Laborers Local 964 (Eastern Steel)

National Labor Relations Board - Board Decisions

Mar 28, 1991

302 N.L.R.B. 238 (N.L.R.B. 1991)

238
302 NLRB No. 40
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The parties at the hearing agreed to refer to the International Association
of Bridge, Structural and Ornamental Iron Workers, Local 3, Local 207, and
Local 787 collectively as ‘‘Iron Workers’’ for the purpose of this proceeding.
2 The Laborers did not appear at the hearing nor was a brief submitted, thus
its position regarding the disputed work was never stated.
3 The Employer has a collective-bargaining agreement with the Iron Workers
International dated September 25, 1985, which has not been terminated. Ac-
cording to the terms of the agreement, the Employer is bound to use iron-
workers for its projects throughout the country. The Employer has no contract
with the Laborers’ International Union or with any local union of the Labor-
ers’ International.
Laborers’ International Union of North America,
Laborers’ District Council of Western Pennsyl-
vania and Construction General Laborers and
Material Handlers Local No. 964, AFL–CIO
and Eastern Steel Constructors, Inc. and Iron
Workers, Local 3, AFL–CIO and Iron Work-
ers, Local No. 207, AFL–CIO and Iron Work-
ers, Local No. 787, AFL–CIO. Case 6–CD–882
March 28, 1991
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The charge in this 10(k) proceeding was filed on
November 20, 1990, and an amended charge was filed
on November 27, 1990, by the Employer, alleging that
the Respondent Laborers’ International Union of North
America, Laborers’ District Council of Western Penn-
sylvania and Construction General Laborers and Mate-
rial Handlers, Local 964, AFL–CIO (Laborers) violated
Section 8(b)(4)(D) of the National Labor Relations Act
by engaging in proscribed activity with the object of
forcing the Employer to assign certain work to em-
ployees it represents rather than to the employees rep-
resented by International Association of Bridge, Struc-
tural and Ornamental Iron Workers, Local 3, Local No.
207, and Local No. 787, AFL–CIO (Iron Workers).1
The hearing was held December 14, 1990, before
Hearing officer Stephanie E. Brown.
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, Eastern Steel Constructors, Inc., a
Maryland corporation with office and principal place
of business in Fallston, Maryland, is engaged in the in-
stallation of reinforcing bars and cables in concrete in
the construction industry. During the past 12-month
period prior to the hearing, it has performed services
valued in excess of $50,000 on jobsites located outside
the State of Maryland. During the same 12-month pe-
riod it purchased and received goods, materials, prod-
ucts, and services valued in excess of $50,000 from
suppliers located outside the State of Maryland. The
parties stipulate, and we find, that the Employer is en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act and that the Laborers’ International
Union of North America, Laborers District Council of
Western Pennsylvania and Construction General La-
borers and Material Handlers, Local 964, AFL–CIO,
and Iron Workers Locals 3, 207, and 787 are labor or-
ganizations within the meaning of Section 2(5) of the
Act.2
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer entered into a subcontract with Gust
K. Newberg Construction Company, the general con-
tractor of the Pennsylvania Turnpike/Beaver Valley
Expressway. Eastern submitted a competitive bid and
was awarded the subcontract to install the reinforcing
steel on the bridges included in the project. Eastern as-
signed the work to employees represented by the Iron
Workers, with whom it has a collective-bargaining
agreement, and commenced working on the project on
or about October 28, 1990.3
In November 1990, shortly after the work started,
the Employer received a telephone call from Joseph
Laquatro of the Laborers’ District Council, as well as
from a representative of Laborers Local 964, demand-
ing that employees represented by the Laborers be as-
signed the work being done by the ironworkers. These
representatives from the Laborers informed Eastern
that if the laborers were not assigned the work, the La-
borers would shut the job down. Eastern continued to
assign the work to ironworkers, despite the demand
and the threat from the Laborers.
On or about November 27, 1990, pickets from the
Laborers appeared at the jobsite. Because there was a
threat from the Laborers that the whole job would be
shut down, the general contractor shut down Eastern in
order to keep the project moving and Eastern was un-
able to work that day. After 1 day of picketing, the La-
borers agreed to cease the picketing activity pending
the outcome of the instant hearing.
B. Work in Dispute
The disputed work is installing reinforcing steel into
concrete on bridges on section 44 of the Pennsylvania
Turnpike/Beaver Valley Expressway in Lawrence
County, Pennsylvania.
C. Contentions of the Parties
The Employer contends that on the basis of East-
ern’s collective-bargaining agreement, area and indus-
239LABORERS LOCAL 964 (EASTERN STEEL)
try practice, company past practice, relevant skills,
economy and efficiency of operations, and employer
preference, the work should be awarded to the employ-
ees represented by the Iron Workers.
The Laborers did not appear at the hearing and
therefore did not state any position regarding the dis-
puted work. However, the Laborers has not withdrawn
its demand for the disputed work nor the threat of fur-
ther action in support of that demand.
D. Applicability of the Statute
Before the Board may proceed with a determination
of the dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated and that
the parties have not agreed on a method for voluntary
adjustment of the dispute. Section 8(b)(4)(D) makes it
an unfair labor practice to take coercive action with the
object to ‘‘for[ce] or requir[e] any employer to assign
particular work to employees in a particular labor orga-
nization or in a particular trade, craft, or class rather
than to employees in another trade, craft, or class
. . . .’’ In order to find reasonable cause to believe
Section 8(b)(4)(D) has been violated, ‘‘there must be
evidence that one group of employees has exerted im-
proper pressure upon the Employer to compel it to as-
sign certain work to that group of employees rather
than to another group which also seeks work.’’ Auto
Workers Local 957 (General Motors), 239 NLRB 365,
366 (1978).
At the beginning of the dispute, employees rep-
resented by the Iron Workers had been assigned to per-
form the disputed work. The Laborers insisted that the
work belongs to employees whom it represents and in-
formed Eastern that if the laborers were not assigned
the work, the Laborers would shut down the job. Ac-
cordingly, there are competing claims to the disputed
work on behalf of rival employee groups. On or about
November 27, 1990, the Laborers picketed the jobsite
forcing the Employer’s operation to shut down for 1
day. Therefore, there is reasonable cause to believe
that the Laborers used proscribed means to enforce the
claim to the disputed work. There is no agreed-on
method for voluntary resolution of the dispute to
which all parties are bound.
Based on our findings above, we find reasonable
cause to believe that a violation of Section 8(b)(4)(D)
has occurred and that there exists no agreed-on method
for voluntary 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.
E. 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. Certification and collective-bargaining
agreements
There was no evidence presented that either labor
organization has been certified by the Board as the col-
lective-bargaining representative for any of the em-
ployees involved. Accordingly, this factor is not help-
ful in determining the dispute.
The Employer has a collective-bargaining agreement
with the Iron Workers. According to the provisions of
the agreement the Employer will use exclusively Iron
Workers for all its projects throughout the country.
The Employer is not a signatory to an agreement with
the Laborers. We find that this factor favors an award
of the work to the employees represented by the Iron
Workers.
2. Employer preference and past practice
The Employer prefers to use the employees rep-
resented by the Iron Workers, and its past practice
since 1978 has been to use ironworkers for installing
reinforcing rods.
We find that the factor of employer preference and
past practice favors an award to the employees rep-
resented by the Iron Workers.
3. Area practice
The Employer has been performing work in Western
Pennsylvania since 1978, and has always used iron-
workers for installing reinforcing rods. Eastern’s re-
gional field manager, Gene Hall, testified that he had
never seen laborers install reinforcing rods. Mike
Sudzina, the business agent of the Iron Workers, in his
testimony, identified a list of projects done by contrac-
tors in the last 5 years, within his local’s jurisdiction,
where ironworkers were used. This factor favors an
award of the disputed work to the employees rep-
resented by the Iron Workers.
4. Relative skills
Ironworkers must go through a special training proc-
ess to learn how to install reinforced steel. According
to Scott Striebinger, the Employer’s district project
manager, he is not aware of any laborers who install
reinforcing rods. Thus, this factor favors an award of
the disputed work to the employees represented by the
Iron Workers.
240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5. Economy and efficiency of operations
According to the testimony of Scott Striebinger, the
Employer’s district project manager, it is more eco-
nomical and efficient for the Employer to use iron-
workers because it can move its ironworkers from
project to project throughout the area. Accordingly, we
conclude the record establishes that the factors of effi-
ciency and economy of operations favors awarding the
work to the employees represented by the Iron Work-
ers.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by the Iron Workers
are entitled to perform the work in dispute. We reach
this conclusion by relying on the factors of the Em-
ployer’s collective-bargaining agreement with the Iron
Workers, the Employer’s preference and past practice,
area practice, relative skills, and economy and effi-
ciency of operations.
In making this determination, we are awarding the
work to the employees represented by the Iron Work-
ers, not to the Unions or their members. The deter-
mination is limited to the controversy that gave rise to
this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of Eastern Steel Constructors, Inc.,
represented by the International Association of Bridge,
Structural and Ornamental Iron Workers, Local 3,
Local No. 207, and Local No. 787, are entitled to per-
form the work of installing reinforcing steel into con-
crete on bridges on section 44 of the Pennsylvania
Turnpike/Beaver Valley Expressway, in Lawrence
County, Pennsylvania.
2. Laborers’ International Union of North America,
Laborers’ District Council of Western Pennsylvania
and Construction General Laborers and Material Han-
dlers, Local No. 964, AFL–CIO, is not entitled, by
means proscribed by Section 8(b)(4)(D) of the Act, to
force Eastern Steel Constructors, Inc. to assign the dis-
puted work to employees represented by it.
3. Within 10 days from this date, Laborers’ Inter-
national Union of North America, Laborers’ District
Council of Western Pennsylvania and Construction
General Laborers and Material Handlers, Local No.
964, AFL–CIO shall notify the Regional Director for
Region 6 in writing whether it will refrain from forc-
ing the Employer, by means proscribed by Section
8(b)(4)(D), to assign the work in a manner inconsistent
with this determination.