Ironworkers, Local 405

National Labor Relations Board - Board Decisions

Mar 3, 1977

228 N.L.R.B. 573 (N.L.R.B. 1977)

IRONWORKERS , LOCAL 405 573
International Association of Bridge, Structural &
Ornamental Ironworkers Local 405 and Employing
Bricklayers Association of Delaware Valley, Inc.
and Anastasi Brothers Corporation and Interna-
tional Union of Bricklayers and Allied Craftsmen
Local No. 1 of Pennsylvania . Case 4-CD-412
March 3, 1977
engaged in commerce within the meaning of Section
2(6) and (7) of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find , that the
Ironworkers and the Bricklayers are labor organiza-
tions within the meaning of Section 2(5) of the Act.
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS , PENELLO, AND
WALTHER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Employing Bricklayers Associa-
tion of Delaware Valley, Inc., herein called the EBA,
alleging that International Association of Bridge,
Structural & Ornamental Ironworkers Local 405,
herein called Ironworkers, had violated Section
8(b)(4)(D) of the Act by engaging in certain
proscribed activity with an object of forcing or
requiring Anastasi Brothers Corporation, herein
called the Employer, to assign certain work to its
members rather than to employees represented by
International Union of Bricklayers and Allied
Craftsmen Local No. 1 of Pennsylvania, herein
called Bricklayers.
Pursuant to a notice, a hearing was held before
Hearing Officer John E. Bowders on October 26 and
27, 1976. All parties appeared at the hearing and
were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce
evidence bearing on the issues. Thereafter, briefs
were filed by the Employer and EBA jointly and by
the Ironworkers.
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 proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the
Employer is a Pennsylvania corporation engaged in
the masonry construction business. During the past
12 months, the Employer has purchased goods and
services from outside the Commonwealth of Pennsyl-
vania having a value in excess of $50,000. The parties
also stipulated, and we find, that the Employer is
228 NLRB No. 63
III. THE DISPUTE
A. Background and Facts of the Dispute
Joseph Casacio and Sons, herein called Casacio,
operates as owner, developer and general contractor
for the 10-story Evergreen Towers Apartment com-
plex currently being built in Philadelphia, Pennsylva-
nia. Utilizing an increasingly popular construction
technique for large scale commercial structures,
Casacio has planned to have load-bearing masonry
walls support the weight of Evergreen Towers above
its poured concrete foundation, instead of the more
conventional steel skeleton support system. The load-
bearing masonry construction process in this in-
stance involves: (1) laying hollow-chambered con-
crete blocks course upon course from floor or
foundation to the ceiling of each story; (2) placing
vertical and horizontal steel reinforcing rods at
designated intervals within the block wall's interior;
and (3) filling each 1-story wall, whose hollow-
chambered components are vertically aligned, with a
reinforcing grout mixture. The use of steel rods and
grout as reinforcing materials eliminates the need to
correlate the thickness of load-bearing masonry walls
to a building's height, an expensive and inefficient
practice requiring abnormally thick walls for struc-
tures of any significant size . Brick wall facades are
overlaid upon the cement block walls for ornamental
purposes, but they serve no structural support
function.
Casacio has subcontracted to the Employer the
performance of all brick and cement block wall
construction for Evergreen Towers. The Employer
employs members of the Bricklayers to do its
masonry work in accord with the terms of a contract
between Bricklayers and the multiemployer EBA,
which represents the Employer and numerous other
Delaware Valley area masonry contractors for
collective-bargaining purposes. The Gunite Corpora-
tion, another subcontractor at the Evergreen Towers
construction site, is responsible for the framing and
pouring of concrete foundations. Gunite employs
members of the Ironworkers to cut, bend, tie, and
otherwise handle steel rods used in the internal
reinforcement of such foundations. The Employer
does not employ members of Ironworkers, and
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
neither the Employer nor the EBA has a collective-
bargaining agreement with the Ironworkers.
The Employer began work on the Evergreen
Towers project on August 2, 1976,1 at which time
members of Ironworkers in Gunite's employ were
already engaged in rodsetting during the foundation
work. Having preliminary layout work to do, the
Employer scheduled the actual laying of block walls
and placing of reinforcing rods therein to begin on
August 19. Shortly after August 2, the Ironworkers
shop foreman at the site contacted the Bricklayers
shop foreman and ascertained that the Employer
intended to have members of Bricklayers handle all
phases of masonry wall construction, including the
rodsetting function. At the behest of Ironworkers
representatives, a member of the Casacio family (the
record is unclear as to whom) thereafter contacted
the Employer and arranged a meeting with the
Ironworkers business agent for the afternoon of
August 19. The Ironworkers alleges that Casacio
assured them no reinforcing rod work would be done
by the Employer prior to this meeting, but Charles
Anastasi, the Employer's executive vice president,
denied any understanding that such work was to be
postponed.
On August 18, Gunite Corporation, having per-
formed its subcontract, laid off those members of
Ironworkers who had been setting rods for it.
Members of Bricklayers employed by the Employer
began laying block and setting rods as scheduled in
the morning of the next day, August 19. Within 2
hours, members of the Ironworkers had established a
picket line at the construction site. The Ironworkers
business agent, Benny Pino, Jr., admitted for the
record that he directed the establishment of this
picket line, which effectively obstructed the entrance
through which trucks delivering materials to the
Employer had to pass.
The afternoon meeting previously arranged for
August 19 never took place. However, shortly after
the commencement of picketing, a series of conversa-
tions ensued in which the participants at various
times were one of the Casacios, Charles Anastasi,
Pino, and Rudolph Hagan, the Bricklayers business
representative. During these occasionally heated
discussions, Pino steadfastly set forth his claim that
the disputed rodsetting work should be assigned to
members of Ironworkers. In reply, Hagan claimed
the assignment for Bricklayers, while Casacio,
professing the inability to effect- changes in his
subcontractor's work assignments , offered to carry a
member of Ironworkers on his own payroll. Pino
rejected Casacio's offer with the explanation that
such an employee would do nothing and he felt the
Ironworkers was legally entitled to actually perform
the tasks of handling and placing the reinforcing rods
in the masonry walls.
Ironworkers picketed the Employer's jobsite from
August 19 through 24. Picketing ceased upon the
filing of the charge in this proceeding by the EBA.
Stanley Casacio, president of the family-owned and
-operated Casacio firm, estimated at the hearing that
completion of construction at Evergreen Towers
would not occur until spring 1977, although the
Employer was tentatively scheduled to finish its work
by December 15.
B. The Work in Dispute
The work in dispute involves the placement of
horizontal and vertical steel reinforcing rods associ-
ated with the construction of load-bearing masonry
walls.
C. Contentions of the Parties
The Employer, EBA, and Bricklayers all contend
that the Ironworkers violated Section 8(b)(4)(D) of
the Act by seeking to compel the assignment of the
disputed work to members of the Ironworkers. They
further maintain that the Bricklayers should be
awarded the work in dispute because of: (1) the
contractual relationships between the parties; (2) the
Employer' s assignment ; (3) company and industry
practice; and (4) relative skills, efficiency, and
economy of operations. The Ironworkers contends
that its members should be awarded the disputed
work on the basis of factors including past practice in
the industry, economy and efficiency of operation,
and prior rulings by the Impartial Jurisdictional
Disputes Board.
D. Applicability of the Statute
Before the Board may proceed to a determination
of the dispute under 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 upon a method for the
voluntary adjustment of the dispute.
The record indicates and Ironworkers does not
deny that its representatives sought and demanded
from the Employer the assignment of the work in
dispute. It is also uncontroverted that the Ironwork-
ers picketed the Employer's jobsite from August 19
through 24, 1976, with the object of forcing the
Employer to reassign the disputed work to members
of Ironworkers. On the basis of the entire record, we
I Hereinafter, all dates are in 1976, unless otherwise indicated.
IRONWORKERS , LOCAL 405
find there is reasonable cause to believe that Section
8(b)(4)(D) has been violated.
Although the Ironworkers and the Bricklayers have
agreed to be bound by determinations of the
Impartial Jurisdictional Disputes Board, the Employ-
er itself is not bound by this method of adjusting
disputes. It is therefore clear that there exists no
agreed-upon method for the voluntary adjustment of
the dispute within the meaning of Section 10(k) of
the Act. Accordingly, we find that this dispute is
properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work after giving
due consideration to various factors.2 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.3
The following factors are relevant in making the
determination of the dispute before us.
1. Board certification and collective-
bargaining agreements
All parties stipulated that the Employer is not
failing to conform to an order or certification of the
Board determining the bargaining representative for
the employees performing the work in dispute.
As a member of a multiemployer bargaining unit,
the Employer contends that the current collective-
bargaining agreement between the EBA and the
Bricklayers requires assignment of the entire mason-
ry wall construction process to employees represent-
ed by Bricklayers. Article 14.1 of the current contract
states that "all mason work coming under the
jurisdiction of the Bricklayers, Masons and Plasterers
International Union of America . . . shall be done
by bricklayers and shall include without limitation
the following: . . . the laying of cement
blocks. . . ." Although the language of this article
contains no specific reference to the placement of
reinforcing rods within cement block walls, the
Employer and EBA assert that this procedure is
integrally related to masonry work which is specifi-
cally covered. As previously noted, neither the
Employer nor the EBA has a collective-bargaining
agreement with the Ironworkers.
We find this factor favors awarding the disputed
work to employees represented by Bricklayers.
2 N.L R B. v. Radio & Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 U.S. 573 (1961).
575
2. The Employer's assignment and past
practice
As it has done without exception in the numerous
past occasions on which it has been involved in load-
bearing masonry wall construction, the Employer has
assigned the work in dispute to its employees who are
represented by the Bricklayers. Accordingly, the
Employer has never employed workers represented
by Ironworkers to perform such work. We find that
this factor favors an award to the employees
represented by the Bricklayers.
3. Area and industry practice
The Ironworkers contends that load-bearing ma-
sonry wall construction is not materially distinguish-
able from poured concrete construction in which the
employees it represents have traditionally performed
all reinforcing rod work. In this regard, the Iron-
workers notes that the masonry walls at the Ever-
green Towers site were begun by fitting cement
blocks over reinforcing rods projecting from the
foundation. Those rods were set by employees of
Gunite Corporation represented by the Ironworkers.
The record indicates, however, that while poured
concrete and reinforced cement block structures may
resemble each other in their components and in their
finished state, subcontractors within the construction
industry make sharp distinctions between the pro-
cesses used in building each type of structure.
With respect to the masonry wall construction
industry, the Employer and EBA presented as
witnesses four presidents of area masonry contract-
ing firms, including the Employer, who collectively
testified that they have been involved in many load-
bearing masonry construction projects and have
always assigned to employees represented by Brick-
layers the installation of reinforcing rods within the
cement block walls they were building. None of these
witnesses had ever assigned rodsetting work to
Ironworkers, although Richard Aronson, president
of Jack Caspar Company, testified that his company
had participated as masonry subcontractor on one
project, the construction of a bulk mail center in
Philadelphia, where the general contractor employed
an ironworker to do this work pursuant to a
settlement agreement to which the masonry subcon-
tractor was not a party.
Two representatives of the Bricklayers with exten-
sive experience in the masonry construction industry
stated at the hearing that employees represented by
Bricklayers had handled the work in dispute herein
on all jobs with which they are familiar. On the other
3 International Association of Machinists, Lodge No. 1743, AFL-CIO (J
A Jones Construction Company), 135 NLRB 1402 (1962)
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hand , Ironworkers Business Agent Pino testified
specifically that employees represented by Ironwork-
ers performed such work on eight area projects which
are now completed, but he admitted that employees
represented by Bricklayers were handling reinforcing
rods on at least five current masonry wall construc-
tion jobs.
We find that the weight of the evidence relative to
the factors of area and industry practice favors the
Bricklayers claim to the disputed work.
4. Relative skills
The Ironworkers contends that the employees it
represents possess superior skills in the handling,
bending, cutting, and tying of reinforcing rods since
they have traditionally performed such tasks as part
of their craft. There is, however, uncontroverted
record testimony in this case that the individuals
assigned the work in dispute must do little more than
pick up the precut reinforcing rod and place it
horizontally or vertically into slots in the cement
block wall. Rods are rarely cut or bent at the jobsite,
and are never tied in this type of construction. In
addition , a mason 's skills are sometimes required to
alter the configuration of a block in order to fit the
reinforcing rod properly within the wall.
We conclude from the entire record that neither
union can claim superior skills with regard to the
work in dispute. Accordingly, we find that this factor
does not favor an award to employees represented by
either party.
5. Economy and efficiency of operation
According to the record, the Employer has several
teams of bricklayers laying block simultaneously at
different locations around the Evergreen Towers
construction site . Mason tenders bring reinforcing
rods to these locations along with other necessary
masonry materials . The rods are usually inserted in
place only when the completed wall section has
reached the height of a half or full story. According-
ly, a very small fraction of each workday is spent
handling and installing reinforcing rods. The Em-
ployer and EBA contend that inefficiencies will arise
from the assignment of the disputed work to an
employee represented by Ironworkers because: (1) if
masons at different locations simultaneously arrive at
the point at which they must install reinforcing rods,
someone will have to wait while the ironworkers
attends to another; and (2) an employee whose sole
task involves rodsetting will not have any work to do
for much of each workday.
The Ironworkers contends that bricklaying crews
could more efficiently lay the block walls in a
sequential "assembly line" fashion so that an
employee represented by Ironworkers, skilled in the
craft of rodsetting, could allegedly move quickly
from one wall to another and install rods without
delay. It is not clear, however, whether this proposed
procedure would keep the Ironworkers employee
busy throughout the day. Furthermore, Ironworkers
Business Agent Pino admitted that delays might still
result while masons at various locations awaited the
rodsetter's arrival.
It is clear that assignment of the work in dispute to
employees by the Ironworkers would pose an
additional economic burden on the Employer.
Although it would have to add at least one more
employee to its payroll, the Employer could not
dispense with any of its present employees even if
they were no longer responsible for the work in
dispute.
We find that the factors of economy and efficiency
of operation favor an award of the disputed work to
employees represented by the Bricklayers.
6. Joint Board determinations
In support of its claim to the work in dispute,
Ironworkers cites a March 11 , 1920, Joint Board
Decision awarding work jurisdiction over "all iron
and steel used for re-enforcement in re-enforced
concrete, cement and floor construction" to the
Ironworkers. It further cites decisions rendered by
the Impartial Jurisdictional Disputes Board on
January 23 and September 25, 1975, which awarded
installation of vertical reinforcing bars in cement
block walls to Ironworkers rather than Bricklayers.
However, the latter decision, which had been
expressly predicated upon the 1920 award, was
reversed upon appeal on October 23, 1975, and
Bricklayers was awarded the assignment of placing
reinforcing rods in the walls. We therefore find that
this factor does not support the claim to the work in
dispute by employees represented by the Ironwork-
ers.
Conclusion
Upon the record as a whole, and after full
consideration of all relevant factors involved, we
conclude that the Employer's employees who are
represented by International Union of Bricklayers
and Allied Craftsmen Local No. 1 of Pennsylvania
are entitled to the work in dispute. We reach this
conclusion relying on the specific factors of the
current collective-bargaining agreement between the
EBA and Bricklayers, the Employer's assignment
and past practice, area and industry practice, and the
economy and efficiency of the Employer's operation.
In making this determination, we are awarding the
work in question to employees who are represented
IRONWORKERS , LOCAL 405 577
by International Union of Bricklayers and Allied
Craftsmen Local No. 1 of Pennsylvania, but not to
that Union or its members. The present determina-
tion 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 Anastasi Brothers Corporation,
who are represented by International Union of
Bricklayers and Allied Craftsmen Local No. 1 of
Pennsylvania, are entitled to perform the placement
of horizontal and vertical steel reinforcing rods
associated with the construction of load-bearing
masonry walls at the Employer's Evergreen Towers
construction site in Philadelphia, Pennsylvania.
2. International Association of Bridge, Structural
& Ornamental Ironworkers Local 405 is not entitled
by means proscribed by Section 8(b)(4)(D) of the Act
to force or require Anastasi Brothers Corporation to
assign the disputed work to employees represented
by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, International Associ-
ation of Bridge, Structural & Ornamental Ironwork-
ers Local 405 shall notify the Regional Director for
Region 4, in writing, whether or not it will refrain
from forcing or requiring the Employer, by means
proscribed by Section 8(b)(4)(D) of the Act, to assign
the disputed work in a manner inconsistent with the
above determination.