Iron Workers, Local No.40

National Labor Relations Board - Board Decisions

Jun 21, 1972

197 N.L.R.B. 822 (N.L.R.B. 1972)

822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 40, International Association of
Bridge , Structural and Ornamental Iron Workers,
AFL-CIO and Spancrete Northeast , Inc. and Local
No. 190 , International Laborers ' Union of America,
AFL-CIO. Case 2-CD-422
June 21, 1972
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge and an amended charge filed by
Spancrete Northeast, Inc., hereinafter called Span-
crete, alleging that Local Union No. 40, Internation-
al Association of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO,' hereinafter called Iron
Workers, violated Section 8(b)(4)(D) of the Act by
engaging in certain proscribed activity with an object
of forcing or requiring the Employer to assign certain
work to employees represented by Iron Workers
rather than to employees represented by Local No.
190, International Laborers' Union of America,
AFL-CIO, hereinafter called Laborers.
A hearing was held before Hearing Officer Law-
rence A. Dinerstein on January 27 and February 3,
1972. All parties appeared at the hearing and were
given full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence
bearing upon the issues.2 Briefs were filed by
Spancrete and Iron Workers. Amicus curiae briefs
were filed by Building Trades Employers' Associa-
tion of the City of New York (hereinafter called
BTEA), Allied Building Metal Industries, Inc.
(hereinafter called Allied), and Building and Con-
struction Trades Council of Greater New York
(hereinafter called BCTC).
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 Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case,3 the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and the record shows, that
1 The name appears as corrected at the hearing
2 Laborers representative did not appear on February 3, 1972
J The request of Iron Workers for oral argument before the Board is
hereby denied as the record and briefs adequately present the issues and
the Employer is a New York corporation with its
principal place of business in South Bethlehem, New
York, with plants located in New York State and the
State of Ohio. It is engaged in the manufacture and
installation of prestressed, precast concrete products.
During the calendar year 1971, the Employer
received revenues at its New York place of business
in excess of $1 million of which in excess of $500,000
was received from customers located outside the
State of New "York. During the same period, the
Employer purchased and had delivered to its New
York State plants from suppliers located outside the
State of New York supplies and materials valued in
excess of $1 million. All parties stipulated that
Spancrete was engaged in commerce within the
meaning of the Act. We find, therefore, that the
Employer 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 INVOLVED
The parties stipulated and we find that Iron
Workers and Laborers are labor organizations within
the meaning of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
Spancrete contracted with Di-Com Corporation for
the manufacture, delivery, and erection of precast,
prestressed concrete floor systems at the Kingsbridge
Nursing Home project (hereinafter called Kings-
bridge project) in Bronx, New York. On February 22,
1971, Spancrete sent a crew of five of its employees,
represented by Laborers,4 to the Kingsbndge project
in order to begin erection with power of its precast,
prestressed concrete planks. After the necessary
power crane was assembled, a picket appeared at the
job with a sign reading "Spancrete unfair to Iron
Workers Local 40." Spancrete's field erection super-
intendent, Ivan Millett, testified that the picket was
Fred Kloth, the Iron Workers job steward, and that
Kloth told him to contact Ray Mullett, a business
agent for the Iron Workers. When the crane operator
and the oiler ceased working, Millett called Span-
crete's president, Blosser , who in turn called the Iron
Workers office. Blosser testified that he talked to
Iron Workers President Jerry Place, and that Place
told him the work belonged to members of the Iron
Workers, they wanted the work, and therefore they
positions of the parties
4 The five men plus the supervisor were employees of Spancrete and
members of Laborers Local 190 because the New York City Laborers
Locals (6A, 18, and 20) refused to send men to the Kingsbridge project
197 NLRB No. 112
IRON WORKERS , LOCAL NO. 40 823
picketed the job. Mullett denied that there were any
Iron Workers pickets at the Kingsbridge project and
further denied any knowledge of a work stoppage.
Although Mullett denied the existence of a dispute,
he laid claim to the disputed work.5
Inasmuch as the crane is essential in the power
erecting operation, Spancrete's crew was unable to
work after the crane operator and oiler ceased
working. Spancrete's second attempt to perform the
work on March 4, 1971, failed when the crane
operator and oiler again refused to work. Subse-
quently Spancrete subcontracted the work to a firm
using ironworkers.
B. The Work in Dispute
The work in dispute involves the erection with
power of precast, prestressed concrete floor slabs at
the Kingsbridge project in New York City.
C. Contentions of the Parties
1. Spancrete contends that the erection of precast,
prestressed concrete slabs should be awarded to
Laborers based on collective-bargaining agreements
over the past 10 years, two Board certifications, two
prior Board jurisdictional awards, and on the basis of
safety, skill, and economy.
2. Iron Workers contends that the Board does not
have jurisdiction because there is no illegal coercion;
but if the Board finds it has jurisdiction then the
work should be awarded to the Iron Workers based
on the area practice in New York City; Iron Workers
traditional performance of this work; the greater skill
of Iron Workers; and a BTEA arbitration award
giving the work to the Iron Workers.
3. Laborers acknowledges that it lacks territorial
jurisdiction in New York City and Westchester
County; however, it claims the work under its
national contract with Spancrete.6
D. Applicability of the Statute
The charge alleges violations of Section 8(b)(4)(D)
of the Act and the record, despite unresolved issues
of credibility, furnishes reasonable cause to believe
that Iron Workers restrained and coerced Spancrete
for the purpose of forcing assignment of the disputed
work to its members. Although Laborers Locals 6A,
18, and 20 have not claimed any current interest in
the existing work assignment made by the Employer,
employees represented by Laborers Local 190 will
continue to perform the work if it is assigned to
them. Furthermore, it does not appear that the
dispute has been adjusted.7 Accordingly, we find that
there is reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred and that the dispute
is properly before the Board for determination under
Section 10(k) of the Act.
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 relevant factors.8
The Board has held that its determination in a
jurisdictional dispute is an act of judgment based on
commonsense and experience, reached by balancing
those factors involved in a particular case.9 The
following factors are relevant in making a determina-
tion of the dispute before us:
1. Certifications and collective-bargaining
agreements
Laborers has been certified by the Board as the
collective-bargaining representative in two New
York State plants of the Employer's employees;
however, the certifications make no reference to and
do not specifically encompass nonplant employees.10
Although Spancrete contends that its plant employ-
ees are used as permanent employees on its field
erection crews, the plant unit certifications do not
signify an intention by the Board that the erection
work in dispute should be performed by employees
represented by Laborers.
Following the certifications, and continuing to
date, Laborers and Spancrete have entered into a
series of collective-bargaining agreements, both
nationally and locally. The provisions governing the
employment of laborers are set forth in the agree-
ment between Spancrete and the International
Laborers' Union of North America, AFL-CIO,
which specifically includes "all field construction
work performed by the Employer." In addition
article II, section I, thereof provides that the covered
work jurisdiction is that specified in the International
Laborers' Union Manual of Jurisdiction. That
5 Place did not testify at the hearing
6 We note that Laborers Locals 6A. 18, and 20 having geographical
jurisdiction in New York City do not claim the work and have refused to
work for Spancrete
7 Iron Workers contends that Spancrete agreed to voluntary dispute
settlement machinery under BTEA auspices by appearing at a BTEA
arbitration hearing relative to another project and pursuant to a request by
Laborers However Spancrete is not a member of BTEA and has not
submitted to BTEA jurisdiction We find, therefore, that the Board is not
precluded from making its determination in this proceeding
s N L R B v Radio and Television Broadcast Engineers Union, Local
1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 US 573, 586
9 International Association of Machinists, Lodge No 1743, AFL-CIO (J A
Jones Construction Co), 135 NLRB 1402
10 The certified unit in Case 3-RC-3801 includes all employees at the
Employer's Cairo Street, Rochester, New York, plant, excluding office
clerical employees, guards, and supervisors as defined in the Act A similar
unit was certified for Spancrete 's Albany plant in Case 3-RC-2919
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manual includes , as the work of laborers, the
following:
Where pre-stressed or pre -cast concrete slabs,
wall or sections are used , all loading, unloading,
stockpiling , hooking on, signalling , unhooking,
setting and barring into place of such slabs, walls
or sections.
Although the above agreements cover the disputed
work and tend to support the Employer 's assignment
of the disputed work , the significance of this factor is
somewhat diminished by the suggestion in the record
that no Laborers Local would seek to enforce this
agreement in the New York City area . Thus, it is
clear from the record that Locals 6A, 18, and 20,
which have jurisdiction over laborers in the metro-
politan area of New York, have declined to furnish
workers to Spancrete , and that Local 190's business
agent, Mirabile , has stated that he would not claim
work in this area for laborers represented by his
Local. Subject to these limitations , we note that the
collective -bargaining agreements do tend to support
the Employer 's assignment.
2. Company and area practice
The record establishes that Spancrete, at various
locations throughout the United States, uses its own
employees represented by Laborers as the basic crew
to perform the type of work in dispute. The usual
crew consists of three permanent employees and two
local employees. The record also clearly shows that
only ironworkers perform the type of work in dispute
in New York City.11 Spancrete admittedly has
completed no jobs in New York City with laborers.
Outside of New York City, but still within the
jurisdiction of Iron Workers Local 40, Spancrete has
used laborers to perform the type of work in dispute.
It cannot be fairly stated that this dispute encompas-
ses a geographical area extending beyond New York
City. We conclude that the area practice in New
York City favors an assignment to ironworkers.
3. Prior awards
In November 1970, a similar dispute between
Laborers Locals 6A, 18, and 20 and Iron Workers
over another Spancrete project in New York City
was arbitrated before the BTEA.12 The BTEA
arbitration board, consisting of 15 employer repre-
sentatives, awarded :the erection of precast, pre-
ii The record shows longstanding and continuous performance of the
type of work here in dispute by Iron Workers. Some 700 contractors
(members of Allied) in New York City have for 10 years used exclusively
ironworkers . The practice has evolved into one without exceptions , at least
as to present record
12 Since 1903, the BTEA has been functioning as a private arbitrator of
jurisdictional disputes in the city of New York. Its decisions are regularly
published in a volume referred to as the "Green Book." Some 700
stressed concrete work to ironworkers . After a
rehearing at which Spancrete 's president , Blosser,
appeared as a witness pursuant to a request by the
Laborers , the BTEA issued a second award favoring
ironworkers but limiting the award to erection where
power is used . Thereafter, Spancrete complied with
the award when the New York City Laborers Locals
refused to perform the work pursuant to the BTEA
award . Since the BTEA awards were issued and
published , there apparently has been complete
compliance therewith except for the instant dispute.
Although we do not consider the BTEA awards
binding on Spancrete , we do consider them a factor
in determining the proper assignment of the work in
dispute . Spancrete ' s assignment of the work to the
ironworkers in New York City on other projects
pursuant to the BTEA award stood in conformity
with the existing practices in that area to award
power erection work to ironworkers . 13 We find this
factor to favor ironworkers.
4. Skills, efficiency, and economy
Both laborers and ironworkers possess sufficient
skills to perform the work in dispute, as both laborers
and ironworkers have had considerable experience in
performing this type of work. Although length of
training is not identical, there is no affirmative
evidence to show one group of employees to be more
skilled. The record establishes that the same size crew
is required regardless of whether laborers or iron-
workers perform the work, but laborers are lower
paid. The record is silent as to safety. On the basis of
the foregoing and subject to the fact that wage
savings can be realized by the employment of
laborers, we do not find these factors to favor either
union.
Conclusion
Upon the entire record and in consideration of the
foregoing findings, we conclude that the certification,
skill, and efficiency factors are relatively neutral
between the disputing labor organizations. It is true
that Spancrete's collective-bargaining agreement
with Laborers favors that union, although it does
appear that Laborers would not affirmatively claim
the work thereunder if assigned to ironworkers. On
the other hand, as we have previously found, the area
practice during the preceding 10 years and as defined
contractors and most New York City local unions , including Laborers
Locals 6A, 18, and 20, and Iron Workers Local 40, have agreed to be bound
by the BTEA awards.
13 Our previous 10(k) determinations involving Spancrete are not
controlling, since none involved projects in a geographic area where , on this
basis of a high volume of construction activity, a clear, unwavering area
practice stood in conflict with Spancrete's assignment to laborers
IRON WORKERS, LOCAL NO. 40 825
through the prior private arbitration award strongly
favors an assignment to ironworkers. BTEA has had
a long history of successfully resolving jurisdictional
disputes in New York City. Its 600 published
decisions over the past 69 years have created a
consistent area practice from which New York City
contractors can accurately estimate the labor costs of
future projects. The volume and complexity of
construction in New York City points to a well-
defined practice with respect to the disputed work
which should not be disturbed absent some compel-
ling reason. To hold otherwise, solely on the basis of
an employer's assignment, would merely invite
controversy in an area where effective guidelines
have already been established. Therefore, we con-
clude that employees represented by Iron Workers
are entitled to the work in question, and we shall
determine the dispute in their favor. In making this
determination, however, we are assigning the disput-
ed work to employees represented by Iron Workers
and not to that Union or its members.
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
hereby makes the following Determination of Dis-
pute:
Employees who are currently represented by Local
Union No. 40, International Association of Bridge,
Structural and Ornamental Iron Workers , AFL-CIO,
are entitled to the power erection and installation of
prestressed , precast concrete on the Kingsbridge
Nursing Home project of Spancrete Northeast, Inc.,
located in Bronx , New York.