Iron Workers, Local No. 465

National Labor Relations Board - Board Decisions

Apr 10, 1973

202 N.L.R.B. 1041 (N.L.R.B. 1973)

IRON WORKERS , LOCAL NO. 465
International Association of Bridge , Structural and
Ornamental Iron Workers, Local No. 465,
AFL-CIO and Hansen & Hempel , Inc. and Brick-
layers, Masons and Plasterers' International Union
of America, Local No. 37, AFL-CIO. Case
38-CD-91
April 10, 1973
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Hansen & Hempel, Inc., herein
called the Employer, alleging that International
Association of Bridge, Structural and Ornamental
Iron Workers, Local No. 465, AFL-CIO, herein
called Iron Workers, had violated Section 8(b)(4)(i)
and (ii)(D) of the Act by engaging in certain
proscribed activity with an object of forcing the
Employer to assign certain work to employees
represented by Iron Workers rather than to employ-
ees represented by Bricklayers, Masons and Plaster-
ers' International Union of America, Local No. 37,
AFL-CIO, herein called Bricklayers. A hearing was
held before Hearing Officer James L. Ferree, on
December 11, 1972, in Kankakee, Illinois. The
Employer, Iron Workers, and Bricklayers appeared
at the hearing and were offered full opportunity to be
heard, to examine and cross-examine witnesses, and
to adduce evidence bearing on the issues.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer, an Illinois corporation whose
principal office is in Elmhurst, Illinois, is engaged in
masonry contracting in and around northern Illinois.
In the course and conduct of its business in the past
year, it purchased goods valued in excess of $50,000
from suppliers located outside the State of Illinois
and caused those goods to be shipped directly to
points inside the State of Illinois. Accordingly, we
find, as the parties have stipulated, that the Employer
1041
is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATIONS
The parties stipulated, and we find, that Iron
Workers and Bricklayers are labor organizations
within the meaning of Section 2 (5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The work in dispute consists of the erecting or
installing of architectural natural stone facing panels
on the Kankakee Detention Center, Kankakee,
Illinois.
B. Background and Facts of the Dispute
Azzarelli Construction, Company, a general con-
tractor, contracted with Hufschmidt Engineering
Company, a manufacturer of prefabricated limestone
panels, for the installation of panels onto certain
outer walls of the Kankakee Detention Center,
Kankakee, Illinois. Hufschmidt, in turn, subcontract-
ed the installation work to the Employer.
Two-thirds of the panels to be affixed to the wall
are single pieces of cut limestone. The remaining
third consists of multistone panels backed with
reinforced concrete. The single-stone panels are
attached to the wall by means of mortaring, bolting,
or welding. The multistone panels are attached by
means of bolting or welding. All the panels are
merely decorative and are not load bearing. In
September 1972, at a meeting attended by George T.
Hempel, a vice president of the Employer, Henry
Stahl, business representative of Ironworkers, and
Gino Martini, business representative of Bricklayers,
Hempel informed Stahl and Martini that he intended
to utilize bricklayers exclusively for the panel
installation work. Stahl objected to the proposed
assignment as contrary to a 1962 agreement between
the Iron Workers and Bricklayers Internationals
which, he argued, assigned the work in dispute to a
composite crew of ironworkers and bricklayers.
Hempel remained adamant in his decision, and the
meeting ended without any agreement. According to
the testimony of Hempel and Martini, Stahl threat-
ened an Iron Workers picket if a composite crew was
not utilized.' Another meeting was held in October
1972, with the same people in attendance plus
International representatives of both Iron Workers
and Bricklayers. Again the subject of a composite
I Stahl categorically denies any threats to picket.
202 NLRB No. 158
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
crew was discussed, with Hempel remaining steadfast
in his intention to use only bricklayers to do the
disputed work.
Subsequent to this meeting, Hempel was urged by
Azzarelli and Hufschmidt to resolve the dispute so as
to avoid labor unrest and a possible attendant
slowdown of work. At one point, according to
Hempel, Stahl told him it would be a long time
before the Employer did any more work in this area.
Through all this time Hempel's mind remained
unchanged. The Employer began the disputed work
on November 16, 1972, and has now completed 10
percent of its contract. There is no evidence that Iron
Workers has actually picketed. No work stoppages
have occurred. There is some evidence of a high rate
of absenteeism among ironworkers during the period
of the jurisdictional dispute,2 but Jack Suprenant, an
assistant manager for Azzarelli, acknowledged that
there was similar absenteeism within other crafts as
well, and the ironworkers' absenteeism rate was not
abnormally high. There is also evidence that Azzarel-
li had, during this time, difficulty procuring workmen
through Iron Workers. However, Iron Workers
insisted that the failure to furnish the requested
workmen was due to a temporary shortage of men
and was not in any way an indirect attempt to coerce
the Employer through Azzarelli. Suprenant also
testified that such temporary shortages were not
unusual.
C. Contentions of the Parties
Iron Workers contends that the disputed work
should be assigned to a composite crew of equal
numbers of ironworkers and bricklayers, as provided
for in the 1962 Iron Workers-Bricklayers Agreement.
Iron Workers also cites a 1923 Green Book award
handed down by the National Joint Board for
Settlement of Jurisdictional Disputes as a basis for at
least a partial claim to the work in dispute. Iron
Workers also claims the requisite skills to do a large
portion of the disputed work, and further argues that
area practice dictates the use of a composite crew.
As the panel facing to be installed is ornamental
and nonstructural, the Employer defends its present
assignment of the disputed work as consistent with
its own and area practice, efficiency, and economy of
operation. The Employer also cites a contract
between the Mason Contractors Association of
America, of which the Employer is an affiliate, and
the Bricklayers International which allegedly pro-
vides for the Employer's present assignment.
2 Ironworkers have been employed by Azzarelli on the jobsite for tasks
unrelated to the work in dispute.
3 Local Union No. 334, Laborers International Union of North America,
AFL-CIO (C. H. Heist Corporation), 175 NLRB 608.
4 This agreement was originally executed in 1954 and amended in July
Bricklayers supports the present assignment. Brick-
layers claims exclusive -jurisdiction over any wall
erection work involving natural stone, either in the
form of single-stone units or multistone units backed
by concrete. The 1962 Iron Workers-Bricklayers
Agreement, it argues, applies only to precast concrete
walls, not walls with natural stone facing. Bricklayers
cites skills, area practice, and the Mason Contractors
Association contract to support the present assign-
ment.
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.
Both Hempel and Martini testified that Stahl of the
Iron Workers had threatened to picket unless the
Employer assigned the disputed work to a composite
crew. Hempel also suggested that Iron Workers
withheld craftsmen from Azzarelli as an indirect
pressure upon the Employer, through Azzarelli, to
reassign the work. All of this was vigorously denied
by Iron Workers.
The Board is not charged with finding that a
violation did in fact occur, but only that reasonable
cause exists for finding such a violation. A conflict of
testimony does not prevent the Board from proceed-
ing under Section 10(k) of the Act. Therefore,
without ruling on the credibility of Iron Workers
denial, we find that such reasonable cause exists, and
that the dispute is properly before the Board for
determination.3
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work
after giving due consideration to various relevant
factors.
1. Certification and contracts
The agreement between the Mason Contractors
Association and Bricklayers International4 defines
the work jurisdiction of Bricklayers as that work
which had traditionally been assigned to Bricklayers
International as described in the International
constitution. The constitution clearly includes the
1969. The agreement has since remained in effect on a year-to -year basis
with each party having the option to terminate or recommend modification
60 days prior to the anniversary date of the agreement . As there is no
indication in the record that either party has ever exercised its option, we
assume this agreement is still in effect.
IRON WORKERS , LOCAL NO. 465 1043
setting of all cut stone within the definition of
masonry,5 but is silent as to the setting of multistone
panels backed by reinforced concrete.
The 1962 agreement between Iron Workers and
Bricklayers would seem to support Iron Workers
claim for a composite crew, at least with regard to
the concrete-backed panels. The agreement specifi-
cally applies to:
the installation and erection of . . . precast,
prestressed concrete stone or imitation stone or
other fabricated masonry units when installed as
wall panels by means of bolting and/or welding
to structural steel or concrete frame construction.
The parties hereto agree as follows:
(3) The plumbing, aligning, leveling and an-
choring, including bolting and/or welding shall
be performed by a crew composed of an equal
number of members of . . . Iron Workers and
... Bricklayers.
However, Stahl admitted that the agreement has
been violated by both parties in the past so that it
was, in Iron Workers' eyes, of doubtful viability. And
assuming arguendo that the agreement was continu-
ously adhered to by both parties, the Employer never
agreed to be bound by it.
In view of the foregoing, we find that the factor of
contracts does not favor the claim of Iron Workers,
but does favor the Employer's present assignment to
the extent that it covers the installation of single-
stone panels.
2. Employer and area practice
The practice of the Employer has been to assign
the work of installing stone paneling on ornamental
nonstructural walls to workmen who were members
of Bricklayers. There was an isolated case where a
composite crew of ironworkers and bricklayers was
used, but it was, Hempel estimated, 1 job out of 60.
As for area practice, both Unions cite examples to
support their respective claims. In view of the
foregoing, we find that employer practice favors the
present assignment and area practice does not favor
Iron Workers.
3. Skills, efficiency, and economy of
operation
Ironworkers appear to have the requisite skills to
perform many of the tasks incident to the work in
dispute. As noted earlier, all of the multistone panels
and some of the single-stone panels are attached to
the wall by means of bolting or welding. Iron
workers are proficient in this area. Iron Workers also
claims that its members are proficient in the area of
plumbing and leveling of panels. The only area of the
disputed work in which Iron Workers does not claim
any skill is the task of mortaring.
Bricklayers appear to possess sufficient skill to
perform all the work in dispute, although none of its
members were, until recently, certified as welders.
However, Bricklayers claims that many of its
members have possessed the requisite welding skills
for years. We find that the factor of skill favors
neither the present assignment nor an assignment to
a composite crew.
With regard to efficiency and economy of opera-
tions, the record disclosed that the bulk of the stone
paneling to be installed is of the single-stone variety,
and this installation involves mortaring work which
bricklayings can do more skillfully. While ironwork-
ers are skilled at rigging, aligning, bolting, and
welding of concrete-backed multistone panels, there
would not be enough work in this area to keep them
busy all the time. As members of a composite crew,
either they would become idle or would help to
install the single-stone panels, a task for which they
are not as skilled as bricklayers. Also, Hempel
testified that he has experienced costly time delays
due to bickering between the two Unions when he
used a composite crew on a precast concrete project.
In view of the foregoing, we find that the factors of
efficiency and economy of operation favor the
Employer's assignment.
Conclusions
Having considered all pertinent factors present
herein, we conclude that employees who are repre-
sented by Bricklayers are entitled to ' perform the
work in dispute. This assignment is consistent with
contracts, employer practice, efficiency, and econ-
omy of operation. In making this determination, we
are awarding the work in question to employees
represented by Bricklayers, but not to that Union or
its members. The present determination is limited to
the particular controversy which gave rise to this
proceeding.
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
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Employees of the Employer who are currently
5 See Constitution and Rules of Order, Bricklayers, Masons, and
Plasterers' International Union of America, art. XI, sec. 3 (adopted
September 4, 1970).
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represented by Bricklayers, Masons, and Plasterers'
International Union of America, Local No. 37,
AFL-CIO, are entitled to erect and install architec-
tural natural stone facing panels on the Kankakee
Detention Center, Kankakee, Illinois.
2. International Association of Bridge, Structural
and Ornamental Iron Workers, Local No. 465,
AFL-CIO, is not entitled by means proscribed by
Section 8(b)(4)(D) of the Act to force or require the
Employer to assign the above work to its members or
employees whom it represents.
3. Within 10 days from the date of this Decision
and Determination of Dispute, the labor organiza-
tion listed in the previous paragraph shall notify the
Officer-in-Charge for Subregion 38, in writing,
whether or not it will refrain from forcing or
requiring Hansen & Hempel, Inc., by means pro-
scribed by Section 8(b)(4)(D) of the Act, to assign the
work awarded above in a manner inconsistent with
the above determination.