Local Union No. 483, Ironworkers

National Labor Relations Board - Board Decisions

May 25, 1979

242 N.L.R.B. 573 (N.L.R.B. 1979)

LOCAL UNION NO. 483, IRONWORKERS
Local Union No. 483, International Association of
Bridge, Structural & Ornamental Ironworkers,
AFL-CIO and Samuel W. McCleskey Construction
Company. Case 22-CD-323
May 25, 1979
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
This a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following a
charge filed by Samuel W. McCleskey Construction
Company, herein called the Employer, alleging that
Local Union No. 483, International Association of
Bridge, Structural & Ornamental Ironworkers, AFL-
CIO, herein called Local 483, had violated Section
8(b)(4)(D) of the Act by engaging in certain pro-
scribed activity with an object of forcing or requiring
the Employer to assign certain work to its members
rather than to unrepresented employees of the Em-
ployer.
Pursuant to notice, a hearing was held before Hear-
ing Officer Susan K. Anderson on November I and 2,
1978. All parties appeared and were afforded full op-
portunity to be heard, to examine and cross-examine
witnesses, and to adduce evidence bearing on the is-
sues.
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 rul-
ings 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 Em-
ployer, a Louisiana corporation with its principal
place of business in Norcross, Georgia, is engaged in
the construction of mausoleums throughout the
United States. During the past year the Employer
purchased and received at its Paterson, New Jersey,
facility building materials and other related products
valued in excess of $50,000 directly from vendors lo-
cated outside the State of New Jersey. The parties
also stipulated, and we find, that the Employer is en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act, and it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that Local 483
is a labor organization within the meaning of Section
2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
On approximately August 1, 1978,' the Employer
began construction of a 4,000-crypt mausoleum at the
Calvary Cemetery in Paterson, New Jersey, which
was an expansion of an existing mausoleum consist-
ing of 3,500 crypts built by another contractor. Al-
though the other employer used Local 483 ironwork-
ers to help build the 3,500-crypt mausoleum, the
Employer used its own unrepresented employees.
Around the same time the Employer began con-
struction at Calvary Cemetery, it began construction
of a mausoleum in Hollywood Memorial Park Ceme-
tery in Union, New Jersey.2 At the Hollywood Me-
morial Park Cemetery (herein called Hollywood
Park) the Employer employed union labor, including
ironworkers from Local 480. Local 480 is a member
of the same district council as Local 483. In August,
when Local 480 ironworkers began working on the
Hollywood Park jobsite, the Ironworkers foreman
gave the Employer's jobsite superintendent, Ernest
Griffin, a copy of the Union's collective-bargaining
agreement and asked him to sign it. Griffin told the
foreman he was not authorized to sign collective-bar-
gaining agreements. Griffin gave the agreement to an
employer official, but the Employer never signed the
collective-bargaining agreement, and no contract ne-
gotiations were ever held between the Employer and
the Ironworkers. The Ironworkers foreman at the
Hollywood Park jobsite also told Griffin he had to
purchase annuity and vacation stamps for the iron-
workers on the job. In August and September Griffin
on two occasions purchased both vacation and annu-
ity stamps for those ironworkers. When he bought
both the vacation and annuity stamps from Local
480's fund office, he was given a form to sign which
he testified he believed was a receipt for the stamps.
Griffin would not receive the stamps unless he signed
these forms. The forms, in addition to showing the
number of stamps purchased, the serial numbers of
the stamps, and the amount paid for them, included
I All dates are 1978 unless otherwise stated.
2 The Hollywood Memorial Park Cemetery jobsite is not in issue here.
242 NLRB No. 79
573
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certain contractual language at the bottom.3 No one
from the Employer ever saw the stamp forms after
they were signed by Griffin.
In July a representative of the construction trades,
Anthony Rego, requested a meeting with the bishop
or the vicar-general regarding the Calvary Cemetery
project. At the meeting, held on August 10, 4 the rep-
resentatives of the trade unions, including Local 483,
complained that the Employer was using nonunion
labor and paying substandard wages and demanded
that the mausoleum construction work be given to
their members. The Calvary Cemetery representative
testified that the assistant business agent for Local
483, Gaechter, said they would have to picket the
gates of the cemetery if their demands were not met.
At the hearing the Local 483 representative stated it
did not make a demand for the work until sometime
after this August 10 meeting.
On August 24 the construction trade unions
picketed the Calvary Cemetery jobsite with signs
which identified an area standards dispute with the
Employer. The picketing continued until October 3.
On September 22 the Employer filed charges
against a number of unions, including Local 483, al-
leging violations of Section 8(b)(4)(D) of the Act. By
letters dated October 24 all of the unions charged,
except Local 483, disclaimed interest in the work
being performed at Calvary Cemetery. On October 31
the Regional Director approved a unilateral informal
settlement agreement with these unions. Local 483
continued to claim the ironwork. The Employer op-
posed the acceptance of the disclaimers and the settle-
ment agreement and filed an appeal on November 10,
which was denied.
B. The Work in Dispute
The parties agree, and we find, that the work in
dispute consists of ironwork performed by the Em-
ployer's unrepresented employees in the construction
of the crypt mausoleum at the Calvary Cemetery. The
ironwork involved in the construction of the crypts
basically entails placing and tying reinforcing steel
3The language, in part, stated:
The undersigned applicant for Annuity Fund Stamps (or Vacation
Fund Stamps) hereby accepts and agrees to be bound as a signatory by:
2. All provisions, terms and conditions of the Collective Bargaining
Agreement presently in effect between said Union and the Structural
Steel and Ornamental Iron Association of New Jersey, or Associated
General Contractors of New Jersey, or Building Contractors Associ-
ation of New Jersey, may be applicable depending upon the nature of
the work to be performed from time to time hereafter by the ironwork-
ers to be employed by the undersigned. Said Agreements and Declara-
tions of Trust and Collective Bargaining Agreements are incorporated
herein by reference ....
'Representatives from Calvary Cemetery and the construction trade
unions were present: the Employer was not present.
beams and steel mats in the foundations, footings,
crypt floors, walls, and roof. Ironworkers also make
sure the steel beams remain in place during the pour-
ing of the concrete, pull the steel wire meshes up to
the proper level as the concrete is poured, and fasten
the vertical bulkheads in place after the concrete is
poured.
C. Contentions of the Parties
Local 483 contends that the disputed work at Cal-
vary Cemetery should be awarded to employees it
represents because of the existence of a collective-bar-
gaining agreement it has with the Employer. Its con-
tract claim is based on the fact that at the Hollywood
Park job Griffin signed the stamp forms, which in-
clude language it contends binds the Employer to the
collective-bargaining agreement currently in effect
with the district council.
The Employer contends that the work in dispute
should be awarded to its own unrepresented employ-
ees on the basis of the Employer's assignment and the
economy and efficiency which results from assigning
the work to its multiskilled employees. The Employer
contends it never signed a collective-bargaining
agreement or engaged in any contract negotiations
with either Local 480 or Local 483.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the dispute pursuant to 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 Employer assigned the disputed work to its
own unrepresented employees when it contracted
with the Roman Catholic Diocese of Paterson, New
Jersey, for the Calvary Cemetery job. According to
the assistant to the diocesan director of Calvary
Cemetery, Jack Cavanaugh, at the meeting on August
10 Local 483, along with the other unions, claimed
that the Calvary Cemetery work should be awarded
to their members and stated they would picket the
cemetery if their demands were not met. Local 483
does not deny it made a claim for the ironwork, al-
though at the hearing it testified its demand was
made sometime after this meeting. On August 24
picketing began, and it continued until on or about
October 3. Local 483 is the only construction local
involved that did not disclaim the work. Since Local
483 made a claim for the disputed work and threat-
ened to picket the cemetery to obtain the work, we
conclude that there is reasonable cause to believe that
574
LOCAL UNION NO. 483, IRONWORKERS
a violation of Section 8(b)(4)(D) has occurred. The
record contains no evidence that there exists an
agreed-upon method for the voluntary adjustment of
the dispute. Accordingly, we find that the 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.
The following factors are relevant in making the
determination of the dispute before us:
1. Collective-bargaining agreements
Local 483 contends that the Employer is bound by
an existing collective-bargaining agreement to award
employees represented by it the disputed work at the
Calvary Cemetery job, but concedes that the Em-
ployer never signed the collective-bargaining agree-
ment to which it is allegedly bound. In making its
contract claim Local 483 relies on the receipt forms
for the annuity and vacation stamps the Employer
purchased at the Hollywood Park job. These receipts
include language which implies that the collective-
bargaining agreement is incorporated by reference.
No one from the Employer, other than the low-level
supervisor not authorized to bind the Employer to a
collective-bargaining agreement, saw these receipts.
There is no evidence the Employer ever intended to
bind itself to the contract or engaged in any formal or
informal contract negotiations with either Local 480
or Local 483. Nor did Local 480 inform Griffin when
he purchased the stamps that the signing of the stamp
receipts constituted an execution of the collective-bar-
gaining agreement.
Since the Employer did not intend to adopt or rat-
ify any collective-bargaining agreement with either
Local 480 or Local 483, and there is in fact no evi-
dence that Local 480 assumed the Employer was
binding itself to its contract when Griffin signed the
receipts, we conclude that the evidence fails to estab-
lish that either party intended to negotiate a collec-
tive-bargaining agreement for the Calvary Cemetery
job by the purchase of the stamp receipts at the ltol-
lywood Park job. We therefore find that the Em-
ployer is not bound by any collective-bargaining
agreement with Local 4835 and that this factor is not
relevant to a determination of this dispute.
5 Local Union No. 529, United Brotherhood of Carpenters and Joiners of
America v. Bracy Development Co., Inc., and Matark, Inc., 321 F.Supp. 869,
875 (1971).
2. Economy and efficiency of operation
The construction of a mausoleum generally re-
quires 2 hours of carpentry work, 2 hours of iron-
work, and/or 2 hours of cement work per day. The
Employer's employees possess the skills to do all of
these different jobs, including the ironwork. Use of
multiskilled employees, like the Employer's, produces
a more efficient use of labor and a reduced labor cost
because these employees can shift from one task to
another as the job requires and thereby put in a full
day's work. On the other hand, ironworkers do only
ironwork; and, if they were hired by the Employer,
not only would they often remain idle for several
hours during the day, but the Employer would have
to pay them either a half or a full day's wages. Thus,
efficiency and economy of operation favors an assign-
ment of the disputed work to the Employer's unrepre-
sented employees.
3. Employer preference
The Employer has from the beginning used its own
unrepresented employees to perform the disputed
work. It is satisfied with the results of its assignment
and prefers that the work be done by its employees.
Thus, employer preference favors an assignment of
the disputed work to its employees.
Conclusion
Upon the record as a whole, and after full consider-
ation of all relevant factors involved, we conclude
that the Employer's unrepresented employees are en-
titled to perform the work in dispute, and we shall
therefore award the work in question to them.6
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 makes
the following determination of dispute:
1. The unrepresented employees of Samuel W.
McCleskey Construction Company are entitled to
perform the ironwork at the Calvary Cemetery in Pat-
erson, New Jersey.
6 Since the Employer's employees are unrepresented, and Local 483 has
not been certified by the Board, certification is not a factor in our determina-
tion. Since there is no evidence of area or industry practice in the record, that
factor does not favur either group of employees. Since there is no evidence
that one group of employees is more qualified to do the work than the other,
we do not rely on relative skills as a determinative factor. Finally, there are
no joint board determinations or union agreements that would effect our
determination of this dispute.
575
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Local Union No. 483, International Association
of Bridge, Structural & Ornamental Ironworkers,
AFL-CIO, is not entitled by means proscribed by
Section 8(b)(4)(D) of the Act to force or require Sam-
uel W. McCleskey Construction Company 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, Local 483 shall notify
the Regional Director for Region 22, in writing,
whether or not it will refrain from forcing or requir-
ing 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.
576