning the disputed work to either the Carpenters or
the Lathers.
The Carpenters Union contends that the Board
should give paramount consideration to the Employer’s
assignment of the work based on the Employer’s pref-
erence for the carpenters’ skills; productivity; and
economy and efficiency. The Carpenters assert that the
Employer’s assignment of the work in dispute to its
members allows for greater flexibility of operations.
The Carpenters argue, contrary to the assertions by the
Lathers, that the 1979 Inter-Union Agreement and
Hearing Panel Decision of the New York Plan between
the Lathers and the Carpenters should be disregarded
because the Employer was not a party to and did not
agree to be bound by that agreement. Further, the Car-
penters assert that that agreement is no longer deter-
minative of the issues raised here because there have
been several mergers among the various unions since
1979 and current industry practice has changed dra-
matically. Finally, the Carpenters contend that the
Lathers violated the Act by picketing the jobsite to
compel the Employer to assign the disputed work to
the Lathers rather than to the Carpenters.
The Lathers contend that there is no reasonable
cause to believe that it violated Section 8(b)(4)(D) be-
cause the purpose of its picketing was not to compel
an assignment of work but to protest A.F.C.’s failure
to recognize its continuing contractual obligations with
Local 46. Further, the Lathers move to quash the no-
tice of hearing because there is a voluntary method of
adjustment that is binding on all parties. As part of
that contention, it asserts that the Employer did not
timely withdraw from multiemployer bargaining and is
therefore bound to the renewed 1993–1996 agreement
between the Lathers and the General Contractors Asso-
ciation of New York. Assuming, arguendo, that this
case is a jurisdictional dispute, properly before the
Board, the Lathers assert that the following Section
10(k) factors favor assigning the work in dispute to
employees it represents: the collective-bargaining
273IRON WORKERS LOCAL 46 (A.F.C. ENTERPRISES)
1 Commercial Workers Local 1222 (FedMart Stores), 262 NLRB
817 (1982); Teamsters Local 222 (Jelco, Inc.), 206 NLRB 809
(1973).
2 FedMart Stores, supra, citing Communications Workers (Moun-
tain States Telephone), 118 NLRB 1104, 1107–1108 (1957).
1 Cement Masons Local 577 (Rocky Mountain Prestress), 233
NLRB 923, 924 (1977); Plumbers Local 195 (Warren Petroleum
Co.), 260 NLRB 1149, 1150 (1982); and Millwrights Local 1026
(Intercounty Construction), 266 NLRB 1049, 1052 (1983).
agreements; the Employer’s initial assignment of the
work; the Employer’s practice; area practice; the var-
ious jurisdictional dispute decisions and awards; ap-
prenticeship programs; efficiency and economy of op-
erations; and the balancing of equities.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute pursuant to Section 10(k), it must be satis-
fied that reasonable cause exists to believe that Section
8(b)(4)(D) has been violated and that the parties have
not agreed on a method for the voluntary settlement of
their dispute. On the record before us, we are unable
to reach such a conclusion in this case.
We have long held that a dispute within the meaning
of Section 8(b)(4)(D) requires a choice between two
competing groups.1 In this regard the Board has stat-
ed:2
There must, in short, be either an attempt to take
a work assignment away from another group, or
to obtain the assignment rather than have it given
to the other group.
. . . .
A demand for recognition as bargaining represent-
ative for employees doing a particular job, or in
a particular department, does not to the slightest
degree connote a demand for the assignment of
work to particular employees rather than to others.
The Employer here was, until June 30, 1993, a party
to a collective-bargaining agreement with Lathers
Local 46. It is undisputed that the contract was in ef-
fect and honored by A.F.C. when it commenced con-
struction work at the Hunter College jobsite. It is also
undisputed that, prior to June 1993, when the contract
was in effect, the Employer assigned the installation of
the black iron suspended ceiling systems to journey-
men Lathers represented by Local 46. Further, in Sep-
tember 1993, the Employer initially sought to assign
the work to a lather. Only when a dispute arose as to
the terms and conditions under which the work was to
be performed did the Employer reassign the work to
the employees represented by the Carpenters. At that
point, Local 46 picketed. Because the Employer had
indicated that it was willing to assign the work to em-
ployees represented by the Lathers, the Lathers’ dis-
pute with the Employer was not over the assignment
of the work. Rather, it is clear that the dispute was
over the terms and conditions under which the Lathers
would perform the work. Thus, Local 46 picketed the
Employer’s jobsite to protest the Employer’s failure to
reach an agreement with the Lathers Union regarding
the terms and conditions under which the Lathers-rep-
resented employees would continue to work after the
contract expired. Therefore, we find that the Lathers
did not picket for an objective, proscribed by Section
8(b)(4)(D). Rather, the Lathers sought an agreement re-
garding the terms under which Lathers-represented em-
ployees would work. Accordingly, we conclude that no
jurisdictional dispute exists within the meaning of Sec-
tions 8(b)(4)(D) and 10(k) of the Act. We shall there-
fore quash the notice of hearing.
ORDER
The notice of hearing is quashed.
CHAIRMAN GOULD, dissenting.
I disagree with my colleagues’ determination that
the notice of hearing should be quashed on the basis
that the Lathers’ picketing activity was in furtherance
of a recognitional or representational objective, and
that therefore no jurisdictional dispute exists. The
Board has held that ‘‘[o]ne proscribed object is suffi-
cient to bring a union’s conduct within the ambit of
Section 8(b)(4)(D).’’1 In my opinion, there is reason-
able cause to believe that at least one object of the
Lathers’ conduct was to force the Employer to assign
the work in dispute to the employees it represents
which is clearly a violation of Section 8(b)(4)(D).