Iron Workers, Local Union No. 125

National Labor Relations Board - Board Decisions

Nov 27, 1970

186 N.L.R.B. 868 (N.L.R.B. 1970)

868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Bridge Structural and
Ornamental Iron Workers , Local Union No. 125
and The Ralph M. Parsons Company and Mill-
wrights Local Union No. 2484 of the United
Brotherhood of Carpenters and Joiners of America.
Case 23-CD-230
November 27, 1970
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, International Association of Bridge
Structural and Ornamental Iron Workers, Local
Union No. 125, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On August 18, 1970, Trial Examiner Phil Saunders
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in certain
unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the, attached Trial Examiner's
Decision. Thereafter, Respondent filed exceptions to
the Trial Examiner's Decision with supporting brief,
and the Charging Party filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified below.
We agree with the Trial Examiner that Respondent
violated Section 8(b)(4)(i) and (ii)(D) of the Act by
attempting to force the Employer to reassign the work
in dispute to its members, in contravention of the
March 6, 1970, award of the Appeals Board of the
National Joint Board. That award, on its face, gives
the Employer an option to assign the work to
Ironworkers under certain circumstances, but does
not require the Employer to assign it to Ironworkers
under any circumstances. Thus, when the Employer
thereafter, on March 16, assigned power rigging to the
Millwrights pursuant to the NJB award, it was
exercising the option granted it by the award whether
or not it had in the past assigned the work to
Ironworkers. We need not consider, and do not adopt,
the Trial Examiner's alternate grounds for finding
that Respondent violated the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PHIL SAUNDERS, Trial Examiner: The original and
amended charges were filed on March 17 and 24, 1970,
respectively, by Ralph M. Parsons Company, hereinafter
called the Charging Party or Company, alleging that the
International Association of Bridge, Structural and Orna-
mental Iron Workers, Local Union No. 125, herein called
Respondent, violated Section 8(b)(4)(i) and (ii)(D) of the
National Labor Relations Act, as amended.'
At the trial parties were afforded full opportunity to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally on the record, and to submit
briefs. Oral arguments were waived, but the General
Counsel, Charging Party, and Respondent filed briefs.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Company is a corporation duly organized under the
laws of the State of Nevada and is engaged in the building
and construction industry at various locations throughout
the United States, as a general industrial construction
contractor. The Company or Charging Party, all times
material herein has been engaged, pursuant to a multimil-
lion dollar contract with Texaco, Inc., in construction of
refinery facilities at Texaco's Port Arthur, Texas, refinery,
herein the Port Arthur site. In the preceding 12 months the
Charging Party, in the course and conduct of its business
operations described above, purchased and had delivered
to its Port Arthur site, goods, supplies, and materials valued
in excess of $50,000 directly from sources located outside
the State of Texas.
The Company is, as it admits, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
11. THE LABOR ORGANIZATIONS INVOLVED
The Respondent Union, and Millwrights' Local Union
No. 2484 of the United Brotherhood of Carpenters and
Joiners of America, herein called the Millwrights, are labor
organizations within the meaning of Section 2(5) of the Act.
The complaint was issued on April 17, 1970.
186 NLRB No. 128
IRON WORKERS , LOCAL UNION NO. 125 869
III. THE UNFAIR LABOR PRACTICES
In September 1969 the Company began work under a
contract with Texaco, Inc., for the construction of a
hydrocracking unit at Texaco's Port Arthur refinery.
Among others, the company employee craftsmen represent-
ed by both the Respondent and the Millwrights and both
these two labor organizations, through their respective
Internationals, are parties to collective-bargaining agree-
ments with the Charging Party, and such agreements call
for the submission of jurisdictional disputes to the National
Joint Board, herein the Joint Board, for the Settlement of
Jurisdictional Disputes.
Part of the work required on this job includes power
rigging of component parts of turbines, compressors, and
generators. Boyd Culter, resident construction manager of
the Company, described such work in the following terms.
The rigging of component parts mean hoisting by
crane or so-called cherry picker, mobile equipment,
crawler equipment, which is operated by an engineer.
The persons who are doing the rigging attach the slings,
chokers, belts, or whatever is required, and they also
give the signals to hoist, to lower, to swing, to raise
whatever is in the sling and hook into position for
erection at the final point of assembly . . . Not
necessarily the final securing, now but the lifting to this
position or lowering.
The Charging Party assigned the work of power rigging of
component parts to the Respondent on November 3, 1969,
in accord with area practice, and rigging work commenced
during the first part of December when the components of
a large compressor started arriving at thejobsite.2 By letter
dated December 17, 1969, Dove Sartin, business manager
for Millwrights, requested that the Company reassign the
power rigging of component parts to the Millwrights. The
Company declined this demand by a letter from Harry
Hines, assistant director of labor relations to Sartin dated
December 23, 1969. In this letter Hines reaffirmed the
Company's assignment of the disputed work to the
Respondent. Subsequently, the Millwrights referred this
matter to the Joint Board. It is undisputed that the
Company, Respondent, and Millwrights are a party to the
Joint Board's procedure. On January 23, 1970, the Joint
Board issued its decision in a letter from William Cour,
chairman, to the presidents of each of the labor organiza-
tions here involved, and to the Company. The decision of
the Joint Board stated as follows:
Following delivery of component parts of turbines,
compressors or machinery to the point of installation or
assembly point adjacent thereto, any further rigging by
any means required for the purpose of cleaning,
turning, fitting and assembly for final installation shall
be assigned to Millwrights on the basis of trade practice.
In other respects there is no basis to change the
contractor's assignment.
In accordance with this Decision the Millwrights performed
the disputed work until February 5, 1970, at which time the
Company received notification of Respondent's appeal of
the decision to the Appeals Board of the National Joint
Board. As previously agreed the component rigging was
then reassigned to the Respondent pending the outcome of
the Appeals Board. On March 6, 1970, the Appeals Board
issued its decision affirming that of the Joint Board, but
modifying it to the extent that "in the instance where power
equipment served by a full time crew of ironworkers is
available on the jobsite, then the responsible contractor
may elect to assign the power rigging and hoisting to this
crew and equipment."
On March 16, 1970, Cutler called the Respondent and
Millwright stewards into his office and gave them copies of
a telegram from his home office in which the work in
dispute was again assigned to the Millwrights. The
Respondent's steward, Oris Hester, then walked out of the
office and went immediately to a telephone, and soon
thereafter Cutler received a telephone call from Joe
Connor, business agent for the Respondent, protesting the
Company's assignment , and stating ". . . that I would
suffer drastic consequences." Soon thereafter, approxi-
mately 15 ironworkers employed by the Charging Party
departed from thejob, and later in the morning Cutler went
to the Company's construction gate and observed Oris
Hester, the Respondent's steward, carrying a picket sign
that said , "Ralph M . Parsons unfair to Iron Workers Local
125." The Company's other employees continued working
on the 16th, but during the next 2 days all crafts and various
subcontractors-about 310 employees-refused to cross the
picket line other than the Millwrights, and construction
operations ceased. During the picketing the sign was
changed to read, "Iron Workers Local 125 Striking Against
Ralph M. Parsons for Non-Compliance with the Appeals
Board Act." Picketing continued through March 18, but on
the morning of March 19, 1970, the picket was removed.
However, few were available for work on that day except
the Millwrights, but on the morning of March 20, 1970, the
picket did not appear and all crafts returned to work and
remained at work thereafter. Since that date the Millwrights
have continued to perform virtually all of the work in
dispute.
The Respondent argues that the Board does not have
jurisdiction to hear and determine a jurisdictional dispute
under Section 10(k) of the Act if all parties have agreed
upon a method of settling the jurisdictional dispute and
have agreed to be bound by the decision rendered, and
maintains that like a determination under Section 10(k) of
the Act the private aware can only be enforced through
self-help by the aggrieved Union. I reject this argument.
First of all it is noted that the Board has held that the Act
permits the institution of an 8 (b)(4)(D) complaint proceed-
ing without the prerequisite of a hearing and determination
under Section 10(k), when there exists a method of
voluntary adjustment agreed to by the parties but resort to
the agreed-upon method has failed to bring about a
voluntary adjustment of the dispute. See McCloskey & Co.,
147 NLRB No. 159, where the Board found that there was
an agreed-upon method for the voluntary adjustment of the
dispute binding upon the parties, namely, submission of the
dispute to the Joint Board sponsored by the Building and
Construction Trades Department, AFL-CIO However, the
2 The parties agree that the rigging and installation of previously
assembled equipment is not in dispute herein They further agree that no
one raised any objection to the above described assignment until
December 17, 1969
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board also found that method failed to produce an
adjustment of the dispute since the losing party did not
accept the determination. Issuance of the 8(b)(4)(D)
complaint was therefore considered appropriate without a
prior Board determination of the dispute through 10(k)
hearing.
When there is an agreed-upon method for adjusting the
dispute- it is only where an actual adjustment results that
Section 10(k) and the Board's regulations authorize
dismissal of the charge. Absent such actual adjustments a
complaint is authorized, and the Board has continued to
issue affirmative work assignment determinations in
accordance with the Supreme Court's Columbia Broadcast-
ing System decision, 364 U.S. 573. In the instant case the
decision by the Appeals Board does not resolve the dispute
in question.
Respondent's main defense is the assertion that the
Charging Party misapplied the intent of the words of the
Appeals Board, as aforestated. The Respondent contends
that there are full-time crews of ironworkers to perform the
work in dispute, and therefore the Company misinterpreted
the award and was in violation of the decision by the
Appeals Board when it awarded the work in question to the
Millwrights, and under such circumstances the Respondent
had a right to strike without being in violation of 8(b)(4)(D).
From the over-all aspects in this record the evidence
clearly reveals that the Company does not maintain a "full
time crew" to perform the rigging work in question, and
that no one is hired specifically to do only that work. Cutler
specifically testified that the Company does not have a full-
time crew of ironworkers to perform only rigging work.3
Cutler stated he would consider a full-time rigging crew to
be a crew of any craft who would be assigned full time to a
piece of power equipment, but testified that at the time
Hester is assigned to the cherry picker he also does welding
and various other jobs.4
However, even assuming arguendo, that the power
equipment or some of it is serviced at all times by a full-
time crew of ironworkers, the decision by the Appeals
Board still does not strictly obligate or compel the Charging
Party to assign the rigging of component parts to the
ironworkers because the Appeals Board decision extends
an option to assign the work-as the award provides that
the Company "may elect to assign." There is no indication
that such language was meant to be mandatory, nor should
this option be converted into a requirement-at most it
should be deemed advisory, and ironworker Hester has
been "rigging on a cherry picker" ever since he has been on
this job and admittedly was still doing so at the time of the
hearing. This fact reveals that the Company is exercising
permitted discretion under the award by the Appeals Board
and at least in one instance had continued to give the
rigging work to an ironworker where there might be some
justification for it.
As pointed out, this record reveals that Respondent had
not contemplated erecting a picket until the Charging Party
3 Respondent made an effort to prove through the testimony of Oris
Hester that power equipment was served by a full-time crew of
ironworkers . Hester testified he spent 90 percent of his time operating a
cherry picker and 10 percent "tending to union business ." Hester also
claimed that Acie Nobles and A. D. Phillips were the only men who
operated a particular Lorain crane. However, on cross-examination, Hester
made its assignment to the Millwrights on March 16, 1970,
and at which time Connors informed Cutler that the
Company would suffer "drastic consequences" for its
actions, and the consequences resulted when Respondent
immediately established the picket line, as aforementioned.
Respondent puts forth no other reason for the picket line
other than its dissatisfaction with the assignment of the
work in dispute to the Millwrights.
Section 8(bX4)(D) of the Act prohibits a labor organiza-
tion from engaging in or inducing strike action for the
purpose of forcing an employer to assign particular work to
"employees in a particular labor organization or in a
particular trade, craft, or class rather than to employees in
another labor organization or in another trade, craft, or
class, unless such employer is failing to conform to an order
of certification of the Board determining the bargaining
representative for employees performing such work."
The provision of this section protects the right of a union
to picket a work assignment in violation of a Board order or
certification, but as noted above, there is nothing in the Act
which protects the right of a union to picket an employer
where an object is the assignment of work, when the
assignment is allegedly in violation of a determination
made by an informal or private agency.
In the enactment of Section 8(b)(4)(D) of the Act-it was
clearly the Congressional intent to protect employers from
situations wherein they are faced with the competing
demands of rival unions. As pointed out, when an employer
knows that any choice as to who should be permitted to
perform the work will result in an attempt by the
disadvantaged rival to obstruct the operations of his
business by means of picketing or otherwise, he is impeded
from making assignments of the work.
In the final analysis and argument-the General Counsel
states as follows:
Where the union's object is to induce the employer to
reassign work to employees who are members of or
represented by another union, where that object is
effectuated through the use of threats, coercion and
picketing of the employer's site, as here and where no
contractual assignment, Board Order or certification
exists, there is a violation of Section 8(b)(4)(i)(ii)(D). It
is the object and the subsequent work stoppage that
establishes such violation, and whatever equities
Respondent might assert do not relieve it of liability. It
was unlawful to picket the Charging Party's gate herein,
notwithstanding that the work assignment may have
been in some fashion incorrect. To find otherwise would
permit Respondent to urge its case for the work through
coercive picketing, and thus, subvert the intent of
Section 8(b)(4)(D) of the Act.
Based upon this entire record, and after full considera-
tion of all relevant factors in accordance with the above, it
is found and concluded that Respondent violated Section
8(b)(4)(D) of the Act.
admitted that the cherry picker was operated by other crafts, that he did
other work besides operating a cherry picker, and that the Lorain crane
was also used by other crafts.
4 For purposes here an ironworker is capable of doing work of an
ironworker rodman . a sheeter , a rigger, a connector, a finisher, or a lay-out
man, and also erects and hangs steel.
IRON WORKERS , LOCAL UNION NO. 125 871
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices prescribed by Section 8(b)(4)(D) of the Act, it
will be recommended that Respondent cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Company is an employer within the meaning of
Section 2(2) of the Act and engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Respondents and the Millwrights are labor organiza-
tions within the meaning of the Act, and Connors is an
agent of the Respondent.
3. By the acts and conduct set forth
above-Respondent did engage in and induce and
encourage individuals employed by the Charging Party and
other persons engaged in commerce or in industries
affecting commerce, to engage in strike or refusal in the
course of their employment, to use, transport, or otherwise
handle or work on articles and materials or commodities or
perform services and have threatened, coerced, and
restrained the Company and other persons engaged in
commerce or in industries affecting commerce.
4. An object of the acts and conduct of Respondent
described above is the inducement and engagement of
strike action for the purpose of forcing the Charging Party
to assign the work in question to the Respondent rather
than to the Millwrights.
5. The Company has not failed to conform to an order
or certification of the Board determining the bargaining
representative for employees performing the work in
question.
6. By the acts and conduct set forth above, for the
objects set forth above, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(b)(4)(D) and Section 2(6) and (7) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act and
have a close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
RECOMMENDED ORDER
International Association of Bridge , Structural and
Ornamental Iron Workers , Local Union No. 125, its
officers , agents, successors , and assigns, shall:
1. Cease and desist from engaging in, inducing, and
encouraging individuals employed by persons engaged in
commerce or in an industry affecting commerce to engage
in a strike or refusal in the course of their employment to
use, manufacture , process, transport , or otherwise handle or
work on any goods, articles , materials , or commodities or to
perform services or threatening , coercing, and restraining
persons engaged in commerce or in an industry affecting
commerce, with the object of forcing or requiring Ralph M.
Parsons Company to assign to employees represented by
the Respondent the work in question under the particular
conditions and circumstances specifically detailed and
outlined herein.
2. Take the following affirmative action which will
effectuate the policies of the Act.
(a) Post at its office in Port Arthur, Texas, copies of the
attached notice marked "Appendix." 5 Copies of said
notice, on forms provided by the Regional Director for
Region 23, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced or covered
by any other material.
(b) Mail to the Regional Director for Region 23 signed
copies of the aforementioned notice for posting by the
Company and for distribution by the Company to persons
engaged in commerce or in industries affecting commerce
with whom it is doing business in the Port Arthur area,
copies of said notice, to be furnished by the Regional
Director for Region 23, shall, after being signed by the
Respondent as indicated, be forthwith returned to the
Regional Director for disposition by him.
(c) Notify the Regional Director for Region 23, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.6
5 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Sec . 102.48 of the Rules and Regulations , be adopted
by the Board and become its findings , conclusions , and order . In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board."
6 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director for
Region 23, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT engage in, induce, and encourage
individuals employed by persons engaged in commerce
or in an industry affecting commerce in, a strike or
refusal in the course of their employment to use,
manufacture, process, transport, or otherwise handle or
work on any goods, articles, materials, or commodities
or to perform services or threaten, coerce, and restrain
persons engaged in commerce or in an industry
affecting commerce, with the object of forcing or
requiring Ralph M. Parsons Company to assign to
employees represented by International Association of
Bridge, Structural and Ornamental Iron Workers, Local
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union No. 125, following delivery, the work of turbine
and generator components to the point of installation or
assembly point adjacent thereto , any further rigging by
any means required for the purpose of clearing except in
the instance where power equipment served by a full-
time crew of Ironworkers is available on the jobsite,
then the Company may elect to assign the power rigging
and hoisting to this crew and equipment.
Dated By
INTERNATIONAL
ASSOCIATION OF BRIDGE,
STRUCTURAL AND
ORNAMENTAL IRON
WORKERS, LOCAL UNION
No. 125
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office, 6617
Federal Office Building , 515 Rusk Avenue , Houston, Texas
77002, Telephone 713-226-4296.