Masonry Magazine May 1976 Page. 26
A. Background
The Employer, Stebbins Engineering and Manufacturing Company, is engaged in the business of constructing corrosion-resistant linings in the steel industry. At the time of this dispute, the Employer was engaged in relining a blast furnace at the United States Steel Corporation in Gary, Indiana. The work in dispute involves the erection, dismantling, and moving of masonry scaffolding at the Gary, Indiana, jobsite.
The Employer has a contract with Davy Powergas for the relining of the blast furnace. The relining involves the erection of a wall of brick inside the furnace. The brick is laid in a circular pattern, and it is supplied by Davy Powergas with certain nozzles which are also built into the wall.
The type of scaffolding used on the job is metallic frame scaffolding. The scaffolding is built of frames 5 feet wide and 6 feet high which are fastened together with cross braces. There are threaded studs coming off the frame where there is a hole in the brace. The brace is placed on the stud and a nut is used to hold it together. According to the Employer, the scaffolds go up very quickly and the scaffold working surface itself, in the instant case, was mostly pickboard which is about three-quarters of an inch thick. When the scaffold is erected, the ground is levelled around the unit and spreader boards may be laid on the ground so there is good bearing. The scaffold then proceeds along with the wall as the wall is erected.
On July 31, 1975, in a telephone conversation between the Carpenters business representative, Manley, and the Employer's vice president, Morgan, according to the latter, Manley said that he felt that carpenters should be used on the job for the erection of scaffolding. Morgan stated that the assignment of carpenters to that job was beyond his authority since the Employer was bound by its agreement as a member of the Mason Contractors Association with Laborers Union of North America which awarded the work to the members of the Laborers. Morgan testified further than Manley said that he was not aware of this assignment and if the Company did not take carpenters on, the Carpenters Union would have a picket line on the job.
Subsequently, on July 15, 1975, a meeting was held between representatives of Davy Powergas Company, the Carpenters, the Laborers, and the Employer, inter alia. Morgan stated that as a member of the Masonry Contractors Association, the Employer was not bound by the Impartial Disputes Board. The parties discussed the possibility of working a composite crew but this was rejected. The meeting concluded without a disposition as to the Carpenters assertion that employees which they represented should receive the work. On July 22, 1975, the Employer filed the instant charge against the Carpenters.
As stated above, the Employer is a member of the Mason Contractors Association of America. As a member, the Employer is bound by agreement consummated by the Association including its agreement with Laborers International Union of North America, which agreement provides that "the unloading, erecting, dismantling, moving and adjustment of scaffolds" be awarded to employees represented by the Laborers. The Mason Contractors Association is not a participant in the Impartial Disputes Board nor has it been for over 10 years. Moreover, Morgan testified that, as is its practice, the Employer took exception to a provision of a contract presented by Davy Powergas which provided that disputes would be stipulated to the Impartial Disputes Board. The contract provides that the Employer will "take exception to any contractural agreement which will bind Stebbins to jurisdictional agreements or settlements of jurisdictional disputes or referral to the National Joint Board' ...in accordance with our National Agreements jurisdictional disputes which cannot be settled at a local level or [sic] referred to the NLRB for resolution." Such a provision is clearly in keeping with the Jurisdictional Disputes Manual published by the Mason Contractors Association of America which "heartily recommends" that its members add certain language which will exempt them from the National Joint Board.
D. The Contentions of the Parties
The Carpenters contends that since there was no prejob conference, the job was half over before the Carpenters realized that the job had started and that work historically done by carpenters was being performed by other than carpenters, such work including the crection of scaffolding, the fabrication of materials such as spreaders, scaffold plank, and plywood, toe board, etc. The Carpenters asserts that its historic claim to the disputed work is based on the Joint Disputes Board awards. It contends that employees represented by the Carpenters should be assigned the work since economic conditions have
The pickboard is a piece of plywood with a hook on each of the four corners: the hooks fit over the end frame
See sec. B. Applicability of the Statute, anara, for Manley's version of the conversation.
"The Impartial Disputes Board is the successor to the National Joint Beanl
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been bad for the Carpenters, its affirmative action apprentice program has been approved by the Department of Labor, and it has in its curriculum a class on the safe erection of scaffolding. The Carpenters denies that a threat was made in regard to picketing although the Carpenters business representative admitted that he said that "since there was no prejob conference and we had a large employment problem, that I couldn't be held responsible for what would happen in the morning, whether there'd be pickets or no pickets."
The Employer contends that employees represented by the Laborers are entitled to the work assignment on the basis of the existing contract, custom, practice, efficiency and economy, and skills and training.
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. The following factors are relevant in making a determination of the dispute before us:
1. Collective-bargaining agreement
As stated above, the Employer is a member of the Mason Contractors Association of America through which it is bound to agreements consummated by such Association, including the agreement with the Laborers providing that the disputed work be awarded to employees represented by the Laborers Union.
2. Employer's assignment
Clearly, the Employer has assigned the work to the employees represented by the Laborers and it continues to assert that such employees should receive the work.
3. Area and industry practice
Miller, the executive vice president of the Mason Contractors Association, testified that he has been concerned for over 10 years with the issue as to which employees of mason contractors will erect scaffolding and that he has participated in jurisdictional disputes in various parts of the country. It is his opinion, based on his conversations with mason contractors throughout the country, that members of the Association clearly prefer to use, and do use, members of the Laborers International Union for the performance of such work in dispute. According to Miller, a survey the Association conducted among its membership showed "overwhelmingly" that the members preferred to use members of the Laborers.
4. Efficiency and economy
The Employer testified that if required to use employees represented by the Carpenters for the erecting, dismantling, and moving of masonry scaffolding, it would be forced into an inefficient operation because they would have no use for the services of an employee represented by Carpenters other than when the disputed work was performed; whereas employees represented by the Laborers would continue to assist bricklayers in the erection of the column.
5. Skills and training of employees
The Employer contents that employees represented by the Laborers have the necessary skills and training to satisfactorily perform the work involved. However, it appears that the employees represented by the Carpenters may also possess the necessary skills and training. Accordingly, we find that this consideration does not favor employees represented by either Union.
Conclusion
Having considered all pertinent factors, we conclude that employees represented by the Laborers are entitled to perform the work in dispute. We base this conclusion particularly on the Employer's preference, assignment, the area and industry practice, efficiency and economy of operation, and the fact that the employees represented by the Laborers possess the necessary skills and training to satisfactorily perform the work involved. Accordingly, we shall determine the dispute before us by awarding the work in dispute at the Employer's Gary. Indiana, location to those employees represented by the Laborers, employees represented by
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masonry
May, 1976