Bricklayers Local 5 (Oscar J. Boldt Construction)

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 833 (N.L.R.B. 1993)

833
312 NLRB No. 125
BRICKLAYERS LOCAL 5 (OSCAR J. BOLDT CONSTRUCTION)
1 All dates herein are in 1993 unless indicated otherwise.
2 The Employer employs both hard tile setters and hard tile help-
ers, who assist the setters by bringing supplies to the worksite and
assisting in the setting of the tile. Until 1990, Carpenters Local 47-
T of the Milwaukee and Southeast Wisconsin District Council of
Carpenters represented the hard tile helpers through successive col-
lective-bargaining agreements with the Associated Tile Contractors
of Milwaukee, of which the Employer is a member. When the most
recent agreement expired on May 31, 1990, the Tile Contractors and
the Carpenters were unable to reach agreement on a new collective-
bargaining agreement. The Carpenters commenced a strike on July
24, 1990, and subsequently the helpers crossed the picket line and
returned to work as members of the Bricklayers.
On March 6, 1992, the Bricklayers were certified as the bargaining
representative of the Employer’s full-time and regular part-time em-
ployees performing the installation of hard tile, i.e., the setters and
the helpers. Subsequently, the Employer signed a collective-bargain-
ing agreement with the Bricklayers setting forth terms and conditions
of employment for these unit employees.
International Union of Bricklayers and Allied
Craftsmen, District Council of Wisconsin,
AFL–CIO, Local 5 and Oscar J. Boldt Con-
struction Company and Stark Mantel & Tile
Company and Milwaukee & Southern Wiscon-
sin District Council of Carpenters, United
Brotherhood of Carpenters and Joiners of
America, AFL–CIO. Case 30–CD–149
September 30, 1993
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act. On February 10, 1993,1
Oscar J. Boldt Construction Company (Boldt) filed the
charge in Case 30–CD–149 alleging that the Respond-
ent, International Union of Bricklayers and Allied
Craftsmen, District Council of Wisconsin, AFL–CIO,
Local 5 (Bricklayers), violated Section 8(b)(4)(D) of
the Act by engaging in proscribed conduct with an ob-
ject of forcing Boldt to have its subcontractor Stark
Mantel & Tile Company (the Employer) continue to
assign certain work to employees it represents rather
than to employees represented by Milwaukee & South-
ern Wisconsin District Council of Carpenters, United
Brotherhood of Carpenters and Joiners of America,
AFL–CIO (Carpenters). The hearing was held on
March 23 and April 1 before Hearing Officer Kathleen
L. Rupprecht. The Employer, the Bricklayers, and the
Carpenters filed posthearing briefs.
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, a Wisconsin corporation, is a hard
tile contractor engaged in all aspects of setting and fin-
ishing of hard tile at its New Berlin, Wisconsin facil-
ity. During the past calendar year, a representative pe-
riod, it performed services in excess of $50,000 for
customers located outside the State of Wisconsin.
The Charging Party, Oscar J. Boldt Construction
Company, a Wisconsin corporation, is a general build-
ing contractor with a place of business in Waukesha,
Wisconsin. During the past calendar year, a representa-
tive period, it has performed services in excess of
$50,000 for customers located directly outside the
State of Wisconsin.
The parties stipulate, and we find, that Oscar J.
Boldt Construction Company and Stark Mantel & Tile
Company are engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act and that the Car-
penters and the Bricklayers are labor organizations
within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
On May 21, 1992, the Employer received the sub-
contract to provide labor, material, and equipment for
the installation of the hard tile at the Waukesha West
High School project in Waukesha, Wisconsin, from
Boldt, the general contractor of the project.
The Employer is signatory to a collective-bargaining
agreement with the Bricklayers covering hard tile in-
stallation.2 At all times since the summer of 1990 the
Employer has assigned hard tile installation work to its
employees represented by Bricklayers, including the
installation of the hard tile at the Waukesha project.
Boldt is signatory to a collective-bargaining agreement
with the Carpenters. Boldt contends that this agreement
does not encompass hard tile installation work, but the
Carpenters contends that it does.
In December 1992 the Carpenters’ business rep-
resentative, James Judziewicz, contacted a Boldt rep-
resentative and stated that the hard tile helper work
being performed at the Waukesha West High School
project belonged to the Carpenters by virtue of the
terms of its collective-bargaining agreement with
Boldt. The Carpenters later theatened to file a griev-
ance over this subject. Thereafter, the Bricklayers’ dis-
trict director, Thomas DeGarmo, contacted Boldt by
telephone and by letters dated February 1, 11, and 18,
stating that the hard tile installation helper work be-
longed to the Bricklayers and threatening ‘‘to picket to
shut the job down to preserve our jurisdiction’’ if the
work was reassigned to employees represented by the
Carpenters.
834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Member Devaney finds, for the reasons stated in Laborers Local
731 (Slattery Associates), 298 NLRB 787, 790 (1990), that Car-
penters’ demand for the disputed work, as well as its threat to file
a grievance over this subject, clearly demonstrates that Carpenters
has made a competing claim for this work.
Member Raudabaugh finds that this case is distinguishable from
Slattery, supra. In Slattery, the union filed a grievance against the
general contractor seeking ony monetary damages. Here, however,
the Carpenters made an explicit claim for the disputed work and did
not contend that the grievance which it threatened to file would be
limited to seeking monetary damages. Accordingly, without deciding
whether Slattery was correctly decided, Member Raudabaugh would
find reasonable cause to believe that the Carpenters’ conduct con-
stitutes a claim for work in the circumstances of this case.
B. Work in Dispute
The work in dispute involves all the hard tile helper
work on the Waukesha West High School project.
C. Contentions of the Parties
The Employer, Boldt, and the Bricklayers contend
that there is reasonable cause to believe that the Brick-
layers violated Section 8(b)(4)(D) of the Act by threats
to picket, that no voluntary means exists for adjust-
ment of the jurisdictional dispute, and that the work in
dispute should be awarded to employees represented
by the Bricklayers on the basis of the Employer’s col-
lective-bargaining agreement with the Bricklayers, the
Employer’s preference and past practice, area and in-
dustry practice, relative skills, and economy and effi-
ciency of operations.
The Carpenters contends that this is not a traditional
jurisdictional dispute but rather a dispute involving
Boldt’s breach of the subcontracting clause of its col-
lective-bargaining agreement with the Carpenters.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a 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. It is uncontroverted that
Wisconsin Bricklayers District Council Director Thom-
as DeGarmo threatened to picket Boldt if the disputed
work was reassigned to employees represented by the
Carpenters. The record reveals no agreed-upon method
for voluntary adjustment of the dispute binding on all
parties.
Based on the above, we find reasonable cause to be-
lieve 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 determina-
tion.3
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. Electric 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. Certifications and collective-bargaining
agreements
As noted above, the Bricklayers were certified on
March 6, 1992, as the exclusive bargaining representa-
tive of the Employer’s hard tile setters and helpers,
and the Bricklayers and the Employer are parties to a
collective-bargaining agreement effective June 1, 1993,
through May 31, 1996, covering these employees. The
Carpenters contends that its collective-bargaining
agreement with Boldt encompasses the disputed work,
but Boldt disputes this contention. Even assuming
arguendo that the disputed work is encompassed by the
Carpenters’ agreement with Boldt, that factor would
not be relevant in making the determination of this dis-
pute because there is no evidence that the Employer is
a party to any agreement with the Carpenters or has
agreed to be bound by the terms of any Carpenters
agreement. Under these circumstances, the Board has
determined that it is the subcontractor’s collective-bar-
gaining agreements, and not those of the general con-
tractor, that are relevant. Operating Engineers Local
139 (McWad, Inc.), 262 NLRB 1300 and cases cited
at fn. 12 (1982). As the Board has stated the ‘‘[general
contractor’s] contractual obligations cannot be con-
ferred upon the [subcontractor] absent record evidence
establishing that the [subcontractor] has agreed to be
bound by these obligations.’’ Iron Workers Local 21
(Lueder Construction), 233 NLRB 1139, 1140 (1977).
Accordingly, we find that this factor favors an award
of the disputed work to employees represented by the
Bricklayers.
2. Company preference and past practice
Since 1990 the Employer has consistently assigned
hard tile installation work, including the helper work
in dispute, to employees represented by the Bricklayers
and prefers to continue this practice. We find that this
factor favors an award of the disputed work to employ-
ees represented by the Bricklayers.
3. Area and industry practice
Witnesses for the Employer and the Bricklayers tes-
tified that tile layers and helpers represented by the
835BRICKLAYERS LOCAL 5 (OSCAR J. BOLDT CONSTRUCTION)
Bricklayers perform 90 percent of the tile installation
work in the area. Over 80 percent of this work is per-
formed pursuant to the Bricklayers collective-bargain-
ing agreements with the four major tile contractors in
the area through the Associated Tile Contractors of
Milwaukee, of which the Employer is a member.
Alan Lippert, president of the Tile Contractors Asso-
ciation of America, testified without contradiction that
because of the technological changes in the industry
there has been a substantial decrease in the need for
helpers but that with few exceptions all areas of hard
tile installation, including helper work, are performed
by employees represented by the Bricklayers. We find
that the factor of area and industry practice favors an
award of the work in dispute to employees represented
by the Bricklayers.
4. Relative skills
The Employer’s vice president testified without con-
tradiction that the Employer’s tile helper employees
represented by the Bricklayers are qualified to use the
equipment necessary to perform the work in dispute
and had done all such work for the Employer during
the preceding 2 years. The Carpenters did not present
any evidence that employees of contractors represented
by the Carpenters possessed skills equal to or superior
to those of employees represented by the Bricklayers.
We find that the factor of relative skills favors the
award of the work in dispute to employees represented
by the Bricklayers.
5. Economy and efficiency of operations
Witnesses for the Employer testified without con-
tradiction that by 1989, due to technological changes
including thin set tile, there was much less work for
tile helpers and that the majority of all tile work, in-
cluding helper work, is performed exclusively by set-
ters. Since 1990, 70 to 80 percent of the Employer’s
projects have been performed by setters without any
helpers. According to the Employer’s witnesses, the
decline in the amount of work for tile helpers makes
its less efficient to use employees who can only do
helper work rather than tile setters who can do the
work of tile helpers in addition to their own. Thus, ac-
cording to the Employer, since the Carpenters rep-
resents helpers but not setters, it is less efficient to use
employees represented by Carpenters rather than those
represented by the Bricklayers, who represent both set-
ters and helpers. In addition, the Carpenters’ collec-
tive-bargaining agreements with contractors require a
ratio of one helper for every three setters whereas the
Bricklayer’s collective-bargaining agreements require
one helper for every four setters. This requirement
would result in the Employer having to hire additional
employees who would not have enough work to do all
day.
Accordingly, we find that this factor favors an
award of the work in dispute to employees represented
by the Bricklayers.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by the Bricklayers
are entitled to perform the work in dispute. We reach
this conclusion relying on the factors of certification
and collective-bargaining agreements, employer pref-
erence and past practice, area and industry practice,
relative skills, and economy and efficiency of oper-
ations. In making this determination, we are awarding
the work to employees represented by Bricklayers, not
to that Union or its members.
Scope of Award
The Employer seeks a broad award of the disputed
work, covering locations in Carpenters Area 2, a 13-
county area around Milwaukee. It contends that in
light of the Bricklayers’ threat to picket, which was
not limited to the instant project, the dispute extends
to all projects located in Area 2.
The Board has customarily declined to grant an area
wide award in cases such as this in which the charged
party represents the employees to whom the work is
awarded and to whom the employer contemplates con-
tinuing to assign the work. See Laborers Local 150
(Paul H. Schwendener, Inc.), 304 NLRB 623, 625
(1991). Accordingly, in the circumstances of this case,
we find a broad award unwarranted. Therefore, the
present determination is limited to the particular con-
troversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute. Employees of Stark
Mantel and Tile Company, represented by International
Union of Bricklayers and Allied Craftsmen, District
Council of Wisconsin, AFL–CIO, Local 5, are entitled
to perform the hard tile helper work on the Waukesha
West High School project in Waukesha, Wisconsin.
CHAIRMAN STEPHENS, dissenting.
In this case the Carpenters at no time engaged in
any coercion or threats of coercion. Its claim to the
work in dispute consisted solely of statements to the
general contractor (Boldt) that the Carpenters believed
that Boldt’s subcontracting the work to an employer
who did not have a contract with the Carpenters would
violate the collective-bargaining agreement between
Boldt and the Carpenters. The Carpenters has submit-
ted a copy of that agreement. On the basis of that evi-
dence and the Carpenters’ contentions, I find that it
has at least an arguably meritorious claim that Boldt
violated the signatory subcontracting provisions of that
836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agreement when it subcontracted the work to the Em-
ployer. For the reasons stated in my dissenting opinion
in Laborers Local 731 (Slattery Associates), 298
NLRB 787, 790–792 (1990), I would find that there
are no competing claims for the work, and I would
quash the 10(k) notice.