Local Union No. 89, Iron Workers

National Labor Relations Board - Board Decisions

Sep 24, 1975

220 N.L.R.B. 630 (N.L.R.B. 1975)

630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 89, International Association of
Bridge, Structural and Ornamental Iron Workers,
AFL-CIO and LeFebure Corporation , Division of
Walter Kidde & Company, Inc. Case 18-CD-183
September 24, 1975
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed on May 20, 1975, by LeFebure Cor-
poration, Division of Walter Kidde & Company, Inc.
(herein the Employer), alleging that Local Union No.
89, International Association of Bridge, Structural
and Ornamental Iron Workers, AFL-CIO (herein
Local 89), violated Section 8(b)(4)(D) of the Act by
engaging in certain proscribed activity with an object
of forcing or requiring the assignment of certain
work to employees represented by it rather than to
the Employer's own unrepresented employees.
A hearing was held before Hearing Officer Mi-
chael A. Hartsell on June 18 and 24, 1975, at Cedar
Rapids, Iowa.
All parties appeared at the hearing and were af-
forded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence
bearing on the issues. All parties filed briefs which
have been duly considered.
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 rulings made by the
Hearing Officer at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed.'
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The record shows that the Employer, a Delaware
corporation, is engaged at its factory in Cedar Rap-
ids, Iowa, in the manufacture and nonretail sale and
distribution of bank equipment. It maintains 27 loca-
tions throughout the United States, including a
branch facility located at 633 58th Avenue Court
1 During the course of the hearing , Local 89 moved to dismiss the charges
on grounds the disputed work was not being claimed by another labor
organization . The Hearing Officer referred the motion to the Board for a
ruling . The motion is hereby denied for reasons indicated infra.
SW. in Cedar Rapids. During the last year the Em-
ployer has sold and shipped products valued in ex-
cess of $50,000 from its Cedar Rapids facility to cus-
tomers located outside the State of Iowa.
Accordingly, we find that the Employer is engaged in
commerce within the meaning of the Act and that it
will effectuate the purposes of the Act to assert juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated and we find that Local 89 is
a labor organization within the meaning of Section
2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The disputed work involves the unloading, load-
ing, repair, and maintenance of the Employer 's prod-
ucts performed through its Cedar Rapids branch of-
fice?
B. Background and Facts of the Dispute
The Employer manufactures a general line of
equipment for financial institutions, principally
alarm and surveillance systems, cameras, television
units, drive-in facilities, vault doors and accessories,
etc. The distribution, installation, repair, and mainte-
nance of the Employer's products is accomplished
through 27 branches throughout the country, includ-
ing a branch in Cedar Rapids which is located apart
from the manufacturing facility.
Prior to 1969 when the branch office system was
inaugurated, all product installation, loading and un-
loading, servicing, and maintenance were performed
by employees working directly out of the Cedar Rap-
ids manufacturing facility. Since that time, however,
the work has been performed by the Employer's
branch service technicians.
There have been, however, some instances in
which the installation of the Employer's products has
been performed by ironworkers located in various
cities. In each instance, however, the Employer's ser-
vice technicians have supervised the work of the
ironworkers. The Employer asserts that it has never
desired to have ironworkers perform the work and
that in these isolated instances it has acceded to Iron
2 Although Local 89 contended that the description of the disputed work
should be expanded to include installation and dismantling, testimony es-
tablished that since about February 1975 all installation and dismantling
work performed in Local 89's geographic jurisdiction has been subcontract-
ed to another employer who is signatory to a collective-bargaining agree-
ment with Local 89.
220 NLRB No. 99
LOCAL UNION NO. 89, IRON WORKERS
Workers demands in order to avoid disruptive labor
disputes.
Because it deemed the ad hoc assignment of some
disputed work to ironworkers unsatisfactory, in Au-
gust 1974, the Employer's vice president, Wehmeyer,
met with Phillip Kraft, Local 89's business agent, in
an attempt to explore the possibility of working out a
more beneficial arrangement. When these efforts
were unsuccessful, the Employer, in March or April
1975, subcontracted all its vault installation work to
another local contractor who employs members of
Local 89. On each job, however, the loading, unload-
ing, repair, and maintenance of the Employer's prod-
ucts continues to be performed by the Employer's
service technicians with the only exception being the
unloading of LeFebure products at a jobsite where
ironworkers are present on the job.
In August 1974, Paul Schwiebert, a service techni-
cian employed by the Employer's Cedar Rapids
branch, became a member of Local 89 and demand-
ed that he be paid the Iron Workers scale of $9.10
per hour. At that time the Employer's wage scale was
between $4.25 and $5.50 per hour. Schwiebert was
informed that as long as he remained a LeFebure
employee he would be paid at the Employer's wage
rate. Schwiebert voluntarily terminated his employ-
ment with the Employer, but since that time has
worked on the Employer's installation products when
they were processed through Local 89.
In March 1975, Ronald Pratt, another service tech-
nician, informed the Employer that he had joined
Local 89 (and demanded union scale). He continued
working as a LeFebure service technician, however,
until April 10, 1975, when he also discontinued work-
ing for the Employer.
On the morning of May 9, 1975, Schwiebert and
Pratt began to picket the Employer. First they ap-
peared at the Cedar Rapids branch office for about
an hour and a half. Then they left and went to the
manufacturing facility. At each location, the signs
they carried stated:
LeFebure work on this job being done under
wages and working conditions which jeopardize
those established in this area by Iron Workers
Local 89.
On the reverse side of the signs, in letters about 1
inch in height, was carried the message:
By this picket no one is being asked to stop work
or join a union or not to cross a picket.
After the commencement of the picketing, no pick-
ups or deliveries were made by common carriers ser-
vicing the facility. In addition, employees of other
crafts refused to service or maintain defective equip-
ment on the facility. Thus, the instant charges were
filed.
631
C. The Contentions of the Parties
Local 89 contends that no jurisdictional dispute
exists which is cognizable under the Act since no
other labor organization has claimed the work in dis-
pute . It argues that , even if there is a viable labor
dispute, the employees it represents are entitled to an
assignment of the work on the basis of the various
factors which are relevant in 10(k) proceedings.
The Employer, on the other hand , argues that, de-
spite the absence of another labor organization
claiming the work in dispute , there nevertheless exist
a viable labor dispute since its unrepresented em-
ployees , as an identifiable group , claim the disputed
work . Proceeding from the premise of the existence
of a viable 10(k) dispute , the Employer contends the
work in question , on the basis of factors relevant in
10(k) proceedings , should be awarded to its unrepre-
sented employees.
D. The Applicability of the Statute
Before the Board may proceed with a determina-
tion of a 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 adjusted or agreed upon
methods for the voluntary adjustment of the dispute.
We find no merit in Local 89's assertion that the
notice of hearing should be quashed because no
other rival labor organization claims the work in dis-
pute. The record reveals that the unrepresented em-
ployees of the Employer were performing the work in
dispute at the time the dispute arose. They continued
to perform the work despite Local 89's picket line.
These unrepresented employees constitute an identi-
fiable group of the employee complement and mani-
fest their claim to the work by their performance
thereof. In our view, such circumstances constitute
sufficient evidence to indicate that the Employer's
service technicians claim the disputed work.
Further, the evidence shows that members of Lo-
cal 89 were authorized to picket on behalf of that
Union. Inasmuch as the record in this case shows
that an object of the picketing was to have the Em-
ployer assign the disputed work to members of Local
89, we find that there is reasonable cause to believe
that Section 8(b)(4)(D) has been violated and that
the dispute is properly before the Board for determi-
nation under Section 10(k) of the Act .3
3 The parties stipulated that there is no voluntary method for adlustpient
of the dispute
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of disputed work after
giving due consideration to various factors. As the
Board has stated, the determination in a jurisdic-
tional dispute case is an act of judgment based on
commonsense and experience in weighing these fac-
tors.4 The following factors are relevant in making a
determination of this dispute.
1. Past practice
The Employer contends that, since establishing its
branch office system in 1969, it has followed a prac-
tice at each branch, including the one in Cedar Rap-
ids, of assigning the disputed work to its service tech-
nicians. It concedes, however, that there have been
some exceptions to the exclusive performance of the
disputed work by service technicians. Specifically,
ironworkers have been permitted to unload products
at certain installation sites and they have been per-
mitted to make certain repairs where a product has
been damaged in shipment or installation. The Em-
ployer emphasizes, however, that the foregoing in-
stances were the rare exception and dictated by prac-
tical considerations and the desire to avoid a conflict.
On the basis of the foregoing, we are persuaded
that past practice favors an award to the employees
of the Employer.
2. Area and industry practice
Evidence of area and industry practice is mixed
and does not favor either group over the other.
3. Skills involved and efficiency and economy of
operation
The record shows that the Employer's service tech-
nicians are recruited, tested, and trained to perform
the disputed work and are well qualified to perform
it. In order to properly install, service, and maintain
the Employer's products, the service technicians
must be provided with a set of manuals which are
regularly supplemented and which, according to the
Employer, cannot be distributed to members of Lo-
cal 89. In this regard, the Employer contends that,
inasmuch as its operations involve the installation
and service of security systems and devices, to permit
its manuals and literature (which describe the work-
ing of alarms, etc.) to persons beyond its control
4 N.L.R. B. v. Radio and Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broad-
casting System], 364 U.S. 573 ( 1961).
would violate the security of the banks the employer
serves.
The Employer has service technicians who are gen-
erally assigned to specific geographic areas and who
are equipped with company tools and vehicles and
who are readily available to perform when required.
An ironworker must be obtained through the union
business agent and one may or may not be immedi-
ately available when called. The Employer contends
that, if an ironworker does not have the tools neces-
sary to perform the job, it is necessary to send a ser-
vice technician to the job, thus duplicating time, ef-
fort, and expense. In short, the Employer has been
satisfied with the work performance of its technicians
and the efficiency of their operations and prefers that
they continue to perform the disputed work. In our
view, the foregoing factors favor an award consistent
with the Employer's assignment.
Conclusion
Upon the record as a whole and after full consider-
ation of all relevant factors, particularly the
Employer's past practice, the skill of the employees,
the Employer's preference, and the efficiency of op-
erations, we conclude that the unrepresented em-
ployees of the employer are entitled to perform the
work in question and shall determine the dispute in
their favor. Our present determination is limited to
the particular controversy which gave rise to this pro-
ceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the entire rec-
ord in this proceeding, the National Labor Relations
Board hereby makes the following Determination of
Dispute:
1. The unrepresented employees of LeFebure Cor-
poration, Division of Walter Kidde & Company,
Inc., are entitled to perform the unloading, loading,
repair, and maintenance of the Employer's products
performed through the Employer's Cedar Rapids
branch office.
2. Local Union No. 89, International Association
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 or require the
Employer to assign the above-described work to em-
ployees who are represented by Local 89.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local Union No. 89,
International Association of Bridge, Structural and
Ornamental Iron Workers, AFL-CIO, shall notify
LOCAL UNION NO . 89, IRON WORKERS 633
the Regional Director for Region 18, in writing, 8(b)(4)(D) of the Act, to assign the disputed work to
whether or not it will refrain from forcing or requir- the employees it represents, rather than to the
ing the Employer, by means proscribed by Section Employer's unrepresented employees.