Reinforced Iron Workers Local No. 426

National Labor Relations Board - Board Decisions

Mar 22, 1971

189 N.L.R.B. 187 (N.L.R.B. 1971)

REINFORCED IRON WORKERS LOCAL No. 426
Reinforced Iron Workers Local No. 426 , International
Association of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO and G.A. Morrison
Company and Local 1191 , laborers' International
Union of North America, AFL-CIO and Century
Cement Company. Case 7-CD-244
March 22, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by G. A. Morrison Company (herein
called Morrison), alleging that Reinforced Iron
Workers Local No. 426, International Association of
Bridge, Structural and Ornamental Iron Workers,
AFL-CIO (herein called Iron Workers), had violated
Section 8(b)(4)(i) and (ii)(D) of the Act. A duly
scheduled hearing was held in Detroit, Michigan,
before Hearing Officer L. W.Tucker on November 19,
1970, at which two parties to the dispute, Local 1191,
Laborers' International Union of North America,
AFL-CIO (herein called Laborers), and Century
Cement Company (herein called Century) 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, Iron Workers, Laborers,
Morrison, and Century filed briefs.
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 case 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. The rulings are hereby
affirmed.
Upon the entire record in this case, the Board makes
the following findings:
1. THE BUSINESS OF THE EMPLOYERS
Morrison, a Michigan corporation, is a contractor
in the building and construction industry doing site
steelwork, concrete work, general building work, and
asphalt paving work. During the fiscal year ending
February 28, 1970, Morrison, in the course and
conduct of its business operations, had a gross
revenue in excess of million and purchased and
received at its place of business and at jobsites
located in the State of Michigan goods and materials
valued in excess of $50,000 directly from points
located outside the State of Michigan. Century is a
189 NLRB No.35
187
Michigan corporation doing concrete work, side-
walks, paving work, and slab work, and has received
a subcontract from Morrison to form, grade, and
pour concrete and place the mesh, at the Autohte-
Ford Parts Redistribution Center, Brownstown
Township, Wayne County, Michigan, project. We
find that the Employers are 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 Laborers are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
In June 1970 (all dates herein are 1970), Morrison
contracted to iinstall a reinforced concrete parking
lot for the Autolite Division of Ford Motor Compa-
ny in Brownstown Township, Wayne County, Michi-
gan. Morrison performed the excavation, rough
grading, placing of stone outside the parking area,
electrical work, and supervision, and furnished all
material for the project. It subcontracted to Century
the work of setting forms, pouring and finishing
concrete, and installing reinforcing wire mesh in the
concrete. Both Morrison and Century have had for a
number of years collective-bargaining agreements
with the Laborer. Neither has an agreement with the
Iron Workers.
In mid-July, Richard Blumberg, Morrison's project
supervisor, was called on the telephone by Mr.
Lowery, business representative of the Iron Workers,
who claimed for the Iron Workers the work of
placing wire mesh. Blumberg advised that the work
had been assigned to the laborers, as in the past. A
meeting was then set up at the jobsite involving
representatives of the Laborers, the Carpenters
Union, Lowery, and Blumberg. Before the meeting,
Lowery advised Blumberg the Iron Workers still
claimed the work, noted that Morrison used iron-
workers on other projects, and stated "we still do not
want to have any trouble on the other projects." At
the meeting, the union representatives continued to
claim various aspects of the work for their members
and the matter was not resolved. Thereafter, Blum-
berg received a call from Mr. Pynonen, a director of
new construction for the Ford Motor Company, who
stated he had been called by Jack Wood, secretary of
the Detroit Building Trades Council. Pynonen told
Blumberg that Wood informed him the project might
be picketed because ironworkers were not being
used, and Pynonen was concerned that Ford employ-
ees might not cross the picket line. Blumberg assured
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pynonen that if a picket line was set up Morrison
would stop work to ensure that Ford was not brought
into the dispute.
On August 5, a meeting was held at the Detroit
Building Trades Council concerning the matter. The
Laborers continued to claim the work of placing the
reinforcing mesh and indicated it would not abide by
any decision Of the Council. The Iron Workers
indicated it would file a complaint with the Council
against the Laborers. On August 7, Blumberg was
informed by both Wood and Pynonen that the
Council had authorized a strike and had also
authorized the ironworkers to picket the project. On
August 8, two pickets appeared at the gate of the
project accompanied by Ray Chakur, the Iron
Workers vice president. A driver of a truck delivering
cement telephoned John Grueter, Morrison's super-
visor, from the gate, reported the picket, and asked
for instructions. Grueter and Gaspar Vitale,
Century's superintendent, drove to the gate where
Chakur showed them the minutes of a Council
Executive Board meeting of August 7 which author-
ized a picket line. The minutes indicate that the
Laborers was unwilling to abide by the Executive
Board decision. After discussion, Chakur agreed to
allow the truckload of concrete into thejob and have
its contents poured if Morrison shut down the
project. This was done and the project closed down.
On Sunday, August 9, Blumberg instructed Grueter
to make sure no Morrison or Century men were on
the job Monday, but on Monday, August 10, there
were pickets at the gate carrying signs indicating
Century was unfair or not paying benefits to Local
426 (Iron Workers). Blumberg so advised President
Gordon Morrison. Morrison had earlier received a
call from a Mr. Hause of Ford Motor Company
asking about the picket line and requesting that
Morrison call Jack Wood. After Blumberg had
reported on the situation, Wood returned Morrison's
call, and, after being informed that work on the
project had stopped and neither Morrison nor
Century had men on the job, promised to withdraw
the picket line and it was withdrawn. On September
14, a Stipulation and Order was entered into in the
United States District Court of the Eastern District
of Michigan in which the Iron Workers agreed to
refrain from picketing or otherwise hindering work
on the project, pending final disposition of the
matters involved by the Board.
I Even were we to find that Iron Workers and Laborers had agreed
upon a voluntary method for adjustment of the dispute through the
processes of the National Joint Board and/or the Detroit Building Trades
Council, we note there is no evidence that the Employers, Morrison or
Century, have agreed to submit to any such voluntary method for settling
the dispute Accordingly, and with all due respect to the court's opinion in
Southwestern Construction, supra, we find without merit the Iron Workers
B. The Work in Dispute
The disputed work concerns the placing and fitting
of reinforcing wire mesh (but not reinforcing rods) in
the cement paving at the Autolite-Ford Parts
Distribution Center, Brownstown Township, Wayne
County, Michigan.
C. Contentions of the Parties
Morrison and Century contend that the work of
placing and fitting the reinforcing wire mesh in the
cement for the parking lot should be assigned to
employees represented by the Laborers because they
have contracts with the Laborers covering the
disputed work, such assignment is consistent with the
Employers' past practices and is more efficient, and
the Employers are not bound by any collective-
bargaining agreements to submit the dispute to the
National Joint Board for the Settlement of Jurisdic-
tional Disputes in the Building and Construction
Industry.
The Iron Workers takes the position that its motion
to quash the Section 10(k) proceeding should be
granted because the International Unions of the Iron
Workers and the Laborers are bound to refer
jurisdictional disputes to the Joint Board and further
that the locals involved have a recognized, if not
formalized , procedure for resolving such a dispute by
submitting the dispute to the Detroit Building Trades
Council which has awarded the work to the Iron
Workers . The Iron Workers urges the Board to adopt
the position of the United States Court of Appeals
for the District of Columbia in Plasterers Local 79
(Southwestern Construction Co.) v. N. L.R.B. 440 F.2d
174, in which the court held that the Board may not
ignore an agreement among unions to settle a dispute
through the Joint Board , even though the employer
has not agreed to be bound by such action.
The Laborers maintains that the work in question
was properly assigned to its members pursuant to
contract , that such assignment is consistent with the
prior practices of the parties and of the industry, that
it is not aware of any action of the Internationals to
resolve the dispute , and that the Detroit Building
Trades is not constituted to resolve jurisdictional
disputes and the Laborers has never recognized the
decisions of the Council on such questions.
motion that this Section 10(k) proceeding be quashed because the
contending labor organizations have an agreed -upon method for resolving
such a jurisdictional dispute . Lathers Local 104 (Associated General
Contractors), 186 NLRB No 70 Cf. Reinforced Iron Workers Local 426
(Jasinski Builders), 188 NLRB No. 30, In 4
2 International Association of Machinists, Lodge No 1743, AFL-CIO (J
A Jones Construction Company), 135 NLRB 1402
REINFORCED IRON WORKERS LOCAL No. 426
D. Applicability of the Statute
Before the Board proceeds 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 (b)(4)(D) has been violated.
The record shows that the Iron Workers sought
and claimed the work of placing the reinforcing wire
mesh in the cement paving at the Autolite-Ford
project which Morrison and Century were construct-
ing. The record further shows that the Iron Workers
picketed the jobsite , causing a cessation of work,
following its claim for the work of placing the
reinforcing wire mesh . On the basis of the entire
record , we conclude that there is reasonable cause to
believe that a violation of Section 8(b)(4)(D) has
occurred, and that the dispute 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 that the Board
make an affirmative award of the disputed work
after giving due consideration to the various relevant
factors.2 The following factors are relevant in making
a determination of the dispute before us:
1. Certification and collective-bargaining
agreements
Laborers has collective-bargaining agreements with
both Morrison and Century and has had such for a
number of years. Iron Workers does not have an
agreement with either Company although it appears
ironworkers have performed some work for Morri-
son. Neither of the Unions has ever been certified as
collective-bargaining representative for either Com-
pany.
2. Company and area practice
The undisputed testimony presented by Morrison
and Century reflects that both have performed the
disputed work of placing wire mesh in concrete on a
number of jobs previous to the Autolite-Ford project
and that in all cases laborers have performed the
work. Blumberg did testify that the Iron Workers has
claimed the work on other occasions and sometimes
shut the job down, but that, in each instance, the
laborers performed the work. Iron Workers presented
no evidence that Morrison or Century had ever
employed ironworkers to perform the disputed work.
4 Further testimony by the business manager of the Laborers with
respect to that particular project indicates that the award was for that job
only and that, unlike in the instant proceeding, the employer had agreed to
submit to the National Joint Board finding Cf our decision in Jasinski
Builders, Inc, supra, In I, where we granted a motion to quash by this
189
No other evidence with respect to area practice was
introduced, but Iron Workers counsel did refer in
oral presentation to an award of the work at a nearly
"identical" job to the Iron Workers pursuant to a
National Joint Board decision.3
We conclude that the evidence on a whole of
company and area practice favors awarding the work
to the Laborers.
The record shows that on the Autolite-Ford
project concrete was poured for 4 or 5 hours a day.
The remaining worktime was devoted to setting up
forms for the next day. Concrete was poured to a
depth of about 4 inches, then wire mesh was placed
in the concrete (this is the disputed work) and about
4 more inches of concrete was poured over the mesh.
The cement was then further processed. All the work,
with the exception of delivery of concrete and some
of the final finishing steps by cement finishers, was
performed by laborers as has been the case in other
projects of a similar nature in which Morrison and
Century have been involved. Placing of wire mesh in
the concrete involved no more than 30 to 45 minutes
of work each day and involved only one step in a
continual process. No training is required for the
work of placing the wire mesh in the concrete and
there is no evidence that the work entails any special
skills possessed by the ironworkers. Even if the
Employers were to employ ironworkers for the
limited work of placing the wire mesh, they would
still have to employ laborers for the rest of the job
which constitutes the greater portion of the work.
Accordingly, it is evident that the additional factors
of economy and efficiency of operation favor
awarding the work of placing the wire mesh to the
laborers rather than to the ironworkers.
CONCLUSIONS
Upon the entire record and having considered all
the relevant factors involved, we conclude that the
employees of Morrison and/or Century who are
represented by the Laborers, rather than workers
represented by the Iron Workers, are entitled to the
work in dispute. Existing collective-bargaining agree-
ments, company practice, efficiency, and economy of
operation support this result.'
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
same local of the Iron Workers because of the employer's agreement to be
bound by the procedures of the National Joint Board
4 On the record before us, we do not find went in the Laborers
request for a broad award The request is hereby denied
189A DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foregoing findings and the entire record in this
proceeding , the National Labor Relations Board
hereby makes the following determination of dispute:
1. Employees of G. A. Morrison Company and/or
Century Cement Company who are currently repre-
sented by Local 1191, Laborers ' International Union
of North America, AFL-CIO, are entitled to perform
the work of placing and fitting reinforcing wire mesh
in the cement paving at the Autolite -Ford Parts
Redistribution Center, Brownstown Township,
Wayne County, Michigan.
2. Reinforced Iron Workers Local No. 426,
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 G . A. Morrison Company and/or
Century Cement Company to assign such work to
ironworkers who are represented by that labor
organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute , Reinforced Iron
Workers Local 426 , International Association of
Bridge , Structural and Ornamental Iron Workers,
AFL-CIO, shall notify the Regional Director for
Region 7, in writing, whether or not it will refrain
from forcing or requiring the Employers , by means
proscribed by Section 8(b)(4)(D ) of the Act, to assign
the work in dispute to ironworkers represented by
Reinforced Iron Workers Local 426, rather than to
laborers represented by Local 1191 , Laborers' Inter-
national Union of North America , AFL-CIO.