Bricklayers (Sesco, Inc.)

National Labor Relations Board - Board Decisions

Jun 14, 1991

303 N.L.R.B. 401 (N.L.R.B. 1991)

401
303 NLRB No. 70
BRICKLAYERS (SESCO, INC.)
1 All dates are in 1991, unless otherwise indicated.
International Union of Bricklayers & Allied Crafts-
men, AFL–CIO and Sesco, Inc. and Architec-
tural and Ornamental Iron Workers Union,
Local No. 63, International Association of
Bridge, Structural and Ornamental Iron Work-
ers, AFL–CIO and Bridge, Structural and Re-
inforcing Iron Workers, Local No. 1, Inter-
national Association of Bridge, Structural and
Ornamental Iron Workers, AFL–CIO. Case
13–CD–436
June 14, 1991
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed on February 1, 1991, by the Employer, alleging
that the Respondent Bricklayers violated Section
8(b)(4)(D) of the National Labor Relations Act by en-
gaging in proscribed activity with an object of forcing
the Employer to continue to assign certain work to em-
ployees it represents rather than to employees rep-
resented by Iron Workers Local 63 and Local 1. The
hearing was held on February 19, 1991, before Hearing
Officer Mary Ellen Larson. The Employer and Brick-
layers filed posthearing briefs.
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
The Employer, Sesco, Inc., an Ohio corporation, is
a construction contracting firm engaged in the installa-
tion of exterior stone facades. Its principal office is lo-
cated in Dayton, Ohio, from which it annually pro-
vides goods and services valued in excess of $50,000
directly to points outside the State of Ohio. We find
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
the Bricklayers International, Iron Workers Local 63,
and Iron Workers Local 1 are labor organizations with-
in the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
In November 1990, general contractor Morse-Diesel
International engaged the Employer as a subcontractor
responsible for the installation of exterior stonework in
the construction of the Heller International building, a
high-rise commercial building located at 500 West
Monroe, Chicago, Illinois. The stonework installation
involved utilizing the Sesco unistrut system, a variation
of the Ziebell system of using steel ‘‘unistrut’’ bars,
adjustable clips, bolts, anchors, and locking nuts to at-
tach precut granite slabs to the building’s steel skel-
eton.
On about January 25, 1991,1 Bricklayers Local 21
President Joe Lozich received notice from the Joint
Conference Board of the Construction Employers’ As-
sociation and the Chicago and Cook County Building
and Construction Trades Council (Joint Conference
Board) that Iron Workers Locals 63 and 1 had filed a
claim to certain work being performed by the Em-
ployer on the Heller International building project.
Specifically, the Iron Workers claimed the unloading,
handling, stockpiling, hoisting, and installation of relief
angles to support stone and of multipurpose supports.
This work had been assigned by the Employer to its
employees represented by Bricklayers. The Employer
does not employ ironworkers.
On about January 29, the Employer’s project coordi-
nator, John Steckling, received a telephone call from
Bricklayers International Executive Vice President
John Flynn. Flynn stated that the Iron Workers were
claiming some of the work on the project at 500 West
Monroe and threatened that Bricklayers would picket
the jobsite if the Employer took any of the work away
from the employees represented by Bricklayers. Flynn
reiterated the threat to picket in a January 31 letter to
the Employer’s president, John Malcolm. On February
6, the Joint Conference Board issued a decision in
favor of the Iron Workers. The Employer did not ac-
quiesce in that decision.
B. Work in Dispute
The work in dispute involves the erection, anchor-
ing, and aligning of exterior stonework, including but
not limited to unloading, handling, stockpiling, hoist-
ing, and installation of relief angles to support stone
and of multipurpose supports, at the Heller Inter-
national building project, 500 West Monroe Street,
Chicago, Illinois.
C. Contentions of the Parties
The Employer and Bricklayers contend that: there is
reasonable cause to believe that Bricklayers violated
Section 8(b)(4)(D) of the Act; no voluntary means ex-
ists for adjustment of the jurisdictional dispute; and the
work in dispute should be awarded to employees rep-
resented by Bricklayers based on the factors of its col-
lective-bargaining agreement with the Employer, the
Employer’s preference and past practice, area and in-
dustry practice, relative skills, and economy and effi-
ciency of operations.
402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The Employer and Iron Workers did have one agreement limited to a con-
struction jobsite which is not at issue in this proceeding.
Although afforded notice and opportunity to appear
at the hearing, neither Iron Workers Local 63 nor Iron
Workers Local 1 made an appearance. Further, neither
union filed a posthearing brief. Consequently, these
Unions have made no contentions before the Board
with respect to the work in dispute.
D. Applicability of the Statute
Before the Board may proceed with a determination
of the dispute pursuant to Section 10(k), it must be sat-
isfied that there is reasonable cause to believe that Sec-
tion 8(b)(4)(D) has been violated and that the parties
have not agreed on a method for voluntary adjustment
of the dispute. It is uncontroverted that Bricklayers’
vice president, Flynn, twice threatened to picket the
Employer if it reassigned the work in dispute to em-
ployees represented by Iron Workers. It is also undis-
puted that Iron Workers Locals 63 and 1 sought reas-
signment of the work in dispute by filing claims with
the Joint Conference Board. Finally, although the Joint
Conference Board issued a decision in favor of the
Iron Workers’ claim, it is undisputed that neither Sesco
nor the Bricklayers International are members of the
Joint Conference Board or bound by decisions of that
entity.
Based on the foregoing, we find reasonable cause to
believe that a violation of Section 8(b)(4)(D) has oc-
curred and that there exists no agreed method for vol-
untary adjustment of the dispute within the meaning of
Section 10(k) of the Act. Accordingly, we find that the
dispute is properly before the Board for determination.
D. 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 the de-
termination of the dispute.
1. Collective-bargaining agreements
The Employer and Bricklayers have a collective-bar-
gaining agreement effective from June 14, 1988 to
June 14, 1991. Article II of this agreement is entitled
‘‘Scope, Work Assignments, Manpower, Training.’’ It
refers specifically, inter alia, to work assignments in-
volving the work in dispute. The Employer does not
have a collective-bargaining agreement with the Iron
Workers.2 We find that this factor favors an award to
employees represented by Bricklayers.
2. Company preference and past practice
The Employer prefers that the work in dispute be
performed by employees represented by Bricklayers.
The Employer has consistently assigned exterior
stonework involving the work in dispute to employees
represented by Bricklayers since 1972. We find that
this factor favors an award to employees represented
by Bricklayers.
3. Area and industry practice
Witnesses for the Employer and Bricklayers testified
consistently that the practice of employers in the Chi-
cago area and in the industry nationwide has been to
assign the work in dispute to employees represented by
Bricklayers. Bricklayers Local 21 President Lozich
provided affidavits from five construction companies
working in the area stating that they used bricklayers
to do the type of construction at issue in this dispute.
We find that the factor of area practice favors an
award of the work in dispute to employees represented
by Bricklayers.
4. Relative skills, efficiency, and economy of
operation
Project Coordinator Steckling testified that the brick-
layers who performed the disputed work had an aver-
age of five and a half years experience with stonework
installation using the Employer’s unistrut system. Iron-
workers have no comparable experience or training.
Further, the Employer does not currently employ iron-
workers. If all or part of the work in dispute were as-
signed to employees represented by Iron Workers, the
Employer would have to hire and train these employ-
ees.
Steckling also testified that both the quality and
speed of the integrated unistrut installation process
would be adversely affected if various phases of that
process were divided between bricklayers and iron-
workers. Employees represented by Bricklayers would
have to let employees represented by Iron Workers
perform support angle installations critical to the prop-
er alignment of stone. If bricklayers subsequently de-
termined that a finished wall section was not in plumb,
they would be idled while ironworkers reset the angles
and struts. In addition, ironworkers would have no
other work when they were not performing the work
in dispute. We find that this factor favors an award of
the work in dispute to employees represented by Brick-
layers.
403BRICKLAYERS (SESCO, INC.)
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by Bricklayers are
entitled to perform the work in dispute. We reach this
conclusion by relying on the factors of collective-bar-
gaining agreements, employer preference and past
practice, area and industry practice, relative skills, effi-
ciency, and economy of operations. In making this de-
termination, we are awarding the work to employees
represented by Bricklayers not to that Union or its
members.
Scope of Award
The Employer and Bricklayers request that the
Board issue a broad award covering all of the Employ-
er’s jobs in the Chicago area. They claim that such an
award is necessary to avoid the recurrence of similar
work disputes between Bricklayers and the Iron Work-
ers.
We conclude that the issuance of a broad award
would be inappropriate and we shall limit our deter-
mination to the particular controversy that prompted
the instant proceeding. In this regard, we note that
there are two prerequisites for a broad, areawide
award. First, there must be evidence that the disputed
work has been a continuous source of controversy in
the relevant geographic area and that similar disputes
may recur. Second, there must be evidence dem-
onstrating that the charged party has a proclivity to en-
gage in unlawful conduct in order to obtain work simi-
lar to the work in dispute. Iron Workers Local 433
(Crescent Corp.), 277 NLRB 670 (1985); Electrical
Workers IBEW Local 104 (Standard Sign), 248 NLRB
1144 (1980). In the present case Bricklayers, not Iron
Workers, is the charged party. Because there is no
showing of a proclivity of the charged party to engage
in unlawful conduct to obtain work similar to the dis-
puted work, we find insufficient grounds to issue a
broad award, and we limit our determination accord-
ingly.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of Sesco, Inc. represented by Inter-
national Union of Bricklayers & Allied Craftsmen,
AFL–CIO, are entitled to perform the erection, anchor-
ing and aligning of exterior stonework, including but
not limited to unloading, handling, stockpiling, hoist-
ing, and installation of relief angles to support stone
and of multipurpose supports, at the Heller Inter-
national building project, 500 West Monroe Street,
Chicago, Illinois.
CHAIRMAN STEPHENS, concurring.
In my dissenting opinion in Laborers Local 731
(Slattery Associates), 298 NLRB 787 (1990), I stated
that I would not find that the pursuit of an arguably
meritorious grievance for the breach of a union signa-
tory subcontracting clause constituted a claim for work
assigned by a subcontractor who was the beneficiary of
the arguable breach. So long as a union did nothing
more than announce its intent to pursue such a griev-
ance and actually pursued it through the proper chan-
nels, I would quash the 10(k) notice on the ground that
there was no jurisdictional dispute because of the ab-
sence of competing claims.
It is essential under my Slattery position, however,
that the grieving union establish that it had an arguably
meritorious claim that the subcontracting of the work
in question violated the signatory subcontracting clause
in an agreement between that union and the employer
who subcontracted the work. In the present case, the
Employer and the Bricklayers have argued that the
only agreement between the Employer and the Iron
Workers was limited to a minor part of a project dis-
tinct from the one that is the focus of the dispute here.
The Iron Workers made no appearance at the 10(k)
hearing and filed no brief with the Board. The Iron
Workers has therefore failed to establish that it was
pursuing an arguably meritorious grievance. Accord-
ingly, I agree with my colleagues that we are presented
with a jurisdictional dispute. I further agree, for the
reasons stated in the opinion for the majority, that the
work should be awarded to employees represented by
Bricklayers and that the award should be limited to the
controversy that gave rise to this proceeding.