Iron Workers, Local 272Download PDFNational Labor Relations Board - Board DecisionsMay 31, 1973203 N.L.R.B. 1021 (N.L.R.B. 1973) Copy Citation IRON WORKERS , LOCAL 272 International Association of Bridge , Structural & Or- namental Iron Workers , Local 272 and P & G Erec- tors, Inc. and Local 1394 , United Brotherhood of Carpenters & Joiners of America and Broward County Carpenters' District Council , United Broth- erhood of Carpenters & Joiners of America, AFL- CIO. Case 12-CD-183 May 31, 1973 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS , KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by P & G Erectors, Inc., herein called the Employer or P & G, alleging that Local 272, Inter- national Association of Bridge, Structural & Orna- mental Iron Workers, herein called Respondent or Iron Workers, violated Section 8(b)(4)(D) of the Act. A hearing was held before Hearing Officer Carl A. Peterson on March 21, 22, and 30, and April 6, 1972. The Employer, Iron Workers, and Broward County Carpenters' District Council, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, and its Local 1394, herein called Carpenters, appeared at the hearing, were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to ad- duce evidence bearing upon the issues. Thereafter, the Employer and Iron Workers 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 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 case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that P & G Erectors, Inc., is a Florida corporation engaged in the delivery and erection of precast and prestressed concrete building material as a subcontractor for precast manufacturers and that during the 12 months preceding the hearing P & G Erectors performed services valued at more than $800,000 for a number of Florida precast manu- facturers including services in excess of $500,000 for Stresscon International, Inc., of Miami, Florida. The parties also stipulated that Caldwell-Scott Engineer- ing and Construction Co., Inc., a Florida corporation, 1021 a general contractor in the building and construction industry, engaged in that capacity in the construction of a building for the Motorola Corporation in Fort Lauderdale, Florida, and Stresscon International, Inc., of Miami, a manufacturer of precast and pre- stressed concrete building material, both purchased supplies and materials in excess of $50,000 from sup- pliers located outside the State of Florida during the 12-month period preceding the hearing. The parties stipulated and we find that P & G is engaged in com- merce within the meaning of the Act; and we find that it will effectuate the policies of the Act to assert juris- diction herein. II THE LABOR ORGANIZATIONS INVOLVED The parties stipulated , and we find , that the Iron Workers and the Carpenters are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute For several years, P & G has been actively engaged in the business of hauling and installing precast and prestressed concrete on various building construction projects in the Broward County, Florida, area. Pur- suant to its agreement with the Carpenters and in accord with an understanding with Local 31 of the Bricklayers and Masons Union, P & G has installed precast and prestressed concrete slabs on a number of construction projects in the Broward County area, assigning the installation work to members of the Car- penters and Masons. For several years, the Iron Workers has been interested in obtaining this work for its members, and in late 1970, while P & G was engaged in phase I of the project, the Iron Workers commenced picketing the jobsite. P & G withdrew from the job filing an unfair labor practice charge against the Iron Workers (12-CD-164). Thereafter, the Iron Workers ceased picketing, P & G returned to the job, and phase I work by P & G was completed in January 1971. Following this, Caldwell-Scott be- came the general contractor on phase II of the Moto- rola job, subcontracting the phase II precast contract work to Stresscon International who in turn subcon- tracted to P & G to do the installation work. John Nord, business agent for the Iron Workers, inquired of Caldwell-Scott who was going to do the installation work and was told P & G was again scheduled to do the work. Nord then contacted Tom Griffin of P & G asking what crafts would be used to do the work, and was advised by Griffin that carpenters and masons would do the work. 203 NLRB No. 178 1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After P & G commenced erecting and installing concrete panels, Nord came onto the jobsite and took photographs of the work being done. Following this, both P & G and Caldwell-Scott received requests from the National Joint Board for Settlement of Juris- dictional Disputes for information regarding the work in question. Caldwell-Scott requested that P & G sub- mit the information to the Joint Board, which P & G did by letter dated January 3, 1972. Thereafter, the Joint Board awarded the work in question to the members of the Iron Workers and on January 11, 1972, Nord came to the jobsite stating that the work belonged to the members of the Iron Workers and demanding that P & G use ironworkers on the job. Nord also stated the iron workers could not work on the job unless P & G signed a contract with the Iron Workers Union. On January 12, 1972, Nord met with representatives of Caldwell-Scott and P & G, again repeating his demand that the work be assigned to ironworkers. Griffin told Nord that P & G would not sign a contract with the Iron Workers and that they would continue to use the regular crew of employees. On January 17, 1972, Iron Workers commenced pick- eting the jobsite with a sign reading: Caldwell-Scott Engineering & Construction Co., Inc. refuse to abide by National Joint Board Pro- cedures and Awards. The Iron Workers admitted that the picketing was directed at Caldwell-Scott for the purpose of having the work assigned to Iron Workers under the Joint Board award. Caldwell-Scott's position was that it could not contractually force P & G to comply with the Joint Board award. The pickets were removed after the Iron Workers received assurance from Cald- well-Scott that P & G was off the job and that the Union would be notified when and if P & G was to return to finish the work. B. The Work in Dispute The work in dispute is the installation of precast and prestressed concrete slabs and panels at the Mo- torola jobsite. C. Contentions of the Parties The Employer and the Carpenters contend that pursuant to the contract between P & G and the Car- penters, P & G has assigned to the Carpenters practi- cally all of its hauling and installation work since it began its operations in Florida. The assignment to the Carpenters, they contend, is further supported by the area practice, safety, economy, and efficiency realized by the use of the trained, experienced, permanent crews consisting of the carpenters and masons. The Iron Workers contends that the work should be awarded to its members based on the award of the Joint Board, area practice, safety considerations, and the skills of its members. D. Applicability of the Statute Before the Board may proceed with a determina- tion of dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and that there is no agreed-upon method for voluntary adjustment of the dispute. The Iron Workers contends that, although it would characterize its picketing as being in support of the award of the Joint Board, its object was to secure the work in dispute. The record establishes that this work was claimed and was being performed by employees represented by the Carpenters. There is little question then that, by its picketing, the Iron Workers sought to force P & G to assign the work to its own members or employees whom it represents. We find that rea- sonable cause exists to believe that the picketing vio- lated Section 8(b)(4)(D) of the Act. The Iron Workers contends that P & G's letter of January 3, 1972, is a submission of the dispute to the Joint Board thus bringing this dispute within the rule that where there is an agreed-upon method for volun- tary adjustment of the dispute, Section 10(k) does not apply. The Employer contends that although it sub- mitted the facts of the dispute to the Joint Board, it did so at the request of Caldwell-Scott, the general contractor on the job, and not with the intention of submitting itself to the jurisdiction of the Joint Board. While it is true that P & G did in fact communicate with the Joint Board, submitting therewith certain facts and figures relating to the dispute, the record does not support the Iron Workers contention that this one correspondence binds P & G to any award the Joint Board might render. There is no contract or agreement in existence between P & G and any of the parties involved that requires submission to the Joint Board jurisdiction. In addition, the record shows that in an earlier case involving the Iron Workers, P & G, and Stresscon, P & G made it perfectly clear to Stress- con that it was not and would not be bound by an award of the Joint Board. Finally, in our opinion, the January 3, 1972, letter from P & G to the Joint Board does not establish a commitment to be bound by any award. Cooperation is not synonymous with submis- sion, and, while the final paragraph in the January 3 letter is somewhat ambiguous,' an equally valid inter- The last paragraph of the letter reads as follows: Enclosed is a partial list of fobs performed in this area with carpenters and masons , which are now trained for this work We would like to IRON WORKERS , LOCAL 272 pretation of that sentence would be that "we intend to operate with our present crew, and would like to do so with your approval or concurrence." Accordingly, we find that there is no agreed-upon method to volun- tarily settle the dispute .2 E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to and balancing all relevant fac- tors. The following factors are relevant in making the determination of the dispute before us: 1. Certifications and collective-bargaining agreements There is no Board certification determining the bar- gaining representative for the employees assigned to perform the work in dispute. None of the labor orga- nizations involved herein has been certified by the Board as the collective-bargaining representative for a unit of the Employer's employees. At no time material herein has the Employer been a party to a collective-bargaining agreement with Lo- cal 272 of the Iron Workers. The Employer has been a party to collective-bargaining agreements with the Carpenters and Masons Unions for the past 5 years, and during this period of time, the Employer has per- formed the disputed work with carpenters and ma- sons pursuant to its contracts with the two unions. 2. Employer's assignment and past practice As noted above, the Employer during the entire period of its existence has assigned the work in ques- tion to carpenters and masons. This assignment was predicated in part on its evaluation of the skills pos- sessed by individuals represented by the labor organi- zations involved and its conclusion that its practice and the practice of the industry in general involving similar work favored the award of work to the individ- uals represented by the Carpenters and Masons. 3. Relative skills, efficiency, and economy of operations The Employer strongly favors an award to its em- continue using these crafts with your approval. Advise us of your decision as soon as possible. 2 For the reasons stated in Local 423, Laborers' International Union of North America, AFL-CIO (V& C Brickcleanmg Co.), 203 NLRB No. 176, Members Jenkins and Penello reject the contention of the Carpenters that the parties are not bound to submit the dispute to the Joint Board because the Carpen- ters are in "noncompliance " status with the Joint Board. 1023 ployees represented by the Carpenters and the Ma- sons because of their skills, experience, and their availability to the Employer. The work involved con- sists of hauling, handling, rigging into position, level- ing, plumbing, aligning, and anchoring by bolting or welding the precast concrete wall panels attached to steel frame construction, using the traditional tools of the carpenters including the level, a square, and plumb bobs. While it is true that Iron Workers also employ these same skills with similar tools, we are persuaded that the factors of skill, availability of workers,' efficiency, and economy of operations favor the award of the work to employees who are members of or are represented by the Carpenters and Masons. 4. The Joint Board award Although we do not consider the Joint Board award to Iron Workers binding on the Employer, we do consider it as a factor in determining the proper as- signment of the work in dispute. However, in view of all of the circumstances, we are of the opinion that the Joint Board award should not be given controlling weight herein. Conclusion Upon the entire record in this proceeding and after a full consideration of all of the relevant factors, in particular the contractual relationship between the Employer and the Carpenters and the Masons, the Employer's practice, the nature of the work involved, and the skills required, we conclude that the employ- ees of the Employer who are members of or are repre- sented by the Carpenters and the Masons are entitled to the work in question and we shall determine the dispute in their favor. In making this determination, we award the work to the employees of the Employer who are represented by the Carpenters and the Ma- sons but not to those unions or their members. 5. Scope of the determination The Iron Workers contends that any award of the work in dispute should be limited to that work which was being performed at the time ,of the picketing here- in. We do not agree. The record before us makes it clear that the dispute between the Unions cannot be so narrowly defined and that, in fact, a dispute be- tween them exists, and has existed for several years, J We also note that during the discussions between P & G and the Iron Workers, the Iron Workers made it clear that P & G would have to sign a contract with the Iron Workers, that members of the Union would have to be hired, and that the current employees represented by the Carpenters and Masons would have to be let go or put on other work, assuming such other work was available. 1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD over the erection and installation of precast items in general . In addition , our prior decision in Local Union No. 272, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Prestress Erectors, Inc.), 152 NLRB 269, clearly shows that the Iron Workers has in the past carried this dispute through the 10(k) proceedings, thereafter ignoring the award to the Carpenters and Bricklayers in that case, necessitating the issuance of a complaint followed by the finding of a violation of Section 8(b)(4)(i) and (iiXD) and (B) 4 with ultimate enforcement of the cease-and-desist order by the United States Court of Appeals for the Fifth Circuits Accordingly , we shall not restrict the scope of the determination to the par- ticular dispute which gave rise to this proceeding. We hold that the work in dispute subject to our award is the erection and installation of all precast concrete items performed by the Employer in its building con- struction work in Broward County, Florida 6 4 172 NLRB 207. 3 NLRB. v. Local Union No. 272, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Prestress Erectors, Inc J. 427 F.2d 211 (1970). 6 This definition is subject to the division of the work heretofore agreed upon by the Employer with the Carpenters and Masons This definition is not to be construed in any way as infringing on any rights Local 402 of the Iron Workers now has or may hereafter obtain under its contract or agree- ments with the Employer covering work in West Palm Beach County DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this pro- ceeding, the National Laboi Relations Board hereby makes the following Determination of Dispute: 1. Employees employed by P & G Erectors, Inc., who are members of or are represented by Carpenters, Local 1394, affiliated with Broward County District Council of Carpenters, AFL-CIO, assisted by em- ployees who are members of or are represented by Bricklayers Local 31, are entitled to perform the work in dispute which involves the erection and installation of prestressed concrete panels by the Employer in its building construction work within Broward County, Florida. 2. Local 272, 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 P & G Erectors, Inc., Miami, Florida, to assign the above work to ironworkers represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 272, Bridge, Structural and Ornamental Iron Workers, AFL-CIO, shall notify the Regional Director for Region 12, in writing, whether or not it will refrain from forcing or requiring P & G Erectors, Inc., by means proscribed by Section 8(b)(4)(D), to assign the work in dispute in a manner inconsistent with the above determination. Copy with citationCopy as parenthetical citation