Millwright Local 1906 (Chicago Steel)

National Labor Relations Board - Board Decisions

Mar 12, 1993

310 N.L.R.B. 646 (N.L.R.B. 1993)

646
310 NLRB No. 110
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Charging Party’s motion to amend the charge in Case 4–
CD–847–1, to state that the Millwrights sought to have the work in
dispute assigned to employees represented by the Carpenters Coun-
cil, is granted.
2 All dates hereinafter are in 1992.
3 Tension-leveling is a process by which steel products are, inter
alia, cleaned, flattened, and packaged before being marketed to cus-
tomers.
Millwright and Machinery Erectors Union Local
1906 (Chicago Steel Ltd. and J. W. Ferrell
Concrete Company, Inc.) and U.S. Steel Group,
a Unit of USX Corporation
Metropolitan District Council of Philadelphia and
Vicinity, United Brotherhood of Carpenters
and Joiners of America (Chicago Steel Ltd.
and J. W. Ferrell Concrete Company, Inc.)
and U.S. Steel Group, a Unit of USX Corpora-
tion. Cases 4–CD–847–1 and 4–CD–847–2
March 12, 1993
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The charges in this Section 10(k) proceeding were
filed September 10, 1992, by U.S. Steel Group (USS),
alleging that the Respondents, Millwright and Machin-
ery Erectors Union Local 1906 (Millwrights) and Met-
ropolitan District Council of Philadelphia and Vicinity,
United Brotherhood of Carpenters and Joiners of
America (Carpenters Council) violated Section
8(b)(4)(D) of the National Labor Relations Act by en-
gaging in proscribed activity with an object of forcing
Chicago Steel Ltd. (Chicago Steel) and J. W. Ferrell
Concrete Company, Inc. (the Employer, Ferrell) to as-
sign certain work to employees represented by the Car-
penters Council rather than to employees of the Em-
ployer not represented by any labor organization.1 The
hearing was held October 19, 1992, before Hearing Of-
ficer Carmen P. Cialino Jr. Thereafter, USS filed a
brief in support of its positions, and the Millwrights
and the Carpenters Council jointly filed a brief in sup-
port of their positions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.
I. JURISDICTION
The Employer, a New Jersey corporation, is a con-
struction contractor operating in New Jersey, Pennsyl-
vania, and Delaware, with an office in Vincentown,
New Jersey, where it annually purchases goods and
materials valued in excess of $50,000 directly from
points outside the State of New Jersey. Chicago Steel,
a limited partnership with headquarters in Gary, Indi-
ana, is engaged in the processing of steel products; it
annually purchases goods and materials valued in ex-
cess of $50,000 directly from points outside the State
of Indiana. USS, a Delaware corporation, manufactures
steel products at its Fairless Works facility in Falls
Township, Pennsylvania, where it annually ships goods
and materials valued in excess of $50,000 directly to
points outside the Commonwealth of Pennsylvania. We
find that Ferrell, Chicago Steel, and USS are engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act. We further find that the Millwrights
and the Carpenters Council are, as stipulated at the
hearing, labor organizations within the meaning of
Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
This work assignment dispute involves concrete ma-
chine foundation work which was being performed,
until September 9, 1992,2 by Ferrell’s unrepresented
employees pursuant to a contract with Chicago Steel at
the Fairless Works facility owned by USS. The
Fairless Works is a steel production facility situated on
about 4000 acres of property; USS employs more than
750 employees at this site. Chicago Steel had leased
one of the buildings at the Fairless Works from USS
for the purpose of setting up and operating a steel ten-
sion-leveling plant.3 At the time of the work dispute
Chicago Steel was renovating the leased building and
otherwise setting up its tension-leveling operation,
which was expected to commence in December.
Part of this preparatory work was the setting of con-
crete foundations on which the tension-leveling ma-
chinery would be installed. As indicated above, Chi-
cago Steel contracted with Ferrell for the performance
of this foundation work, and Ferrell began the work—
the work in dispute here—in late August. Details of
the foundation work included the reading of blueprints,
carpentry work, the pouring of concrete, the setting of
anchor bolts in the concrete foundations, and cleanup
work. The number of employees engaged in the work
varied between 12 and 15.
The Carpenters Council is a council of trade union
locals in the Philadelphia area under the aegis of the
United Brotherhood of Carpenters and Joiners of
America. Fourteen locals make up the membership of
the Council: Nine are Carpenter locals and the rest are
‘‘specialty’’ trade locals. The Millwrights are one of
these ‘‘specialty’’ trade local unions.
At approximately 6 a.m. on September 9, about 20
pickets appeared at the main, and normally the only,
entrance to the Fairless Works. About 10 of the pickets
647MILLWRIGHT LOCAL 1906 (CHICAGO STEEL)
4 Chicago Steel and Ferrell were not represented at the hearing and
did not file briefs with the Board.
5 Millwrights Official Hooven, in testifying on the nature of ‘‘mill-
wright work,’’ stated that millwright employees ‘‘set machinery, in-
stall machinery, erect machinery, take machinery out, whatever.’’
were members of the Millwrights. The pickets carried
signs which apparently had an area standards message,
claiming that Ferrell paid substandard wages and that
this was unfair to the ‘‘Carpenters Union.’’ The pick-
eting backed up traffic considerably. When a second
entrance to the Fairless Works was opened to ease the
congestion, several of the pickets moved to the new
entrance. It is apparent that entry to and egress from
the Fairless Works was very limited for both employ-
ees and suppliers because of the picketing; several cars
and trucks seeking to enter were seen to turn around
and drive away.
Dan Phillips, general manager of the Chicago Steel
operation at the Fairless Works, was caught in the traf-
fic jam. He left his car and walked to the main en-
trance, where he met John Coyne, a representative of
the Carpenters Council, and John Hooven, a represent-
ative of the Council and an official of the Millwrights.
Following discussions with them, Phillips sent Ferrell’s
employees home and canceled a concrete pour which
had been scheduled to occur that day. At about 8 a.m.,
when informed of Phillips’ actions, Coyne caused the
picketing to cease. Thereafter he arranged a meeting
with Phillips to resolve fully the Carpenters Council’s
problem with Ferrell. Later that morning, Coyne and
Hooven met with Phillips, with Chicago Steel’s presi-
dent joining the discussion in a conference call from
Gary, Indiana. Pursuant to this discussion, Chicago
Steel and the Carpenters Council agreed that Ferrell
would complete its foundation work with a composite
crew consisting of four Carpenter-represented employ-
ees supplied by the Council and about 10 of Ferrell’s
unrepresented employees. Subsequently, Ferrell, which
under its contract with Chicago Steel controlled the as-
signment of work on the concrete foundation job,
agreed to the composite arrangement. Virtually all of
the remainder of the disputed work was performed by
the composite crew. The job was completed about Oc-
tober 9.
B. Work in Dispute
The disputed work is the concrete machine founda-
tion work performed by Ferrell, the Employer, for Chi-
cago Steel in the building Chicago Steel had leased
from USS at USS’ Fairless Works facility.
C. Contentions of the Parties
USS contends4 that there is reasonable cause to be-
lieve that the Respondent Unions have violated Section
8(b)(4)(D) in light of their conduct on September 9.
USS argues that this dispute is not moot merely be-
cause the work at issue has been completed, and that
the Millwrights’ liability under the Act lies in its un-
lawful conduct in support of the Carpenters Council’s
claim that the disputed work be assigned to Carpenter-
represented employees. On the merits of the dispute,
USS contends that the work assignment award should
be made to the Employer’s unrepresented employees
based on the factors of employer preference and past
practice, relative skills, and economy and efficiency of
operation.
The Carpenters Council and the Millwrights (the
Unions) contend, as a preliminary matter, that the
Board’s notice of hearing should be quashed, citing
two grounds. First, they argue that the Millwrights
made no claim to the disputed work for employees it
represents, pointing out the absence of any ‘‘millwright
work’’ being at issue.5 The Unions also contend that
the Millwrights, as an entity, did not participate in the
picketing on September 9—rather, that Hooven and
Millwright members each acted individually in support
of the Carpenters Council. As their second ground to
quash the notice of hearing, the Unions argue that the
instant work dispute is moot because the work has
been completed and there is no evidence that similar
disputes will occur in the future. On the merits of the
dispute, the Unions argue that the work-assignment
award should be made to the composite crew of Car-
penter-represented employees and the Employer’s un-
represented employees, based on the demonstrated
preference of Chicago Steel and Ferrell, and on the
requisite skills to perform the work possessed by the
Carpenters’ employees as well as the Employer’s un-
represented employees.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated and that
the parties have not agreed on a method for the vol-
untary adjustment of the dispute.
The record indicates that there is sufficient evidence
to find reasonable cause to believe that the Carpenters
Council violated the Act by its picketing activity on
September 9. Thus Donald Rizer, a USS official, testi-
fied that he spoke to Coyne at the picket line, asking
him what the problem was. According to Rizer, Coyne
responded that Ferrell was ‘‘using non-union car-
penters and they are doing work that is ours.’’ In addi-
tion, Phillips of Chicago Steel testified that during a
conversation with Coyne at the picket line Coyne told
him that he was trying to put his people to work. Fur-
ther, the ‘‘resolution’’ of the dispute worked out be-
tween Chicago Steel and the Carpenters Council on
September 9 showed a crew combining Ferrell’s unrep-
resented employees with four Carpenter-represented
648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The area standards message apparently set forth on the picket
signs does not preclude the finding that one of the Council’s objec-
tives was unlawfully to coerce a work assignment in its favor. See,
e.g., Roofers Local 30 (Gundle Construction), 307 NLRB 1429
(1992).
7 Installation of machinery at the Chicago Steel facility at the
Fairless Works is not included in the definition of the disputed work
in this proceeding. The record indicates that as of the date of the
hearing, such installation work had been assigned to a contractor
who did not employ Millwright members. There is no evidence of
picketing or threats after September 9.
8 The Unions’ motion to quash on grounds of mootness is also de-
nied. The Unions contend that the disputed work has been completed
and that no evidence was submitted that similar disputes will occur
in the future. This does not satisfy the Board’s standard, which es-
tablishes that ‘‘the mere fact that disputed work has been completed
does not render a jurisdictional dispute moot where nothing indicates
that similar disputes are unlikely to recur.’’ Operating Engineers
Local 150 (Martin Cement), 284 NLRB 858, 860 fn. 4 (1987). See
also Iron Workers California District Council (Madison Industries),
307 NLRB 405, 407 fn. 5 (1992); Laborers Local 113 (Joseph
Lorenz, Inc.), 303 NLRB 379, 380 fn. 2 (1991).
employees, thus reflecting a partial assignment of the
work in the Council’s favor. Overall, this evidence es-
tablishes reasonable cause to believe, and the Car-
penters Council does not dispute, that the Council
made a claim to the concrete foundation work being
done by Ferrell’s employees, and that an objective of
the picketing on September 9 was to coerce an assign-
ment consistent with this claim, in violation of Section
8(b)(4)(D).6
Concerning the Millwrights’ alleged unlawful pick-
eting, and specifically the Unions’ motion to quash the
notice of hearing with respect to this alleged conduct,
we find it clear on this record that the Millwrights did
not make an independent claim for the work in dis-
pute. However, in view of the unchallenged existence
of a work dispute involving the Carpenters Council
and the Employer’s unrepresented employees, and the
evidence of the nature of the Millwrights’ conduct on
September 9 in support of the Carpenters Council’s
claim for the work, we conclude, as explained below,
that there is reasonable cause to believe that the Mill-
wrights violated Section 8(b)(4)(D).
Phillips of Chicago Steel testified that when he first
arrived at the picket line on September 9, Coyne, the
Carpenters Council representative, was accompanied
by Hooven. He testified that Hooven identified himself
as an official of the Millwrights and gave Phillips a
Millwrights’ business card, and that Hooven told him
that the Millwrights were present ‘‘in support of what
the Carpenters were doing at the gate.’’ Hooven him-
self testified that he was an elected official of both the
Carpenters Council and the Millwrights, and that the
Millwrights local was a member of the Council. He
further testified that Edward Coryell, president of the
Carpenters Council, had, prior to September 9, re-
quested Hooven to participate in the picketing, and ‘‘to
make sure [the picket line] was manned.’’ Hooven tes-
tified that, accordingly, on his instructions, Millwright
members were called and asked to participate at the
picket line. As noted above, about one-half of the 20
or so pickets at the Fairless Works on September 9
were Millwright members. Hooven also testified that
the Millwrights assisted at the picket line in order to
‘‘help the Carpenters out,’’ and additionally because he
was aware of machinery installation work to be done
in the near future at the Chicago Steel facility—‘‘mill-
wright work,’’ in Hooven’s estimation. After the ces-
sation of the picketing on September 9, Hooven was
present during the discussion with Chicago Steel offi-
cials at which the composite crew ‘‘resolution’’ con-
cerning the foundation work was reached. Chicago
Steel’s contemplated machinery installation work was
also then discussed, and according to Hooven’s testi-
mony, he came away from that discussion with the un-
derstanding that, at the very least, the Millwrights
would be contacted with reference to this work at an
appropriate time.7
In light of the evidence above, there is reasonable
cause to believe that Hooven and the other Millwright
members who participated in the picketing on Sep-
tember 9 did not act as individuals but as representa-
tives or agents of the Millwrights. Further, there is rea-
sonable cause to believe that the Millwrights acted in
concert with, and in support of, the Carpenters Council
in the picketing at the Fairless Works, with an object
of coercing an assignment of the foundation work to
employees represented by the Carpenters Council. Sec-
tion 8(b)(4)(D) clearly prohibits conduct of the kind in
which the Millwrights appear to have engaged. See
Lathers Local 59 (Jacksonville Tile), 125 NLRB 138,
142 (1959); Plumbers Local 562 (Northwest Heating),
107 NLRB 542, 547–548 (1953). Accordingly, we
conclude that there is reasonable cause to believe that
the Millwrights’ participation in the picketing on Sep-
tember 9 violated Section 8(b)(4)(D), and we deny the
Unions’ motion to quash in this regard.8
In sum, there is reasonable cause to believe that
both Unions have violated Section 8(b)(4)(D) of the
Act. Further, it was stipulated at the hearing that there
is no agreed method binding all the parties to a vol-
untary adjustment of the dispute within the meaning of
Section 10(k) of the Act. Therefore, we find that the
dispute is properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative award of disputed work after considering various
factors. NLRB v. Electrical Workers IBEW Local 1212
(Columbia Broadcasting), 364 U.S. 573 (1961). The
Board has held that its determination in a jurisdictional
dispute is an act of judgment based on common sense
and experience, reached by balancing the factors in-
649MILLWRIGHT LOCAL 1906 (CHICAGO STEEL)
9 McNeill testified to Ferrell’s expression of this ‘‘preference’’ on
direct examination, but did not repeat it when given the opportunity
on cross-examination. Ferrell denied that he had made any such
statement to McNeill.
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the
detemination of this dispute.
1. Certifications and collective-bargaining
agreements
No evidence was placed in the record concerning
any Board certifications or collective-bargaining agree-
ments relevant to the determination of this work dis-
pute. We find that this factor does not favor an award
of the disputed work to either employee group.
2. Employer preference and past practice
The record, particularly the testimony of Robert
Ferrell, a vice president of the Employer, makes clear
that the Employer’s preference was to perform the
work with its own, unrepresented employees. This was
the Employer’s initial work assignment, and clearly it
would have been maintained through the completion of
the job in the absence of the instant dispute. Robert
Ferrell also testified that in the 20 years that the Com-
pany has been operating, it has performed 100 concrete
machine foundation jobs of the kind at issue here, in
New Jersey, Delaware, and Pennsylvania, and that
every one of them was carried out with the Company’s
own, nonunion employees. He also testified that the
Employer used a composite crew of Carpenter-rep-
resented and nonunion employees pursuant to the
agreement between the Carpenters Council and Chi-
cago Steel only because Chicago Steel agreed to pick
up any additional costs relating to the employment of
Carpenter employees, and to cooperate with Chicago
Steel in getting the project completed. Ferrell charac-
terized the use of a composite crew as a matter of
‘‘coercion.’’
The Unions contend that the preference of both the
Employer and Chicago Steel was for a composite crew
of Carpenter-represented and nonunion employees, and
that this preference is demonstrated by Chicago Steel’s
agreement on September 9 to complete the disputed
work in this way and the Employer’s accession to the
agreement. In addition, the Unions’ attorney, Richard
C. McNeill, testified that he had a telephone conversa-
tion with Robert Ferrell on or about September 13 in
which Ferrell stated that the Employer’s ‘‘preference’’
was for an assignment to the composite crew.9
Even assuming that the Employer expressed a pref-
erence for the composite crew on or about September
13—a matter we find far less than clear on this
record—we would assign it virtually no weight. The
evidence and the circumstances establish that the com-
posite crew agreement was a product of the September
9 picketing. Thus, it is apparent for purposes of this
proceeding that Chicago Steel agreed to the composite
crew in order to avoid further picketing and maintain
labor peace, and that the Employer’s consequent com-
pliance was, as testified by Chicago Steel’s Phillips, a
matter of ‘‘forcing this down [Ferrell’s] throat.’’ We
have found that, by conducting the picketing, there is
reasonable cause to believe that the Respondents en-
gaged in coercive activity prohibited by Section
8(b)(4)(D). Consequently, we find that the composite
crew ‘‘resolution’’ was the product of picketing unlaw-
ful under Section 8(b)(4)(D), and accordingly, it is not
an appropriate matter for consideration regarding the
employer-preference factor. See, e.g., Teamsters Local
158 (Holt Cargo), 293 NLRB 917, 921 (1989).
We conclude that employer preference and past
practice favor an award of the disputed work to the
Employer’s unrepresented employees.
3. Area and industry practice
No evidence was submitted concerning this factor.
Accordingly, we find that this factor does not favor an
award of the work in dispute to either employee group.
4. Relative Skills
Robert Ferrell testified that the Employer’s unrepre-
sented employees are designated in job classifications
which correspond to the particular work they are doing
at any particular time in performing the disputed foun-
dation work: carpenters, iron workers, laborers, and ce-
ment finishers. Notwithstanding these designations, ac-
cording to the Employer its employees’ skills overlap
and are virtually interchangeable: for example, a ‘‘car-
penter’’ also has ironworker and finisher skills and
performs this and other work. Robert Ferrell also
testifed that the skills of the Carpenter-represented em-
ployees in the composite crew were restricted to car-
pentry work, and accordingly, their usefulness was rel-
atively limited.
The Unions contend in their brief that the skills of
the Carpenter employees and the unrepresented em-
ployees in the composite crew were equivalent, but no
evidence was submitted in support of this contention.
We find that the evidence concerning this factor fa-
vors an award to the Employer’s unrepresented em-
ployees.
5. Economy and efficiency of operations
Robert Ferrell’s testimony indicates that the Em-
ployer’s unrepresented employees have multiple, inter-
changeable skills relevant to performing the disputed
work, that the Employer is familiar with its own em-
ployees’ skills and abilities and that they are familiar
with each others’, and that this work relationship cre-
ated an economical and efficient operation with respect
650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to the disputed work. Ferrell also testified that there
was a disruption in this work relationship when the
Carpenter-represented employees were added to the
crew because their skills and abilities were at first
unkown, and then shown to be limited.
The Unions submitted no evidence concerning the
economy and efficiency factor.
We find that the evidence relating to this factor sup-
ports an award of the disputed work to the Employer’s
unrepresented employees.
Conclusions
After considering all the relevant factors, we con-
clude that the Employer’s unrepresented employees are
entitled to perform the work in dispute. We reach this
conclusion relying on the factors of employer pref-
erence and past practice, relative skills, and economy
and efficiency of operation. This determination is lim-
ited to the controversy that gave rise to this pro-
ceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of J. W. Ferrell Concrete Co., Inc.,
who are not represented by any labor organization, are
entitled to perform the concrete machine foundation
work at the premises leased by Chicago Steel Ltd., on
U.S. Steel Group’s Fairless Works property, Falls
Township, Pennsylvania.
2. Metropolitan District Council of Philadelphia and
Vicinity, United Brotherhood of Carpenters and Joiners
of America, and Millwright and Machinery Erectors
Union Local 1906 are not entitled by means proscribed
by Section 8(b)(4)(D) of the Act to force Chicago
Steel Ltd. and J. W. Ferrell Concrete Co. to assign the
disputed work to employees represented by the Metro-
politan District Council.
3. Within 10 days from this date, Metropolitan Dis-
trict Council of Philadelphia and Vicinity, United
Brotherhood of Carpenters and Joiners of America, and
Millwright and Machinery Erectors Union Local 1906
shall each notify the Regional Director for Region 4 in
writing whether it will refrain from forcing Chicago
Steel Ltd. and J. W. Ferrell Concrete Co. by means
proscribed by Section 8(b)(4)(D), to assign the dis-
puted work in a manner inconsistent with this deter-
mination.