Millwrights Local Union 1080

National Labor Relations Board - Board Decisions

Aug 18, 1971

192 N.L.R.B. 733 (N.L.R.B. 1971)

MILLWRIGHTS LOCAL UNION 1080
Millwrights Local Union 1080 , AFL-CIO and Lower
Ohio Valley District ` Council of Carpenters,
AFL-CIO, and J.` C. Keown, Executive Director,
District Council andLocal Union 374, International
'Brotherhood of -Boilermakers , Iron Ship -Builders,
Blacksmiths, Forgers and Helpers , AFL-CIO and
Joe Bradley, Business Representative, Local Union
374, International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers and
-Helpers, AFL-CIO and Ed Siebert & Sons
Contracting Company and Laborers Local Union
561, Laborers International Union of North Ameri-
ca, - AFL-CIO.' Cases 25-CD-114-1,
25-CD-1-14-2, 25-CD-114-3, 25-CD-114-4; and
25--CD-114-5
August 18, 1971
DECISION AND DETERMINATION OF
DISPUTE -
BY MEMBERS FANNING, BROWN, AND
KENNEDY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
the filing of charges by Ed Siebert & Sons Contracting
Company, herein called the Employer, alleging that
Respondents Millwrights Local Union 1080,
AFL-CIO (herein called Millwrights); Lower Ohio
Valley District Council of Carpenters, AFL-CIO
(herein called Carpenters); J. C. Keown, Executive
Director, District Council; Local Union 374, Interna-
tional Brotherhood of Boilermakers, Iron Ship Build-
ers, Blacksmiths, Forgers and Helpers, AFL-CIO
(herein called Boilermakers); and Joe Bradley, Busi-
ness .Representative, Local Union 374, International
Brotherhood of Boilermakers, Iron Ship; Builders,
Blacksmiths , Forgers and Helpers, AFL-CIO, had
violated Section 8(b)(4)(D) of the Act. A duly
scheduled hearing was held in Evansville, Indiana, on
June 10, 1971, before Hearing Officer Michael J.
Fogerty, at which Laborers Local Union 561, Labor-
ers International Union of North America, AFL-CIO
(herein called Laborers), Party of Interest, also
appeared; All parties appearing were afforded full
opportunity- to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing
upon the issues. Thereafter, Boilermakers filed a brief
with the National Labor Relations Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers-in connection with this proceeding to a three-
member panel.
I we find no merit in the Boilermakers ' contention that the Hearing
Officer was biased and prejudiced and that the hearing was not fairly
192 NLRB No. 104
733
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 af-
firmed.
Upon the entire record in this proceeding, the Board
makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated that the Employer, Edward
N., Siebert, an _ individual doing business as Ed
Siebert & Sons Contracting Company, with principal
office and place of business located at Michigan City,
Indiana, is engaged in the business of demolition and
excavating, In the course and conduct of his-business
operations, said Employer duringthe past 42 months,
a representative period, performed demolition' and
related services valued at in excess of $50,000 for
customers located, outside the State of Indiana.
During the same representative period, said Employer
purchased and received goods and materials valued at
in excess of $50,000 directly from suppliers, located
outside the State of Indiana. Accordingly, 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 it will effectuate the purposes of the
Act to assert jurisdiction herein.
H. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Mill-
wrights, Carpenters, Boilermakers, and Laborers are
labor organizations within the meaning- of Section
2(5) of the Act.
M. THE DISPUTE
A. - Background and Facts
In August 1970, Commercial Contracting Corpora-
tion (herein called Commercial) was given a contract-
for certain construction work to be performed for
Aluminum Company of -America (Alcoa) at its
Warrick Operations at Newburgh, Indiana. Commer-
cial subcontracted the demolition and removal work
to the Employer in two contracts for separate projects.
The Employer began work on the first project about
March 11, 1971. He assigned various aspects of the
demolition work to three unions: Teamsters members
were used to haul debris away by truck,, Operating
Engineers members operated forklifts and cranes, and
Laborers members performed manual work (using
torches, welding machines, cleaning up). Only the
work assigned to the members of the Laborers is in
dispute. ,
conducted.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On -or about March, 15, 1971, the Employer's
superintendent on the project was approached- by
several union business agents (including agents for
Respondents) who protested the assignment of the
work in dispute to the Laborers. At a meeting called
by,t e project superintendent on March 15, at which
.W tatives of the Millwrights , Boilermakers, Iron
Workers, and Laborers were present, the Employer
explained that his assignment was based on his
previous practice. The Employer alleges, but Respon-
dents deny, that at this meeting Respondents made
certain threats concerning picketing and/or "shutting
down"' the project unlesstheir crafts were assigned the'
work in dispute. A meeting of the Evansville Building
Trades Council was held later that week at which the
Employer reiterated his position and reasons for the
work assignment and the Iron Workers representative
allegedly stated that he was not sure his members
would be working the next day. The facts show that
no picketing or job shutdown occurred. The,first
project was completed on May 5 and the date for
commencement of the second project is uncertain.
B. Work in Dispute,
The work in dispute involves the assignment of "all
demolition and removal work and/or all such, work
claimed by the Respondents as falling within their
respective work jurisdictions at the Employer's
project at the Aluminum Company of America,
Warrick Operations, Newburgh, Indiana, location."
The first project involved partial demolition in that
the Employer was contracted to remove 14 hoppers or
dust collectors, ductwork, motors, and blowers? As
mentioned , only the work assigned to the Laborers is
in dispute. Such work involves manual labor and the
use of cutting torches and welding machines.
The second project, which as yet has not com-
menced, calls for the total demolition and removal of
an air receiver, a structure supported with steel beams
holding large air receivers, filters, hoppers, blowers,
and ductwork. The difference between the first and
second projects is that in the first project the
Employer contracted merely to remove the hoppers,
motors, and ductwork and to leave other parts of the
building intact, whereas in the second project the
Employer contracted to level the entire structure and
haul away its contents.
C. Contentions of the Parties
The Employer contends that where the items to be
demolished and removed do not by contract become
the property of the contractor but are retained by the
customer for some further use, the demolition is to be
done according to craft dines, but where, as here, the
demolition contract specifically states that "all mate-
rial ^ removed shall become _ the .property, of the
contractor" (Employer), then laborers should do:- the
work. The Employer contends that-its, assignment of
the work to the laborers is, supported byits collective-
bargaining-agreement with the Laborers, the,laborers'
skill, the nature of the work, its past=practice and
industry- practice, .and the economy of operation.
Boilermakers takes the position-that in demolition or
removal _ work anything -that-the boilermakers origi-
nally installed should be, removed by boilermakers.
Millwrights takes a similar position, arguing . that
anything originally installed by millwrights and
removed in a manner so that the material is of some
value should be removed by millwrights. They
concede, however, ''that the removal of material
rendered useless in the removal process is not
millwright work. Respondents, while pointing out that
their members are being used by other employers on
similar projects at the Alcoa site, contend that this
issue is really moot inasmuch-as the first project is
now completed.
The Employer also urges that the scope of the award
should include both. projects while the Respondents
contend that since the second project has not yet
begun, nordispute actually exists as to -that work.
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
believe that Section 8(bX4XD) has been violated.
Marksberry, the Employer's project superintendent,
testified that Bradley of the Boilermakers stated,
while in the presence of the other union representa-
tives, that if Marksberry did not get "in touch-with
Siebert regarding the claimed work that the project
would be shut down. Siebert, the Employer; testified
that" at the meeting of March 15, 1971, Bradley said
that ' either Siebert assign this work to their
(Respondents') crafts or the project would be shut
down. Siebert also testified that at the meeting ofthe
Evansville Building Trades- Council, Tremper, of the
Iron' Workers, said that he was not sure his members
would be working the next day. Although all
Respondents deny that any such statements were
made, on the record as a whole, and without ruling on
the credibility, of the testimony in issue, we are
satisfied that there is reasonable cause to believe 'a
violation. of Section 8(b)(4)(D) did occur and that the
dispute is properly' before the Board for deterrhina-
tion.
2 Commercial was also contracted for the installation of new hopper
equipment to replace the obsolete structures that the Employer removed.
MILLWRIGHTS LOCAL UNION 1080
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work after
giving due consideration to various relevant factors.
1. Certification and collective-bargaining
agreements
There is -no evidence that a,Board certification-
covers the work in dispute.
Since the - Employer has a collective-bargaining
agreement with the Laborers, but not with any of the
Respondents, we find that this factor favors assigning
the work to the laborers.3
2. Employer, industry, and area practice
The record shows that the Employer's practice on
demolition and removal projects where the material
removed became its property has been to assign
manual work to the laborers. In contrast, the
Employer did use ironworkers to do demolition work
on some machinery at a project for Whirlpool where
the removed machinery was to be further used by
Whirlpool. Although the evidence disclosed that the
Employer has never engaged in in-plant dismantling
of the materials involved herein, i.e., hoppers or dust
collectors, the present work is not substantially
different from its past projects. The Employer's
practice, therefore, of assigning such manual work to
laborers where the materials dismantled become its
property is a factor that favors its present assignment
of the disputed work to employees represented by the
Laborers.
While the Employer claims that the industry and
area practice favors the assignment of the disputed
work to laborers, there is insufficient evidence in the
record to warrant such inference. In these circum-
stances, the resolution of the dispute cannot rest on
factors of industry and area practice.
3. Skills, efficiency, and economy
The record indicates that the actual demolition
work is not difficult nor does it require any great
measure of skill. The Employer concedes that the
laborers, boilermakers, and millwrights all are skilled
in the use of cutting torches and wrecking bars. But
whether the boilermakers and millwrights as crafts-
men are more skilled in that regard is not, in view of
the nature of the demolition work, significant since
the Employer has been satisfied with the laborers'
performance of the work in question. Moreover, it
appears that the use of laborers to perform this work is
a The Laborers also alleged that the Employer's assignment is supported
by its International Manual of Jurisdiction . We do not, however, find this
735
more efficient and economical, not only because their
pay scales are lower, but even if members of
Respondents were assigned the particular work the
Employer would still ' need to employ laborers to do
cleaning up, sweeping, and digging work which the
craftsmen do not do. Accordingly, considerations of
efficiency of operation and economy tend to favor an
assignment consistent with that made by the Employ-
er.
Conclusions
Having considered all pertinent factors present
herein, we conclude that employees who are repre-
sented by the Laborers are entitled to perform the
work in dispute. This assignment is consistent with the
initial assignment, the contract with the Laborers, the
Employer's practice, and the efficiency and economy
of operation.
The Scope of the Determination
The Employer currently has a second contract,
apart from the one already completed, for demolition
and removal work at the Alcoa site and intends to
assign the work in dispute "at contract to the
laborers. As the work involved in the second contract
is very similar to the work already completed, there is,
in our opinion, a considerable likelihood that similar
disputes may occur with respect to that work.
Therefore, we hold that the determination in these
cases applies not only to the specific job dipute which
gave rise to this proceeding, but to any similar work
disputes which may arise in the performance of the
Employer's second demolition contract at the Alcoa
site.
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
proceeding, the National Labor Relations Board
makes the following determination of dispute:
1. Employees of Ed Siebert & Sons Contracting
Company, who are currently represented by Laborers
Local Union 561, , Laborers International Union of
North America, AFL-CIO, are entitled to do "all
demolition and removal work and/or all such work
claimed by the Unions involved herein as falling
within their respective work jurisdictions at the
Employer's projects at the Aluminum Company of
America (Alcoa), Warrick Operations, Newburgh,
Indiana, location."
2. Millwrights Local Union 1080, AFL-CIO;
evidence to be material in resolving this dispute.
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lower Ohio Valley District Council of Carpenters,
AFL-CIO; J. C. Keown, Executive Director, District
Council; Local Union 374, International Brother-
hood of Boilermakers, Iron Ship Builders, Black-
smiths, Forgers and Helpers, AFL-CIO; and Joe
Bradley, Business Representative, Local Union 374,
International Brotherhood of Boilermakers, Iron Ship -
Builders, Blacksmiths, Forgers and Helpers,
AFL-CIO, are not entitled by means proscribed by
Section 8(bX4)(D) of the Act to force or require Ed
Siebert & Sons Contracting Company to assign the
above work to their members or employees whom
they represent.
3. Within 10 days from the date of this Decision
and Determination of Dispute, the labor organiza-
tions and parties listed in the, preceding paragraph
shall notify the Regional Director, for Region 25, in
writing, whether or not they will refrain from forcing
or requiring Ed Siebert & Sons Contracting Company
by means proscribed by Section 8(b)(4)(D) of the Act
to assign the work in dispute to their members or
employees whom they represent rather than to
employees of Ed' Siebert & Sons Contracting Compa-
ny represented by Laborers Local Union 561,
Laborers International Union of North America,
AFL-CIO.