Iron Workers, Local 29

National Labor Relations Board - Board Decisions

Sep 27, 1972

199 N.L.R.B. 313 (N.L.R.B. 1972)

IRON WORKERS , LOCAL 29 313
International Association of Bridge , Structural and Or-
namental Iron Workers, Local 29, AFL-CIO (Fab-
industries, Inc.) and Oregon-Columbia Chapter,
The Associated General Contractors of America,
Inc. and International Union of Operating Engi-
neers, Local Union No. 701, AFL-CIO
International Union of Operating Engineers, Local
Union No. 701, AFL-CIO (Fabindustries, Inc.) and
Oregon-Columbia Chapter , The Associated General
Contractors of America, Inc. and Association of
Bridge, Structural and Ornamental Iron Workers,
Local 29, AFL-CIO
International Union of Operating Engineers, Local
Union No. 701, AFL-CIO and Hoffman Construc-
tion Company and International Association of
Bridge, Structural and Ornamental Iron Workers,
Local 29, AFL-CIO
International Union of Operating Engineers, Local
Union No. 701, AFL-CIO and Fabindustries, Inc.
and International Association of Bridge , Structural
and Ornamental Iron Workers, Local 29, AFL-CIO.
Cases 36-CD-83, 36-CD-84, 36-CD-85, and 36-
CD-90
September 27, 1972
DECISION AND DETERMINATION OF
DISPUTES
BY MEMBERS FANNING, KENNEDY, AND PENELLO
This is a consolidated proceeding under Section
10(k) of the National Labor Relations Act, as
amended, following the filing of charges in Case 36-
CD-83 on November 10, 1971, and in Case 36-
CD-84, on November 18, 1971, by Oregon-Columbia
Chapter, The Associated General Contractors of
America, Inc.,' on behalf of one of its member em-
ployers, Fabindustries, Inc.;2 and the filing of a
charge in Case 36-CD-85 on November 18, 1971, by
Hoffman Construction Company;3 and the filing of a
charge in Case 36-CD-90 on February 28, 1972,
amended on March 1, 1972, by Fabindustries. It is
alleged in Case 36-CD-83 that International Associa-
tion of Bridge, Structural and Ornamental Iron Work-
ers, Local 29, AFL-CIO,4 violated Section 8(b)(4)(D)
of the Act by engaging in certain proscribed activity
with an object of forcing or requiring the involved
Employer to assign certain work to employees repre-
sented by Iron Workers rather than to employees rep-
resented by International Union of Operating Engi-
neers, Local Union No. 701, AFL-CIO.5 And in
Cases 36-CD-84, 36-CD-85, and 36-CD-90, it is al-
leged that Engineers also violated Section 8(b)(4)(D)
of the Act by engaging in certain proscribed activity
with an object of forcing or requiring the Employers
therein to assign certain work to employees repre-
sented by Engineers rather than to employees repre-
sented by Iron Workers.
Pursuant to notice, a hearing was held at Port-
land, Oregon, on January 5, 6, 7, and 10, 1972, in
Cases 36-CD-83, 36-CD-84, and 36-CD-85 before
Hearing Officer Dale B. Cubbison. AGC, Fabindus-
tries, Hoffman, Iron Workers, and Engineers, the par-
ties to these proceedings, all appeared at the hearing
and were afforded full opportunity to be heard, to
examine and to cross-examine witnesses, and to ad-
duce evidence bearing on the issues .6 Thereafter, all
the parties filed briefs with the Board.7
Subsequent to the January hearing and before a
Board decision in Cases 36-CD-83, 36-CD-84, and
36-CD-85, the charge in Case 36-CD-90 was filed.
The charge alleged violations similar to those alleged
in Cases 36-CD-84 and 36-CD-85. Thereafter, AGC
and Fabindustries filed a Motion To Reopen Record
and/or To Consolidate Cases in which they urged the
Board to reopen the record in Cases 36-CD-83, 36-
CD-84, and 36-CD-85 to receive certain additional
evidence, which they contended was not in existence
until after the close of the January hearing, but which
they contended was directly relevant to the scope of
any possible order in that proceeding. They also urged
that the proceedings in Case 36-CD-90 be consolidat-
ed with the proceedings in Cases 36-CD-83, 36-
CD-84, and 36-CD-85 since the issue raised by the
charge in the former was identical to the issues in-
volved in the latter. Hoffman, Iron Workers, and the
Regional Director for Region 19 filed responses, con-
curring and/or joining in the motion. Engineers filed
no response. On April 3, 1972, the Board by its Asso-
ciate Executive Secretary granted the motion re-
opening the record and remanded the proceeding to
the Regional Director for the purpose of conducting
a further hearing limited to the issues of the scope of
Engineers work stoppages alleged in Case 36-CD-90
and the consequent scope of any possible Board
award. That case was also consolidated with Cases
36-CD-83, 36-CD-84, and 36-CD-85 for the pur-
poses of hearing and all other proceedings.
Thereafter pursuant to notice a further hearing
was held in Portland, Oregon, on May 4, 1972, before
1 Hereinafter AGC.
2 Hereinafter Fabmdustnes.
5 Hereinafter Engineers.
6 At the hearing, Hoffman was allowed to intervene in Cases 36-CD-83
3 Hereinafter Hoffman.
4 Hereinafter Iron Workers.
and -84
7 AGC and Fabmdustnes filed a point brief
199 NLRB No. 34
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hearing Officer Cubbison. AGC, Fabindustries,
Hoffman, Iron Workers, and Engineers again were
present and were afforded full opportunity to be
heard, to examine and cross-examine witnesses if they
desired, and to adduce evidence bearing on the issues
consistent with the Board's order.' Thereafter AGC
and Fabindustries and Hoffman filed briefs.
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 rulings of the Hear-
ing Officer made at the initial hearing and the re-
opened hearing and finds they are free from preju-
dical error. The rulings are hereby affirmed. The
Board has considered the briefs and the entire record
in this proceeding and hereby makes the following
findings:
I. THE BUSINESS OF THE COMPANIES
The parties agreed to the following stipulations:
AGC is an association representing employers
engaged in the construction and related industries.
Hoffman and Fabindustries are two of its members.
Many of its members, including Fabindustries, have
purchased in their last fiscal year materials in excess
of $50,000 from points directly outside the State of
Oregon.
Hoffman is an employer engaged in the heavy
and building construction industry in Oregon and nu-
merous other states. It has projects involving millions
of dollars presently under contract and it has made
purchases of goods and materials from points directly
outside the State of Oregon exceeding $50,000 during
the past year.
Accordingly, we find that the Employers are en-
gaged in commerce within the meaning of the Act and
that it will effectuate the purposes of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated and we find that Iron
Workers and Engineers are labor organizations within
the meaning of the Act.
In sum, the work in dispute in these cases con-
cerns certain tasks performed in the assembly, modifi-
cation, and disassembly of two types of cranes used
8 The evidence submitted at the reopened hearing was in the form of
affidavits presented by Fabindustnes
on construction sites; i.e., mobile cranes9 and tower
cranes.1° What is not in dispute is the operation of the
crane during these procedures and the general main-
tenance of the crane. These admittedly are functions
of employees represented by Engineers. It is all other
work involved in assembly, modification, or disas-
sembly of these cranes that is in dispute in these cases,
as that work is performed for general contractor em-
ployers as opposed to crane rental company employ-
ers. With respect to mobile cranes this includes,
among other things, all the work on the boom itself
such as connecting, adjusting, and rerigging lines;
driving, securing, and removing pins; mating the
bracket holes so that the pins may be driven ; signaling
the oiler to move the carrier forward and backward;
and signaling the operator as to desired boom move-
ments. With respect to tower cranes it includes,
among other things, rigging on the ground; guiding
the vertical sections and jibs into position and at-
taching them; attaching pennant lines; and accom-
plishing the necessary cable rigging.
B. Background and Facts
The Unions claiming the work described above
are Iron Workers and Engineers.
1. Case 36-CD-83
Hoffman is a general contractor on the Trojan
Nuclear Power Project, hereinafter the Trojan project,
which is located some 40 miles northwest of Portland,
Oregon. The project involves the construction of a
nuclear powerplant owned and operated by Portland
General Electric Company. Fabindustries is one of
Hoffman's subcontractors on the site and has been
awarded the work of fashioning the structural steel
portion of the building structure. Immediately to the
9 Mobile cranes are ambulatory cranes with an angled (nonhorizontal)
boom usually placed on rubber-tired carriers although large mobile cranes
have crawler tracks Another type of mobile crane , the mobile tower crane,
is a vertical tower crane placed on a mobile career . When mobile cranes are
moved they are stripped to a single butt section plus tip section of boom but
they can be lengthened to as much as 300 feet of boom and jib when used
on ajobsite . After arrival at the construction site, the lifting capability of the
mobile crane and its mobile characteristics are utilized to attach additional
sections of boom until the desired length of boom is attained The boom can
then be raised from a horizontal to a nearly vertical position with changes
in boom length and jib attachments being made as necessary depending on
variables such as the weight of the item to be lifted, its distance from the base
of the crane , and the height to which it must be raised.
10 Tower cranes are stationary cranes consisting of a vertical tower, set into
a concrete foundation , with a horizontal boom mounted near the tip of the
tower Frequently, the tower crane is raised in stages as the building (or other
structure being constructed) is erected Through this "jacking" procedure,
denoted as "modification" work throughout the Decision , the tower crane
may be utilized to build a structure many stones beyond its original height.
When the structure is finished, the tower crane is disassembled in inverse
order of its erection and its structural members are lowered to the ground
through the use of whatever types of cranes are available and capable of
performing the work
IRON WORKERS , LOCAL 29 315
east of the Hoffman building sites, there is a hill on
which the cooling tower utilized for cooling the water
circulated through the nuclear plant is being built.
That construction is being done by Research-Cottrell,
Inc." The activity complained of in Case 36-CD-83
occurred at the Trojan project.
In the course of their performance of work on the
jobsite both Research-Cottrell and Fabindustries
used mobile cranes.12 From the times that each Com-
pany first used mobile cranes on the jobsite, the work
of assembling the mobile cranes, and subsequently
modifying the length of their booms and changing
jibs, was assigned by each Company to a composite
crew consisting of the operator and the oiler on the
crane (represented by Engineers) and a crew of
ironworkers, the number of ironworkers varying, de-
pending on the number needed."
On September 7, 1971, for the first time, an Engi-
neers representative informed Research-Cottrell's site
manager that Engineers considered the work of as-
sembling and modifying and disassembling mobile
cranes to be exclusively the work of engineers. That
same day, Engineers representative instructed the op-
erator and oiler working on one of the mobile cranes
being used by Research-Cottrell that they should walk
off the job if an ironworker touched the rig. During
that time, Iron Workers also claimed the work but on
a composite crew basis, and at one time its representa-
tive stated that ironworkers were not going to be
pulled off the work.
On September 10, 1971, Research-Cottrell at-
tempted to reassemble a mobile crane with a compos-
ite crew but the engineer operator and oiler refused to
participate in the reassembly on instructions from En-
gineers officials since ironworkers were to be involved
in the reassembly. During the succeeding 2 months,
Research-Cottrell attempted on several occasions to
contact Engineers to have an operator and oiler sent
out to reassemble that crane with a composite crew,
but Engineers failed to send out any of its members.
The crane therefore lay idle during that time and Re-
search-Cottrell rented manned cranes from another
company. The situation of Fabindustries, however,
was noticeably better and engineers participated in
various changes on mobile cranes on a composite
crew basis until November 1971. Subsequently over
the November 6-7, 1971, weekend, boom changes
were made by a crew of engineers who worked for the
owner of the cranes on mobile cranes rented by Re-
11 Hereinafter Research-Cottrell. This company, although involved in the
junsdictional dispute in Case 36-CD-83, is not a party to these proceedings
since it and Iron Workers and Engineers are parties to procedures for the
settlement of such disputes
12 Research-Cottrell first used a mobile crane on the jobsite in March 1971,
and Fabindustnes first used one in July 1971
13 The operation of the crane itself was performed by an operator and oiler
represented by Engineers
search-Cottrell and Fabindustries respectively at the
Trojan project. Ironworkers were not present on the
jobsite of either Employer when those changes were
made. Fabindustries states it did not order the change
be made. When the ironworkers at Fabindustries re-
turned to the jobsite on Monday, November 8, and
discovered that their crane had been modified without
a composite crew, they refused to work although they
initially remained on the site. However, when the
ironworkers at Research-Cottrell learned that the
crane used by Fabindustries had also been modified
by a crew composed exclusively of engineers, the
ironworkers walked off the job. When Fabindustries'
ironworkers heard that the ironworkers at Research-
Cottrell had left, they also walked off and were subse-
quently followed by ironworker contingents at two
other employers on the Trojan site. The walkout last-
ed from November 8 until November 12, 1971.14
It was this ironworker walkout that precipitated
the charge in Case 36-CD-83.15
2. Case 36-CD-84
The scene of controversy in this case is also the
Trojan site and the relevant facts reveal essentially a
continuation of the events in the preceding case.
On Friday, November 12, 1971, Fabindustries re-
quired that the boom on one of its mobile cranes be
modified by removing the jib. The engineer operator
and oiler, pursuant to instructions from officials of the
Engineers, refused to do the work if, as Fabindustries
intended, ironworkers were going to participate in the
modification. Thereafter, the operator and oiler quit.
Their engineer replacements arrived on the jobsite on
Monday, November 15. Again Fabindustries wished
to complete the same operation with the same com-
posite crew of engineers and ironworkers and again
the engineers refused to work with the ironworkers on
oral instructions from an Engineers official who was
present on the site.
The same sequence of events transpired on No-
vember 16 Fabindustries attempting to utilize
ironworkers in the crew and the engineer operator
stating that he could not work if ironworkers were
going to work on the boom. The engineer operator
then phoned Engineers chief executive officer who
told him to begin operating the crane but if any of the
14 The ironworkers at one of the four employers returned on November 9,
1971.
15 On November 10, 1971, while the ironworker walkout was in progress,
the Regional Director for Region 19 filed a petition for injunction under Sec
10(1) of the Act with respect to the jurisdictional dispute between Iron
Workers and Engineers at Research -Cottrell . A hearing on the petition was
held on November 15, 1971, and that same day the United States District
Court for the District of Oregon issued an Order Granting Temporary In-
junction enjoining both Iron Workers and Engineers from engaging in juris-
dictional work stoppages against Research -Cottrell or any other employer on
the Trojan project The injunction itself issued November 16, 1971.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ironworkers touched the boom to boom the crane
back up. When an ironworker did attempt to handle
the boom, the engineer operator ceased work. It was
later that day that the temporary injunction, noted at
fn. 15, supra, issued.
Thereafter, on November 17, in light of Engineers
refusal to operate the crane on a composite crew basis,
Fabindustries attempted to utilize an ironworker in-
stead of an engineer to run the crane. When Engineers
discovered what Fabindustries was doing, it estab-
lished a picket line at the main entrance to the Trojan
site. One of the engineers visited each of the different
cranes and tractors on the jobsite and immediately
thereafter all the engineers walked off the job. Al-
though a separate gate was thereafter set up specifical-
ly for Fabindustries' employees, engineers picketed
both the Fabindustries' gate and the main gate to the
Trojan project on November 17 and 18. This picket-
ing continued on November 18 until a Fabindustries'
supervisor told the engineers that no cranes were to be
operated that day.
The charge in Case 36-CD-84 was thereafter filed
on November 18. On November 19, the engineers
returned to the Trojan site but again refused to handle
the crane when Fabindustries attempted to use
ironworkers on the crew. Meanwhile, however, a con-
tempt hearing in Federal court had been set for later
that afternoon on a petition by the Regional Director
for Region 19, filed November 18, charging that Engi-
neers had violated the Federal court's temporary in-
junction, noted at fn. 15, supra. Shortly before that
hearing was to be held, the engineer operator was
instructed by Engineers to return to work with a com-
posite crew, as desired by Fabindustries. The con-
tempt hearing was thereafter not held.
3. Case 36-CD-85
The charge in this case concerns certain alleged
activity of Engineers involving the Multnomah Ath-
letic Club project, hereinafter the Multnomah project,
in Portland, Oregon. Hoffman is the general contrac-
tor on the project.
By mid-November 1971, Hoffman was in the pro-
cess of erecting a tower crane at the Multnomah job-
site. Shortly after Engineers had placed the pickets at
the Trojan jobsite, Engineers Chief Executive Joy
telephoned Hoffman's labor relations manager, Hutch-
ison, and asked him what job assignments Hoffman
was planning to make at the Multnomah jobsite for
assembly at the tower crane. When Hoffman's repre-
sentative said that the tower crane would be assem-
bled by using a composite crew of engineers and
ironworkers, Joy responded that Hutchison "had just
declared war." Joy demanded exclusive assignment of
the crane assembly to engineers on the basis of its
agreement with Hoffman. He stated further that
Hoffman was "going to put that crane up with Oper-
ating Engineers or [Hoffman was not] going to put it
up." He also stated that if Hoffman attempted to erect
the tower crane with a composite crew that "We [En-
gineers] are going to shut it down."
The charge in this case was thereupon filed.
There was in fact no work stoppage at the Multno-
mah site and the tower crane was assembled with a
composite crew of engineers and ironworkers.
4. Case 36-CD-9016
As set forth in the affidavits presented at the re-
opened hearing, Engineers, subsequent to the first
hearing, engaged in refusals to work on January 17
and 20, 1972, at a project on which Fabindustries was
working near Underwood, Washington, which is ap-
proximately 55 miles east of Portland, Oregon. On
February 25, 1972, Engineers engaged in another
work stoppage at a project on which Fabindustries
was working at 200 Market Street, Portland, Oregon,
and on March 1, 1972, Engineers engaged in a work
stoppage at a project on which Fabindustries was
working at the Lloyd Center project in Portland. All
these refusals to work were precipitated by Fabindus-
tries' attempts to utilize a composite crew of engineers
and ironworkers on the handling of mobile cranes,
and were pursuant to the instructions of Engineers
officials to refrain from working if ironworkers were
used on the crew.
Furthermore, the evidence reveals that on March
1, 1972, Engineers Chief Executive Joy stated to the
manager of AGC that "everyjob in the entire territory
of [the agreement between AGC and Engineers was]
going to be down until a year from now when the
10(k) hearing is determined" unless AGC "[live(d) ] up"
to its labor agreement and engineers were given all the
disputed work on the cranes."
16 In the reopened hearing as noted at In. 8, supra, the evidence consisted
solely of various affidavits submitted by Fabindustries detailing the alleged
further work stoppages . Although all the parties stipulated that, if the affiants
were called to testify , their testimony would be as contained in the affidavits,
Engineers stated it was not admitting the truth of the matters contained in
the affidavits Engineers , however, presented no contrary evidence of its own.
The facts contained in the affidavits therefore stand uncontroverted, and we
accept those facts as true.
17 On March 20, 1972 , the Regional Director for Region 19 sought a
temporary injunction in Federal district court and secured that same day a
stipulation, agreed upon by the court on March 21, 1972 , whereby Engineers
agreed to refrain from engaging in any actions throughout its entire territorial
jurisdiction where an objective of such action would be to force the assign-
ment of the work of assembly and disassembly of crane booms and towers
and related work to individuals who are members of or represented by
Engineers rather than to individuals who are members of or represented by
Iron Workers The stipulation covered, inter alga, Fabindustries and Hoff-
man
IRON WORKERS , LOCAL 29 317
C. The Contentions of the Parties
The Employers in all the cases argue that there is
reasonable cause to believe that in each case the
particular Respondent violated Section 8(b)(4)(D) of
the Act and therefore the Board must make a deter-
mination of the merits of each dispute. The Employ-
ers urge also that a broad award be made covering the
entire territorial jurisdiction of the two competing
Unions and all affected employers therein. The juris-
diction of the Unions is coextensive and covers the
entire State of Oregon and certain counties of Washing-
ton State.
With respect to mobile cranes, Fabindustries and
Hoffman state that the work of assembly, modifica-
tion, and disassembly has historically been performed
by a composite crew. They define a composite crew
as two engineers, the operator and oiler, who operate
and maintain the crane, and, in addition, members of
the craft working with the crane who do the work of
rigging, hookup, signaling, and so forth. In these
cases, the craft involved is ironworkers.11 The com-
posite crew, the Employers contend, is the method
which is most efficient and economical to use, which
has been the area practice to use, and which they have
traditionally favored. They contend further that the
contract under which Engineers claims the work has,
in fact, been applied to use the composite crew basis.
Thus, here, AGC and Fabindustries state that the
work in dispute should be given to ironworkers when
ironworkers are on the job and will be, or are, or have
been using the cranes. The number of ironworkers to
be used, they state, should depend on the particular
need and circumstances. Hoffman states that such
work should be assigned to ironworkers, varying in
numbers, when ironworkers are already on the job-
site, are available, and are or will be working with the
crane. Where ironworkers will not be working with
the crane, Hoffman would reserve the right to be free
to assign the work to a composite crew including
members of the craft that would be using the crane.
With respect to tower cranes, the Employers state
that the work of assembling, modifying, and disas-
sembling tower cranes has historically been done by
a composite crew of one or two engineers and a crew
of ironworkers. Thus, they argue, the work in dispute
here should be awarded to ironworkers. Their reasons
are as noted above for mobile cranes with the addi-
tional factor of the safety they state arises from the
ironworkers' skills and training on tower cranes.
Iron Workers contends that it did not authorize,
sanction, or, as an organization, engage in any work
stoppage but it recognizes that there were employees
is Other composite crews in other situations on mobile cranes have been
Engineers and, e .g., Carpenters or Pipefitters , or He Bucks.
represented by Iron Workers who for a period of time
refused to work for Fabindustries in November 1971.
As the Employers do, Iron Workers argues for a
broad work award.
With respect to mobile cranes, Iron Workers ar-
gues that when a mobile crane is assigned for use by
ironworkers, or by multiple crafts including ironwork-
ers, the work of assembly, modification, and disas-
sembly should always be assigned to a composite crew
composed of (1) an operator and oiler represented by
Engineers, and (2) ironworkers, the number of
ironworkers to be that number that is required to
perform the work in a safe and expeditious manner.
With respect to tower cranes, Iron Workers claims that
the crew used for assembly, modification, and disas-
sembly should be composed of ironworkers, supple-
mented by the operator who will run the crane and a
mechanic, if this is desired by the employer. Iron
Workers' reasons for such assignments with respect to
mobile and tower cranes are the same as those ad-
vanced by the Employers.
Engineers in its brief filed after the first hearing
denied that reasonable cause to believe that violations
of Section 8(b)(4)(D) existed in those cases in which
it was a Respondent.19 Engineers filed no brief after
the reopened hearing with respect to Case 36-CD-90,
in which it was also the Respondent. Engineers ar-
gued after the first hearing that the scope of the
Board's order should be a narrow one since there was
then no showing that the disputes ranged beyond the
Trojan and Multnomah projects.
As to the work in dispute, Engineers claims that
with respect to both mobile and tower cranes, all as-
sembly, modification, and disassembly work on these
cranes is within the exclusive jurisdiction of Engi-
neers. Its position is based primarily on its contracts
with the Employers involved. Engineers also claims a
composite crew is no more efficient than a crew com-
posed exclusively of engineers.
D. Applicability of the Statute
Before the Board may proceed with the deter-
mination of a dispute pursuant to Section 10(k) of the
Act, it must be satisfied that there is reasonable cause
to believe Section 8(b)(4)(D) of the Act has been vio-
lated.
In Case 36-CD-83, the facts show the ironwork-
ers' walkout had as an object the forcing of Fabindus-
tries to assign the disputed work on the mobile crane
on the site to them rather than to engineers20 In Case
19 In each case it claimed its contract with the Employer involved covers
the disputed work and makes any work stoppages therein lawful. Further, in
Case 36-CD-85, it claimed the conversation which constitutes the sole evi-
dence of that case is too vague to support a finding of specific intent.
20 It is clear from the record that their walkout was in furtherance of their
Union's announced policy that the work in dispute was properly the work
Continued
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
36-CD-84, the uncontroverted facts establish that
Engineers engaged in various refusals to work with an
object of forcing Fabindustries to assign the work in
dispute to it rather than to Iron Workers?' In Case
36-CD-85, the facts show that Engineers chief execu-
tive in a phone conversation with Hoffman's labor
relations manager threatened that Engineers would
shut down the crane on the Multnomah site if Hoff-
man did not give Engineers the disputed work and
warned that Hoffman was going to put the crane up with
engineers or Hoffman was not going to put it up22 In
Case 36-CD-90 the facts demonstrate that Engineers
engaged in numerous other work stoppages all with an
object of forcing the assignment of the disputed work to
employees represented by it rather than to employees
represented by Iron Workers.
Therefore we conclude on the basis of the uncon-
troverted facts that there is reasonable cause to be-
lieve a violation of Section 8(b)(4)(D) of the Act has
occurred in each of the four cases now before us. The
dispute, therefore, is properly before the Board for
determination under Section 10(k) of the Act, and we
now turn to the merits.
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 all relevant factors. In
International Association of Machinists, Lodge No.
1743, AFL-CIO (J. A. Jones Construction Company),23
the Board set forth the following criteria to be con-
sidered in the making of an affirmative award in a
10(k) proceeding:
The Board will consider all relevant factors in
determining who is entitled to the work in dis-
pute, e.g., the skills and work involved, certifica-
tions by the Board, company and industry
of ironworkers and not the work of engineers , and in all the circumstances
we conclude that the fact that this particular walkout may not have been
expressly authorized by their union officials does not negate our finding
reasonable cause herein
21 Engineers claim that its contract with Fabindustnes gave it this work is
no reason to view this dispute as outside the scope of Sec. 8(b)(4)(D). Sheet
Metal Workers International Association, Local Union No. 28, AFL-CIO (Die-
sel Construction, a division of Carl A Morse, Inc.), 194 NLRB No. 18, fn 13,
and cases cited therein.
22 For the reasons noted in the above footnote , Engineers contractural
claim here does not prohibit a finding of reasonable cause Contrary to
Engineers claim , we hardly find Joy's statements vague nor do we see in them
a mere complaining that Hoffman would violate its contract with Engineers
if it used a composite crew on the assembly of the tower crane Engineers
citation to Lithographers and Photoengravers International Union, Local 23P
(Buyer's'Guide, Inc), 167 NLRB 958, is inapposite . There, where the Board
found no reasonable cause to find a violation had been committed, the
statements by the union consisted only of comments that "they would take
appropriate action" and "we are not going to stand still" if it were not
assigned the disputed work.
2 135 NLRB 1402.
practice, agreements between unions and be-
tween employers and unions, awards of arbitra-
tors, joint boards, and the AFL-CIO in the same
or related cases, the assignment made by the em-
ployer, and the efficient operation of the
employer's business.24
1. Employers ' assignment and preference
(a) Mobile cranes : The general practice of Fabin-
dustries and Hoffman has been to assign the work of
assembling , modifying , and disassembling mobile
cranes to a composite crew . Consistent with that prac-
tice , Fabindustries has uniformly assigned such work
to a crew of engineers and ironworkers for the 12
years it has been engaged in the steel-erecting indus-
try 25 and Hoffman has assigned this work to a crew
of engineers and ironworkers , when ironworkers has
been the craft using the crane.
We find this factor favors the assignment of the
work in dispute here to employees represented by Iron
Workers.26
(b) Tower cranes: The evidence reveals that the
consistent past practice with respect to the assembly,
modification , and disassembly of tower cranes has
been to use a composite crew consisting of an opera-
tor and a mechanic , both members of Engineers, and
crew of four ironworkers?' The entire group is under
the direction of an ironworker foreman . The past
practice here favors the assignment of the work in
dispute to employees represented by Iron Workers.
2. Area practice
(a) Mobile cranes: The evidence shows that the
consistent practice of employer-contractors in the Or-
egon-Washington area has been to assign the work of
assembly, modification, and disassembly on a com-
posite crew basis. Numerous industry witnesses testi-
24 135 NLRB at 1410-11.
25 In the last 5 years there have been two exceptions to this policy where
ironworkers were joined by boilermakers in the work for Fabindustnes.
26 Engineers claims that there were several boom changes and mobile crane
assemblies made by Fabindustnes using engineers only on the Trojan project
site. The record shows only one such instance That occurred over the No-
vember 6-7, 1971 , weekend and Fabindustnes • states it knew nothing of that
change, the work having been done by engineers employed by the rental
company that owned the crane
Engineers also claims that Hoffman has at times used engineers exclusively
to assemble and disassemble its own mobile cranes. The record shows that
in those few situations where this was done the engineers who took the
ironworkers' places were employees on Hoffman 's own payroll whose main
functions were unrelated to this type of work and who were not hired for this
assembly or disassembly work only. Further, it is not clear from the record
whether there were any ironworkers on the jobsite when the work was done.
27 The only variation from this set assignment has been in certain instances
where Hoffman because of the proximity of a jobsite to its shop has been able
to utilize an employee or employees from the shop to help in this work. These
employees are engineers . They have, however, performed similar work for
Hoffman for a number of years and have received their training on the job
working under ironworker supervision
IRON WORKERS , LOCAL 29 319
lied that this is the procedure that has consistently
been followed and they testified that this procedure
has continued after June 1, 1971, the effective date of
the most recent Engineers-AGC contract.28
Engineers does not dispute the evidence which
indicates the assignment of the work on a composite
crew basis. Rather it argues that Iron Workers claim
made here would in fact upset the past practice since
Engineers considers that claim to be broader than the
past practice. Such argument does not negate the face
that the composite crew basis has been the one consis-
tently used. The scope of Iron Workers claim is dis-
cussed in our Conclusion on the Merits of the
Dispute, infra.
With respect to the area practice on mobile
cranes, the evidence favors the assignment of the dis-
puted work to employees represented by Iron Workers.
(b) Tower cranes. Unrefuted evidence with re-
spect to the area practice of assigning the work of
assembly, modification, and dissassembly of tower
cranes shows that the employer-contractors uniformly
award that work to a composite crew of engineers and
ironworkers.
Accordingly, this factor favors the assignment of
the work in dispute here to employees represented by
Iron Workers.
3. Economy and efficiency
(a) Mobile cranes: Fabindustries, Hoffman, and
Iron Workers contend that the composite crew basis
is the most efficient and economical method for per-
forming the work of assembly, modification, and dis-
assembly of mobile cranes. Boom assembly can be
accomplished by this crew in about 2 hours and boom
modifications can be accomplished in less than a half
hour. The record shows that it is difficult to precisely
pinpoint at what time a modification or disassembly
of the crane will take place. One virtue of the compos-
ite crew is that the craft using the crane, here
ironworkers, is on the jobsite already and thus is read-
ily available to perform the work. Moreover, when
this work is finished, the ironworkers, or whatever the
craft involved, can and do then return to other work
on the project. Although it is possible to perform
boom modifications with only an operator and an
oiler, both Fabindustries and Hoffman state that to
utilize only these two engineers would increase the
amount of time that the job ordinarily takes with a
28 Any variations in procedure from the composite crew basis have been
limited to those situations where a crane arrived on the job on weekends or
several days before arrival of members of the craft who would be working
with the crane on the site . In those cases the employees delivering the crane
have at times performed the assembly or disassembly tasks themselves. Other
situations are where the crane rental company itself was obligated to furnish
the crane with the boom assembled or was requested to make a boom modifi-
cation over a weekend as a matter of efficiency.
composite crew. This, in turn, would idle other em-
ployees' who are waiting for the boom modifications
to be made before their job sequence can continue.
The alternative to have just the operator and oiler
perform the modification work, i.e., the dispatching of
additional engineers to perform the assembly and di-
sassembly, would also result in an increase in costs
and time lost. These additional engineers would not
normally be present on the jobsite, hence they would
have to be dispatched from the hiring hall. While they
were traveling to the jobsite, the work of other em-
ployees might be interrupted. After the engineers did
the work, there would be no further need for their'
services on the job. Regardless of the amount of time
spent on the work involved, engineers would have to
be paid for a minimum of 4 hours' work.29
Engineers again states that the scope of Iron
Workers claim here is so broad as to hinder the econo-
my and efficiency of the operation.
We find that considerations of economy and effi-
ciency favor an assignment of the work in dispute here
to employees represented by Iron Workers.
(b) Tower cranes. Certain of the' considerations
noted above with respect to the mobile cranes apply
here also. Thus the composite crew basis of engineers
and ironworkers is more efficient and economical
since the ironworkers are able to do other jobs on the
project after the work of assembly or modification or
disassembly is completed. The engineers can perform
no other jobs. Additionally, as noted below, because
of the hazardous nature of the work, special skills are
involved in working on tower cranes. These skills,
which are acquired through an extensive training pro-
gram and long experience, are possessed by ironwork-
ers but not by engineers. The familiarity with the work
in dispute that ironworkers possess thus helps to keep
costs down and promotes the speedier completion of
the work.
The considerations of economy and efficiency
thus favor an assignment 'of the work in dispute here
to employees represented by Iron Workers.
4. Skills, training, and safety
(a) Mobile cranes: it is undisputed that no excep-
tional skills are required for the performance of the
disputed work. While it appears that Iron Workers
does include in its apprentice program instruction on
the assembly and disassembly of mobile cranes, we do
not consider this persuasive here since the record
shows that the only requisite to adequate performance
of the tasks involved is brief experience on the work
at hand.
In such circumstances, we consider the factors
29 Engineers master agreement calls for this mrmmum.
320 DECISIONS OF NATIONAL LABOR RELATIONS,BOARD
here do not favor particularly either Iron Workers or
Engineers.
(b) Tower cranes: The disputed work tasks in-
volved on tower cranes are more complex and de-
mand much greater skills than do the tasks involved
on mobile cranes. Iron Workers has an apprentice
program which teaches those skills necessary for the
safe performance of the disputed work on tower
cranes. There is no evidence that engineers generally
possess the requisite skills to perform the work in-
volved and those few engineers employed by Hoff-
man who possess these skills learned them from
Hoffman's ironworker personnel. The special work
involved is reflected in the equipment, including spe-
cial harness belts and hats, that ironworkers, but not
engineers, have. The employer-contractors who testi-
fied at the hearing consistently stressed the hazardous
nature of the work involved, noting especially the
height and obligations of the job, and stated that
ironworkers but not engineers possessed the training
and skill to perform the tasks safely.
The considerations of skill, training, and safety
thus favor the assignment of the work in dispute here
to employees represented by Iron Workers.
5. Relevant collective-bargaining contracts
Mobile and tower cranes: Engineers contends that
the disputed work on both mobile and tower cranes
has been awarded to it specifically by contract. It
states as support for its position the following provi-
sions of its contract with AGC (effective June 1, 1970,
to May 31, 1973):
(a) Article XV, B, 13, which states:
Operating Engineers shall assemble and disas-
semble cranes, booms, plants, and all other
equipment operated by Operating Engineers cov-
ered by this agreement;
(b) Article XV, A, 10, which states:
Crews on tower cranes shall consist of an Opera-
tor and the crews used in the jacking of Tower
Cranes shall be members of the craft;
(c) Article XV, A, 5, which states: ,
Crews on all track or truck cranes and/or similar
equipment with any and/or all attachments .. .
shall consist of an Operator and an Assistant to
Engineer (oiler) ... [except for certain types of
enumerated cranes not relevant here]. However,
should anyone be employed to assist the operator
of these cranes he shall be an Assistant to Engi-
neer (excluding hook tending not normally done
by Operating Engineers).
Engineers argues that the clear and unambiguous
language of the provisions quoted above requires that
engineers do all crane assembly and disassembly work
must be a member of Engineers. It argues that, when
read together, the provisions demonstrate the disput-
ed work was awarded to Engineers exclusively.
The Employers, however, argue that nowhere in
the above-quoted provisions does it state that the dis-
puted work was to be done exclusively by engineers
and they further argue that there is no evidence in the
record that this key additional word was bargained
for or intended by the parties in collective bargaining.
They argue, and the record does show, that both prior
to and subsequent to the June 1, 1970, effective date
of the contract under which Engineers now claims the
disputed work, the practice in the area has been to
assign the work of assembly, modification, and disas-
sembly on mobile and tower cranes on a composite
crew basis. The Employers therefore argue that ap-
parently it has been understood by the parties that the
contractural language did not require assignment of
the work exclusively to Engineers as it now claims.
The Employers further argue that Engineers
claim is counterbalanced by the provision in Iron
Workers contract with AGC which states that "Craft
jurisdiction is neither determined nor awarded by
classification and/or scope of work appearing in any
AGC Labor Agreement." Engineers states, however,
that no similar provision appears in its agreement with
AGC.
Iron Workers makes the same argument as the
Employers and states further that its current contract
with AGC (which runs from July 21, 1971, to July 20,
1973) states at article I, section 1, that "The work
covered by this Agreement shall be that which is rec-
ognized as properly coming under the jurisdiction of
the [Iron Workers]."30 It notes that article IV of its
constitution sets forth the jurisdictional claims of
ironworkers and includes, in its scope of work
claimed, the erection, installation, handling, and dis-
mantling of cranes when used on all forms of con-
struction work. It therefore argues that the provisions
of its constitution, supplementing those of its contract
with AGC, demonstrate that the work in dispute is
properly recognized as within Iron Workers jurisdic-
tion.
We conclude that the factor of contract rights
favors neither Iron Workers nor Engineers. Although
Engineers argues that its contract clearly gives it the
work in dispute, we also note that the language of
certain provisions in Iron Workers contract arguably
gives that work to its members. We note also the
longstanding practice of using a composite crew,
which the language of Engineers contract did nothing
to change. Under the foregoing circumstances, both
Unions appear to have some colorable contract right
to the disputed work.
and that anyone hired to assist the operator and oiler 30 The same clause was in its 1968-71 agreement with AGC.
IRON WORKERS , LOCAL 29 321
6. Board certifications and awards
Mobile and tower cranes: There are no outstand-
ing certifications by the Board covering the work in
dispute and there is no agreed-upon method binding
all parties to these proceedings to any voluntary pro-
cedure for the resolution of jurisdictional disputes.
7. Conclusions as to the merits of the dispute
On the basis of the foregoing considerations, it is
clear that the relevant factors favor a continuation of
the Employers' assignment of the work of assembly,
modification, and disassembly of both mobile and
tower cranes on a composite crew basis. We note
particularly that the Employers' assignment and past
practice, the area practice, the efficiency and econo-
my of the Employers' operation (and, with respect to
the tower cranes, the skills and training needed) all
favor the conclusion that a composite crew is the most
satisfactory method of performing these tasks. We
have noted Engineers claim that its contract with
AGC conclusively gives to it the work in dispute. But
in light of certain of the provisions in Iron Workers
contract as noted above and the past practice of using
a composite crew which continued after Engineers
contract became effective, we cannot say that Engi-
neers contract is so clear and unambiguous as to con-
stitute a defense in this 10(k) proceeding.31
Having decided that the work of assembly, modifi-
cation, and disassembly of mobile and tower cranes
is best accomplished by a composite crew, we will
make an award in the following manner.
Mobile cranes: The record shows that the com-
posite crew basis is the most desirable method to
utilize for assembly, modification, or disassembly
work on mobile cranes but it also shows that the com-
posite crew has been composed at times of engineers
and crafts other than ironworkers. The general criteri-
on has been to utilize whatever craft was then working
with the crane. The facts of the cases before us pre-
sently, however, show that ironworkers was the craft
that was to work with the crane involved in each
instance.
The facts of the cases before us also show that,
in all but one instance, the ironworkers were present
on the jobsite when'the disputed work was to be or was
performed. That single exception was the weekend of
November 6-7, 1971, when a modification of the mo-
bile crane at Fabindustries was made when ironwork-
ers were not then present on the jobsite, although they
had, in fact, commenced their work on the site. At the
hearing, Iron Workers representative stated that his
Union did claim a right to participate in any modifi-
31 lithographers and Photoengravers International Union, Local No 24-P
(The Beacon Journal Publishing Company), 185 NLRB No 45
cation made on a mobile crane once actual on job
construction work had started and ironworkers had
begun their work, even if, at the time the modification
was to be made, e.g., here, the weekend of November
6-7, 1971, ironworkers were not on the site. We per-
ceive as the key here in all the foregoing discussion of
the factors related to mobile cranes that the economy
and efficiency of the Employers' operations were best
served by utilizing a composite crew because the
ironworkers were present on the jobsite and were thus
readily available to handle the work in dispute. If
ironworkers are not present on the site when a change
is to be made, as they were not on the November 6-7,
1971, weekend, there is no showing in the record that
the Employers' practice, the area practice, the econo-
my and efficiency of operations, or any other factor
would call for their doing the work in dispute 32
In such circumstances, we award the work in
dispute here to employees of the above Employers
who are currently represented by Iron Workers but
not to the Union or its members, whenever the em-
ployees are present on the jobsite, and have been, or
are, or will be working with the mobile crane in the
construction process in conformity with the Employ-
ers' above-described composite crew practice.33
(b) Tower cranes: The record here shows that
ironworkers have always done the disputed work and
thus we award the work to employees of the above
Employers who are currently represented by Iron
Workers but not to the Union or its members.
8. Scope of the award
The Employers involved herein and Iron Work-
ers request that the Board issue a broad work award
encompassinng all employers engaged in work similar
to the Employers herein on all jobsites within the
territorial jurisdiction of Iron Workers and Engineers.
This jurisdiction is coextensive.34 The Employers and
32 This is not to say that we award the work in dispute in Case 36-CD-83
to engineers , however The situation that occurred over the November 6-7,
1971, weekend was the type of situation noted at In . 28 of our decision herein.
As noted by Hoffman in its brief , in such situations the practices of the
employers in the area have vaned , with each case being controlled by the
employer's agreement with the crane rental company as to which employer's
personnel were to make the modifications . This in turn has generally been
determined by the terms of the crane rental-with or without operator-and
the evaluation of the efficiency and economy factors involved . Although, in
the November 6-7, 1971, modification, the employees who did the work in
dispute worked for the crane rental company and happened to be engineers,
it would not follow that engineers would always be the group doing this work.
Thus, we leave the assignment of work in these situations to the terms of the
crane rental agreement.
33 Iron Workers also appears to claim the disputed work: (1) If the mobile
crane is to be used on a multicraft basis, i.e, when more than one craft is
to use the crane, as long as ironworkers would be one of the crafts utilizing
the crane , or (2) if the crane arrived on the jobsite a few days before the
ironworkers began work , if the nonworkers were to work with the crane
during the construction project. Whatever the merits of these two claims, we
intimate no opinion on them since the facts of the cases before us with regard
to Fabindustnes and Hoffman involve neither of these two situations
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Iron Workers contend that such an award is necessary
in order to avoid a repetition of similar jurisdictional
claims and attendant work stoppage at construction
sites within the territorial jurisdiction of the Unions.
We note that the incidents of actual work stoppages
in the four cases before us have ranged from the Tro-
jan project, 40 miles northwest of Portland, Oregon,
to at least three projects in Portland itself to the Un-
derwood, Washington, project some 55 miles east of
Portland. These incidents have covered the entire ge-
ographic jurisdiction of the Unions. We note also that
the Employers' businesses are at least-as extensive as
the Unions' jurisdiction. We note that on March 1,
1972, after the first injunction, limited to the two sites
in Cases 36-CD-83, 36-CD-84, and 36-CD-85, had
issued, Engineers Chief Executive Joy stated to the
manager of AGC that "every job in the entire territo-
ry" of Engineers agreement with AGC was going to
be down until the Board's determination of the dis-
pute in those cases if Engineers was not given the
work in dispute. We note that only after the Regional
Director sought a second Federal court injunction
extending to the full jurisdiction of the Unions and
covering any employer therein and secured from En-
gineers a stipulation to refrain from alleged unfair
labor practices did these work stoppages cease. Under
such circumstances, we find the evidence demon-
strates a proclivity of the Respondents to engage in
further unlawful conduct with attendant work inter-
ruptions at other jobsites involving other employers
unless a broad award is made here. Accordingly, we
conclude the issuance of a broad award is appropriate
in this proceeding 3s
DETERMINATION OF DISPUTES
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 hereby
makes the following Determination of the Disputes.
A. Mobile Cranes
1. Employees employed by Fabindustries, Inc.,
or Hoffman Construction Company, or any other em-
ployer engaged in the similar type of work and who
are represented by International Association of
Bridge, Structural and Ornamental Iron Workers, Lo-
34 Specifically the jurisdiction covers the State of Oregon and the counties
of Khckitat, Skamania, Clark, Cowlitz, Wahkiakum in Washington and that
portion of Pacific County south of a straight line made by extending the
north boundary line of Wahkiakum County west to the Pacific Ocean
35 Sheet Metal Workers International Association , Local Union No. 28,
AFL-CIO (Diesel Construction , a Division of Carl A Morse, Inc), 194 NLRB
No 18.
cal 29, AFL-CIO, are entitled to perform the disputed
work involved in the assembly, modification, and dis-
assembly of mobile cranes, exclusive of operation
of the cranes during these procedures, whenever these
employees are present on the jobsite and have been,
or are, or will be working with these cranes in the
construction process, in such number as appropriate
depending on the particular need and circumstances,
in conformity with the Employers' composite crew
basis wherever the territorial jurisdiction of Interna-
tional Association of Bridge, Structural and Orna-
mental Iron Workers, Local 29, AFL-CIO, and of
International Union of Operating Engineers, Local
Union No. 701, AFL-CIO, coincides.
2. International Union of Operating Engineers,
Local Union No. 701, AFL-CIO, is not and has not
been entitled, by means proscribed by Section
8(b)(4)(D) of the Act, to force or require the Employ-
ers herein or any other employer-member of the AGC
(Oregon-Columbia Chapter) to assign such disputed
work to employees currently represented by such la-
bor organization.
3. Within 10 days from the date of this Decision and
Determination of Disputes, International Union of
Operating Engineers, Local Union No. 701, AFL-
CIO, shall notify the Regional Director for Region 19,
in writing, whether it will or will not refrain from
forcing or requiring the Employers, by means pro-
scribed by Section 8(b)(4)(D) of the Act, to assign the
above work in dispute to its members rather than to
employees represented by International Association
of Bridge, Structural and Ornamental Iron Workers,
Local 29, AFL-CIO.
B. Tower Cranes
1. Employees employed by Fabindustries, Inc., or
Hoffman Construction Company, or any other em-
ployer engaged in the similar type of work and who
are represented by International Association of
Bridge, Structural and Ornamental Iron Workers, Lo-
cal 29, AFL-CIO, are entitled to perform the disputed
work involved in the assembly, modification, and dis-
assembly or tower cranes exclusive of the operation
of the cranes during these procedures, in such number
as appropriate depending on the particular need and
circumstances wherever the territorial jurisdiction of
International Association of Bridge, Structural and
Oranamental Iron Workers, Local 29, AFL-CIO, and
of International Union of Operating Engineers, Local
Union No. 701, AFL-CIO, coincides.
2. International Union of Operating Engineers,
Local Union No. 701, AFL-CIO, is not and has not
been entitled, by means proscribed by Section
8(b)(4)(D) of the Act, to force or require the Employ-
ers herein or any other employer-member of the AGC
IRON WORKERS, LOCAL 29 323
(Oregon-Columbia Chapter) to assign such disputed
work to employees currently represented by such la-
bor organization.
3. Within 10 days from the date of this Decision and
Determination of Disputes , International Union of
Operating Engineers , Local Union No. 701, AFL-
CIO, shall notify the Regional Director for Region 19,
in writing , whether it will or will not refrain from
forcing or requiring the Employers, by means pro-
scribed by Section •8(b)(4)(D) of the Act, to assign the
above work in dispute to its members rather than to
employees represented by International Association
of Bridge, Structural and Ornamental Iron Workers,
Local 29, AFL-CIO.