Local 45, Int'l Assn. of Bridge, Structural, Etc.

National Labor Relations Board - Board Decisions

Apr 11, 1963

141 N.L.R.B. 1285 (N.L.R.B. 1963)

LOCAL 45, INT'L ASSN. OF BRIDGE, STRUCTURAL, ETC. 1285
will be discharged by its payment to employees named below, and to the estate of
Edward Heineman, and/or to the profit-sharing plan account of employees indicated,
the amount set opposite their names, less the tax withholding required by Federal
and State laws.
Netbackpay
Amount due to
profit-sharing
account as of
11/1/61
Liquidated
amount due
front profit-
sharing account
Dwight Andrews------------------- ---------------- $6,953 $1,432 92 ------------------
Gary Lee Bell---------------------------------------- 4 903 ------------------ ------------------
Lowell Irvin Bell----------------------------------- 3,707 ------------------ $202 93
Ronald Charles Bell---------------------------------- 2,705 ------------------ 167 70
Jessie Randall Berry----------------------------------
Burl Coffee
5,794
3,247
1,239 57
------------------ ------------389 40
Robert Dailey ---------------------------------------- 5, 232 ------------------ 162 85
Ednin Gale 2,983 ------------------ 179 90
James J Gentry---------------- ------------- 1,880 ------------------ ------------------
Est of Edw. Heineman------------------------------- 1 932 ------------------ ------------------
Russell Hickson-------------------------------------- 3,731 ------------------ 198 10
Lloyd Huddlestun ------------------------------------ 4,427 ------------------ ------------------
Alpheus Jordan--------------------------------------- 8 684 1, 252 24 ------------------
Vollie H Haggard------------------------------------ 3,886 ------------------ 140 28
Charles T Martin------------------------------------ 6,226 2,967 26 ------------------
John Ott 3,447 469 87 ----------------
Cathie Parker 10,517 1,034 81 ------------------
Bozo Petrovich ------------------------------------- 3,318 ------------------ ------------------
Bernard Scribner------------------------------------- 13,986 1,460 17 ------------------
Roger Sheaf ------------------------------------------ 958 ------------------ ----------------
Warren Thomas 3,998 ------------------
Daniel Wells 11 001 2,662 43
Total 113,515 12,519 27 1,441 16
Local 45, International Association of Bridge, Structural and
Ornamental Iron Workers and Machinery Movers, AFL-CIO
and Kaiser-Nelson Steel & Salvage Corporation. Case No.
23-CD-79. April 11, 1963
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the Act following a
charge filed by Kaiser-Nelson Steel & Salvage Corporation, herein
called Kaiser, against Local 45, International Association of Bridge,
Structural and Ornamental Iron Workers and Machinery Movers,
AFL-CIO, herein called Ironworkers, alleging that Ironworkers il-
legally coerced Kaiser to change work assignments from one class
of employees to another. A duly scheduled hearing was held before
Charles Sandberg, hearing officer, on various dates from November 7
through November 14, 1962. Kaiser, Ironworkers, and Local 734,
International Hod Carriers, Building and Common Laborers Union of
America, AFL-CIO, herein called Hod Carriers, appeared at the hear-
ing and were afforded full opportunity to be heard, to examine and
141 NLRB No. 115.
708-006-64-vol 141-83
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cross-examine witnesses, and to adduce evidence bearing upon the
issues. The rulings of the hearing officer made at the hearing are free
from prejudicial error and are hereby affirmed.'
Pursuant to Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chair-
man McCulloch and Members Leedom and Brown].
Upon the entire record, the Board makes the following findings :
1. The parties stipulated and we find that Kaiser is engaged in
commerce within the meaning of the Act.
2. The parties also stipulated and we find that Ironworkers and
Hod Carriers are labor organizations within the meaning of Section
2(5) of the Act.
3. The dispute.
A. The basic facts
Kaiser is an Ohio corporation, engaged in the demolition of build-
ings, refineries, tanks, and other structures in various States and in
furnishing scrap iron to the steel industry. In 1962 it contracted
with the New York Central Railroad to dismantle a grain elevator
owned by the railroad on pier 7, in West New York, New Jersey. In
July 1962 Kaiser executed a collective-bargaining agreement with Hod
Carriers, recognizing that union as the exclusive representative of all
its production and maintenance employees at its New Jersey opera-
tions? Pursuant to this agreement, Kaiser thereafter assigned the
work of dismantling the grain elevator to members of Hod Carriers.
On August 8, 1962, after the demolition work on the grain elevator
had begun, Daniel Trainor, business agent of Ironworkers, visited the
site and spoke to Kaiser's job superintendent, Robert New. Trainor
claimed that Ironworkers were entitled to the demolition work, de-
manded that it be assigned to members of Ironworkers, and announced
that if this were not done, the jobsite would be picketed 3 New advised
Trainor that Kaiser was already under contract with Hod Carriers
and suggested that he discuss the matter with officials of that union.
The record shows that from approximately October 19 to Novem-
ber 1, 1962, Ironworkers, including Trainor himself, picketed the job-
site. On several occasions, trucks destined for the Kaiser operation
1 The healing officer sustained objections by Kaiser to Ironworkers ' attempts to ques-
tion witnesses concerning the circumstances surrounding the negotiation of a collective-
bargaining agreement between Kaiser and Had Carriers . Such questions were apparently
designed to show that the contract was unlawfully entered into However, as this is an
issue which the Board will not determine in this type of proceeding , we affirm the hearing
officer's ruling
2 The job classifications covered by this agreement were yardman , low burner, high
burner, and operator.
3 There is conflicting evidence in the record as to whether Ironworkers originally claimed
all or only a portion of the demolition work on the jobsite At the hearing , Ironworkeis
stated that its claims extended only to "The cutting and lowering of the steel-where
power was going to be need "
LOCAL 45, INT'L ASSN. OF BRIDGE, STRUCTURAL, ETC. 1287
turned back at the picket line. Picketing ceased as a result of a stipula-
tion entered into by Ironworkers and the General Counsel during the
course of a District Court suit for an injunction under Section 10 (1)
of the Act.
Neither union has been certified as bargaining representative of
employees performing the disputed work.
B. Contentions of the parties
Kaiser contends that its assignment of the disputed work to em-
ployees represented by Hod Carriers is proper on the following
grounds : (1) It has always assigned such work in the past to mem-
bers of sister locals of Hod Carriers; (2) this practice has also been
followed by other employers in the industry; (3) it has been the prac-
tice of employers in the area to assign such work to members of Hod
Carriers; (4) employees represented by Hod Carriers have the neces-
sary skills to perform the disputed work; (5) Kaiser's agreement
with Hod Carriers requires such assignment; (6) Hod Carriers has
jurisdiction over the work in dispute; and (7) safe and efficient opera-
tion of Kaiser's business justifies the assignment.
Hod Carriers indicated its agreement with these arguments
presented by Kaiser.
Ironworkers urges the award of the disputed work to its members
on the following grounds: (1) Its jurisdiction includes such work;
(2) the area practice is to assign such work to members of Iron-
workers; (3) it is the industry practice to assign members of Iron-
workers to perform the disputed work; (4) arbitration awards have
given such work to members of Ironworkers in the past; 4 and (5)
members of Ironworkers have, and members of Hod Carriers do not
have, the necessary skills to perform the work.
C. Applicability of the statute
Section 10(k) of the Act empowers the Board to hear and deter-
mine the dispute out of which a Section 8(b) (4) (D) charge has
arisen. Before making a determination of the dispute, however, the
Board is required to find there is reasonable cause to believe that Sec-
tion 8(b) (4) (D) has been violated.
The record herein shows that Kaiser assigned the disputed work
to members of Hod Carriers, that Ironworkers claimed its members
were entitled to the work, and that Ironworkers thereafter threatened
to picket and picketed the jobsite from October 19 to November 1,
1962. The record establishes that the threats to picket and the picket-
4 We do not give any weight to the arbitration proceedings cited by Ironworkers on its
behalf because Hod Carriers was not a party to those proceedings, nor to the arbitration
proceedings cited by Hod Carriers on its behalf because no affirmative award resulted
from such proceedings
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing constituted threats, coercion, or restraint with an object of forcing
or requiring Kaiser to change work assignments. In fact, some stop-
page of deliveries did occur as a result of the picketing. We find,
therefore, on the entire record, that there is reasonable cause to believe
that a violation of Section 8(b) (4) (D) has occurred, and that the
dispute is properly before the Board for determination under Sec-
tion 10 (k) of the Acts
D. Merits of the dispute
Each party maintains that application of the relevant factors
which we customarily consider in jurisdictional dispute cases 6 favors
its position as to which group of employees is entitled to the work.
We shall discuss those factors seriatim:
(1) Skills and work involved : The record shows that the employees
assigned by Kaiser to perform the disputed work have served an
apprenticeship with various employers to learn the skills required in
demolition work and that they average approximately 12 years of
experience in doing such work. It is clear, then, that by training and
experience the Kaiser employees who are members of Hod Carriers
possess the skills necessary to perform the disputed work. There is
no dispute that members of Ironworkers also possess the necessary
skills to do the disputed work and that they frequently perform simi-
lar work on other demolition projects.
(2) Industry and area practice: Kaiser and Hod Carriers intro-
duced evidence to show that other employers in this industry assigned
the disputed work to members of the Hod Carriers and its sister
locals, both in New Jersey and in other States. Ironworkers, on the
other hand, presented evidence that employers in New Jersey and
elsewhere frequently assigned such work to members of Ironworkers
locals. This evidence indicates, and we find, that it is the practice of
employers in this industry in New Jersey and other States to use
members of either union for the disputed work, thus establishing no
controlling industry or area practice in this regard.
(3) Union constitutions: Both unions introduced their interna-
tional constitutions into evidence, together with other documents to
support their claims to the disputed work. We find that both the
Hod Carriers and Ironworkers Internationals claim jurisdiction over
such work. We are unable therefore to give determinative weight to
this factor.
5 We find that the parties have not adjusted or agi eed on a voluntary method of adjust-
ment of their dispute within the meaning of Section 10(k). Kaiser was neither a party
to any of the arbitration proceedings relied on by Ironworkers, nor did Kaiser agree to
be bound by them. United Brotherhood of Carpenters and Joiners of America, AFL-CIO,
Local 1622 (0 R Karst), 139 NLRB 591.
G International Association of Machinists , Lodge No. 1743, AFL-CIO (J A Jones Con-
struction Company ), 135 NLRB 1402
LOCAL 4 5, INT'L ASSN. OF BRIDGE, STRUCTURAL, ETC. 1289
(4) Employer's past practice: The evidence in the record concern-
ing Kaiser's past practice in dealing with work of the type involved
herein shows that on 32 occasions since 1957, in 8 different States,
Kaiser assigned such work to members of sister locals of the Hod
Carriers. No instance appears in the record in which members of
Ironworkers or its sister locals were used by Kaiser for this type of
work.
(5) Collective-bargaining agreement: In 1962 Kaiser and Hod
Carriers entered into an agreement under which Kaiser recognized
Hod Carriers as the exclusive bargaining representative of all its pro-
duction and maintenance employees at its New Jersey operations.
There is no contract and no 'history of collective bargaining between
Kaiser and Ironworkers.
(6) Safety and efficiency: Kaiser introduced into evidence letters
from various companies for which it had performed demolition work
and from a municipal fire department commending it on the steps it
had taken to assure safe operations. Members of Hod Carriers were
used on all the projects involved. In addition, we note that members
of Hod Carriers are already present on the pier 7 site to perform
work which is not in dispute, while members of Ironworkers would
have to be brought to the site for the express purpose of performing
the disputed work.
Weighing the factors relied upon by Kaiser and Hod Carriers, on
the one hand, against those cited by Ironworkers on the other, we con-
clude that the former outweigh the latter. As the employees em-
ployed by Kaiser are sufficiently skilled to perform the disputed work,
as Kaiser assigned such work to them, as Kaiser has established a
practice of using such employees to perform similar work in the past,
as the collective-bargaining agreement between Kaiser and Hod Car-
riers requires such assignment, and as the assignment is consistent
with practice in the industry, area practice, and the safe and efficient
operation of Kaiser's business, we shall determine the dispute in favor
of those employees who are already performing the work. In making
this determination, we are assigning the controverted work to em-
ployees represented by Hod Carriers, and not to Hod Carriers or
its members.
In view of the above, we find that, in regard to the project of dis-
mantling a grain elevator belonging to the New York Central Rail-
road at pier 7, West New York, New Jersey, Ironworkers was not
and is not entitled, by means proscribed in Section 8(b) (4) (D), to
force or require Kaiser to assign to its members, rather than to the
employees already assigned to perform such work, the work of cutting
and lowering steel where power is required.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings and the entire record in
this case, the Board makes the following Determination of Dispute
pursuant to Section 10 (k) of the Act.
1. Employees of Kaiser-Nelson Steel & Salvage Corporation en-
gaged on the project of dismantling a grain elevator belonging to the
New York Central Railroad at pier 7, West New York, New Jersey, in
the work of cutting and lowering of steel where power is required
and currently represented by Local 734, International Hod Carriers,
Building and Common Laborers Union of America, AFL-CIO, are
entitled to perform such work.
2. Local 45, International Association of Bridge, Structural and
Ornamental Iron Workers and Machinery Movers, AFL-CIO, is not
and has not been lawfully entitled to force or require Kaiser-Nelson
Steel & Salvage Corporation to assign such work to its members.
3. Within 10 days from the date of this Decision and Determination
of Dispute, Local 45, International Association of Bridge, Structural
and Ornamental Iron Workers and Machinery Movers, AFL-CIO,
shall notify the Regional Director for the Twenty-second Region, in
writing, whether or not it will refrain from forcing or requiring
Kaiser-Nelson Steel & Salvage Corporation, by means proscribed by
Section 8(b) (4) (D), to assign the work in dispute to its members
rather than to the employees of Kaiser-Nelson Steel & Salvage Cor-
poration who are represented by Local 734, International Hod Car-
riers, Building and Common Laborers Union of America, AFL-CIO.
Pathe Laboratories, Inc. and Motion Picture Laboratory Tech-
nicians, Local 702, International Alliance of Theatrical and
Moving Picture Machine Operators of the United States and
Canada, AFL-CIO. Case No. 2-CA-862. April 12, 1963
DECISION AND ORDER
On January 30, 1963, Trial Examiner Eugene F. Frey issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint, and recommending that the complaint be dismissed in
its entirety, as set forth in the attached Intermediate Report. There-
after the General Counsel and Charging Party filed exceptions to the
Intermediate Report and supporting briefs.' The Respondent filed a
brief in reply to the exceptions and brief of the General Counsel.
1 The Charging Party has requested oral argument . The request is hereby denied be-
cause the record, the exceptions, and briefs adequately present the issues and positions of
the parties.
141 NLRB No. 120.