Spancrete Northeast, Inc.

National Labor Relations Board - Board Decisions

Aug 13, 1979

244 N.L.R.B. 182 (N.L.R.B. 1979)

DI8( ISIONS OF NATIONAL IABOR RELATIONS BOARD
Local 40, International Association of Bridge, Struc-
tural and Ornamental Iron Workers, AFL-CIO and
Spancrete Northeast, Inc., and Construction and
General Laborers Local Union Nos. 9 and 190, La-
borers International Union of North America, AFL-
CIO. Case 2-CD 594
August 13, 1979
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MLMBERS JNKINS
AND PENEII .()
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following a
charge filed by Spancrete Northeast. Inc., herein
called Spancrete. alleging that Local 40, International
Association of Bridge, Structural and Ornamental
Iron Workers, AFL CIO, herein called the Iron
Workers, had violated Section 8(b)(4)(D) of the Act
by engaging in certain proscribed activity with an ob-
ject of forcing or requiring Spancrete to assign certain
work to its members rather than to employees repre-
sented by Construction and General Laborers Local
Union Nos. 9 and 190, Laborers International Union
of North America, AFL-CIO, herein called the La-
borers.
Pursuant to notice, a hearing was held before Hear-
ing Officer Richard A. Ross on June 15, 18, 19 and
20, 1979. All parties appeared and were afforded full
opportunity to be heard, to examine and cross-exam-
ine witnesses, and to adduce evidence bearing on the
issues. Thereafter, briefs were filed by the Iron Work-
ers' and Spancrete.2
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 Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following finding:
I. THE BUSINESS OF THE EMPLOYER
Spancrete is a New York corporation with its prin-
cipal place of business in South Bethlehem, New
I The Iron Workers has requested oral argument. This request is hereby
denied as the record and the briefs adequately present the issues and the
positions of the parties.
2 A brief was also filed by Allied Building Metal Industries. Inc.. which
was granted permission at the hearing to call a witness and to introduce
testimony on the area practice and to file a brief in support thereof Addi-
tionally. a brief was filed on behalf of Building Contractors Association. Inc..
as amicus curiae.
York. It also operates other facilities in Rochester,
New York, and Aurora, Ohio. It is engaged in the
manufacture, sale, and installation of precast, pre-
stressed concrete building members. During the past
year, Spancrete purchased goods and materials from
outside the State of New York having a value in ex-
cess of $50,000. The parties stipulated. and we find,
that Spancrete 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 jurisdic-
tion herein.
II. lill IABOR OR(;ANIZAII()ONS INV().OLVED
The parties stipulated, and we find, that Iron
Workers Local 40 and Laborers Locals 9 and 190 are
labor organizations within the meaning of Section
2(5) of the Act.
111. I'FiF DISPUIF
A. Background and Facts of the Dispute
In May 1978, Spancrete submitted a bid to manu-
facture, furnish, and erect all the concrete compo-
nents for the construction of a municipal parking ga-
rage in the city of White Plains, New York. The city
of White Plains subsequently awarded the contract,
valued at approximately $8 million, to Spancrete.
Pursuant to its collective-bargaining agreement
with the International Laborers Union and agree-
ments thereunder with various locals of the Laborers,
covering employees working at and out of its three
plants, Spancrete assigned the work to employees rep-
resented by the Laborers.
On January 24, February 7. and March 21, 1979,
representatives of Spancrete, the Iron Workers, and
the city of White Plains discussed Spancrete's assign-
ment to employees represented by the Laborers. The
Iron Workers, meanwhile, submitted its claim for the
work assignment to the Impartial Jurisdictional Dis-
putes Board (herein called the IJDB). In a letter
dated May 3, 1979, the general president of the La-
borers International Union, Angelo Fosco, informed
the IJDB that because Spancrete Northeast, Inc., was
not stipulated to the IJDB and would not abide by its
decision the Laborers also would not participate in
the IJDB proceeding. On May 4. 1979, the IJDB
handed down a decision awarding the work to the
Iron Workers.
On May 14, 1979, representatives of the Iron
Workers and the city of White Plains again met to
discuss the work assignment. Present at this meeting
were the mayor of White Plains. Alfred Del Veccio:
the city's corporation counsel, Paul Bergins; a repre-
sentative of the construction manager (Morse Diesel
244 NLRB No. 48
182
SPANCRFIF NORTHEAS. IN('.
Corporation). Eugene McGovern: and two represen-
tatives of the Iron Workers. Raymond Corbett and
James Mullett. Corbett stated that the IJDB had
awarded the work to the Iron Workers and that the
Iron Workers intended to protect its jurisdiction. Ac-
cording to the testimon, of Corporation Counsel Ber-
gins. Corbett then stated that if Spancrete began the
work with laborers, the ironworkers would "take it
down." Bergins asked Corbett to define "take it
down," and Corbett allegedly said that he meant the
ironworkers would come off the job and picket.' Ac-
cording to Corbett's version of the conversation, he
said he did nlo want to take the job down. Corbett
testified that he meant that the Iron Workers planined
to file an action in the New York State courts and
that this action would compel the city of White Plains
to stop construction until the court determined
whether the award of the contract to Spancrete was
proper.
On the basis of Corbett's statement at the May 14
meeting, the Acting Regional Director for Region 2
of the National Labor Relations Board petitioned in
United States district court for a temporary injunc-
tion pursuant to Section 10(l) of the National Labor
Relations Act, as amended. On June 15, 1979, the
court granted a 60-day injunction enjoining the Iron
Workers from engaging in strikes, work stoppages,
picketing, or threats thereof, against the city of White
Plains, New York: Spancrete Northeast, Inc.; or
Morse Diesel Corporation. for the purpose of getting
the work assigned to its members. There has been no
picketing or other job action at the jobsite since that
date.
B. The Work in Dispute
The work in dispute involves the erection of the
concrete components for the construction of a mu-
nicipal parking garage in White Plains, New York.
C. The Contentions of the Parties
Spancrete contends that the assignment of the work
of installing precast, prestressed concrete products to
employees represented by the Laborers is justified by
the Company's national and local collective-bargain-
ing agreements with the Laborers, its established
practice of 17 years of installing products exclusively
with laborers, and economy and efficiency of opera-
tions in the conduct of its business. Spancrete further
contends that it is not bound by the decision of the
IJDB. The contentions of the Laborers are essentially
similar to those of Spancrete.
There are ironworkers employed by other contractors working on the
construction site.
The Iron Workers contends that the work in dis-
pute traditionallb has been done by ironworkers in
the city of White Plains and that White Plains is in
close proximity to the New York City construction
market, in which the Board has determined that the
area practice dictates that this t pe of work should be
done by ironworkers. The Iron Workers also con-
tends that the complexity and difficulty ot this par-
ticular job make laborers unqualified. whereas iron-
workers would bring superior skill. safety. ecolnolm.
and eficiency to this job. Furthermore, the Iron
Workers contends that the same factors that led the
IJDB to award the work to the Iron Workers should
persuade the Board to do the same.
D. Appicahlihtl of tlle Statllute
Befi.re the Board may proceed with a determina-
tion of the dispute pursuant to Section 10(k) of the
Act. it must be satisfied that (I) there is reasonable
cause to believe that Section 8(b)(4)(D) has been vio-
lated and (2) that the parties have not agreed upon a
method for the voluntary adjustment of the dispute.
As to () above, the record shows that on May 14.
1979, a meeting was held in the office of the mayor of
White Plains at which Iron Workers Local 40 Busi-
ness Manager Raymond Corbett stated that the Iron
Workers had won the assignment of the work in ques-
tion in a decision of the IJDB. According to the city's
corporation counsel, Paul Bergins, Corbett then
stated that the Iron Workers intended to protect its
jurisdiction and that the ironworkers would "take it
down" if Spancrete began work with laborers. Cor-
bett allegedly defined "take it down" to mean that the
ironworkers would come off the job and picket. This
statement by Corbett, as well as the underlying claim
to this work by the Iron Workers, makes it clear that
the Iron Workers threatened to picket in support of
its claim to the work. Accordingly, we find that rea-
sonable cause exists to believe that the Iron Workers
violated Section 8(b)(4)(D) of the Act.
With respect to (2) above, it is clear that the Board
will not determine the merits ofajuridictional dispute
if the parties involved have agreed on a method of
resolving such dispute. While the Iron Workers con-
tends that the Laborers is bound by the decision of
the IJDB, it does not contend that Spancrete has
agreed to be bound by such awards by that particular
tribunal. On its part, Spancrete contends that it is
neither directly nor indirectly a party to any agree-
ment stipulating it to the IJDB or any other plan of
voluntary settlement. Hence, it is clear that no party
contends that there is an agreed-upon method for the
voluntary adjustment of the dispute to which all the
necessary parties to the dispute are bound.
IR3
D)I('ISIONS OF NATIONAL ABOR RELAT IONS BOARD
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 there exists
no agreed-upon method for the voluntary adjustment
of the dispute within the meaning of Section 10(k) of
the Act. Accordingly, we find that this dispute is
properly before the Board for determination.
E. Merits of the Dispulte
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work after giving
due consideration to various factors.4 The Board has
held that its determination in a jurisdictional dispute
is an act of judgment based on commonsense and
experience reached by balancing those factors in-
volved in a particular case.5
I. Collective-bargaining agreements
Laborers Local 190 has been certified by the Board
as collective-bargaining representative of Spancrete's
employees at its Albany, South Bethlehem, New
York, facility. The certification, however, does not
make specific reference to the crews which Spancrete
used to perform erection work such as the work here
in dispute.
Since it commenced doing business in 1963, how-
ever, Spancrete has executed a national agreement
with the International Laborers Union of North
America, AFL-CIO, the most recent of which specif-
ically covers "all field construction . . . work per-
formed by the Employer." Additionally, that agree-
ment provides that the covered work jurisdiction is
that specified in article III, section I(b). of the Labor-
ers constitution which, in turn, encompasses the work
outlined in the Laborers "Manual of Jurisdiction."
That manual includes, within the Laborers jurisdic-
tion, the following work:
Where pre-stressed or pre-cast concrete slabs,
walls, or sections are used, all loading, unload-
ing, stockpiling, hooking, setting, and barring
into place of such slabs, walls, or sections. All
mixing, handling, conveying, placing, and
spreading of grout for any purpose.
Spancrete has also executed separate agreements
with the various Laborers locals representing employ-
ees at each of its facilities. These agreements state
that "all products manufactured and installed by the
Company shall be installed by Members of the La-
borers' International Union of North America."6
4N.L.R.B. v. Radio & Television Broadcast Engineers Union. Local 1212,
International Brotherhood of Electrical Workers. A FL- CIO Columbia Broad.
casting System]. 364 U.S. 573 (1961).
I5 nternational Association of Machinists, Lodge No. 1743, AL -CIO (. A
Jones Construction Companv), 135 NLRB 1402 (1973).
'The Iron Workers contends that the agreements are not applicable be-
On the other hand, Spancrete had no agreement
with the Iron Workers regarding the work in dispute.
Thus, we find that the contracts favor awarding the
disputed work to employees of Spancrete who are
represented by the Laborers.
2. The Employer's preference, assignment, and past
practice
It has been Spancrete's practice to assign the instal-
lation of its products to an erection crew typically
consisting of three permanently based Spancrete em-
ployees represented by the Laborers and additional
employees hired locally for the particular job.7 The
local employees are represented by the Laborers local
with jurisdiction over the particular geographical area
in which the job is located. Such practice is consistent
with the specific provisions of the national agreement
mentioned above, and Spancrete has expressed its
satisfaction with this arrangement. In the instant case,
the crew's permanent employees are represented by
Laborers Local 190, while the employees hired locally
are represented by Laborers Local 9.
The record shows that the only exception to Span-
crete's practice of utilizing laborer crews has occurred
in New York City, as the result of the Board's 1972
award of similar work to ironworkers.7 The Iron
Workers contends that the present case is analogous
to the 1972 case because local 40 has jurisdiction over
Westchester County as it does in the five boroughs of
New York City and because of the city of White
Plains is in close proximity to New York City. We
note, however, that the circumstances underlying the
Board's determination in the New York City case are
not present here. In that case, Spancrete had admit-
tedly never completed a job in New York City with a
crew of laborers; ironworkers had historically per-
formed the disputed work in that area; and the La-
borers locals with jurisdiction in New York City re-
fused to supply Spancrete with the necessary
personnel because of a longstanding Building Trades
Employer Association award in favor of ironworkers.
In the present case, Spancrete has completed jobs in
Westchester County using laborers and Laborers lo-
cals have supplied the requested personnel. Thus, this
case is in keeping with Spancrete's past practice and
cause the products used on the job in dispute were not manufactured by
Spancrete. We find that th agreements do not clearly demonstrate that the
parties limited field construction or installation by crews of laborers to prod-
ucts manufactured by Spancrete. Instead, the agreements can be read to
cover installation of products manufactured by other companies.
I The Iron Workers contends that Spancrete's usual crew consists of 60
percent permanent employees and 40 percent employees from Laborers lo-
cals in the area where the work is being done. but that in this case Spancrete
employed four permanent employees and six employees from Laborers lo-
cals. Contrary to the Iron Workers' contention. however. we do not find that
this change in ratio is a significant departure from past practice.
I Local Union No 40, International Associarion of Bridge, Structural and
Ornamental Iron Workers, AFL-CIO (Spancrete Northeast, Inc.), 197 NLRB
822 (1972)
184
SPANCRETE NORTHEAST. INC.
is not analogous to the one exception noted. We con-
clude, therefore, that Spancrete's past practice, as-
signment, and preference militate in favor of award-
ing the work here in dispute to employees represented
by the Laborers.
3. Industry and area practice
The record evidence fails to establish a uniform in-
dustry or trade practice covering the erection of pre-
cast, prestressed concrete.9 The record does show,
however, that Spancrete has manufactured and in-
stalled over 50 million square feet of this product
since it started business in 1965. Of that total, Span-
crete has erected almost 5 million square feet of this
product on 85 jobs in Westchester County. With the
exception of Spancrete's use of ironworkers to install
the product in New York City, supra, Spancrete has
installed all of this product with crews of laborers
under these arrangements. supra. The record also
shows that ironworkers have erected five garages con-
structed with this product in White Plains and that
they have erected other such work in Westchester
County. The Iron Workers further supports its claim
on the basis that the concrete columns here are larger
and heavier than the product Spancrete generally
manufactures and installs. On the record as a whole,
we find that industry and area practice are inconclu-
sive.
4. Skills, economy, and efficiency
Spancrete employs permanent installation crews of
laborers who go through work orientation training
and safety sessions that prepare them for the type of
work that Spancrete does. Regarding the laborers
hired locally to supplement the permanent crews,
Spancrete tries whenever possible to hire local labor-
ers whom it has employed before.
The Iron Workers contends that, because the job in
this case involves concrete materials not manufac-
tured by Spancrete and concrete materials that are
both longer and heavier than those usually used by
Spancrete, the laborers lack the necessary skills for
the job. The Iron Workers maintains that its more
extensive training programs and its members' greater
' In a recent case involving Spancrete, this Board found that industrs and
area practice favored employees represented b the Laborers. See Interna-
rional Association of Bridge, Structural and Ornamental Iron Workers. Local
Union No. 3, AFL-CIO (Spancrete Northeast, Inc.) . 243 NLRB No. 81
(1979). In another case the Board found that this factor favors the ironwork-
ers in New York City, supra. In several other cases involving Spancrete, the
Board found that this factor favored neither group of employees. See Local
301, International Association of Bridge, Structural and Ornamental Iron
Workers. AFL CIO (Spancrete Northeast. Inc.), 235 NLRB 1222 (1978): Lo-
cal 42, Bricklayers, Masons and Plasterers International Lnion of America.
AFL-CIO (Spancrete Northeast, Inc.), 192 NLRB 64, 66 (1971)
experience in handling these larger-sized materials
better equip them to handle this particular project.
The Iron Workers further contends that the laborers'
lack of skill in handling these larger-sized materials
have led to unsafe conditions on the jobsite including
improperly rigged hoisting devices and free-standing
columns improperly secured.t°
Spancrete rebutted the Iron Workers' contentions
with testimony that Spancrete has erected other park-
ing garages, high-rise apartment buildings, and
bridges using laborers. Spancrete's chief engineer and
vice president. Harry Palmbaum. specifically testified
that Spancrete erected a building at the State Univer-
sity of New York using 40-foot. 30-ton columns.
Palmbaum further testified that the hoisting problems
could be blamed on a crane malfunction and that
there was no need to secure the columns with guy
lines. In sum, although the record shows that the
ironworkers possess extensive training and experience
in performing the work in question, the record shows
that the laborers also possess the necessary skills to
perform the work.
As to the factors of efficiency and economy. Span-
crete contends that it benefits from the experience of
its permanent employees as key members of its field
crews. Furthermore, Spancrete claims that if iron-
workers were used more employees would be needed
because other trades would be required to perform
tasks the ironworkers would not do.
The Iron Workers, on the other hand, contends
that fewer employees would he needed if ironworkers
were used. The Iron Workers further contends that it
would be both more efficient and safer to have iron-
workers erect the concrete columns and erect and tie
them into the structural steel.t' In view of the contra-
dictory record evidence, we conclude that the factors
of economy and efficiency favor neither party.
Conclusion
Upon the entire record in this proceeding and after
full consideration of all the relevant factors, we con-
clude that Spancrete's employees who are represented
by Laborers Locals 9 and 190 are entitled to perform
the work here in dispute. We reach this conclusion on
the basis of Spancrete's long-established practice of
assigning the work here in question to employees rep-
'0 After the hearing closed. the Iron Workers submitted to the Board cop-
ies of two citations issued bh OSHA concerning alleged safety violations by
Spancrete. Spancrete has indicated it will contest the allegations in the cita-
tions. In these circumstances, we hare not considered the citations Nor do
we find that a clear picture emerges from the record evidence as to the cause
and implications of several safet' problems alleged o have occurred on the
jobsite.
11 Another subcontractor. Gem Steel Erector. v hich is not a part) to this
dispute. is responsible ;.or erecting and tying the concrete columns into the
structural steel
185
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resented by the appropriate Laborers locals, the col-
lective-bargaining agreements, and Spancrete's pref-
erence. The factors of industry and area practice,
skills, and economy and efficiency do not firmly sup-
port an award to employees represented by one
Union over the employees represented by the other
Union. Accordingly, we shall determine the dispute
by awarding the disputed work to Spancrete's em-
ployees represented by Laborers Locals 9 and 190,
but not any labor organization of which these em-
ployees are members.
locals] to engage in further unlawful conduct. Nor
does [their] alleged interest in obtaining work similar
to that in dispute here, as such work becomes avail-
able on future Spancrete jobs, demonstrate the likeli-
hood that they will again resort to unlawful means to
obtain it."' 4 Accordingly, we find that the issuance of
the broad order sought herein by Spancrete is not
warranted in this case. Therefore, our present deter-
mination is limited to the particular controversy
which gave rise to this proceeding.
DETERMINATION OF DISPUTE
Scope of the Award
Spancrete requests that the Board issue a broad
work award on behalf of the Laborers to be appli-
cable throughout the area in which Spancrete con-
ducts business. Spancrete contends that such an order
is necessary in order to avoid further jurisdictional
work interruptions in the areas where it operates. In
this respect, Spancrete claims that it has been the tar-
get of jurisdictional disputes in every location in
which it does business. In six instances, the jurisdic-
tional disputes culminated in Board determinations
under Section 10(k) of the Act. We note, however,
that in the only proceeding in which the local herein
was involved, the Board awarded the work to that
Local. 2
Spancrete has made similar requests in prior
cases.'3 However, "the fact that other unions, includ-
ing affiliates of the Ironworkers in other localities,
have engaged in such unlawful conduct in the past,
does not demonstrate a proclivity on the part of[these
1 See Local Union No 40. International Astociation o Bridge, Structural
and Ornamental Ironworkers. AFl. CIO (Spancrete Northeast In-.J 197
NLRB 822 (1972).
13 Local 42. Bricklayers. Masons and Plasterers International Union of
America. AFL CIO (Spancrele Northeast, Inc. 192 NL.RB 64 ( 1971). I.oal
10, Bricklayers Masons and Plasterers International Union f America. A FL
CIO (Spancrele Northeast. Inc.). 191 NLRB 638 (1971): Lxcal VNo. 6, Interna-
lional Association of Bridge, Structural and Ornamental Ironworkers (Span-
crete Northeast, Inc.), 196 NLRB 1182 (1972): Local Union No. 417, Interna-
tional Association of Bridge, Structural and Ornamental Iron Workers. A FL
CIO (Spancrete Northeast, Inc.), 219 NLRB 986 (1975): Local 301. Interna-
tional Association of Bridge, Structural and Ornamental Iron Workers A FL
CIO (Spancrete Northeast, Inc.). 235 NLRB 1222 (1978); International Asso-
ciation of Bridge, Structural and Ornamental Iron Workers, Local Union No.
3. AFL-CIO (Spancrete Northeast. Inc.). 243 NLRB No. 81 (1979).
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 pro-
ceeding, the National Labor Relations Board makes
the following Determination of Dispute.
I. Employees employed by Spancrete Northeast,
Inc., who are represented by Construction and Gen-
eral Laborers Local Union Nos. 9 and 190, Laborers
International Union of North America, AFL-CIO,
are entitled to perform the erection of the concrete
components for the construction of a municipal park-
ing garage at White Plains, New York.
2. Local 40, 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 Spancrete
Northeast, Inc., to assign the disputed work to em-
ployees represented by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local 40, Interna-
tional Association of Bridge, Structural, and Orna-
mental Iron Workers, AFL-CIO. shall notify the Re-
gional Director for Region 2. in writing, whether or
not it will refrain from forcing or requiring Spancrete
Northeast, Inc., by means proscribed by Section
8(b)(4)(D) of the Act, to assign the disputed work to
its members rather than to employees represented by
Construction and General Laborers Local Union
Nos. 9 and 190, Laborers International Union of
North America, AFL-CIO.
14 local 6. Ironworkers. rupra at 1185: Local 417. IronworAers, upra at 989.
186