Local Union 550 of the International Association of Bridge, Structural, Ornamental and Reinforcing I

National Labor Relations Board - Board Decisions

Mar 23, 2016

363 NLRB No. 151 (N.L.R.B. 2016)

363 NLRB No. 151
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Local Union 550 of the International Association of
Bridge, Structural, Ornamental And Reinforc-
ing Ironworkers and R.G. Smith Company, Inc.
and The Indiana/Kentucky/Ohio Regional
Council of Carpenters, United Brotherhood of
Carpenters and Joiners of America and Sheet
Metal Workers’ Local Union No. 33, Akron Dis-
trict A/W International Association of Sheet
Metal, Air, Rail And Transportation Union
Sheet Metal Workers’ Local Union No. 33, Akron
District A/W International Association of Sheet
Metal, Air, Rail and Transportation Union and
R.G. Smith Company, Inc. and The Indi-
ana/Kentucky/Ohio Regional Council of Car-
penters, United Brotherhood of Carpenters And
Joiners of America and Local Union 550 of the
International Association Of Bridge, Structural,
Ornamental And Reinforcing Ironworkers. Cas-
es 08–CD–159904 and 08–CD–160179
March 23, 2016
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
This is a consolidated jurisdictional dispute proceeding
under Section 10(k) of the National Labor Relations Act.
R.G. Smith Company, Inc. (the Employer) filed a charge
on September 11, 2015, and an amended charge on Oc-
tober 14, 2015, alleging that Ironworkers Local Union
No. 550 (Ironworkers) violated Section 8(b)(4)(D) of the
Act by engaging in proscribed activity with an object of
forcing the Employer to assign certain work to employ-
ees represented by Ironworkers rather than to employees
represented by the Indiana/Kentucky/Ohio Regional
Council of Carpenters (Millwrights). The Employer also
filed a charge on September 17, 2015, and an amended
charge on October 14, 2015, alleging that Sheet Metal
Workers Local 33 (Sheet Metal Workers) violated Sec-
tion 8(b)(4)(D) of the Act by engaging in proscribed ac-
tivity with an object of forcing the Employer to assign
certain work to employees represented by Sheet Metal
Workers rather than to employees represented by Mill-
wrights. These two cases were consolidated on October
27, 2015. A hearing was held on December 1, 2015,
before Hearing Officer Noah Fowle. The Employer,
Ironworkers, and Sheet Metal Workers each filed a
posthearing brief.1
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 rec-
ord, we make the following findings.
I. JURISDICTION
The Employer, Ironworkers, and Sheet Metal Workers
stipulated that the Employer is an Ohio corporation,
based in Canton, Ohio, where it is engaged in the busi-
ness of construction contracting. During the 12 months
preceding the filing of the charge, the Employer pur-
chased and received goods and materials valued in ex-
cess of $50,000 directly from points outside of the State
of Ohio. These parties further stipulated, and we find,
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
Ironworkers and Sheet Metal Workers are labor organi-
zations within the meaning of Section 2(5) of the Act.
We additionally find that Millwrights is a labor organiza-
tion within the meaning of Section 2(5) of the Act.2
Millwrights proffered no evidence or argument to con-
tradict any of these jurisdictional findings.
II. THE DISPUTE
A. Background and Facts of the Dispute
The Employer, which performs industrial contracting
work in Northern Ohio, is signatory to collective-
bargaining agreements with Ironworkers, Sheet Metal
Workers, and Millwrights. The collective-bargaining
agreement with Ironworkers is in effect from May 1,
2013, to April 30, 2016; the agreement with Sheet Metal
Workers is in effect from August 1, 2013, to May 31,
2017; and the agreement with Millwrights is in effect
from June 1, 2013, to April 30, 2018. The jurisdiction of

1 Representatives for the Employer, Ironworkers, and Sheet Metal
Workers appeared at the hearing. Millwrights did not enter an appear-
ance or file a posthearing brief.
2 Although Millwrights did not appear at the hearing or submit a
posthearing brief, the Employer submitted its collective-bargaining
agreement with Millwrights as an exhibit. That agreement identifies
Millwrights as “the exclusive bargaining agent for all Employees who
perform work within the scope of this Agreement,” and states that the
parties’ purpose in entering into the agreement “is to set forth an
agreement on rates of pay, hours of work and other conditions of em-
ployment so as to promote orderly and peaceful relations between the
Employers and their Employees represented by” Millwrights. We find
this language supports a finding that Millwrights is a labor organization
under Sec. 2(5) of the Act. Cf. Electrical Contractors, Inc., 331 NLRB
839, 839 (2000), enfd. 245 F.3d 109 (2d Cir. 2001). Additionally,
Millwrights has previously been found to be a labor organization under
the Act. See Laborers’ Union Local 310 (Safway Services, LLC), 363
NLRB No. 25, slip op. at 1 (2015).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
all three agreements includes several of the same coun-
ties in Northern Ohio, including Ashland, Carroll,
Coshocton, Holmes, Medina, Portage, Richland, Stark,
Summit, Tuscarawas, and Wayne. Additionally, the
agreements all cover broad categories of work typical of
industrial contracting, including tasks generally per-
formed during the installation and maintenance of heavy
machinery.
As part of its industrial contracting, the Employer of-
ten performs mill maintenance and equipment setting
work, which consists of the repair and maintenance of
manufacturing machinery in industrial settings as well as
the placing and installation of equipment in industrial
facilities. Representatives of the Employer testified that
it has a long-held practice of assigning such mill mainte-
nance and equipment setting work to workers represent-
ed by Ironworkers and Sheet Metal Workers, sometimes
in composite crews including both Ironworkers-
represented and Sheet Metal Workers-represented em-
ployees.
In June 2015,3 Millwrights filed a pay-in-lieu griev-
ance under its collecting-bargaining agreement, claiming
that it should have been assigned mill maintenance and
equipment setting work at the ArcelorMittal facility in
Shelby, Ohio, which the Employer had assigned to Iron-
workers-represented and Sheet Metal Workers-
represented employees. Eventually, the Employer and
Millwrights attended a Step 4 grievance meeting on Sep-
tember 22, which Millwrights ended because it lacked
legal representation. Subsequently, the Employer and
Millwrights attended a settlement meeting, where Mill-
wrights withdrew the grievance but maintained a claim to
the work.
Earlier in September, the Employer had performed
more than 30 jobs during a 10-day plant shutdown at AK
Steel in Mansfield, Ohio. Some of this mill maintenance
and equipment setting work was being performed by
Ironworkers-represented and Sheet Metal Workers-
represented employees; specifically, two jobs involving
water cooled elbow replacement and pump replacement
were assigned via letter to a composite crew of employ-
ees represented by Ironworkers, Sheet Metal Workers,
and Pipefitters Local No. 42, respectively. These letters
did not encompass the full breadth of the work to be
completed at the AK Steel job. However, it was the
practice of the Employer to send out job assignments by
letter when it was necessary to clarify a work assign-
ment, such as in the case of composite crews. On Sep-
tember 8, Dan Siverston, a representative of Millwrights,
sent an email to Rick Reece, the Employer’s Mansfield

3 All dates are in 2015 unless otherwise noted.
division manager, claiming that the Employer was “per-
forming [Millwrights] work using the wrong craft yet
again.” The letter further stated that Millwrights would
have “no other recourse except to file another grievance”
if work on the AK Steel project was not assigned to em-
ployees represented by Millwrights. As of the hearing,
no such grievance had been filed.
On September 10, the Employer’s chief operating of-
ficer, Geoffrey Nicely, sent separate letters to Ironwork-
ers’ representative William Sherer and Sheet Metal
Workers’ representative Jerry Durieux, advising them
that Millwrights had threatened to file a grievance and
that it might be necessary to reassign mill maintenance
and equipment setting work at the AK Steel project to
workers represented by Millwrights. On September 11,
Nicely received responses from both Ironworkers and
Sheet Metal Workers. Ironworkers asserted that, were
the Employer to reassign work to workers represented by
Millwrights, it would “engage in whatever activity we
deem appropriate to protect our work jurisdiction,” in-
cluding “withholding the referral of [I]ronworkers to
your company as well as engaging in picketing. . . .”
Sheet Metal Workers stated that it would “engage in any
activity we deem necessary to protect our work,” includ-
ing withholding referral of Sheet Metal Workers and
filing grievances if the work were reassigned. As a re-
sult, the Employer filed the charges in this case.
B. Work in Dispute
As clarified and stipulated by the parties at the hearing,
the work in dispute is:
Water Cooled Elbow Replacement work for the Em-
ployer’s AK Steel project in Mansfield, Ohio, including
miscellaneous fabrication, rigging, off loading, setting,
aligning, bolting and miscellaneous welding of all Wa-
ter Cooled Elbow sections, and associated items with
Water Cooled Elbows; and
South Descale Pump Replacement work for the Em-
ployer’s AK Steel project in Mansfield, Ohio, including
miscellaneous fabrication, rigging, off loading, setting,
aligning, and bolting of South Descale Pump, and all
associated items with South Descale Pump.4

4 In its brief, the Employer argues that the Board should extend the
work in dispute beyond the stipulated work to include all of the mill
maintenance and equipment setting work performed at the AK Steel
project, which encompasses over 30 different jobs. Given that the
parties stipulated to the work in dispute at the hearing, and no party
raised the issue of broadening the work in dispute prior to the Employ-
er’s brief, we find that the work in dispute only includes the Water
Cooled Elbow and Pump Replacement Work stipulated to at the hear-
ing. Cf. Construction & General Laborers Local Union No. 146 (Mod-
ern Acoustics), 267 NLRB 1123, 1124 (1983) (broadening the work in
LOCAL UNION 550 (R.G. SMITH CO.) 3
C. Contentions of the Parties
The Employer, Ironworkers, and Sheet Metal Workers
contend that there are competing claims to the work in
dispute, that there is reasonable cause to believe that Sec-
tion 8(b)(4)(D) of the Act has been violated by Iron-
workers’ threat to picket if the work in dispute was reas-
signed to employees represented by Millwrights, and that
the parties have not agreed on a method for voluntary
adjustment of the dispute. Sheet Metal Workers further
contends that it has not violated Section 8(b)(4)(D) be-
cause it threatened only to assert its remedial rights under
the collective-bargaining agreement should work be reas-
signed to employees represented by Millwrights. Final-
ly, the Employer, Ironworkers, and Sheet Metal Workers
all contend that the work in dispute should be assigned to
a composite crew comprising both Ironworkers-
represented and Sheet Metal Workers-represented em-
ployees, based on the factors of employer preference and
past practice, relative skills and training, and economy
and efficiency of operations. The Employer and Iron-
workers additionally argue that the work in dispute
should be assigned to a composite crew comprising both
Ironworkers-represented and Sheet Metal Workers-
represented employees based on area and industry prac-
tice. As previously stated, Millwrights did not appear at
the hearing or file a posthearing brief. Accordingly, the
evidence and contentions of the Employer, Ironworkers,
and Sheet Metal Workers stand uncontradicted.
D. Applicability of the Statute
The Board may proceed with a determination of a dis-
pute under Section 10(k) of the Act only if there is rea-
sonable cause to believe that Section 8(b)(4)(D) has been
violated. Operating Engineers Local 150 (R&D Thiel),
345 NLRB 1137, 1139 (2005). This standard requires
finding that there is reasonable cause to believe that there
are competing claims for the disputed work between or
among rival groups of employees and that a party has
used proscribed means to enforce its claim to that work.
Additionally, there must be a finding that the parties have
not agreed on a method for voluntary adjustment of the
dispute. Id. On this record, we find that this standard
has been met.
1. Competing claims for work
We find reasonable cause to believe that Ironworkers,
Sheet Metal Workers, and Millwrights have all claimed
the work in dispute. Both Ironworkers and Sheet Metal
Workers have stipulated that they claim the work in dis-
pute, and they have also claimed the work by their Sep-

dispute beyond the notice of hearing where the matter was fully litigat-
ed).
tember 11 letters to the Employer objecting to the possi-
ble reassignment of the work to employees represented
by Millwrights. Furthermore, the performance of this
work by Ironworkers and Sheet Metal Workers evidenc-
es a claim to the work at issue. See Operating Engineers
Local 513 (Thomas Industrial Coatings), 345 NLRB
990, 992 fn. 6 (2005).
We also find reasonable cause to believe that Mill-
wrights has claimed the work. Millwrights’ representa-
tive Siverston threatened to file a grievance if work at the
AK Steel project was not reassigned to employees repre-
sented by Millwrights. See Laborers’ International Un-
ion of North America, Local 265 (Henkels & McCoy),
360 NLRB No. 102, slip op. at 4 (2014) (finding threat to
file a grievance to be evidence of claim for work). The
legitimacy of this threat to file a grievance seeking the
disputed work is underscored by Millwrights’ previous
pay-in-lieu grievance, which constituted a demand for
similar mill maintenance and replacement work. See,
e.g., Laborers Local 265 (AMS Construction), 356
NLRB 306, 308 (2010) (finding pay-in-lieu grievances to
be effective claims for disputed work). Although Mill-
wrights eventually settled and withdrew the prior griev-
ance, it explicitly did not disclaim the work, lending cre-
dence to the assertion that Millwrights is claiming the
disputed work in this case. Finally, this assertion re-
mains uncontroverted owing to Millwrights’ failure to
appear at the hearing.
2. Use of proscribed means
Ironworkers admits, and we find, that there is reasona-
ble cause to believe that Ironworkers used proscribed
means to enforce its claim to the work in dispute.5 Iron-
workers sent a letter to Employer’s chief operating of-
ficer threatening to picket the Employer if it reassigned
the work in dispute to employees represented by Mill-
wrights. The Board has long considered this type of
threat to be a proscribed means of enforcing claims to
disputed work. Laborers Local 110 (U.S. Silica), 363
NLRB No. 42, slip op. at 3 (2015).
3. No voluntary method for adjustment of dispute
We also find no agreed-upon method for voluntary ad-
justment of the dispute to which all parties are bound.
The Employer, Ironworkers, and Sheet Metal Workers

5 Because we find that there is reasonable cause to believe that
Ironworkers used proscribed means to enforce its claim, the jurisdic-
tional element is satisfied, and we find it unnecessary to pass on wheth-
er there is reasonable cause to believe that Sheet Metal Workers violat-
ed Sec. 8(b)(4)(D). See Operating Engineers, Local 18 (Nerone &
Sons), 363 NLRB No. 19, slip op. at 4 (2015) (where Sec. 8(b)(4)(D)
charges were filed against two unions, finding Sec. 10(k) applicable
based on one union’s use of proscribed means to enforce claim to dis-
puted work).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
stipulated that there is no voluntary adjustment procedure
in place among the parties to resolve the current work
dispute. Millwrights did not so stipulate, but proffered
no evidence or argument to the contrary.
Based on the foregoing, we find that there is reasona-
ble cause to believe that Section 8(b)(4)(D) has been
violated and that there is no agreed-upon method for the
voluntary adjustment of the dispute. We accordingly
find that the dispute is properly before the Board for de-
termination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive award of disputed work after considering various
factors. NLRB v. Electrical Workers IBEW Local 1212
(Columbia Broadcasting), 364 U.S. 573, 577–579
(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 involved in a particular case. Machinists
Lodge 1743 (J.A. Jones Construction), 135 NLRB 1402,
1410–1411 (1962).
The following factors are relevant in making the de-
termination of dispute.
1. Certifications and collective-bargaining agreements
The Employer, Ironworkers, and Sheet Metal Workers
stipulated that, in assigning the work in dispute, the Em-
ployer is not failing to conform to an order or Board cer-
tification.
As stated above, the Employer’s collective-bargaining
agreements with Ironworkers, Sheet Metal Workers, and
Millwrights all cover work performed in Richland Coun-
ty, where the AK Steel project is located. In addition, all
three collective-bargaining agreements are broadly writ-
ten to cover the performance of mill maintenance and
equipment setting work, listing numerous tasks inherent
in the installation and repair of industrial machinery.
Therefore, we find that this factor does not favor an
award to any of the groups of employees.
2. Employer preference and past practice
The Employer has assigned the disputed work to em-
ployees represented by Ironworkers and Sheet Metal
Workers, and it prefers that this work remain with them.
Additionally, the Employer’s representatives have testi-
fied that they have a longstanding past practice of assign-
ing mill maintenance and equipment setting work to
Ironworkers-represented and Sheet Metal Workers-
represented employees. Nicely testified that the Em-
ployer regularly assigns mill maintenance and equipment
setting to employees represented by Ironworkers or Sheet
Metal Workers and has done so for all of Nicely’s 17
years with the Employer. Reece and Mike Black, man-
ager of the Employer’s industrial division, echoed Nice-
ly’s testimony.
The Employer’s representatives could only recall three
isolated examples where employees represented by
Millwrights were contacted to perform mill maintenance
and equipment setting work in conjunction with the Em-
ployer. Reece testified that, on one occasion, he sought
to hire a worker represented by Millwrights for a local
project at the Millwrights’ urging, but that the worker in
question never returned his calls. Nicely testified to two
projects where Millwrights-represented employees were
hired to work at the Timken steel plant in 2011 and again
in 2013. The first time, the employees performed poorly,
and the Timken Company requested that they be re-
moved. The second time, the Employer did not choose
to employ Millwrights-represented employees but was
forced to do so under the National Maintenance Agree-
ment. Black testified that the Millwrights did not get
along with the Ironworkers who were also assigned to
the project, and eventually all of the Millwrights walked
off the job. These isolated instances do not undercut the
Employer’s assertions that its general practice for over a
decade has been to hire Ironworkers-represented and
Sheet Metal Workers-represented employees to perform
mill maintenance and equipment setting work, such as
the work in dispute. Accordingly, we find that this factor
favors an award to employees represented by Ironwork-
ers and Sheet Metal Workers.
3. Area and industry practice
The Employer did not present any evidence that it is
the common area or industry practice to employ employ-
ees represented by Ironworkers and Sheet Metal Workers
for mill maintenance and equipment setting work, nor
did Sheet Metal Workers present any testimony on this
factor. Sherer testified that in his capacity as business
manager for Ironworkers, he has had many opportunities
to visit job sites for work “similar or identical to the
work performed at the AK Steel project,” and that the
work at these projects “has been assigned to the Iron-
workers at other facilities.” Sherer did not provide fur-
ther details to support these assertions. Given that none
of the parties has presented any substantiated evidence
on this factor, we find that this factor does not support an
award to any of the groups of employees.
4. Relative skills and training
The Employer, Ironworkers, and Sheet Metal Workers
all presented testimony that employees represented by
Ironworkers and Sheet Metal Workers possess the skills
and training to perform the disputed work and that they
are experienced in doing so. Nicely testified that both
Ironworkers and Sheet Metal Workers maintain compre-
LOCAL UNION 550 (R.G. SMITH CO.) 5
hensive training and apprenticeship programs to ensure
that their represented employees have the necessary skill
to complete the work in dispute, and that employees rep-
resented by these two unions have extensive on-the-job
experience from past projects with the Employer. Reece
testified that the work in dispute is specific to the skill set
of Ironworkers and Sheet Metal Workers, as the Em-
ployer has consistently assigned mill maintenance and
equipment setting work to employees represented by
these unions. Sherer and Durieux, testifying for Iron-
workers and Sheet Metal Workers respectively, both
provided detailed explanations of the comprehensive
training given to their constituent employees with regard
to the skills necessary for the disputed work. Ironwork-
ers and Sheet Metal Workers also submitted multiple
exhibits demonstrating elements of their training pro-
grams, including those subjects relevant to the disputed
work.
By contrast, the record does not include evidence
about the skills and training of employees represented by
Millwrights. Nicely and Reece testified that they do not
have knowledge of Millwrights’ training programs.
Black acknowledged that the Millwrights may very well
have similar training, but testified to their poor perfor-
mance at the Timken project, where he witnessed a
Millwrights-represented employee taking 90 minutes to
set up a piece of leveling equipment, while the Ironwork-
ers-represented employees set up the same equipment in
10 minutes. Black also testified that Millwrights had a
significantly higher injury rate on the job compared to
Ironworkers and Sheet Metal Workers. Thus, we find
that this factor favors an assignment of work to employ-
ees represented by Ironworkers and Sheet Metal Work-
ers.
5. Economy and efficiency of operations
The Employer presented testimony that it is more effi-
cient to assign the disputed work to employees represent-
ed by Ironworkers and Sheet Metal Workers. Nicely
testified that in his experience, workers represented by
Ironworkers and Sheet Metal Workers are more knowl-
edgeable, work faster on the job, and have worked fre-
quently with the Employer’s local clients, such as AK
Steel. Because of their familiarity with the type of work
being done and the clients’ facilities, Ironworkers-
represented and Sheet Metal Workers-represented em-
ployees can work much more efficiently. Reece also
testified that Ironworkers and Sheet Metal Workers have
strong relationships with the Employer’s local clients,
and that employees represented by these unions were
substantially more efficient and experienced. Black’s
testimony drew a more direct comparison between em-
ployees represented by Ironworkers and Sheet Metal
Workers, on one hand, and Millwrights-represented em-
ployees on the other, highlighting his on-the-job observa-
tions at the Timken facility in 2011 and 2013. On the
first job, Timken requested that the Millwrights be re-
moved from the job, citing poor productivity. On the
second job, Black witnessed the incident, described
above, where a Millwrights-represented employee took
an inordinate amount of time to set up a simple piece of
equipment. Black also recalled having to break up com-
posite crews of Ironworkers and Millwrights on the se-
cond Timken job because they were not working well
together. Black further testified that eventually, all of the
Millwrights walked off the second Timken job, leaving
the Ironworkers to finish all of the work on that project.
These inefficiencies, according to Black, would dramati-
cally increase expenses for the Employer should Mill-
wrights-represented employees be assigned the work.
Accordingly, we find that this factor favors an award of
the disputed work to the employees represented by Iron-
workers and Sheet Metal Workers.
CONCLUSION
After considering all of the relevant factors, we
conclude that employees represented by Ironworkers and
Sheet Metal Workers are entitled to perform the work in
dispute. We reach this conclusion based on the factors of
employer preference and past practice, relative skills and
training, and economy and efficiency of operations. In
making this determination, we award the work to
employees represented by Ironworkers and Sheet Metal
Workers, not to those labor organizations or to their
members.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
Employees of R.G. Smith Company, Inc. who are
represented by Ironworkers Local Union No. 550 and
Sheet Metal Workers Local 33 are entitled to perform
certain water cooled elbow and pump replacement work
performed by R.G. Smith Company at the AK Steel
project in Mansfield, Ohio.
Dated, Washington, D.C. March 23, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
______________________________________
Lauren McFerran, Member (SEAL) NATIONAL LABOR RELATIONS BOARD