Iron Workers Local 21 (Lueder Construction Co.)

National Labor Relations Board - Board Decisions

Dec 13, 1977

233 N.L.R.B. 1139 (N.L.R.B. 1977)

IRON WORKERS, LOCAL NO. 21
International Association of Bridge, Structural &
Ornamental Iron Workers, Local No. 21 and
Lueder Construction Company and Morford Ma-
sonry Inc.' and Local No. 1140, Laborers' Interna-
tional Union of North America. Case 17-CD-228
December 13, 1977
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Lueder Construction Company,
alleging that International Association of Bridge,
Structural & Ornamental Iron Workers, Local No.
21, herein called the Iron Workers or Respondent,
had violated Section 8(b)(4)(D) of the Act by
engaging in certain proscribed activity with an object
of forcing or requiring Morford Masonry Inc., the
Employer, to assign certain work to its members
rather than employees of Morford represented by
Local No. 1140, Laborers' International Union of
North America, herein called the Laborers.
Pursuant to notice, a hearing was held before
Hearing Officer David A. Nixon on July 26 and 27,
1977. All parties appeared and were afforded full
opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing
on the issues. Thereafter, Respondent and Lueder
filed briefs which have been duly considered.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 affirmed.
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 Lueder
and Morford are Nebraska corporations with their
principal places of business in Omaha, Nebraska.
Lueder and Morford each annually purchases goods
and materials from outside the State of Nebraska
having a value in excess of $50,000. The parties also
stipulated, and we find, that Lueder and Morford are
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.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Iron
Workers and Laborers are labor organizations within
the meaning of Section 2(5) of the Act.
Inl. THE DISPUTE
A. Background and Facts of the Dispute
At all times material herein, Lueder has been the
general contractor at a project involving the con-
struction of the Target Store located at 130th and
Center Streets, Omaha, Nebraska. Lueder subcon-
tracted the masonry and concrete work at the project
to Morford; and on or about May 24, 1977, in
connection with the performance of that subcontract,
Morford assigned the work of cutting, installing, and
pulling wire mesh at the project to its employees who
are members of the Laborers. Commencing on or
about May 26, 1977, Iron Workers demanded that
Morford reassign such work to individuals represent-
ed by the Iron Workers. When Morford refused to
make the reassignment, the Iron Workers picketed
the project in support of its demand for the work and
ironworkers employed by other contractors on the
project engaged in a work stoppage.
B. The Work in Dispute
The work in dispute is the cutting, installing, and
pulling of wire mesh at a construction project located
at 130th and Center Streets in Omaha, Nebraska, as
part of the construction of a structure called the
Target store.
C. The Contentions of the Parties
Lueder contends that (1) the dispute is properly
before the Board because there does not exist any
method for the voluntary settlement of the instant
jurisdictional dispute to which all necessary parties
are bound; and (2) Morford's assignment of the
disputed work was proper in light of the factors
usually considered by the Board in these matters.
The Iron Workers contends that the Board is
without jurisdiction to determine the merits of the
dispute under Section 10(k) of the Act since, as
expressed more fully infra, the parties had agreed
upon a method for its voluntary adjustment. The
Iron Workers further contends that the Board should
defer to a July 8, 1977, award by the Impartial
Jurisdictional Disputes Board for the Construction
I The name of the Employer appears as amended at the hearing.
233 NLRB No. 158
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Industry, herein the Impartial Board, which con-
ferred the work in dispute on the Iron Workers.
Alternatively, in the event the dispute is properly
before the Board, the Iron Workers urges that the
work be awarded to employees represented by it on
the basis of those factors normally considered by the
Board in making such awards.
At the hearing, representatives of Morford and the
Laborers gave testimony in support of the assign-
ment of the work to the laborers, but filed no briefs
setting forth specific contentions.
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 (1) there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated, and (2) the parties have not agreed upon a
method for the voluntary adjustment of the dispute.
As to (1) above, it is clear that the Iron Workers
picketed the project site and that such picketing was
to protest Morford's assignment of the disputed work
to its own employees who were represented by the
Laborers. Accordingly, we find that reasonable cause
exists to believe that the Iron Workers violated
Section 8(b)(4)(D) of the Act.2
With respect to (2) above, the Iron Workers
contends that a method for the voluntary adjustment
of the dispute exists and that all of the necessary
parties herein are bound thereto.
As set forth, supra, on May 24, 1977, Morford
assigned the work in dispute to the laborers. Shortly
thereafter, the Iron Workers demanded that the work
be assigned to its members, and, on May 26, 1977,
ironworker employees began picketing the project in
support of the demand for work. On June 7, 1977,
pursuant to an agreement between Lueder, the Iron
Workers, and the Laborers, the Iron Workers
stopped the picketing and Lueder submitted the
dispute to the Impartial Board for resolution.
Morford was then informed that the dispute had
been so submitted in consideration of the Iron
Workers agreement to stop picketing. At no point
did Morford participate in the agreement to submit
the dispute to the Impartial Board. On July 5, 1977,
Morford sent a telegram to the Impartial Board in
which it disclaimed being bound by, or a party to,
the submission.3 On July 8, 1977, the Impartial
Board rendered a decision awarding the disputed
work to the Iron Workers.
2 In a proceeding seeking injunctive relief under Sec. 10(l) of the Act,
Hendrix v. The International Association of Bridge, Structural & Ornamental
Workers, Local 21, Civil Case No. 7743-192 (D. Neb., June 28, 1977), the
court found that there was reasonable cause to believe that the Iron Workers
picketed the project to force Morford to reassign the work to members of its
Union. We agree with that finding.
The record reveals that Lueder is party to collec-
tive-bargaining agreements with the Iron Workers
and the Laborers. Both of these agreements contain
clauses which obligate the signatories to submit work
assignment disputes for resolution to the Impartial
Board. In addition, Morford signed an agreement in
which it agreed to be bound by the terms and
provisions of a collective-bargaining agreement
entered into by the Laborers and the Associated
General Contractors of Omaha, et al.4 That agree-
ment, however, was not entered into the record, and,
thus, there is no evidence as to whether or not that
agreement bound the signatories to submit disputes
to the Impartial Board. Accordingly, we find no
record evidence that Morford, the Employer that
assigned the disputed work, was contractually bound
to submit work assignment disputes to the Impartial
Board.
The Iron Workers also asserts that Morford's
assignment of the work to laborers was based upon
Lueder's insistence that it do so and therefore Lueder
effectively made the work assignment. The record
discloses that Lueder did "request" that Morford
assign the work to laborers; however, the final
decision to assign the work was made by Morford on
the basis of past practice and economy and efficiency
of operations. Morford testified that it assigned the
work to its own employees, who were members of the
Laborers, because they provided a more efficient
work force.
Finally, the Iron Workers claims that a subcontrac-
tors' clause in the agreement between the Iron
Workers and Lueder bound Morford to comply with
awards made by the Impartial Board. That clause
provided that Lueder subcontractors should assume
all the terms and conditions of the Iron Workers-
Lueder contract, if they perform work covered by
that agreement. However, the contract between
Lueder and Morford was not entered into the record;
and, therefore, there is no evidence which establishes
whether Morford agreed to be bound by the contract
between Lueder and the Iron Workers. Lueder's
contractual obligations cannot be conferred upon
Morford, absent record evidence establishing that
Morford had agreed to be bound by those obliga-
tions. On the basis of the above facts, we find that
Morford, the Employer and a necessary party, is not
bound by decisions rendered by the Impartial Board
and, thereby, no agreed-upon method for voluntary
adjustment of the dispute involved herein exists.
N.LR.B. v. Plasterers' Local Union No. 79, Operative
3 Morford acknowledges that it sent the disclaimer after being advised
that such a disclaimer would be advantageous to the Laborers.
4 The Iron Workers also entered into evidence a 1974 contract between
Morford and the Iron Workers. That contract, however, expired in June
1974.
1140
IRON WORKERS, LOCAL NO. 21
Plasterers' and Cement Masons' International Associa-
tion, AFL-CIO [Texas Tile & Terrazzo Co.], 404 U.S.
116(1971).
On the basis of the entire record, we conclude that
there is reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred and that there exists
no agreed-upon method for the voluntary 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. 5 The Board has
held that its determination in a jurisdictional dispute
is an act of judgment based upon commonsense and
experience reached by balancing those factors
involved in a particular case.6
The following factors are relevant in making the
determination of the dispute before us:
1. Collective-bargaining agreements
Morford has no current collective-bargaining
agreements with either of the two labor organizations
involved herein. However, all of its employees
assigned to perform the disputed work are members
of the Laborers; none are members of the Iron
Workers.
2. Employer assignment and practice
Morford has assigned the work in dispute, and
prefers an assignment, to its employees who are
represented by the Laborers. In the past Morford has
always assigned the work to laborers. These factors,
therefore, favor an assignment to Morford's employ-
ees.
3. Industry and area practice
Lueder, Morford, the Laborers, and the Iron
Workers each adduced testimony regarding who has
predominately performed the work at issue on
projects located in the surrounding area. The
evidence indicates that the practice is mixed between
laborers and iron workers. We conclude that this
factor does not favor either competing group.
4. Relative skills
The record reveals that the work in question
requires very little skill and that it can be performed
equally well by either group. Accordingly, we
N. L.R.B. v. Radio & Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, AFL CIO [Columbia
Broadcasting Sysreml, 364 U.S. 573 (1961).
conclude that this factor favors neither claim for the
work.
5. Economy and efficiency of operation
Morford's laborers grade and prepare the soil for
the concrete pour, cut and place the wire mesh on
top of the soil, participate in the actual concrete pour
by helping the finishers distribute the concrete, and
pull the mesh to elevate it while the concrete is still
wet. In addition, they also move supplies and
materials around the project and are available for
odd jobs and for the general cleanup of the project.
Morford does not presently employ any iron workers
and has no need on the project for any of the special
skills they possess. As indicated previously, the
placing, cutting, and pulling of the wire mesh does
not require any special skills. In addition, the
disputed work is often not one continuous process
and does not involve much time on a daily basis,
often only requiring 30 minutes of work during a day
and rarely more than 3 hours. Further, the wire is
often cut and placed on one day and pulled or
elevated when the concrete is poured on the next
day. If Morford were to utilize iron workers for the
disputed work, they would be kept busy only for
relatively short periods of time. On the other hand,
when laborers are utilized, they are kept busy with
the preparation and distribution of the concrete pour
which constitutes the greater portion of their work, as
well as with a variety of other jobs around the
project. Accordingly, it is evident that the factors of
economy and efficiency of operation favor awarding
the disputed work to Morford's employees rather
than to ironworkers.
6. Impartial Board determination
Although we do not consider the Impartial Board
award to the Iron Workers binding on Morford, we
do consider it as a factor in determining the proper
assignment of the disputed work. However, in view
of all the circumstances, including the mixed practice
of the industry, we are of the opinion that the
Impartial Board award should not be given control-
ling weight herein.
Conclusion
Upon the record as a whole, and after full
consideration of all relevant factors involved, we
conclude that employees of Morford Masonry Inc.,
who are represented by the Laborers, are entitled to
perform the work in dispute. We reach this conclu-
6 International Association of Machinists, Lodge No. 1743, AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402(1962).
1141
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sion relying on Morford's assignment and past
practice of assigning the work to laborers and by the
fact that such an assignment will result in a greater
efficiency and economy of work operations. In
making this determination, we are awarding the work
in question to Morford's employees who are repre-
sented by the Laborerers, but not to that Union or its
members. The present determination is limited to the
particular 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 Morford Masonry Inc., who are
represented by Local No. 1140, Laborers' Interna-
tional Union of North America, are entitled to
perform the work of cutting, installing, and pulling
wire mesh at the Target store construction project
located at 130th and Center Streets in Omaha,
Nebraska.
2. International Association of Bridge, Structural
& Ornamental Iron Workers, Local No. 21, is not
entitled by means proscribed by Section 8(b)(4)(D)
of the Act to force or require Morford Masonry Inc.
to assign the disputed work to employees represented
by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, International Associ-
ation of Bridge, Structural & Ornamental Iron
Workers, Local No. 21, shall notify the Regional
Director for Region 17, in writing, whether or not it
will refrain from forcing or requiring the Employer,
by means proscribed by Section 8(bX4)(D) of the
Act, to assign the disputed work in a manner
inconsistent with the above determination.
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