Local 568, Iron Workers

National Labor Relations Board - Board Decisions

Oct 20, 1972

199 N.L.R.B. 907 (N.L.R.B. 1972)

LOCAL 568, IRON WORKERS
Local 568, International Association of Bridge, Struc-
tural and Ornamental Iron Workers , AFL-CIO and
Dickerson Structural Concrete Corporation and Lo-
cal 1024, United Brotherhood of Carpenters and
Joiners of America , AFL-CIO and Local 616, La-
borers' International Union of North America, AFL-
CIO
Bricklayers and Masons International Union, Local 6,
AFL-CIO and Dickerson Structural Concrete Cor-
poration and Local 1024 , United Brotherhood of
Carpenters and Joiners of America , AFL-CIO and
Local 616, Laborers ' International Union of North
America, AFL-CIO. Cases 5-CD-181 and 5-CD-
182
October 20, 1972
DECISION AND DETERMINATION. OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
t KENNEDY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
charges filed by Dickerson Structural Concrete Cor-
poration, hereinafter called the Employer or Dicker-
son, in Case 5-CD-181 and Case 5-CD-182,
- respectively, alleging that Local 568, International
Association of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO, hereinafter called Iron
Workers, and Bricklayers and Masons International
Union, Local 6, AFL-CIO, hereinafter called Brick-
layers, have violated Section 8(b)(4)(D) of the Act.' A
hearing was held before Hearing Officer H. E. Lott
from April 18, 1972, to April 21, 1972. The Employer,
the Iron Workers, and the Bricklayers 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,
all parties who appeared at the hearing filed briefs
which have been duly considered by the Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority 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 case,' the Board
' The charges were filed on February 16, 1972, and on March 8, 1972, the
acting Regional Director for Region 5 issued an order consolidating Case
5-CD-181 and Case 5-CD-182 for hearing.
2 The request of Iron Workers and Bricklayers for oral argument before
the Board is hereby denied as the record and briefs adequately present the
makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
907
The Employer, a Pennsylvania corporation with
its principal place of business and concrete manufac-
turing plant located in Youngwood, Pennsylvania, is
engaged in the manufacture and erection of precast
and prestressed structural concrete. The Employer's
erection business is conducted primarily in the States
of Pennsylvania and Maryland. During the past year,
the Employer purchased and received goods valued in
excess of $50,000 from sources outside the State of
Maryland. The approximate value of the Holiday Inn,
Cumberland, Maryland, project, hereinafter called
the Holiday Inn project, which is in dispute, is
$365,000. The parties 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 it will
effectuate the policies of the Act to assert jurisdiction
herein.'
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Iron
Workers and Bricklayers are labor organizations
within the meaning of Section 2(5) of the Act.
III THE DISPUTE
A. Background and Facts of the Dispute
On November 10, 1971, Crown Construction
Company, the Holiday Inn project general contrac-
tor, subcontracted to Dickerson , by means of a pur-
chase order , the design, fabrication , delivery, and
erection of certain precast concrete members for utili-
zation in the construction of the motel . At this time,
Dickerson had a collective-bargaining agreement
with Carpenters' Union Local No. 2274 , United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, hereinafter called Carpenters Local 2274,
which it had recognized as the bargaining agent for
the employees at its Youngwood plant. Article IX,
section 1 , of that contract provides in part:
When employees are assigned to outside building
construction work covered by this Agreement,
wages and conditions will be in conformity with
the Carpenters Union -Association Labor Con-
tract in effect in the area covering such work and
issues and the position of the parties
3 Contrary to any ambiguity which may appear in the Hearing Officer's
Report , the record clearly indicates that the parties stipulated that the Em-
ployer is engaged in interstate commerce within the meaning of the Act
Moreover , the Board asserted jurisdiction over the Employer in Dickerson
Structural Concrete Corporation, 195 NLRB No 90
199 NLRB No. 156
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such amendments thereto as may be mutually
agreed upon by the parties.
Pursuant to this provision, it was the Employer's prac-
tice to consult Carpenters Local 2274 whenever it was
awarded erection projects. In the past, as a result of
these meetings, the Employer consistently assigned
the type of work in dispute to carpenters or to a com-
posite crew of carpenters and laborers.
On January 24, 1972, (hereinafter all dates are
1972 unless otherwise indicated), Clarence Nichols,
treasurer and secretary of the Bricklayers, telephoned
the Employer and requested that the erection work on
the Holiday Inn project be assigned to a composite
crew of bricklayers and ironworkers. On February 9,
the Employer assigned the disputed work to a com-
posite crew of employees represented by Local 1024,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, hereinafter called Carpenters
Local 1024, and Local 616, Laborers' International
Union of North America, AFL-CIO, hereinafter
called Laborers, both of Cumberland, Maryland. The
Employer predicated the assignment on its interpreta-
tion of the terms of article IX, section 1, of the collec-
tive-bargaining agreement with Carpenters Local
2274, efficiency and economy of the operation, and
the skills required in performing the work involved.
Carpenters Local 1024 is a member of the Cum-
berland-Hagerstown Building and Construction
Trades Council (CHBCTC). By virtue of such mem-
bership, Carpenters Local 1024 is party in CHBCTC's
agreement with Western Maryland Contractors Asso-
ciation Inc. (WMCA). Article IV of that agreement
provides in part:
All jurisdictional disputes between or among
building and construction trades unions and em-
ployers, parties to this agreement, shall be settled
and adjusted according to the present plan estab-
lished by the Building and Construction Trades
Department (Plan for National Joint Board for
settlement of Jurisdictional Disputes in the
Building and Construction Industry [)] .... Deci-
sions rendered shall be final, binding and conclu-
sive on the Employer and Union parties of this
Agreement.
Following the Employer's assignment on Feb-
ruary 9, work on the project began on February 10
when the erection crane was moved onto the jobsite.
On the following day, certain equipment and supplies
were unloaded at the site in preparation for erection
work which was to commence on Monday, February
14. On Monday, the Iron Workers established a picket
line on the jobsite, which an operating engineer and
an oiler for the erection crane refused to cross. The
picket signs read as follows:
DICKERSON STRUCTURAL CONCRETE CORP. IS IN
VIOLATION OF A
DIRECTIVE FROM THE NATIONAL JOINT BOARD
and
DICKERSON STRUCTURAL CONCRETE CORP.,
SUBCONTRACTOR, IS
IN VIOLATION OF A DIRECTIVE FROM THE NATIONAL JOINT
BOARD
The picketing continued at the Holiday Inn proj-
ect until February 16 when the Employer filed the
charges in the instant case.
As of the date of this picketing, Dickerson had
received a directive from the Joint Board concerning
its project at the Greater Pittsburgh Airport,4 but it
had not received one regarding the Holiday Inn proj-
ect. However, the Employer was notified by the Joint
Board on February 24 and 29 that the dispute as. to
the erection work at the Holiday Inn project had been
submitted to it by the Iron Workers and the Bricklay-
ers. In response to these communications, on or about
March 1 and 5, the Employer notified the Joint Board
and the interested parties that it is "not bound to the
National Joint Board nor do we recognize it since the
Associated General Contractors [AGC] withdrew"
and "we do not intend to alter our assignment ...
upon any direction from the National Joint Board."
On March 10, the Joint Board, in separate decisions,
awarded the disputed work at the Holiday Inn project
to the Bricklayers and the Iron Workers on the basis
of trade practice.
B. The Work in Dispute
The work in dispute involves the erection of
precast concrete columns , beams , wall panels, stair
and elevator shafts , stair landings , and stairs at the
Holiday Inn project in Cumberland, Maryland.
C. Contentions of the Parties
1. Contentions relating to whether there is
reasonable cause to believe that Section 8(b)(4)(D)
of the Act has been violated
The Employer contends that the actions of the
Iron Workers and the Bricklayers on or about Feb-
ruary 14 provide sufficient evidence to support a de-
termination that there is reasonable cause to believe
that Section 8(b)(4)(D) of the Act has been violated.
The Employer notes that, following its rejection of the
Bricklayers claim for an award of the disputed work
See Dickerson Structural Concrete Corporation , supra, In 3.
LOCAL 568, IRON WORKERS 909
to a composite crew of bricklayers and ironworkers,
the Iron Workers established a picket line which
forced a cessation of work at the site. The Employer
contends that the object of this action was to force it
to change its assignment of the work in violation of
Section 8(b)(4)(D) of the Act.
In their joint brief to the Board, the Iron Workers
and the Bricklayers made no contentions with respect
to this issue.
2. Contentions relating to whether the parties have
agreed to a voluntary method of
adjusting the dispute
The Iron Workers and the Bricklayers contend
that the notice of a 10(k) hearing should have been
quashed because all parties to the dispute have agreed
to be bound by a voluntary method of adjustment. In
support of this contention, these Unions point out
that the Employer, via its contract with Carpenters
Local 2274, agreed to provide wages and working
conditions in conformity with the Carpenters Union-
Association labor contract in effect in the area where
it was doing onsite erection work. The Iron Workers
and the Bricklayers note that, as a member of the
CHBCTC, Carpenters Local 1024 entered into an
agreement with the WMCA to submit jurisdictional
disputes to the National Joint Board. Accordingly,
the Unions argue, Dickerson has agreed to recognize
decisions of the Joint Board since it employed Car-
penters Local 1024 members pursuant to article IX,
section 1, of its contract with Carpenters Local 2274.
Although the Employer argued that the Joint
Board award should not be given significant weight
by the Board in its determination of the dispute, it did
not in its brief to the Board answer the Unions' con-
tention that the notice of a 10(k) hearing should have
been quashed, other than to state that it was not
bound by the decisions of the Joint Board.
3. Contentions relating to assignment
of the work in dispute
The Employer contends that pursuant to its
agreement with ,Carpenters Local 2274 it has for 16
years employed work crews composed of individuals
who are represented by Carpenters. On "Building Sys-
tem" projects, its practice has been to assign this work
to a composite crew of carpenters and laborers. Dick-
erson has never employed individuals represented by
the Iron Workers or the Bricklayers. The assignment
in the instant dispute, the Employer contends, is jus-
tified by the fact that the disputed work can be per-
formed more economically and efficiently by
carpenters and laborers. This is so, according to the
Employer, because its supervisors, whom it takes from
job to job, are carpenters who are more familiar with
the tools, work methods, and abilities of carpenters.
The Employer also contends that the area practice is
mixed and therefore favors neither party. The Em-
ployer asserts further that the award of the National
Joint Board is not entitled to significant weight be-
cause (1) Dickerson was not stipulated to the Joint
Board, (2) Dickerson notified the Joint Board that it
was not bound by that board's determinations since
the AGC withdrew, (3) neither Dickerson nor Car-
penters Local 1024 participated in the Joint Board
hearing, and (4) Carpenters Local 1024, being in non-
compliance, could not have an award rendered in its
favor.
The Iron Workers and the Bricklayers contend
that the established area trade practice and the deci-
sion of the Joint Board support assignment of the
disputed work to them. These Unions also contend
that the work in question is wholly within the skills
and knowledge of ironworkers and bricklayers.
D. Applicability of the Statute
Before the Board may proceed to a determina-
tion of the dispute pursuant to Section 10(k) of the
Act, it must be satisfied that (1) there is reasonable
cause to believe that Section 8(b)(4)(D) of the Act has
been violated, and (2) the parties have not agreed
upon a method for the voluntary adjustment of the
dispute.
The record indicates that on January 24 the
Bncklayers requested that the Employer assign the
disputed work to a composite crew of bricklayers and
ironworkers. Following the Employer's assignment of
this work to a composite crew of carpenters and labor-
ers on February 9, the Iron Workers established a
picket line at the worksite, admittedly because its
claim for the work in dispute had been denied by the
Employer.5 As a result of the picketing, an operating
engineer and an oiler for the erection crane refused to
work at the jobsite. Accordingly, under these circum-
stances, we find that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) of the Act has been
violated.
We find no merit in the argument of the Iron
Workers and the Bricklayers that the National Joint
Board's award in the instant case is binding on all the
parties. It is well settled that an Employer on whom
unlawful pressure is exerted to force an assignment of
work is a necessary party to the dispute for the pur-
pose of Section 10(k) of the Act. As a party to the
dispute, the Employer must have agreed to a volun-
5 Paul T. Smith, business representative of the Iron Workers, testified at
the hearing that one of the reasons for the placement of the picket line was
because he had made a claim to Dickerson for the disputed work and it had
been denied.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tary method of settlement before the Board may defer
to such an adjustment mechanism and quash the no-
tice of a Section 10(k) hearing. N.L.R.B. v. Plasterers'
Local Union No. 79, Operative Plasters' & Cement Ma-
sons' International Assn., AFL-CIO [Southwestern
Construction Co.], 404 U.S. 116 (1971). In the present
case, the Employer is signatory to no agreement by
which it expressly agrees to be bound by Joint Board
decisions .6 The Employer, however, in accordance
with its established practice under its contract with
Carpenters Local 2274, is abiding by the wages and
working conditions established by the WMCA-Car-
penters Local 1024 contract in the performance of the
disputed work. But the Employer has not signed a
contract with Carpenters Local 1024 and thus has not
agreed to submit any jurisdicitional disputes which it
might have with Carpenters Local 1024 to the Joint
Board. Furthermore, the Employer has never been a
party to a collective-bargaining agreement with either
the Iron Workers or the Bricklayers. In addition,
when notified that the dispute in the instant case had
been submitted to the Joint Board, the Employer in-
formed all parties concerned that it was not bound by
Joint Board determinations. It is thus clear from the
foregoing, and we find, that at the time of the instant
dispute, the Employer had not voluntarily agreed to
be bound by Joint Board procedures, and, therefore,
there did not exist any agreed-upon method for the
voluntary adjustment of the dispute to which all par-
ties were bound. Accordingly, the matter is properly
before the Board for determination under Section
10(k) of the Act.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of the disputed work after
giving due consideration to all relevant factors. The
following factors are relevant in making a determina-
tion of the dispute before us.
1. Collective-bargaining agreements
The Employer argues that its contract with Car-
penters Local 2274 requires its assignment of the work
in dispute to Carpenters Local 1024. We find no merit
in this contention inasmuch as the Carpenters Local
2274 contract merely provides that the Employer will
follow the area standards where it is doing onsite
erection work. Since the Employer had not at any
time material herein been a party to a collective-bar-
gaining agreement with any of the labor organizations
6 There is no provision in the collective-bargaining agreement between the
Employer and Carpenters Local 2274 which binds either party to determina-
tions made by the Joint Board
involved in the instant dispute, we find that this factor
favors none of the parties.
2. Employer's assignment and past practice
As noted above, the Employer has consistently
assigned the work of erection of precast structural
members to carpenters, or to a composite crew of
carpenters and laborers, in accordance with its inter-
pretation of the agreement between it and Carpenters
Local 2274.
3. Skills involved and efficiency and
economy of operation
The Employer contends that the carpenters and
laborers presently employed by it possess the requisite
skills to perform the work in dispute efficiently and
economically. The record shows that the erection of
the precast concrete members on the Holiday Inn
project includes a joining system which requires the
building of wooden forms with hammer and nails.
Concrete is then poured into the forms to secure the
members. Once the precast concrete members are
erected, they must be landed in plumb and in line. The
tools utilized in these operations include levels,
plumblines, plumb bobs, tape measure, transit, ham-
mers, and a welding machine. It is undisputed that
these tools are all generally associated with carpen-
ters. In addition, the Employer favors assignment of
the disputed work to carpenters because its supervi-
sors are more familiar with the tools, work methods,
and abilities of carpenters, and therefore could per-
form the work more efficiently and economically un-
der such an assignment.
4. Area practice
Although the trade practice in the area has usu-
ally been to award this type of work to the Iron Work-
ers and the Bricklayers, the record shows that several
projects in the area have been performed by Carpen-
ters Local 1024. Inasmuch as the area practice is
mixed it favors neither party.
5. The Joint Board award
Although the Joint Board's award to the Iron
Workers and the Bricklayers is not binding on the
Employer, it is a factor in determining the proper
assignment of the work in dispute. However, in view
of the fact that (1) Dickerson was not stipulated to the
Joint Board, (2) Dickerson notified the Joint Board
and all parties concerned that it was not bound by
that board's determinations since the AGC withdrew,
and (3) neither Dickerson nor Carpenters Local 1024
LOCAL 568, IRON WORKERS 911
or the Laborers participated in the Joint Board hear-
ing, we are of the opinion that the Joint Board's award
should not be given controlling weight herein.'
Conclusion
Upon the entire record in this proceeding and
after a full consideration of all the relevant factors, in
particular the Employer's past practice, the skills re-
quired, and efficiency and economy of operations, we
conclude that the employees of the Employer who are
represented by Carpenters Local 1024 and by the La-
borers, working as a composite crew, are entitled to
the work in question and we shall determine the dis-
pute in their favor. In making this determination, we
award the work to the 'employees of the Employer
who are represented by Carpenters Local 1024 and by
the Laborers but not to those Unions or their mem-
bers.
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 pro-
ceeding, the National Labor Relations Board hereby
' Inasmuch as these factors provide sufficient rationale for a finding that
the Joint Board's award is not controlling in the instant case, we need not
consider the fact that Carpenters Local 1024 is in noncompliance with the
Joint Board But see V & C Bnckcleaning, Co, 199 NLRB No 48
makes the following Determination of Dispute:
1. Employees employed by Dickerson Structural
Concrete Corporation who are members of or who are
represented by Local 1024, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, and
who are members of or who are represented by Local
616, Laborers' International Union of North Ameri-
ca, AFL-CIO, working as a composite crew, are enti-
tled to perform the work in dispute which involves the
erection of precast concrete columns, beams, wall
panels, stair and elevator shafts, stair landings, and
stairs at the Holiday Inn project in Cumberland,
Maryland.
2. Local 568, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO,
and Bricklayers and Masons International Union,
Local 6, AFL-CIO, are not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force or
require Dickerson Structural Concrete Corporation,
Youngwood, Pennsylvania, to assign the above work
to ironworkers and bricklayers represented by them.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local 568, Interna-
tional Association of Bridge, Structural and Orna-
mental Iron Workers, AFL-CIO, and Bricklayers and
Masons International Union, Local 6, AFL-CIO,
shall notify the Regional Director for Region 5, in
writing, whether or not it will refrain for forcing or
requiring the Employer, by means proscribed by Sec-
tion 8(b)(4)(D) of the Act, to assign the work in dis-
pute in a manner inconsistent with the above
determination.