Ironworkers Local No. 395, International Association Of Bridge, Structural And Ornamental Iron Workers, Afl-Cio

National Labor Relations Board - Board Decisions

Mar 10, 1988

288 N.L.R.B. 25 (N.L.R.B. 1988)

IRON WORKERS LOCAL 395 (CALUMET FLEXICORE) 25
Ironworkers Local No. 395, International Associa-
tion of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO and Calumet Flexicore
Corporation and Laborers International Union
of North America, Local No. 41. Case 13-CD-
398
March 10, 1988
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
The charge in this Section 10(k) proceeding was
filed October 27, 1987, by the Employer, Calumet
Flexicore Corporation, alleging that the Respond-
ent, Ironworkers Local No. 395, International As-
sociation of Bridge, Structural and Ornamental
Iron Workers (Iron Workers), violated Section
8(b)(4)(D) of the National Labor Relations Act by
engaging in proscribed activity with an object of
forcing the Employer to assign certain work to em-
ployees it represents rather than to employees rep-
resented by Laborers International Union of North
America, Local No. 41 (Laborers).' The hearing
was held November 12, 1987, before Hearing Offi-
cer Julie K. Hughes. Thereafter, the Employer
filed a brief in support of its position.2
The National Labor Relations Board has delegit-
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, an Indiana corporation, is en-
gaged in the manufacture and installation of pre-
cast, hollow core concrete slabs ("Flexicore" by
trade name), with a principal place of business in
Hammond, Indiana. The parties stipulated that
during the year preceding the hearing, the Employ-
er purchased and received at its Indiana construc-
tion sites goods and materials valued in excess of
$50,000 from suppliers located outside the State of
Indiana. The parties further stipulated, and we find,
that the Employer is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and
that the Iron Workers and the Laborers are labor
organizations within the meaning of Section 2(5) of
the Act.
1 The Employer filed an amended charge, not affecting the substance
of the original charge, on November 12, 1987.
2 Respondent Iron Workers' brief, untimely submitted, has not been
considered in this proceeding.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer performs contracts for the manu-
facture of Flexicore concrete slabs and for the de-
livery and installation of its product at various con-
struction sites. The slabs are used for flooring in
building structures. The installation process in-
volves hoisting the slabs from a truck with the use
of a crane and hand signals; the setting, placement,
cutting, and leveling of the slabs within the struc-
ture under construction; and the application of
grout to the slabs.
On October 26, 1987, the Employer was in the
process of installing 53 Flexicore slabs at the Waste
Water Treatment plant in East Chicago, Indiana.
The Employer's crew consisted of a foreman, Bob
Fields, and four laborers, all permanent employees
of the Employer. The Employer's truckdriver, a
teamster, and its crane operator, an operating engi-
neer, also participated; however, their work is not
at issue in the proceeding. The crew had hoisted
and set one slab when four ironworkers jumped on
the Employer's truck. Two of them sat down on
the next slab to be unloaded, thereby preventing
the job from continuing. The ironworkers claimed
the work of installing the slabs and asked Fields to
stop installing them until the Iron Workers business
agent arrived. The business agent, James Strayer,
arrived a short time later, carrying "documenta-
tion" in the form of reports of various jurisidic-
tional dispute boards concerning awards of similar
work to ironworkers. With the ironworkers re-
maining on the truck, Strayer spoke by telephone
with the Employer's president, Carl Carlsson.
Strayer claimed the installation work for the iron-
workers and Carlsson rejected the claim. In view
of the safety problems created by the ironworkers
on the truck, Carlsson ordered Fields to leave the
jobsite. Fields proceeded to do this, chaining down
the slabs still on the truck and departing with the
truck and his crew. The ironworkers climbed
down from the truck when it was apparent that the
Employer's crew was leaving. The entire incident
lasted about 1 hour.
B. Work in Dispute
The disputed work is the installation of hollow
core, precast concrete, Flexicore slabs at the Waste
Water Treatment plant for the East Chicago con-
struction site located at 4527 Indianapolis Boule-
vard, East Chicago, Indiana.
C. Contentions of the Parties
The Employer contends that the disputed work
should be awarded to its employees represented by
288 NLRB No. 7
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Laborers in view of the following factors: its
collective-bargaining agreement with the Laborers
covering the work in dispute and the absence of
any relevant collective-bargaining agreement be-
tween the Employer and the Iron Workers; the
Employer's traditional assignment of the work to
employees represented by the Laborers and its
preference for that assignment; area and industry
practice; economy and efficiency; requisite skills;
and prior decisions of the National Labor Relations
Board. The Iron Workers contends that the factors
of collective-bargaining agreements, area and in-
dustry practice, the Employer's preference, neces-
sary skills, and previous jurisdictional dispute board
determinations support an award of the disputed
work to employees represented by the Iron Work-
ers.
D. Applicability of the Statute
On October 26, 1987, the Iron Workers claimed
the work in dispute and caused a work stoppage of
the Employer's employees engaged in the disputed
work, with an object of compelling an assignment
of the work to employees represented by the Iron
Workers. In light of the above, we find reasonable
cause to believe that a violation of Section
8(b)(4)(D) has occurred. The parties stipulated that
there is no agreed method binding all the parties
for a voluntary adjustment of the dispute. Thus, we
find that there exists no method for voluntary ad-
justment of the dispute within the meaning of Sec-
tion 10(k) of the Act. Accordingly, we find that
the dispute is properly before the Board for deter-
mination.
E. Merits of the Dispute
Section 10(k) requires 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 jurisdictional dispute is an act of judgment based
on common sense and experience, reached by bal-
ancing the factors involved in a particular case.
Machinists Lodge 1 743 (J. A. Jones Construction),
135 NLRB 1402 (1962).
The following factors are relevant in making the
determination of this dispute.
1. Collective-bargaining agreements3
The Employer and Laborers Local 41 are parties
to a collective-bargaining agreement which was ini-
3 The parties stipulated that there is no certification or order of the
National Labor Relations Board relevant to the determination of this dis-
pute.
tinily effective from June 1, 1985 through May 31,
1987, and which was extended by the parties'
agreement through May 31, 1988. The geographi-
cal jurisdiction of Laborers Local 41 covers the
site of the disputed work, East Chicago, Indiana.
The work coverage clause of the agreement states,
in relevant part, that the laborers' work includes:
Where pre-stressed or precast concrete slabs,
walls or sections are used, all loading, unload-
ing, stockpiling, hooking on, signaling, un-
hooking, setting and barring into place of such
slabs, walls or sections; all mixing, handling,
conveying, placing and spreading of grout for
any purpose, green cutting of concrete or ag-
gregate in any form by hand, mechanical
means, grindstones or air or water.
Thus the agreement between the Employer and the
Laborers clearly covers the work in dispute.
The Employer is also a party to a "Compliance
Agreement" with Iron Workers Local 1 which is
effective in certain parts of the State of Illinois.
• Under this agreement, when the Employer installs
its product within the covered Illinois areas, it
must include two employees represented by the
Iron Workers in its crew. The ironworkers perform
only a part of the installation work, with laborers
carrying out the rest of the installation. It is appar-
ent that the Compliance Agreement was the result
of an arrangement between the Iron Workers and
the Laborers with respect to the Illinois locations.
Carlsson, the Employer's president, testified that he
honors the Compliance Agreement not because he
prefers to use ironworkers as part of the installation
crew, but because he must use them to complete
installation jobs in the Illinois locations covered by
the agreement. Iron Workers Local 395, which has
claimed the disputed work in this proceeding, is
not a party to the Compliance Agreement. Further,
that agreement is not effective in East Chicago, In-
diana, the location of the disputed work.
In light of the above, we find that the factor of
collective-bargaining agreements favors an award
of the disputed work to employees represented by
the Laborers.
2. Company preference and past practice
It has been the Employer's practice for 40 years
to assign to employees represented by the Laborers
the work of installing its product in the State of In-
diana, which includes the location of the disputed
work. The Employer's preference is to assign the
work to employees represented by the Laborers, in
view of its past practice, and because its installation
crews of laborers are made up of permanent em-
ployees with an average individual tenure with the
IRON WORKERS LOCAL 395 (CALUMET FLEXICORE) 27
Employer of 20 years. The Employer contends that
the experience of its permanent Laborer crews pro-
motes continuity from job to job and flexibility and
teamwork on each job, as well as the economical,
efficient, safe completion of the work.
The Iron Workers contends that the Employer
has demonstrated a preference for assignment of
the work to employees represented by the Iron
Workers by its use of ironworkers in Illinois, and
that its use of the same ironworker employees from
job to job in Illinois demonstrates a stable work
force of ironworkers. However, Carlsson testified
that the use of ironworkers is not a matter of pref-
erence but of necessity, to complete jobs in the Illi-
nois locations covered by the Compliance Agree-
ment, and that the ironworkers perform only a part
of that installation work while laborers perform the
rest. He further testified that if the Employer could
follow its preference, it would use laborers only in
all of its assignments in Illinois as well as in Indi-
ana.
We find that the factors of past practice and the
Employer's preference favor an award of the work
in dispute to employees represented by the Labor-
ers.
3. Area and industry practice
The Employer contends that the appropriate ge-
ographic area is the northwestern part of the State
of Indiana. The Employer further contends that
within its industry, Flexicore is a specific type of
precast concrete slab, distinct from other concrete
slab products, and that the manufacture and instal-
lation of Flexicore slabs is done on a franchise
basis. The Employer's position is that, within its
defmed geographic area, it manufactures and in-
stalls virtually all the Flexicore slabs used and that
the installation is done exclusively by employees
represented by the Laborers.
The Iron Workers contends that the appropriate
geographic area is broader than northwestern Indi-
ana in light of the proximity of the site of the dis-
puted work to the Illinois state line. The Iron
Workers' business agent, Strayer, testified that
within its defined geographic area, and even within
the northwestern Indiana region alone, employees
represented by the Iron Workers are used by other
employers to install concrete slabs having the same
function as the Employer's product.
We are not persuaded on this record that there is
a significant distinction between the Employer's
Flexicore product and other types of precast con-
crete slabs with respect to the nature of the work
in dispute here. Further, we find the evidence in-
conclusive regarding the appropriate geographic
area and concerning the practice in the industry.
We conclude that the factor of area and industry
practice does not clearly favor an award of the dis-
puted work to either group of employees.
4. Relative skills
The Employer contends that the skills involved
in the installation of its product are varied; its la-
borer employees receive on-the-job training, gradu-
ally introducing them to the necessary skills in
light of safety considerations.
The Iron Workers contends that its members go
through a training program to acquire the skills
needed to perform the work in dispute, and that its
members in fact perform similar installation work
for other employers.
It is apparent that both the laborers and the iron-
workers possess the requisite skills to perform the
work in dispute. We find that this factor does not
favor an award of the work to either group of em-
ployees.
5. Economy and efficiency of operations
The Employer contends that, as indicated by its
preference for assignment of the work, the perma-
nent employment and experience of its laborer em-
ployees creates a continuity and flexibility in its
crews, resulting in the economical and efficient
completion of its installation jobs. The Iron Work-
ers submitted no evidence with respect to this
factor.
We find that the factor of economy and efficien-
cy favors an award of the disputed work to the
employees represented by the Laborers.
6. Prior jurisdictional dispute determinations
The Iron Workers submitted in evidence the
same reports of various jurisdictional dispute
boards that Business Agent Strayer brought with
him to the site of the dispute on October 26, 1987.
The Iron Workers contends that these determina-
tions, awarding to employees represented by the
-Iron Workers rather than to employees represented
by the Laborers work similar to the work at issue
here, favor an award of the work to it in the in-
stant proceeding. The Employer relies on various
determinations of the National Labor Relations
Board which awarded similar work to employees
represented by the Laborers rather than to employ-
ees represented by the Iron Workers. 4 However,
none of the dispute board awards provides a de-
tailed analysis, neither they nor the Board decisions
involved this Employer, and none of the awards
4 See, e.g., Iron Workers Local 15 (Spancrete Northeast), 271 NLRB 729
(1984); Iron Workers Local 3 (Spancrete Northeast), 267 NLRB 950 (1983);
Iron Workers Local 40 (Spancrete Northeast), 244 NLRB 182 (1979).
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and determinations relied on by the parties is spe-
cifically applicable to the particular controversy
that was the cause of this proceeding. Accordingly,
we find that the previous jurisdictional dispute de-
terminations do not favor an award of the disputed
work to either group of employees.
Conclusions
After considering all the relevant factors, we
conclude that employees represented by the Labor-
ers are entitled to perform the work in dispute. We
reach this conclusion relying on the factors of col-
lective-bargaining agreements, the Employer's past
practice and preference, and economy and efficien-
cy of operation. In making this determination, we
are awarding the work to employees represented
by the Laborers, not to that Union or its members.
The determination is limited to the controversy
that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. Employees of Calumet Flexicore Corporation,
represented by Laborers International Union of
North America, Local No. 41, are entitled to per-
form the installation of hollow core, precast con-
crete, Flexicore slabs at the Waste Water Treat-
ment plant for the East Chicago construction site
located at 4527 Indianapolis Boulevard, East Chi-
cago, Indiana.
2. Ironworkers Local No. 395, International As-
sociation 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
force Calumet Flexicore Corporation to assign the
disputed work to employees represented by it.
3. Within 10 days from this date, Ironworkers
Local No. 395, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-
CIO shall notify the Regional Director for Region
13 in writing whether it will refrain from forcing
Calumet Flexicore Corporation, by means pro-
scribed by Section 8(b)(4)(D), to assign the disput-
e& work in a manner inconsistent with this determi-
nation.
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