Iron Workers Local 40 (Unique Rigging)

National Labor Relations Board - Board Decisions

Apr 28, 1995

317 N.L.R.B. 231 (N.L.R.B. 1995)

231
317 NLRB No. 35
IRON WORKERS LOCAL 40 (UNIQUE RIGGING)
Ironworkers Local Union No. 40 of the Inter-
national Association of Bridge, Structural and
Ornamental Iron Workers and Unique Rigging
Corporation and GTI Harbor Trucking & Rig-
ging, Inc. and Local Union No. 638 of the
United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting In-
dustry of the United States and Canada. Cases
2–CD–889 and 2–CD–892
April 28, 1995
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The charges in this Section 10(k) proceeding were
filed on August 22, 1994, by Unique Rigging Corpora-
tion (Unique), in Case 2–CD–889, and on September
2, 1994, by GTI Harbor Trucking & Rigging, Inc.
(GTI), in Case 2–CD–892, alleging that the Respond-
ent, Ironworkers Local No. 40 of the International As-
sociation of Bridge, Structural and Ornamental Iron
Workers (Ironworkers Local 40), violated Section
8(b)(4)(D) of the National Labor Relations Act by en-
gaging in proscribed activity with an object of forcing
Unique and GTI to assign certain work to employees
represented by Local 40 rather than to employees rep-
resented by Local Union No. 638 of the United Asso-
ciation of Journeymen and Apprentices of the Plumb-
ing and Pipe Fitting Industry of the United States and
Canada (Steamfitters Local 638). A hearing was held
on October 19 and 21, 1994, before Hearing Officer
Nicholas H. Lewis.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board affirms the hearing officer’s rulings find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.
I. JURISDICTION
Unique, a New York corporation with a place of
business in Long Island City, New York, is engaged
in the business of rigging mechanical equipment. It an-
nually receives goods, products, and supplies valued in
excess of $50,000 from points directly outside the
State of New York.
GTI, a New York corporation with an office and
place of business in Maspeth, New York, is engaged
in the business of rigging and trucking mechanical
equipment. It annually receives goods, materials, and
supplies valued in excess of $50,000 directly from
points outside the State of New York. The parties stip-
ulated, and we find, that Unique and GTI are engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act and that Ironworkers Local 40 and
Steamfitters Local 638 are labor organizations within
the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
As indicated, both Unique and GTI rig mechanical
equipment, such as pipe, fittings, valves, chillers, boil-
ers, cooling towers, and air conditioners, for installa-
tion at construction jobsites. Unique contracted to per-
form the rigging of air-conditioning mechanical equip-
ment on jobsites located at 27 West 23rd Street and
527 West 22nd Street in New York City. Unique
scheduled its own employees, who are represented by
Steamfitters Local 638, to perform the work on August
20, 1994.
Unique Vice President Richard Kaye testified that
individuals representing Ironworkers Local 40 ap-
peared at both jobsites on the morning of August 20.
They claimed the right to perform the rigging work. At
27 West 23rd Street, Kaye ordered his foreman to shut
down the job after the foreman expressed concern
about the potential for physical confrontation. At 527
West 22nd Street, work ceased after the Ironworkers
Local 40 members began picketing. In both instances,
the employees of Unique left the jobsites without com-
pleting their work.
GTI contracted to rig and hoist a cooling tower for
installation on the roof of the Federal Reserve Bank in
New York City on August 27, 1994. It assigned two
steamfitters to work in a crew with two steamfitters
employed by mechanical contractor P.J. Mechanical.
Representatives of Ironworkers Local 40 appeared at
the jobsite and challenged the GTI employees to show
their union books. The Ironworkers’ representatives
then established a picket line. Work at the site ceased
because the crane operator refused to work on a pick-
eted site. Work resumed when the general contractor
at the site agreed to put two ironworkers on its payroll
for the day.
B. Work in Dispute
The disputed work involves the rigging of mechani-
cal equipment on jobsites located at 27 West 23rd
Street, 527 West 22nd Street, and the Federal Reserve
Bank in New York City.
C. Contentions of the Parties
Ironworkers Local 40 argues that its representatives
did not engage in coercive conduct within the meaning
of Section 8(b)(4) of the Act. It claims that they mere-
ly challenged employees at the jobsites in question to
produce proof of union membership and that they pick-
eted at some of those jobsites in protest of perceived
nonunion conditions. Ironworkers Local 40 further
contends that all parties to this dispute are contrac-
232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 It is well established that picketing falls within the scope of Sec.
8(b)(4)(D) so long as one object is to coerce an employer to assign
work to employees represented by a particular union rather than to
employees represented by another union. See, e.g., Teamsters Local
50 (Schnabel Foundation), 295 NLRB 68 (1989). It is irrelevant
whether another object of the picketing might have been to protest
the use of nonunion labor, as alleged by Ironworkers Local 40 here.
See Plasterers Local 594 (Tectonics Engineering), 286 NLRB 259,
260 (1987).
tually bound to the Building Trades Employers Asso-
ciation’s (BTEA) New York Plan for the Resolution of
Jurisdictional Disputes. Finally, Ironworkers Local 40
alleges that it has contractual relations with both
Unique and GTI that justify an award of the work in
dispute to employees whom it represents.
Unique, GTI, and Steamfitters Local 638 contend
that: a jurisdictional dispute exists; there is reasonable
cause to believe that Ironworkers Local 40 engaged in
picketing and other coercive conduct in violation of
Section 8(b)(4); no voluntary means of dispute resolu-
tion binding on all parties exists; and, on the merits of
the dispute, the Board should award the work in dis-
pute to employees represented by Steamfitters Local
638 based on the factors of collective-bargaining
agreements, employer preference and past practice,
economy and efficiency of operations, and potential
job loss.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute under 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 the par-
ties have not agreed on a method for the voluntary ad-
justment of the dispute.
The parties stipulated at the hearing, and we find,
that there are competing claims to the work in dispute
between employees represented by Steamfitters Local
638 and employees represented by Ironworkers Local
40. We further find reasonable cause to believe that
representatives of Ironworkers Local 40 engaged in
picketing and other coercive activity at all three
jobsites with an object of forcing the employers to re-
assign the work in dispute to employees represented by
it.1 Consequently, we find reasonable cause to believe
that a violation of Section 8(b)(4)(D) has occurred.
With respect to the issue of whether a voluntary
means for resolution of the jurisdictional dispute exists,
it is undisputed that both Unique and GTI are signato-
ries to individual employer collective-bargaining agree-
ments with Steamfitters Local 638. Article three of
each agreement states that jurisdictional disputes that
are not covered by decisions of the BTEA Handbook,
commonly known as ‘‘the Green Book,’’ shall be ad-
justed pursuant to the New York Plan for the Resolu-
tion of Jurisdictional Disputes.
Both Steamfitters Local 638 and Ironworkers Local
40 are also bound to the terms of the New York Plan.
Steamfitters Local 638 Business Agent William Abbate
testified, however, that the Plan’s procedures for
peaceful resolution of a jurisdictional dispute cannot be
invoked in the event of jurisdictional picketing or other
coercive activity by one of the unions involved. This
testimony is uncontradicted and is at least partially cor-
roborated by the statement in article three of the
Steamfitters Local 638 contract that ‘‘pending deter-
mination of any dispute under the New York Plan for
the settlement of jurisdictional disputes . . . the mem-
bers of the union shall remain at work on the project
without change in status.’’ Based on this evidence and
on the aforementioned evidence of coercive conduct by
Ironworkers Local 40, we find that there exists no
agreed method for voluntary adjustment of the dispute
within the meaning of Section 10(k) of the Act. Ac-
cordingly, we find that the dispute is properly before
the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative award of disputed work after considering various
factors. NLRB v. Electrical Workers IBEW Local 1212
(Columbia Broadcasting), 364 U.S. 573 (1961). The
Board has held that its determination in a jurisdictional
dispute is an act of judgment based on common sense
and experience, reached by balancing the factors in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making a deter-
mination of the dispute.
1. Collective-bargaining agreements
As previously stated, both Unique and GTI have a
collective-bargaining agreement with Steamfitters
Local 638. These contracts are effective July 1, 1993,
through June 30, 1996. Each contains rule XV-A, a
uniform provision in all Steamfitters Local 638 con-
tracts, which specifically provides for the performance
of rigging work by steamfitters.
Section 2 of the Ironworkers Local 40 standard form
collective-bargaining agreement also refers to rigging
work. The work specifically described as within the
craft jurisdiction of Ironworkers Local 40 does not,
however, include the work in dispute at the three
jobsites here, i.e., the mechanical rigging and hoisting
of air-conditioning equipment and a cooling tower for
installation. Furthermore, it is undisputed that neither
Unique nor GTI has signed a collective-bargaining
agreement with Ironworkers Local 40.
Ironworkers Local 40 nevertheless claims that it has
a collective-bargaining relationship with both employ-
ers. It contends that Unique bound itself to the terms
of a 1990–1993 master collective-bargaining agreement
233IRON WORKERS LOCAL 40 (UNIQUE RIGGING)
by executing a benefit fund participation agreement on
April 17, 1991, and by purchasing 48 hours’ worth of
fringe benefit fund stamps on June 15, 1993, for work
performed within the jurisdiction of a sister local. It
further claims that Unique has never given the contrac-
tual notice required to prevent automatic renewal of
the terms of the master agreement. With respect to
GTI, Ironworkers Local 40 contends that GTI agreed
to execute a contract in August 1994 and that, al-
though GTI has subsequently failed to sign, it has
hired ironworkers, paid them contract wages and bene-
fits, and remitted contractual fringe benefit fund pay-
ments. GTI Vice President Noel Fitzgerald admitted
hiring employees represented by Ironworkers Local 40
for a job that involved the rigging and hoisting of elec-
trical generators. This was not mechanical rigging.
In light of the evidence that Unique and GTI have
current contracts with Steamfitters Local 638 that spe-
cifically cover rigging work, that Ironworkers Local 40
has, at best, only a colorable claim of a contractual re-
lationship with these employers, and that the craft ju-
risdiction section of the Ironworkers Local 40 contract
omits reference to the mechanical rigging work in dis-
pute from its specific list of covered rigging work, we
find that the factor of collective-bargaining agreements
favors an award to employees represented by Steam-
fitters Local 638.
2. Employer preference and past practice
Both GTI and Unique prefer to have employees rep-
resented by Steamfitters Local 638 perform the work
in dispute. Witnesses for both employers testified
about a consistent past practice of assigning mechani-
cal rigging to these employees. We find that this factor
favors an award of the work in dispute to the employ-
ees represented by Steamfitters Local 638.
3. Area and industry practice
Unique Vice President Richard Kaye testified that it
is industry practice for the mechanical trade respon-
sible for installation to do its own rigging. Steamfitters
Local 638 Business Agent Abbate estimated that
steamfitters perform approximately 80 percent of the
licensed mechanical rigging in the New York City area
(the work in dispute is licensed rigging work). He stat-
ed that his union has collective-bargaining agreements
with three other area employers who use steamfitters
to rig and hoist mechanical equipment.
Robert Gerosa, a witness for Ironworkers Local 40,
testified that his eponymous company performs a vari-
ety of rigging jobs, including occasional mechanical
rigging. Gerosa said that he has assigned mechanical
rigging to employees represented by Ironworkers Local
40. He acknowledged that these employees have
worked in a composite crew with steamfitters em-
ployed by the mechanical contractor responsible for in-
stallation of the equipment involved, and that he him-
self employed a composite crew for mechanical rig-
ging work at the World Trade Center. He also ac-
knowledged that mechanical rigging companies that
have a contract with Steamfitters Local 638 would em-
ploy steamfitters represented by that union to perform
the work in dispute.
Based on the foregoing, we find that the factor of
area and industry practice favors an award to employ-
ees represented by Steamfitters Local 638.
4. Economy and efficiency of operations
Witnesses for the Employers testified that they can
use fewer steamfitters to perform a rigging job because
these employees work together with steamfitters em-
ployed by the mechanical contractor responsible for in-
stallation of the equipment involved. Furthermore, effi-
ciencies result from the employees’ common knowl-
edge of all aspects of the rigging and installation proc-
ess. Frequently, Unique and GTI use only a two-person
crew on a rigging job. If the Employers had to use em-
ployees represented by Ironworkers Local 40, they
would have to send a larger crew to work. Ironworkers
Local 40 Business Agent Edward Walsh confirmed
that a standard crew for rigging work consists of five
or six ironworkers and a foreman. We find that the
factor of economy and efficiency of operations favors
an award to employees represented by Steamfitters
Local 638.
5. Loss of jobs
Neither Unique nor GTI currently employs iron-
workers on a regular basis. Both have employees rep-
resented by Steamfitters Local 638. Unique Vice Presi-
dent Kaye testified that if the work in dispute were as-
signed to the Ironworkers Local 40, Unique would
have to lay off as many as two current employees. Ad-
ditionally, Kaye testified that he would no longer be
able to hire steamfitters as part of temporary crews on
weekends. GTI Vice President Fitzgerald testified that
his company would have no need for steamfitters if the
work in dispute were awarded to employees rep-
resented by Ironworkers Local 40. We find the poten-
tial adverse impact on the Employers’ current employ-
ees favors an award of the work in dispute to those
employees, who are represented by Steamfitters Local
638.
6. Arbitration awards
Ironworkers Local 40 contends that Unique and GTI
are bound, either through their contracts with Steam-
fitters Local 638 or through their alleged collective-
bargaining relationships with Ironworkers Local 40, to
honor jurisdictional decisions which have been made
pursuant to the New York Plan and published in the
BTEA Green Book. It contends that a 1927 arbitration
234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
award in the Green Book is dispositive of the current
jurisdictional dispute. The arbitrator there held that em-
ployees represented by Riggers Local 170, rather than
employees represented by Ironworkers Local 40, were
entitled to perform certain rigging work. Ironworkers
Local 40 contends that this work came within its juris-
diction when Riggers Local 170 subsequently merged
with it. Obviously, this award did not directly involve
either the Employers or the current jurisdictional dis-
pute. Furthermore, the award’s specific description of
materials handled does not include equipment of the
type involved in the mechanical rigging work in dis-
pute here. We find this factor is neutral.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by Steamfitters Local
638 are entitled to perform the work in dispute. We
reach this conclusion relying on the factors of collec-
tive-bargaining agreements, employer preference and
past practice, area and industry practice, economy and
efficiency of operations, and loss of jobs. In making
this determination, we are awarding the work to em-
ployees represented by Steamfitters Local 638, not to
that union or its members.
Scope of Award
Unique and Steamfitters Local 638 request a broad
award covering all present and future jobsites where
employees represented by Steamfitters Local 638 are
utilized to perform this type of work. Generally, in
order to support a broad award, there must be evidence
that the disputed work has been a continuing source of
controversy in the relevant geographic area, that simi-
lar disputes are likely to recur, and that the charged
parties have a proclivity to engage in unlawful conduct
to obtain work similar to the disputed work. Electrical
Workers IBEW Local 104 (Standard Sign), 248 NLRB
1144, 1148 (1980). There is evidence that representa-
tives of Ironworkers Local 40 have challenged the
union book status of Unique and GTI employees and
have voiced claims for work performed by those em-
ployees at other jobsites in 1994, but there is no basis
for finding a proclivity to violate the Act during these
encounters. We therefore find that the record does not
support a broad award. We shall limit our determina-
tion and award of the work in dispute to the specific
controversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of Unique Rigging Corporation and
GTI Harbor Trucking & Rigging, Inc., represented by
Local Union No. 638 of the United Association of
Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, are
entitled to perform the mechanical rigging at the 27
West 23rd Street and 527 West 22nd Street, New
York, New York jobsites.
2. Ironworkers Local Union No. 40 of the Inter-
national Association of Bridge, Structural and Orna-
mental Iron Workers is not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force
Unique Rigging Corporation or GTI Harbor Trucking
& Rigging, Inc. to assign the disputed work to employ-
ees represented by it.
3. Within 10 days from the date of this decision,
Ironworkers Local Union No. 40 of the International
Association of Bridge, Structural and Ornamental Iron
Workers shall notify the Regional Director for Region
2 in writing whether it will refrain from forcing the
Employers, by means proscribed by Section
8(b)(4)(D), to assign the disputed work in a manner in-
consistent with the determination.