International Association of Bridge, Structural and Ornamental Ironworkers, Local Union No. 769, AFL-CIO (Barboursville Bridge Co.)

National Labor Relations Board - Board Decisions

Mar 4, 1982

260 N.L.R.B. 620 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Bridge, Structural and
Ornamental Ironworkers, Local Union No. 769,
AFL-CIO and Barboursville Bridge Co. Case
9-CD-398
March 4, 1982
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Barboursville Bridge Co.
(herein called the Employer), alleging that Interna-
tional Association of Bridge, Structural and Orna-
mental Ironworkers, Local Union No. 769, AFL-
CIO (herein called the Ironworkers), had violated
Section 8(b)(4)(D) of the Act by engaging in cer-
tain proscribed activity with an object of forcing
or requiring the Employer to assign certain work
to its members rather than to the Employer's em-
ployees who were performing the work, some of
whom are members of the Laborers' District Coun-
cil of Charleston, West Virginia, affiliated with the
Laborers' International Union of North America,
AFL-CIO (herein called the Laborers), some of
whom are members of Carpenters Local Union 302
of Huntington, West Virginia, United Brotherhood
of Carpenters and Joiners, AFL-CIO (herein called
the Carpenters), and some of whom have no affili-
ation with any labor organization.
Pursuant to notice, a hearing was held before
Hearing Officer Bruce H. Meizlish on October 31,
1981. All parties appeared and were afforded full
opportunity to be heard, to examine and cross-ex-
amine witnesses, and to adduce evidence bearing
on the issues.' Thereafter, the Employer filed a
brief; that brief, and the positions of the parties as
stated at the hearing, have been duly considered.
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
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer, a West Virginia corporation with its princi-
I Neither the Laborers nor the Carpenters entered an appearance as a
party at the hearing.
260 NLRB No. 83
pal place of business in Barboursville, West Virgin-
ia, is engaged in the business of highway and
bridge construction. During the past year, the Em-
ployer purchased and received goods and materials
valued in excess of $50,000 directly from points
outside the State of West Virginia. Accordingly,
we find that the Employer is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act and it will effectuate the purposes of the Act
to assert jurisdiction herein.
11. THE I.ABOR ORGANIZATIIONS INVOLVED
The parties stipulated, and we find, that the Iron-
workers, the Laborers, and the Carpenters are
labor organizations within the meaning of Section
2(5) of the Act.
II1. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is the general contractor, pursu-
ant to a contract with the West Virginia Depart-
ment of Highways, in the construction of steel-rein-
forced concrete support columns which will sup-
port a planned elevated approach highway to a
bridge across the Ohio River. The contract for the
Employer's portion of the East Huntington Bridge
project was let about December 1980. The Em-
ployer thereafter assigned its own employees, some
of whom are members of the Laborers, some of
whom are members of the Carpenters, and some of
whom are not affiliated with any labor organiza-
tion, to perform the work of setting and tying steel
reinforcing rods and attendant excavation and con-
crete work. Work began on the project about De-
cember 1980.
Between early September and September 17,
1981, the Ironworkers business representative met
with the Employer's job superintendent and was
told that the Employer was not interested in using
and did not intend to use ironworkers on the pro-
ject. From September 17 through September 25,
1981, the Ironworkers picketed the Employer's job-
site with signs which read as follows: "For the
Public Information. Barboursville Bridge Co. does
not employ Ironworkers to perform ironwork on
this job." On the morning of September 18, there
were about 10-15 pickets at the gate to the jobsite
and, on September 22, there were about 15-20
pickets at the gate to the jobsite. As a result of the
picketing, the Employer's employees did not cross
the picket line during the morning of September 18
and on September 22. Prior to the picketing on
September 22, two ironworkers, who had been
working on another job in the area, informed the
Employer's vice president that the Ironworkers
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IRONWORKERS, LOCAL UNION NO() 769
wanted the work and that the Employer could get
rid of the pickets if the union hall was called for
ironworkers. Also, on September 22, after an alter-
cation at the picket line in which a picket punched
the Employer's vice president, the Ironworkers
business representative approached the Employer's
vice president and sought to resolve the dispute by
having ironworkers employed to work with the re-
inforcing steel. At the hearing, the Ironworkers
business representative testified that, had the Em-
ployer employed ironworkers, there would not
have been picketing.
On September 23, the Employer and the Iron-
workers agreed to the entry of a state court injunc-
tion order which, inter alia, limited the number of
pickets at the Employer's worksites and prohibited
blocking of the entrances or exits of the worksites.
Since September 25, there has been no picketing of
the Employer's jobsites by the Ironworkers, and
the Employer's employees have continued to per-
form the disputed work.
B. The Work in Dispute
The work in dispute involves the ironwork,
more specifically the placement and binding to-
gether of steel rods or mesh used as reinforcement
in the construction of concrete support columns, at
the construction site at the East Huntington Bridge
project in Huntington, West Virginia.
C. The Contentions of the Parties
The Ironworkers contends that its picketing was
for informational purposes, that the Laborers and
the Carpenters have each disclaimed interest in the
disputed work, and that the disputed work should
be awarded to the Ironworkers because it tradition-
ally falls within the Ironworkers jurisdiction and
ironworkers possess the requisite skills to perform
the work.
The Employer takes the position that there is no
basis for assigning the disputed work to the Iron-
workers. It argues that it has no collective-bargain-
ing agreement with the Ironworkers, or any other
labor organization, that its assignment of the work
was in accord with its own past practice and the
area practice, and that it is more efficient and eco-
nomical to have its employees perform the disputed
work.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the 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 the parties have not agreed upon
a method for the voluntary adjustment of the dis-
pute.
Despite the fact that the Ironworkers picket
signs referred to "For the Public Information," the
record shows that the Ironworkers business repre-
sentative has, prior to, during, and since the picket-
ing, informed the Employer that it sought the dis-
puted work for its members and has also, both
during the picketing and at the hearing, indicated
that the picketing was for that object. Accordingly,
based upon all the evidence, we conclude that
there is reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred.
As noted above, the Ironworkers contends that
the Laborers and the Carpenters have disclaimed
an interest in the disputed work. Such disclaimers
are ineffective, in the context of this case, to affect
the existence of a dispute inasmuch as neither labor
organization is recognized or certified as the col-
lective-bargaining representative of the Employer's
employees and the Employer's employees have
continued to perform the disputed work. See Sheet
Metal Workers' International Association, Local 12,
AFL-CIO (Builders Association of Eastern Ohio and
Western Pennsylvania), 203 NLRB 141, 142 (1973).
Further, neither party contends, and the record
contains no evidence showing, that there exists any
agreed-upon method for the voluntary adjustment
of the dispute.
On the basis of the entire record, we conclude
that there exists no agreed-upon method for volun-
tary adjustment of the dispute within the meaning
of Section 10(k) of the Act. Accordingly, we find
that this dispute is properly before the Board for
determination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of disputed work after
giving due consideration to various factors. 2 The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on com-
monsense and experience reached by balancing
those factors involved in a particular case.3
1. Certification and/or collective-bargaining
agreements
The record shows that none of the labor organi-
zations involved herein, or any other labor organi-
zation, has been certified to represent any of the
Employer's employees. Nor does the Employer
2 L R. B. v Radio & Television Broadcast Engineers Union. Local
1212, International Brotherhood of Electrical Workers. AFL-CIO [Colum-
hia Broadcasting Svstermn, 64 U.S 573 (1961)
:' Intiernational .4sociation of Machinists. LodRge V.o 1743 .4FL-CIO (J
.4. Jlone Construction Companyc, 115 N.RB 1402 (1962).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have a collective-bargaining agreement with the
Ironworkers, the Laborers, the Carpenters, or any
other labor organization. The Employer has en-
tered into what it refers to as participation agree-
ments with the Laborers, the Carpenters, and
Local Union No. 132, International Union of Oper-
ating Engineers, AFL-CIO (herein called the Op-
erating Engineers). The agreements with the La-
borers and the Operating Engineers obligate the
Employer to make payments into the fringe bene-
fits funds of those labor organizations on behalf of
those of its employees, respectively, who are mem-
bers of those labor organizations. The agreement
with the Carpenters obligates the Employer to
employ members of the Carpenters on the East
Huntington Bridge project and on other jobs in-
volving work covered by the geographical and
work jurisdiction of the Carpenters, and also obli-
gates the Employer to pay certain wages and
fringe benefits for those Carpenters members which
it employs. While the Laborers business manager
and the Carpenters business agent both testified
that their respective unions do not make a jurisdic-
tional claim to the disputed work, both acknowl-
edged that their members have performed the dis-
puted work in the area. It is, accordingly, clear
from the record that the factors of certification and
contract are not determinative of the assignment of
the disputed work herein.
2. Company preference, past practice, and area
practice
The Employer, at the hearing and in its brief, has
expressed its preference that the disputed work
continue to be performed by its own employees.
While we do not afford controlling weight to this
factor, we find that it tends to favor an award of
the disputed work to the Employer's employees
currently performing the work.
Throughout the period since 1973, when the
Employer began operations as a highway and
bridge construction contractor, the Employer's
consistent practice has been to assign the same type
of work as the disputed work herein to its own
carpenter and laborer employees; the Employer has
never assigned such work to ironworkers.
While there is a conflict reflected in the record
as to the percentage of highway bridge construc-
tion work performed in the three surrounding
counties by contractors who do utilize iron-
workers, the record does reflect that the Employer,
one of the largest highway bridge contractors in
Huntington, West Virginia, is among approximately
four area contractors who utilize laborer and car-
penter employees to perform the disputed work.
Accordingly, in view of the above, we find that
company practice favors the continued assignment
of the disputed work to the Employer's employees.
3. Relative skills
The record indicates that both the Employer's
employees and the ironworkers possess the neces-
sary skills to perform the work. While the Employ-
er's employees, most of whom have worked for the
Employer for more than 1 year and one job, have
not qualified by way of an apprenticeship program
such as that of the Ironworkers 3-year apprentice-
ship program which is primarily on-the-job training
with some related training, the Employer's vice
president testified that it takes a few months to
become proficient at the work and that the Em-
ployer does have some training requirements. Fur-
ther, it is noted that there is no state certification
requirement for the performance of such work al-
though the reinforcing steel is inspected by state
highway department inspectors before the concrete
is poured.
4. Economy and efficiency of operation
William Turman, president of another bridge and
highway construction company in the area and also
an advisor to the Employer, testified that contrac-
tors such as himself and the Employer could not
remain competitive using ironworkers to perform
steel reinforcing work; he stated that by not em-
ploying ironworkers, who seek costly on-the-job
and fringe benefits, contractors such as himself and
the Employer can compete for many smaller jobs.
The Employer's vice president also testified that
the costs engendered on the jobs which the Em-
ployer has performed generally have followed the
original estimates for the jobs.
Finally, the record shows that the disputed work
constitutes only about 10 percent of the worktime
on the job and does not necessarily fill entire days
or occur consecutively. Thus it is more efficient for
the Employer to continue to utilize its own em-
ployees performing a variety of job duties. This en-
ables the Employer to maintain a more stable work
force.
Accordingly, it appears that the factors of econ-
omy and efficiency of operation favor the assign-
ment of work to the Employer's employees.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that employees of the Employer who are
presently performing the disputed work of placing
and binding together steel reinforcing rods or mesh
in the construction of concrete support columns at
622
IRONWORKERS. LOCAL UNION NO. 769
the construction site at the East Huntington Bridge
project in Huntington, West Virginia, are entitled
to perform such work. We reach this conclusion
relying on the Employer's practice and preference
and the economy and efficiency of the current as-
signment. In making this determination, we are
awarding the work in question to employees of the
Employer who have performed the disputed work,
but not to any union of which they are members
or, in general, to the members of any such union.
The present determination is limited to the particu-
lar controversy which gave rise to this proceeding.
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
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Employees of the Employer who are currently
performing the disputed work are entitled to per-
form the ironwork at the construction site at the
East Huntington Bridge project in Huntington,
West Virginia.
2. International Association of Bridge, Structural
and Ornamental Ironworkers, Local Union No.
769, AFL-CIO, is not entitled by means proscribed
by Section 8(b)(4)(D) of the Act to force or require
Barboursville Bridge Co. to assign the disputed
work to employees represented by that labor orga-
nization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, International Asso-
ciation of Bridge, Structural and Ornamental Iron-
workers, Local Union No. 769, AFL-CIO, shall
notify the Regional Director for Region 9, in writ-
ing, whether or not it will refrain from forcing or
requiring the Employer, by means proscribed by
Section 8(b)(4)(D) of the Act, to assign the disput-
ed work in a manner inconsistent with the above
determination.
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