Local 112, Ornamental Ironworkers

National Labor Relations Board - Board Decisions

Dec 21, 1970

187 N.L.R.B. 401 (N.L.R.B. 1970)

LOCAL 112, ORNAMENTAL IRONWORKERS
Local 112, International Association of Bridge , Struc-
tual and Ornamental Ironworkers , AFL-CIO (0.
Frank Heinz Construction Co., Inc.) and Wesley R.
Bantz and William J. Welch and Carpenters Local
Union No. 183, affiliated with United Brotherhood
of Carpenters and Joiners of America , AFL-CIO.
Case 38-CD-47
December 21, 1970
DECISION AND ORDER QUASHING
NOTICE OF HEARING
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
charges filed by Wesley R. Bantz and William J.
Welch, members of Carpenters Local Union No. 183
affiliated with United Brotherhood of Carpenters and
Joiners of America, AFL-CIO (hereinafter called
Millwrights), on May 12, 1970, alleging that Local
112, International Association of Bridge, Structural
and Ornamental Ironworkers, AFL-CIO (hereinafter
called Ironworkers), has violated Section 8(b)(4)(D)
of the Act by engaging in certain proscribed activity
with an object of forcing or requiring O. Frank Heinz
Construction Co., Inc., an employer performing
construction work at the Pabst Brewing Company
plant in Peoria Heights, Illinois, to assign the work of
moving two machines, from locations adjacent to
their intended bases onto such bases, to employees
represented by the Ironworkers rather than to
employees represented by the Millwrights.
A hearing was held before Hearing Officer James B.
Ruyle on June 25 and July 6, 1970. 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. The rulings of the Hearing Officer made
at the hearing are free from prejudicial error and are
hereby affirmed. The Ironworkers and the Mill-
wrights have filed briefs in support of their positions,
and they have been duly considered.'
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.
Upon the entire record in this case, the Board makes
the following findings:
i The Ironworkers has also filed two posthearing motions In view of
our disposition of this proceeding, it becomes unnecessary to consider the
Ironworkers motion to dismiss After carefully considering the Ironworkers
motion for disciplinary action, we have concluded that the proffered
I. THE BUSINESS OF THE EMPLOYER
401
The parties stipulated, and we find, that O. Frank
Heinz Construction Co., Inc., (herein called the
Employer), is and has been at all times material herein
an Illinois corporation engaged in business as a
general contractor, with an office and place of
business at Peoria, Illinois, and that during 1969 the
Employer purchased materials and supplies from
outside the State of Illinois costing more than $50,000,
which were thereafter shipped into that State. Accord-
ingly, we find, as the parties have stipulated, that the
Employer is engaged in commerce within the meaning
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 the
Ironworkers and the Millwrights are labor organiza-
tions within the meaning of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
In about October 1969, the Employer began
performing certain remodeling and construction work
at the Pabst Brewing Company plant at Peoria,
Illinois, employing various laborers and mechanics
including ironworkers and millwrights. The Employer
then, and at all times material herein, had collective-
bargaining agreements with the Ironworkers and the
Millwrights which bound the parties to submit their
jurisdictional disputes to the National Joint Board for
the Settlement of Jurisdictional Disputes (herein
called the Joint Board) and to abide by the procedures
and decisions of that tribunal. The Unions are also
bound by the constitutions of the International
unions with which they are affiliated.
Part of the Employer's contract work, designated
job 23, involved dismantling of old bottle line 4, and
installation of a new bottle line 4 in its place. The
bottling line under construction, when completed,
would utilize new machinery and some used machin-
ery from old line 4. Two pieces of the used machinery,
one called an "uncaser" and the other a "flap opener,"
are involved in the present dispute. Sometime prior to
May 4, 1970, both of these machines were moved by
the ironworkers to a position about 15 to 20 feet from
the incomplete concrete bases where they were
eventually to be placed.
Several weeks before May 5, 1970, the date upon
which two machines were to be moved to their bases,
evidence does not warrant the initiation of proceedings under Section
102 44 of the Board's Rules and Regulations and Statements of Procedures,
Series 8 , as amended
187 NLRB No. 55
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Millwrights business agent notified the Employ-
er's superintendent, Clyde Atkins, that he would
withdraw carpenters and millwrights from the Pabst
project if millwrights were not assigned the work of
moving the uncaser and flap opener from their
temporary resting places to the bases upon their
completion Prior to their arrival at such temporary
location, the two aforementioned machines had been
moved, solely by the ironworkers, from place to place
to faciliate progress of the plant remodeling work.
This included, as noted above, their movement to the
position 15 to 20 feet from their intended bases. There
is some , although inconclusive, indication in the
record that prior to this threat, the Employer had
determined that the Ironworkers would perform the
final placement. After the above conversation, how-
ever, the Employer made an assignment of the work
to the Millwrights, as noted below.
On May 4, 1970, the Employer's superintendent
informed the respective stewards of the Millwrights
and the Ironworkers that all work involving the final
movement of the two machines to their bases,
placement thereupon, and final alignment, was
assigned to the Millwrights. Thereafter on May 4, the
Ironworkers business agent, Palmer, learned of the
Employer's work assignment to the Millwrights,
apparently from the Ironworkers steward.
On May 5, about 5 of Employer's ironworkers and
17 of its millwrights reported for work at the Pabst
plant. Palmer arrived at the plant about 7:40 a.m.,
accompanied by about 20 Ironworkers members not
employed by the Employer. Thomas Atkins, the
ironworkers foreman, informed Superintendent
Clyde Atkins that the Employer's ironworkers would
move the two disputed machines to their bases. The
uncaser was then promptly moved onto its base by the
Employer's ironworkers under the direction of their
foreman, while the Employer's millwrights, and the
Ironworkers members brought to the project by
Palmer, looked on. The flap opener was similarly
moved to its completed base on May 14 or 15 by
ironworkers.
The Employer, on the morning of May 5, sent a
telegram to the Joint Board advising it that the work
of moving the uncaser and flap opener had been
assigned by the Employer to the Millwrights, but was
actually performed by the Ironworkers. The telegram
requested that "BOTH CRAFTS BE DIRECTED
TO PROCEED WITH THE WORK AS ASSIGNED
PENDING PROCESSING OF DISPUTE IN AC-
CORDANCE WITH ESTABLISHED PROCE-
DURES." On May 6, 1970, the Chairman of
the Joint Board sent telegrams to J. H. Lyons,
General President of the Ironworkers, and to the
Employer. The telegram sent to Lyons requested him
to direct the Ironworkers Local to adjust any
continuing jurisdictional dispute directly or to process
the work assignment complaint in accordance with
procedural rules of the Joint Board.
Thereafter, charges alleging violation of Section
8(b)(4)(D) of the Act were filed with the Regional
Office of the Board by two members of the Mill-
wrights. Within 10 days of the filing of such charges,
the Ironworkers submitted to the Regional Office
copies of the constitutions of the two competing
unions, establishing that they were bound to submit
work assignment disputes to the Joint Board, and
copies of the contracts between the Employer and the
two unions, indicating that the Employer had similar-
ly agreed to be bound by Joint Board procedures.
Subsequently, the Regional Office issued a notice of
hearing under Section 10(k).
On June 12, the Employer sent a telegram to the
Joint Board which read as follows: "NLRB HAS
SCHEDULED 10(k) HEARING ON THE WORK
ASSIGNMENT DISPUTE ON PABST. THERE-
FORE OUR MAY 5, 1970, TELEGRAM SHOULD
BE DISREGARDED."
B. The Work in Dispute
The work in dispute consists of the movement of the
two machines (the "flap opener" and the "uncaser")
onto their completed bases from temporary resting
places approximately 15 to 20 feet therefrom, where
they had been moved by the ironworkers prior to
completion of their bases.
C. The Contentions of the Parties
The Millwrights contends that the Joint Board has
no authority to determine the present work assign-
ment dispute, despite the fact that all the parties
herein are bound by constitution and/or contract to
abide by its procedures and decisions. The Mill-
wrights bases its contention on an alleged oral
agreement between the Millwrights and Ironworkers
Internationals that they would not submit such
disputes to the Joint Board unless the involved
contractor so requested. Because the Employer, on
June 12, 1970, sent to the Joint Board a telegram
requesting that its earlier submission of the dispute on
May 5, 1970, be disregarded, the Millwrights argues
that the oral agreement is now operative. Millwrights
further contends that the Employer's assignment to it
of the disputed moving work, on May 4, 1970, was
correct because, according to a line of Joint Board
decisions dating back to February 1968, following
delivery of machinery to a place adjacent to its
installation point, any further rigging, as well as final
alignment of the machine, is work properly assigned
to Millwrights.
Ironworkers contends that all parties to the present
work assignment dispute are, by virtue of the
LOCAL 112, ORNAMENTAL IRONWORKERS
contracts of the respective labor organizations with
the Employer, bound to abide by the procedures and
decisions of the Joint Board, and that the Employer's
attempt to withdraw the dispute from that tribunal on
June 12, after previously submitting it on May 5, was
simply responsive to the Board's decision to assert
jurisdiction at that time.
Ironworkers further contends that it originally was
assigned the disputed work when the Employer
commenced activities at the Pabst plant and that the
assignment would not have been changed to Mill-
wrights had not officials of that Union threatened to
withdraw millwrights and carpenters from the Pabst
project in order to procure the work. Ironworkers also
claims that, according to area practice and the past
practice of the Employer on the Pabst project, as well
as the Ironworkers own construction of Joint Board
decisions, the disputed work was properly performed
by ironworkers.
D. Applicability of the Statute
Section 10(k) of the Act directs the Board to hear
and determine the dispute out of which Section
8(b)(4)(D) charges have arisen, unless , within 10 days
after notice that such charges have been filed, the
parties to the dispute submit to the Board satisfactory
evidence that they have agreed upon a method for its
voluntary adjustment.
There are in evidence in this case current collective-
403
bargaining contracts binding the Employer, the
Millwrights, and the Ironworkers to the procedures
and decisions of the Joint Board. This evidence was
submitted to the National Labor Relations Board in
timely fashion under Section 10(k), within 10 days
after the filing of the Section 8(b)(4)(D) charges.
Accordingly, we find that the labor organizations here
involved and the Employer have agreed upon a
method for the voluntary adjustment of the present
work assignment dispute, within the meaning of
Section 10(k), and that this Board should honor the
method agreed to by the parties.2 Even if we were to
entertain the contention of the Millwrights that the
constitutional and contractual obligations of the two
unions have been superseded by an oral agreement
not to submit disputes to the Joint Board except when
the concerned contractor so requests, it is clear that
the exception would apply on these facts. The
Employer clearly desired to have the Joint Board
determine the dispute in the first place, and merely
withdrew its request for Joint Board intervention
when this Board assumed jurisdiction of the cause.
Accordingly, we shall quash the notice of hearing
issued herein.
ORDER
It is hereby ordered that the notice of hearing issued
in this proceeding be, and it hereby is, quashed.
2 Local 1, IBEW, AFL-CIO (Sundermeyer Painting Co, Inc), 155 NLRB
968