Southwest Building Trades Council

National Labor Relations Board - Board Decisions

Nov 12, 1969

179 N.L.R.B. 554 (N.L.R.B. 1969)

554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southwest Building Trades Council of Montana,
AFL-CIO; General Laborers Local Union No.
163, AFL-CIO; International Union of Operating
Engineers Local Union No. 400, AFL-CIO and
The Anaconda Company and United Steelworkers
of America , Local 1-A, AFL- CIO: International
Union of Operating Engineers , Local No. 375,
AFL-CIO. Case 19-CD-144
November 12, 1969
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, BROWN, AND JENKINS
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended,
following a charge filed by The Anaconda
Company, hereinafter called Anaconda, alleging that
the Southwest Building Trades Council of Montana,
AFL-CIO, hereinafter called Council, General
Laborers Local Union No. 163, AFL-CIO,
hereinafter called Local 163, and International
Union of Operating Engineers, Local Union No.
400, AFL-CIO, hereinafter called Local 400, had
violated Section 8(b)(4)(i) and (ii)(D) of the Act.
The charge alleges, in substance, the Council
picketed Anaconda's Orton and Heilbronner
buildings demolition project in Butte, Montana, with
an object of forcing or requiring Anaconda to assign
certain work to workmen represented by the
above-named Respondent labor organizations, which
work Anaconda was performing with its own
employees represented by the United Steelworkers
of America, Local 1-A, AFL-CIO, and
International Union of Operating Engineers Local
No. 375, AFL-CIO. A hearing was held on May 20,
1969,' before Hearing Officer Patrick H. Walker.
All parties except Operating Engineers Locals 375
and 400,2 participated in the hearing and were
afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to adduce evidence
at the hearing on the issues.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are
hereby affirmed.'
Upon the entire record in this case, the Board
makes the following findings:
All dates herein are 1969 unless otherwise indicated
The Hearing Officer was informed that Locals 375 and 400 had
allegedly reached an accord However, since the terms of such alleged
accord were not submitted in evidence and the Charging Party not having
evidenced any acceptance of such alleged agreement we shall proceed to
make our findings herein based upon the record herein
'Respondent Southwest Building Trades Council filed a brief which was
rejected because of untimely filing No other briefs were filed
1. THE BUSINESS OF THE EMPLOYER
The Anaconda Company, is a Montana
corporation, with its principal place of business in
Anaconda, Montana. Its operations, so far as they
are pertinent here, consists of open pit mining in
and about the city of Butte, Montana. As the
circumference of the open pit expands, Anaconda
purchases properties situated in the path of
expansion and demolishes the structures located on
such properties.
It was stipulated and we find that Anaconda
which produces, fabricates, ships, and sells, in
interstate commerce, products and materials in
excess of a million dollars yearly, is an employer
within the meaning of the Act and is engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act, and that it will effectuate the policies
of the Act to assert jurisdiction herein.
11. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find , that the
Unions mentioned above, are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The disputed work which gave rise to this
proceeding concerns work performed by employees
of Anaconda , represented by the United
Steelworkers of America , Local 1 -A, AFL-CIO,4
and International Union , of Operating Engineers,
Local No. 375, AFL-CIO,' in the demolition of two
building structures in Butte, Montana, for the
purpose of converting the property to a parking lot
for Anaconda's vehicles and private vehicles
operated by its office workers employed at its main
office in Butte.
B. The Facts
Anaconda secures the bulk of its ore from an
open pit originally situated at the outskirts of
Butte's city limits, which has now expanded into the
city proper. As a result of this expansion, Anaconda
purchased properties and structures, including school
buildings, hotels, rooming houses, homes and
'The Steelworkers were certified by the Board in Case 19-RC-1866 as
bargaining representative for, among others, the following employees "
laborers employed in construction or repair work in or about plants,
parks, playgrounds, recreational centers and other properties of the
Company " The existing collective-bargaining agreement between the
Steelworkers conforms to the aforementioned Board certification
'Local 375 was certified by the Board in Case 19-RC-1822 as exclusive
bargaining agent for employees in operating engineers classifications
employed by Anaconda "in or near the employer's Butte and Silver Bow
County Montana operations " The existing collective-bargaining
agreement between Local 375 and Anaconda adopts the description of the
unit as defined in the aforesaid Board certification
179 NLRB No. 90
SOUTHWEST BUILDING TRADES COUNCIL
various other types of buildings, and demolished
such structures. At all times in the past Anaconda
performed and assigned such demolition work to its
employees, including laborers and operating
engineers who were members of the Steelworkers
and Local 375, respectively.
In the case of the work involved in the instant
dispute the demolition work was done by employees
of Anaconda operating a crane with ball attached,
bulldozers and front end loaders, who were members
of or represented by Local 375, and by laborer
employees of Anaconda, members of or represented
by the Steelworkers. Anaconda in the past 5 years
has used its employees represented by the
Steelworkers (laborers) and Local 375 on demolition
work in connection with structures on properties
owned by it or acquired by it in over a thousand
instances. Not only have such demolition projects
been located in or about the "hill" area, but several
in recent years have been in the "downtown" area.'
In fact, demolition of two projects similar to the
project involved here was performed by employees
of Anaconda represented by the Steelworkers and
Local 375.' In view of the almost continuing
necessity for such demolition work Anaconda has
created what it describes as an "almost permanent
organization that takes care of this work," involving
its employees; i.e., operating engineers, laborers and
teamsters. The instant dispute is the first time that
any union or the Council has questioned Anaconda's
use of its employees represented by the Steelworkers
and Local 375 in performing such demolition work.'
It is also the first instance where such a project
engaged in by Anaconda has been picketed by the
Council or any local union.
The Council and Local 163 in seeking to secure
this demolition work for members of Local 163
relied on the fact that they had performed such
work when it was done by general contractors and
on the fact that "laborers" performing such work
for general contractors received a higher wage rate
than that paid by Anaconda to "laborers" who were
represented by the Steelworkers. However, in
seeking their objective, the Council and Local 163,
sought to force Anaconda to contract the instant
demolition work to a general contractor who would
employ workers represented by Local 163.
The parties stipulated, at the hearing, that the
Respondent labor organizations picketed the instant
demolition project on January 29, at which time
work on and picketing of the project ceased.' Work
The parties referred to the actual mining operations of Anaconda as
being carried on the "hill" while construction and demolition work
performed roughly in an area comprising work away from the "hill" such
as the business district of Butte was referred to as being performed
"downtown "
'In addition to the Steelworkers and Local 375, other crafts with whom
Anaconda had bargaining agreements worked on these projects Some of
these craftsmen, such as Carpenters and Ironworkers, were represented by
Local Unions that were members of the Council
'Anaconda did pay the "downtown" rate to union crafts on construction
jobs, other than demolition, when the work was performed downtown
555
on the project was resumed on February 24, by
Anaconda with its employees, and picketing was
also resumed. While work was performed on the
project on February 25, there was no picketing.
Work then continued from February 25 up to the
time the demolition project ended on March 7. The
Respondent Unions during the latter period picketed
the project on February 26, 27, 28, and March 3, 4,
5,and 7. During the picketing the legend on the
picket sign read as follows: "Notice to Public. The
work on this project is being performed substandard
to negotiated wage rates for the Southwest Building
Trades Council." There were no actual work
stoppages by Anaconda's employees represented by
the Steelworkers and Local 375, or other of its
employees represented by Locals with which
Anaconda had agreements between February 24 and
the completion of the project on March 7.
C. Contentions of the Parties
Anaconda contends it had assigned the work in
dispute to the Steelworkers and local 375 by virtue
of the collective bargaining agreements, which were
made part of the record. Anaconda, in addition,
relies on our certifications issued in Cases
19-RC-1866 and 19-RC-1822.
Anaconda and the Steelworkers contend that the
Steelworkers should retain the work because of
efficiency in scheduling the work, and economy.
They further contend that the Steelworkers possess
superior skills and can perform the work in a safer
manner because of training and experience.
Council claims however that their members
traditionally performed demolition work performed
by general contractors within the area of the
Council's jurisdiction, which includes the city of
Butte.
Locals 375 and 400, although served with a copy
of the charge, amended charges and Notice of
Hearing, did not, as previously noted herein, appear
at the hearing.
D. Applicability of the Statute
Before the Board may proceed to a determination
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. As
indicated above, the record contains ample evidence
that the Respondent Unions, on or about February
24, 26, 27, 28, March 3, 4, 5, and 7, picketed with
an avowed object of forcing or requiring Anaconda
to contract out its demolition work to general
contractors who would employ workers represented
by Respondent Union Locals 163 and 400.
'The work stoppage on this date was occasioned by the fact that several
other trades having collective-bargaining agreements with Anaconda filed a
grievance under their contracts regarding the wage rate required to be paid
these trades by Anaconda on the downtown project The grievance was
settled and work resumed on February 24
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find on the basis of the entire
record, that there is reasonable cause to believe that
a violation of Section 8(b)(4)(D) has occurred, and
that the dispute is properly before the Board for
determination under Section 10(k) of the Act.
E. The Merits of the Dispute
As stated in the J A Jones case,10 we shall,
pursuant to the Supreme Court's CBS decision,"
determine each case presented for resolution under
Section 10(k) of the Act and make the appropriate
assignment of the disputed work only after taking
into account the evidence supporting the claims of
all the parties and balancing all relevant factors.
1. Certification and bargaining agreements
The record establishes as noted above that the
Steelworkers and Local 375 have Board
certifications . In addition , the Steelworkers and
Local 375 have existing collective-bargaining
agreements with Anaconda.
The record also discloses that Anaconda has a
collective-bargaining agreement with the Building
and Construction Trades Department , AFL-CIO,
covering Anaconda ' s operations in Butte and
elsewhere in Montana which agreement includes
therein numerous constituent locals of the various
building trades in the Butte area . Locals 400 and
163, however , are not signatories to such agreement.
The Steelworkers ' Board certification and its
agreement with Anaconda clearly covers the
disputed work.' 3
Local 375 Board certification and its agreement
with Anaconda appears to apply to employees
engaged in the type of work in dispute when
performed by Anaconda However, any doubt as to
the latter is clearly settled by the long established
practice of Anaconda of using its employees
represented by Local 375 on this type of work.
The aforesaid Board certification and
collective-bargaining agreements are factors favoring
the assignment of the disputed work to employees
represented by the Steelworkers and Local 375.
2. Company and industry practice
For a period extending over 5 years, Anaconda,
because of the continuing volume of demolition
work necessitated by Anaconda's increasing
acquisition of properties necessary to its expansion
of ore mining operations, has created an almost
permanent organization to carry on this demolition
work. It includes employees represented by the
Steelworkers and Local 375, and employees
"International Association of Machinists. Lodge No 1743, AFL-CIO
(J A Jones Construction Co ), 135 NLRB 1402
"N L R B v Radio and Television Broadcasting Engineers Union, 364
US 573
"See fns 4 and 5, supra
represented by other Local Unions with which
Anaconda has agreements.
It appears from the record that the Council,
including Local 163, has jurisdiction over and
performs demolition work in the Butte area when
performed by contractors with whom it has
agreements. However, such jurisdictional claim and
practice, does not, in our opinion, support the
Council's or Local 163's right to force Anaconda to
contract out the demolition work in dispute. The
evidence of record clearly establishes that Anaconda
has performed with its own employees on its own
properties demolition projects that number over one
thousand and that the project herein constitutes the
first instance that the Council, Local 400 and Local
163 ever asserted any claim to such work.
In the absence of a countervailing area or
industry practice, the practice of Anaconda in using
its employees over a period of 5 years in performing
demolition work on structures located on its own
properties is a factor favoring the assignment of the
disputed work to Anaconda employees represented
by the Steelworkers and Local 375.
3. Efficiency of operation , skills involved
In the years that Anaconda has used its
employees to perform demolition work on structures
located on its properties the employees represented
by the Steelworkers and Local 375 have
demonstrated to the satisfaction of Anaconda that
they possess the knowledge and skill necessary to
satisfactorily perform demolition work. While it
appears that Local 400's and Local 163's members
also possess the skills necessary to perform
demolition work and can use tools and equipment
necessary for the performance of such work, such
factor does not outweigh the fact that Anaconda's
employees have had a considerable concentrated
experience in performing this type of work resulting
in greater efficiency and economy for Anaconda in
the planning and scheduling of the work. It would
also appear that because of the tremendous volume
of this type of work performed by Anaconda with
its employees, that such employees have developed
superior skills and can perform the work in a safer
manner because of training and experience Hence,
we find these factors favor assignment of the work
to employees represented by the Steelworkers and
Local 375.
In view of the foregoing, on the basis of the
record as a whole, and upon appraisal of all relevant
considerations, we believe that the work in dispute
should be awarded to employees of The Anaconda
Company, represented by the Steelworkers and
Local 375. Anaconda for a period exceeding 5 years,
has constantly performed this type of work with its
employees who are represented by the aforesaid
unions, and they have demonstrated the requisite
skills to perform the demolition work to the
satisfaction of Anaconda, and without objection, by
SOUTHWEST BUILDING TRADES COUNCIL
the Council, Local 163, and Local 400 until the
instant dispute. In making this determination, which
is limited to the controversy which gives rise to this
proceeding, we are not assigning the work to
Steelworkers Local 1-A or to Operating Engineers,
Local 375 or to their members. Therefore, we shall
determine the dispute by assigning the work in
question to employees of the Anaconda Company
represented by Steelworkers, Local 1-A and
Operating Engineers, Local 375.
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
case , the National Labor Relations Board makes the
following Determination of Dispute.
1. Laborers who are represented by the United
Steelworkers of America , Local 1-A, AFL-CIO, and
operating engineers represented by Local 375,
International Union of Operating Engineers,
AFL-CIO, pursuant to Board certification and
collective -bargaining agreements with the Anaconda
Company, are entitled to perform the work on the
demolition project which was involved in this
557
dispute."
2. General Laborers Union, Local No. 163,
AFL-CIO; International Union of Operating
Engineers Local Union No. 400, AFL-CIO, and the
Southwest Building Trades Council of Montana,
AFL-CIO, are not entitled, by means proscribed by
Section 8(b)(4)(D) of the Act, to force or require
The Anaconda Company, to assign the work
described above to members of General Laborers
Union, Local No. 163. AFL-CIO; or Local 400,
International Union of Operating Engineers,
AFL-CIO.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Southwest Building
Trades Council of Montana, AFL-CIO; Local No.
163, General Laborers Union, AFL-CIO, and Local
400, International Union of Operating Engineers,
AFL-CIO, shall notify the Regional Director for
Region 19, in writing, whether or not they will
refrain from forcing or requiring The Anaconda
Company, by means proscribed by Section
8(b)(4)(D), to assign the work in dispute in a
manner inconsistent with the above determination.
"The demolition project was generally referred to as the
Orton-Hedbronner project