Iron Workers Union, Local 118, International Association Of Bridge, Structural And Ornamental Iron Workers, Afl--Cio

National Labor Relations Board - Board Decisions

Mar 26, 1990

297 N.L.R.B. 1040 (N.L.R.B. 1990)

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1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Iron Workers Union, Local 118, International Asso-
ciation of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO and Kaweah Con
struction Company and Millwrights Union,
Local 102, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO Case 20-
CD-666
March 26, 1990
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
The charge in this Section 10(k) proceeding was
filed on October 13, 1989, by the Employer,
Kaweah Construction Company (Kaweah), alleg-
ing that the Respondent, Iron Workers Union,
Local 118, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-
CIO (Iron Workers), violated Section 8(b)(4)(D) of
the National Labor Relations Act by engaging in
proscnbed activity with an object of forcing or re
quiring the Employer to assign certain work to em-
ployees it represents rather than to employees rep
resented by Millwrights Union, Local 102, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO (Millwrights) The hearing was held
January 3, 1990, before Hearing Officer Harvey R
Dasho Iron Workers and Millwrights chose not to
attend the hearing 1 The Employer filed a posth-
earmg brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three-
member panel
The Board affirms the hearing officer's rulings,
finding them free from prejudicial error On the
entire record, the Board makes the following find-
ings
I JURISDICTION
The Company, a California corporation, is en-
gaged in the construction industry at its facility in
Sacramento, California, where it annually pur-
chases and receives goods and materials valued in
excess of $50,000 directly from suppliers located
outside the State of California We find that the
Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
Iron Workers and Millwrights are labor orgamza-
' Millwnghts and Iron Workers were duly served in advance of the
hearing with and acknowledged receipt of a notice of hearing the order
rescheduling the hearing and a copy of the charge Neither party ap
peared at the hearing or filed a bnef with the Board Counsel for both
Millwnghts and Iron Workers specifically Informed the hearing officer
on the day of the hearing that he represented both Unions but that nei
ther he nor the Unions Intended to participate in the hearing
tons within the meaning of Section 2(5) of the
Act
II THE DISPUTE
A Background and Facts of Dispute
Kaweah is a concrete-mechanical contractor en
gaged in the construction of sewage and water
treatment plants In February 1989, 2 Kaweah
began work on the Vacaville Easterly Wastewater
Treatment Plant (the Vacaville project) for the city
of Vacaville, California The project consists of the
expansion of an existing waste water treatment
plant and includes the installation of a vanety of
mechanical equipment Kaweah performs all of its
own installation work utilizing its own employees
who are represented by the Millwrights Kaweah
subcontracts its ironwork on the Vacaville project
to Ormega-Cal Industries and Craneveyor Inc
The subcontractors employ employees represented
by the Iron Workers Kaweah does not directly
employ ironworkers
In August, the Employer was in the process of
installing dissolved air flotation thickener (DAFT)
equipment at the Vacaville jobsite The Employer
assigned this work to its own employees represent-
ed by Millwrights On August 9, Iron Workers
Representative Sven Sorensen came to the jobsite
to speak with Project Manager Michael Viten°
about the assignment of the DAFT equipment in-
stallation When told by Vitello's secretary that he
was in a meeting, Sorensen threatened to "shut the
job down" unless Vitello spoke with him immedi
ately Vitello agreed to speak with Sorensen, who
demanded that an ironworker be assigned to the
DAFT equipment installation Vitello refused this
demand, mformmg Sorensen that this work had
always been done by employees represented by
Millwrights and that placing an ironworker on the
job was contrary to the Employer's previous prac
tice Viten° eventually agreed, at Sorensen s insist-
ence, to permit the DAFT installation work to be
performed by a composite crew consisting of one
employee represented by Iron Workers and one
employee represented by Millwrights Kaweah en-
tered into a special agreement with one of its sub-
contractors, Ormega Cal Industries, to place an
ironworker on the composite crew
After this incident, the Employer decided to
make an affirmative assignment of the Vacaville
project installation work to employees represented
by Millwrights Local 102 By letter dated Septem
ber 25, the Employer assigned to its employees
represented by Local 102 "all digester dome work,
2 All subsequent dates are in 1989 unless otherwise indicated
297 NLRB No 175
IRON WORKERS LOCAL 118 (KAWEAH CONSTRUCTION) 1041
DAFT equipment, walkways, cranes, bar screens,
and clarifiers on the Vacaville project" Local 102
accepted this work by letter dated October 4
On October 6, Sorensen returned to the jobsite
accompanied by Iron Workers Representative Jim
Murphy By this time, the Employer had ceased
using an ironworker on the installation of the
DAFT equipment, and had begun the installation
of a digester dome with its own employees repre-
sented by Millwrights Sorensen and Murphy ques-
tioned why an ironworker was not doing this
work Viten() informed them that Kaweah had
always used employees represented by Millwrights
on digester dome installation work
Sorensen and Murphy demanded that Vitello
sign what they referred to as an "iron workers
agreement," which Viten° refused to do Vitello
and his project engineer informed Sorensen and
Murphy that the Employer had no intention of al-
lowing ironworkers to do any further installation
work on the Vacaville project Sorensen reap-
peared on October 12 to ask if the Employer was
going to do the digester dome work with its own
employees or contract it out Sorensen was told the
Employer would perform the work with its own
employees represented by Millwnghts On October
13, Iron Workers picketed the jobsite at three loca-
tions with signs saying "Kaweah Construction Co
No Agreement Unfair to Iron Workers Local 118"
When Vitello queried Sorensen about the picket-
ing, Sorensen replied that Kaweah was doing iron-
workers work without an agreement Because of
the picketing, ironworkers, electncians, and 10 to
15 of Kaweah's own employees did not work that
day
On October 13, the general president of the
International Association of Bndge, Structural and
Ornamental Iron Workers, on behalf of Local 118,
filed a grievance against the Employer and
Ormega-Cal Industnes with the Plan for Settlement
of Jurisdictional Disputes in the Construction In-
dustry The grievance alleged that the Employer
made an assignment of work at the Vacaville
project and that Ormega-Cal Industries "changed
that assignment to the Carpenters"
B Work in Dispute
At the heanng the Employer maintained that the
description of the work in dispute as contained in
the notice of hearing was too broad and moved
that the description of the disputed work be
amended The Employer refers to its description of
the work an the September 25 affirmative assign-
ment of the work to Millwrights Local 102 and to
the description of the work in the grievance filed
by the Iron Workers There was no opposition to
,
this motion at the hearing Accordingly, the Em-
ployer's motion to amend the description of the
work in dispute, to read as follows, is granted The
disputed work involves all work relating to the un-
loading, rigging and installation of equipment, in-
cluding digester domes, dissolved air flotation
thickeners (DAFT equipment), cranes, conveyers,
bar screens, and clarifiers, in sewage treatment and
water treatment plants located at the Vacaville
Water Treatment Plant, Vaca Station Road,
Elmira, California
C Contentions of the Parties
' The Employer contends that the disputed work
should be awarded to employees represented by
Millwrights based on its preference, its collective-
bargaining agreement with the Millwrights, and its
prevailing practice, as well as area and industry
practice, economy, and efficiency
D Applicability of the Statute
Before the Board may proceed with a determina-
tion of the 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 and that the parties have not agreed on a
method for the voluntary adjustment of the dis-
pute
On the basis of the October 13 picketing by Iron
Workers and its claims for the installation work,
we find reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred and that there
exists no agreed method for the voluntary adjust-
ment of the dispute within the meaning of Section
10(k) of the Act Accordingly, we find that the dis-
pute is properly before the Board for determma-
tioir
E Merits of the Dispute
-
Section 10(k) requirei 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 junsdictional dispute is an act of judgment based
on common sense and expenence, 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
1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Certifications and collective bargaining
agreements
The Board has not certified either the Mill-
wrights or the Iron Workers as collective bargain
mg representative of any of the Employer's em-
ployees The Employer is a member of the Associ-
ated General Contractors of California, Inc. which
maintains a contract with the Millwrights The
Employer does not have a contract with the Iron
Workers Although the Employer argues that, by
virtue of its contract with Millwrights, this factor
favors an award to its employees, the Employer
has not cited any provision of the contract specifi-
cally covering the disputed work Thus, we fmd
that this factor is not helpful to a determination
2 Company preference and past practice
Wiliam Murray Lyles, division manager of the
Employer's Sacramento, California office, and an
assistant vice president of the Employer, testified
that the Employer has used employees represented
by Millwnghts since it was founded in the early
1950s to perform the installation of equipment nec-
essary to a sewer treatment plant The Employer
states that it prefers using employees represented
by Millwrights Accordingly, this factor favors an
award of the disputed work to employees repre-
sented by Millwrights
3 Area and industry practice
Lyles testified that he was not aware that any of
the Employer's competitors in the industry used
ironworkers to perform the disputed work Em-
ployees employed by the Employer who have
worked for other construction employers told
Lyles that their past employers employed Mill-
wrights, not ironworkers, to perform the disputed
work This testimony is unrebutted Accordingly,
although we find that the evidence is insufficient to
establish a prevailing industry practice, we con-
clude that the factor of area practice favors an
award of the disputed work to employees repre-
sented by Millwrights
4 Relative skills
Lyles testified that employees represented by
Millwrights are trained in the installation of much
of the equipment necessary to a sewer treatment
plant and that Millwrights are "the single trade
that is really equipped for all aspects of [the Em-
ployer's] equipment installation" Lyles indicated
employees represented by Millwrights possess, be
cause of their training, special skills required for
the precise installation of equipment Lyles testified
that to his knowledge, these special skills are not
skills that ironworkers are trained in "and if they
are it's just one small part of their training' Lyles
testimony is unrebutted Accordingly, this factor
favors an award of the disputed work to employees
represented by Millwrights
5 Economy and efficiency of operations
Lyles testified that it is more economical for the
Employer to use employees represented by Mill-
wnghts than it is to use ironworkers When em-
ployees represented by Millwrights are not per-
forming the work in dispute, they are capable of
performing additional installation work that iron-
workers cannot do, such as the installation of
pumps, gates, heat exchangers, and air compres-
sors The Employer finds it more economical to
perform all this work itself rather than to subcon-
tract this additional work Accordingly, we find
this factor favors an award of the disputed work to
employees represented by Millwrights
Conclusions
After considering all the relevant factors, we
conclude that employees represented by Mill-
wrights are entitled to perform the work in dispute
We reach this conclusion relying on employer pref-
erence and past practice, area practice, relative
skills, and economy and efficiency of operation In
making this determination, we are awarding the
work to employees represented by the Millwrights
and not to that Union or its members The determi-
nation is limited to the controversy that gave nse
to this proceeding 3
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
followmg Determination of Dispute
1 Employees of Kaweah Construction Company
represented by Millwrights Union, Local 102,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO are entitled to perform all
work relating to the unloading, rigging, and instal-
lation of equipment, including digester domes, dis-
solved air flotation thickeners (DAFT equipment),
cranes, conveyers, bar screens, and clanfiers, in
sewage treatment and water treatment plants locat
ed at the Vacaville Water Treatment Plant, Vaca
Station Road, Elmira, California
2 Iron Workers Union, Local 118, International
Association of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to
3 The Employer s request for a broad order is demed Contrary to the
Employer s contention the record does not support a finding that the chs
pute is likely to recur and that the Respondent has demonstrated a pro
chvity to violate the Act See Laborers Local 22 (AGC of Massachusetts)
283 NLRB 605 608 (1987)
IRON WORKERS LOCAL 118 (KAWEAH CONSTRUCTION) 1043
force the Employer to assign the disputed work to
employees represented by it
3 Within 10 days from this date, Iron Workers
Union, Local 118, International Association of
Bridge, Structural and Ornamental Iron Workers,
AFL-CIO shall notify the Regional Director for
Region 20 m wntmg whether it will refrain from
forcing the Employer, by means proscnbed by Sec
non 8(b)(4)(D), to assign the disputed work in a
manner inconsistent with this determination
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