Seafarers (Recon Refractory & Construction)

National Labor Relations Board - Board Decisions

Jul 24, 2003

339 N.L.R.B. 825 (N.L.R.B. 2003)

SEAFARERS (RECON REFRACTORY & CONSTRUCTION) 825
Industrial, Professional and Technical Workers In-
ternational Union, SUINA, AFL–CIO and Recon
Refractory & Construction, Inc. and Interna-
tional Union of Bricklayers and Allied Craft-
workers, Local No. 4 and International Union of
Bricklayers and Craftworkers, AFL–CIO. Cases
21–CD–635 and 21–CD–637
July 24, 2003
DECISION AND ORDER QUASHING NOTICE
OF HEARING
BY MEMBERS SCHAUMBER, WALSH, AND ACOSTA
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act involving a purported juris-
dictional dispute. The charges were filed in Case 21–
CD–635 on August 4, 2000, by Recon Refractory &
Construction, Inc. (Recon) and in Case 21–CD–637 on
November 16, 2000, by Local 4 of the International Un-
ion of Bricklayers and Allied Craftworkers (Local 4)
alleging that Respondent Industrial, Professional and
Technical Workers International Union, SUINA, AFL–
CIO (IPTW) violated Section 8(b)(4)(D) of the Act by
engaging in proscribed activity with an object of forcing
Recon to assign certain work to employees IPTW repre-
sents rather than to employees Local 4 represents. The
two cases were consolidated, and a hearing was held on
February 6, April 2–6 and 16–20, and July 9–13, 17, and
18, 2001, before Hearing Officer Tirza P. Castellanos.
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 re-
cord, the Board makes the following findings.
I. JURISDICTION
Recon, a California corporation, is a general construc-
tion contractor working in areas including, but not lim-
ited to, southern California. During the 12-month period
ending in July 2001, it purchased and received goods
valued in excess of $50,000 directly from suppliers lo-
cated outside the State of California.
The parties stipulated, and we find, that Recon is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and Local 4 and IPTW
are labor organizations within the meaning of Section
2(5) of the Act.
II. THE DISPUTE
A. Background
Recon’s operations include the installation of different
types of refractory1 materials in various industrial units.
Recon is party to a collective-bargaining agreement,
called the National Refractory Agreement (NRA), with
the International Union of Bricklayers and Craftworkers,
AFL–CIO (BAC).2 Under the NRA, signatory refractory
contractors are required to assign refractory work to
BAC-represented bricklayers.3 Pursuant to this agree-
ment, from 1990 through the end of 1999, Recon as-
signed all of its refractory work in southern California to
bricklayers.
During this same time period, Recon employed labor-
ers to perform support tasks, such as demolition, cleanup,
and the mixing and transporting of refractory materials
for installation by the bricklayers.4 In 1996, Recon exe-
cuted a collective-bargaining agreement with IPTW,
covering Recon’s laborers working at the facility of U.S.
Borax. The IPTW agreement, effective from November
1, 1996, through March 1, 2002, did not expressly define
the particular work encompassed by the agreement, and
gave Recon unfettered discretion in the assignment of

1 Refractories are heat-resistant materials that are used to line high-
temperature furnaces, reactors, and other processing units.
2 The NRA is executed by BAC and individual refractory contrac-
tors. BAC negotiates the agreement with a management committee of
refractory contractors. The NRA’s purpose is to provide refractory
contractors a means to perform refractory installation work with brick-
layers anywhere in the country, without the need to sign separate
agreements with BAC locals in each geographic area.
3 The NRA’s work assignment provision states: “The Employer
agrees to assign to employees represented by the BAC all work which
has been historically or traditionally assigned to members of the Inter-
national Union of Bricklayers and Allied Craftworkers, including but
not limited to: dipping, setting, buttering, bedding, hanging, pointing,
grouting, caulking, cutting, toothing, fitting, plumbing, aligning, laying,
leveling, installing of gaskets and expansion joint materials, grinding,
vibrating, tamping, guniting, pounding, insulating and spraying of all
refractory materials, forming and anchoring for all refractory materials
by all means including bolting and welding, ceramic welding, removal
and cleaning of masonry materials to be reinstalled, final sandblasting
of surfaces to receive refractory materials, installation of chemical
coatings, fire-proofing, and membrane materials by any method re-
quired, surface spraying of all refractory materials, and cleaning of
coke oven walls, chambers and flues.”
4 Local 4 does not claim this unskilled work, and it is therefore not in
dispute in this case.
339 NLRB No. 97
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 826
work.5 Recon did not assign laborers to perform refrac-
tory installation work at any Recon jobsite, including
U.S. Borax, at any time prior to 2000. In the spring of
1999, Recon customer Arco demanded that Recon cap its
labor rates for refractory installation work. As a result,
Recon commenced attempts to gain contractual wage
concessions for refractory work from Local 4 and its
International, BAC. Recon also gave the required notice
of intent to terminate the NRA. The Unions rebuffed
Recon's wage requests, and the NRA terminated on No-
vember 14, 1999. After a brief hiatus, Recon revived its
contractual relationship with BAC on December 20 by
executing an amended NRA, which included the same
work assignment provisions for refractory installation
work as in the previous NRA.
Sometime in November, Recon agreed with IPTW to
extend the coverage of their extant contract to laborers
working on nine additional jobsites, including the Arco
site. In late January 2000,6 Local 4 received information
that Recon was performing nonbrick refractory installa-
tion work at Arco without informing Local 4, as required
under the NRA. Thereafter, Local 4 representatives were
denied access to the site. Local 4 filed a grievance alleg-
ing that some of the work performed at Arco in January
was within the scope of work required to be assigned to
bricklayers under the NRA.
On February 1, Recon’s attorney sent a letter to IPTW
president, Donna Walsh, enclosing a copy of Local 4’s
grievance and soliciting IPTW’s position regarding Local
4’s jurisdictional claim. The next day, Walsh replied that
IPTW “claims jurisdiction over the work being per-
formed by Recon’s employees at the Arco refinery” and
that IPTW would “take immediate economic action
against Recon” if the disputed work were re-assigned to
bricklayers. In early February, Recon owner, Dan
Bellamy, informed Local 4 representatives that Recon
was assigning all nonbrick refractory installation work at
Arco to IPTW-represented laborers.
On June 21, BAC filed a complaint in Federal court al-
leging that Recon breached the NRA by assigning non-
brick refractory installation work to IPTW-represented
employees. On July 31, Bellamy sent a letter to Walsh
soliciting IPTW’s position if Recon were to reassign the
disputed work to the bricklayers. The next day, Walsh
responded that IPTW would take “economic action, in-
cluding picketing,” if Recon did so. In response to
IPTW’s threats, Recon and Local 4 filed 8(b)(4)(D)
charges against IPTW.

5 The IPTW collective-bargaining agreement’s work assignment
provision simply states: “Work assignments shall be entirely at the
discretion of the Company without regard to seniority or classification.”
6 All subsequent dates are 2000, unless otherwise stated.
B. Work in Dispute
The work in dispute is the installation of various types
of nonbrick refractory materials. At the hearing, the par-
ties stipulated to the following specific statement of the
nature and scope of the work in dispute:

All refractory work performed by the Employer, in-
cluding but not limited to the installation of ceramic fi-
ber (sometimes known as Kao Wool), plastics, casta-
bles, and spray-on insulation (applied through gunit-
ing), including all bolting, welding, grinding, rigging,
attaching of anchor studs, ramming, packing, forming,
molding, and guniting associated with the installation
of these refractories, but excluding the laying of brick,
at locations including but not limited to: (1) the Arco
Refinery located at 1801 East Sepulveda Boulevard,
Carson, California; (2) the Mobil Refinery located at
3700 West 190th Street, Torrance, California; (3) the
City of Commerce Refuse-to-Energy project in the City
of Commerce; and (4) all future locations in which
identical jurisdictional disputes exist.
C. Contentions of the Parties
Local 4 moves to quash the notice of hearing, arguing
that the dispute here involves a work preservation claim
on behalf of Recon’s bricklayers whom it represents
rather than the kind of jurisdictional dispute appropriate
for resolution through Sections 8(b)(4)(D) and 10(k) of
the Act. It argues that Recon created this dispute by as-
signing the work traditionally performed by the bricklay-
ers to IPTW-represented laborers in violation of the
NRA. According to Local 4, Recon is therefore not the
“innocent” employer, caught between two rival unions
claiming the same work, for whom Congress intended to
provide relief under Section 10(k). In the event the
Board finds there is a valid jurisdictional dispute, Local 4
alternatively contends that the Board should award the
work to the bricklayers represented by Local 4 on the
basis of collective-bargaining agreements, employer past
practice, area and industry practice, economy and effi-
ciency of operations, and relative skills and training.
Recon and IPTW contend that a bona fide jurisdic-
tional dispute is properly before the Board for resolution.
They argue that the Board should award the work to
IPTW-represented laborers on the basis of employer
preference, relative skills and training, and economy and
efficiency of operations. Recon separately argues that
employer past practice favors an award to IPTW-
represented employees.
D. Applicability of the Statute
In determining whether a jurisdictional dispute within
the scope of Section 10(k) of the Act exists, the Board
SEAFARERS (RECON REFRACTORY & CONSTRUCTION) 827
first determines whether there is reasonable cause to be-
lieve Section 8(b)(4)(D) has been violated. This requires
finding, inter alia, that a union has used proscribed
means to enforce its claim to the work in dispute and that
it had the proscribed objective of forcing an employer to
assign the work to one group of employees rather than to
another group of employees. See, e.g., Stage Employees
IATSE Local 39 (Shepard Exposition Services), 337
NLRB 721, 723 (2002). Viewed literally, that is what
happened in this case. IPTW used means proscribed by
Section 8(b)(4)(D) when it threatened to take economic
action, including picketing, against Recon, and it did so
for the proscribed objective of forcing Recon to assign
the work in dispute to the group of employees repre-
sented by IPTW rather than the group of employees rep-
resented by Local 4.
However, the Board also looks to “the real nature and
origin of the dispute” in determining whether a jurisdic-
tional dispute exists. Teamsters Local 578 (USCP-
Wesco), 280 NLRB 818, 820 (1986), affd. sub nom.
USCP-Wesco, Inc. v NLRB, 827 F.2d 581 (9th Cir.
1987). Doing so here, we agree with Local 4 that the real
dispute in this case is a contractual dispute between Lo-
cal 4 and Recon over the preservation of bargaining unit
work for Local 4-represented bricklayers. Such a work
preservation dispute is not within the intended scope of
Section 10(k) of the Act.
The Board distinguished between such a work preser-
vation dispute and a jurisdictional dispute under Section
10(k) in Teamsters Local 107 (Safeway Stores), 134
NLRB 1320 (1961), where Safeway discharged employ-
ees represented by one union local, and subsequently
reassigned the work they had performed to employees
represented by other union locals. The reassignment was
in direct violation of the collective-bargaining agreement
between the former union and Safeway. The former un-
ion picketed in an effort to preserve the contractual work
its members traditionally had performed. An unfair labor
practice charge was filed, initiating a 10(k) proceeding.
The Board concluded that Section 10(k) should not apply
because the employer unilaterally created the dispute by
transferring the work away from the only group previ-
ously claiming and performing it under a collective-
bargaining agreement. Referring to the Supreme Court’s
direction that the Board must make an affirmative award
of the work in dispute when a jurisdictional dispute is
properly before it,7 the Board stated:

Implicit in this directive is the proposition that Sections
8(b)(4)(D) and 10(k) were designed to resolve compet-
7 See NLRB v. Electrical Workers Local 1212 (Columbia Broadcast-
ing), 364 U.S. 573 (1961).
ing claims between rival groups of employees, and not
to arbitrate disputes between a union and an employer
where no such competing claims are involved. Cer-
tainly it was not intended that every time an employer
elected to reallocate work among his employees or
supplant one group of employees with another, a “ju-
risdictional dispute” exists within the meaning of the
cited statutory provisions.8

The Board applied the work preservation principle
again in USCP-Wesco, supra, another case involving
Safeway. In that case, Safeway reassigned work to a
subcontractor in breach of its collective-bargaining
agreement with UFCW. After the reassignment, griev-
ances filed by UFCW against Safeway were submitted to
arbitration and resolved in its favor. In response, the
Teamsters, representing the subcontractor’s employees,
threatened to picket the subcontractor and Safeway if the
work were assigned back to UFCW-represented employ-
ees. The subcontractor and the Food Employers Council,
on behalf of Safeway, filed 8(b)(4)(D) charges against
the Teamsters. Recognizing that “this dispute may liter-
ally fall within the terms of Sections 8(b)(4)(D) and
10(k) because there are two competing claims to the
work and one of the parties threatened to picket to pre-
vent a change in work assignment,”id. at 820, the Board
nevertheless found that the real dispute was a matter of
work preservation. In quashing the notice of hearing, the
Board expressed the view that

Safeway here is not the “innocent” employer that Sec-
tion 10(k) was intended to protect. Safeway created
this dispute by breaching its collective-bargaining
agreement with UFCW and could have ended it by
canceling its subcontract with Wesco. Safeway volun-
tarily entered into an agreement with UFCW, which in-
cluded restrictions on subcontracting unit work.
Shortly thereafter it nevertheless decided to subcontract
unit work to Wesco. Safeway should not now be al-
lowed to use the Board’s 10(k) processes to avoid its
contractual obligations. [Id. at 823.]

In sum, even though a particular dispute involving
competing claims to specific work may literally fall
within the terms of Sections 8(b)(4)(D) and 10(k) of the
Act, the Board nevertheless will examine the nature and
origins of the dispute to determine whether it is actually
jurisdictional. Where a dispute is fundamentally one
between an employer and a union, and concerns the un-
ion’s attempt merely to preserve the work it previously
had performed, the Board will not afford the employer
8 134 NLRB at 1322.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 828
the use of a 10(k) proceeding to resolve a dispute of its
own making.
As in the above-referenced cases, the real dispute in
this case is a contractual dispute between Local 4 and
Recon stemming from Recon’s alleged breach of the
parties’ agreement, and concerns Local 4’s consequent
efforts to preserve the work it previously had performed.
Indeed, bricklayers represented by Local 4 performed the
disputed work pursuant to the terms of the successive
NRAs for a decade prior to January 2000. Consequently,
when Recon assigned the work in dispute to IPTW-
represented laborers at Arco, it was the first time that
Recon had failed to assign refractory work in southern
California to Local 4-represented bricklayers. Accord-
ingly, the ensuing dispute over the work involved Local
4's attempts to preserve work traditionally performed by
employees it represents under the NRA. We conclude,
therefore, that the dispute here, created by Recon's al-
leged breach of its contract with Local 4, is a true work
preservation dispute. As such, it is not appropriate for
resolution under Section 10(k).
ORDER
It is ordered that the notice of hearing issued in this
case is quashed.