Bricklayers Union No. 1

National Labor Relations Board - Board DecisionsNov 1, 1971

193 N.L.R.B. 1095 (N.L.R.B. 1971)

BRICKLAYERS UNION NO. 1 1095 Bricklayers, Stone Masons, Plasterers, Marble Ma- sons, Tilelayers, Cement Masons, Mosaic and Terrazzo Workers Union No. 1 of Oregon' and Hoffman Construction Co. and Portland and Vicinity District Council of Carpenters , United Brotherhood of Carpenters and Joiners of America, AFL-CIO and International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No. 29, AFL-CIO. Case 36-CD-78 several States , having many projects involving mil- lions of dollars presently under contract , and that during the last year it received goods and materials valued in excess of $50 ,000 originating from points outside the State of Oregon , which were transferred directly to it in Oregon . We find that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. November 1, 1971 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, JENKINS, AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended , following charges filed by Hoffman Construction Co., herei- nafter called Employer , alleging that Bricklayers, Stone Masons , Plasterers, Marble Masons, Tilelayers, Cement Masons , Mosaic and Terrazzo Workers Union No . 1 of Oregon , hereinafter called Bricklay- ers, has violated Section 8(b)(4)(D ) of the Act. A hearing was held before Hearing Officer Dale B. Cubbison on June 28 and 29, 1971. Portland and Vicinity District Council of Carpen- ters , United Brotherhood of Carpenters and Joiners of America , AFL-CIO, hereinafter called Carpenters; International Association of Bridge , Structural and Ornamental Iron Workers , Local Union No. 29, AFL-CIO, hereafter called Iron Workers; 2 Bricklay- ers; and Employer appeared at the hearing and were afforded full opportunity to be heard, to examine and cross -examine witnesses , and to adduce evidence bearing on the issues. Thereafter the Employer, Bricklayers , and Carpenters filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three -member panel. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case , the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that the Employer is engaged in the heavy and building construction industry in I As corrected at the hearing 2 Iron Workers participated only for the purpose of protecting the claims of employees it represents Neither Bricklayers nor Carpenters II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Bricklayers, Iron Workers, and Carpenters are labor organizations within the meaning of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The Employer is the general contractor responsible for the erection of the First National Bank of Oregon building, a 40-story structure, in Portland, Oregon. The building is to have a nonstructural, decorative marble facing. Two distinct methods of construction are being utilized for installation of the marble facing or column covers. On the lower 10 floors the marble in relatively small panels is attached to the building by what is known as the "Zibell" system. Under this system the marble is directly attached, piece by piece, to a steel superstructure which is built onto the concrete columns of the building. The Employer subcontracted the work on the first 10 floors to Blaesing Granite Co. which employed a composite crew of Bricklayers and Iron Workers to install the marble panels. However on the 11th through 40th floors the marble facing (nine panels to a section) is already bonded to 13-foot precast sections or column covers. These precast sections or column covers are attached to the columns of the building by hoisting them into place, aligning them, and bolting them to the structural steel members of the building. Finding that the masonry contract bids were too high, Employer elected to perform the work of installing the precast concrete marble-faced column covers itself, using its own carpenters and ironworkers. The precast column covers are installed by an eight-man compos- ite crew of ironworkers and carpenters. Three ironworkers perform the rigging and signaling func- tion; the other five members of the crew who set template, check alignment, and bolt the precast columns into place are carpenters. Bricklayers seeks the work assigned to members of Carpenters. Neither claims the work being performed by ironworkers as members of the composite crews assigned by the Employer 193 NLRB No. 168 1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bricklayers nor Carpenters claims the work per- formed by Iron Workers. B. The Work in Dispute The parties agree that the work in dispute involves the setting, aligning, plumbing, and bolting of the precast concrete column covers from the 11th through 40th floors of the First National Bank Building in Portland, Oregon. C. Contentions of the Parties The Employer contends that it has always assigned the installation of precast units to carpenters and that this assignment is justified by its collective-bargaining agreement with Carpenters, and the fact that the disputed work can be more economically and effi- ciently performed when undertaken by its own crews of carpenters. The Employer contends that neither it nor Carpenters is bound by the decision (award dated April 30, 1971) of the National Joint Board for the Settlement of Jurisdictional Disputes, hereinafter Joint Board, awarding the disputed work to Bricklay- ers. Bricklayers contends that area practice, as well as the fact that the type of work involved traditionally belongs to Bricklayers, supports the assignment of the disputed work to it. It further contends that the matter herein was decided by the Joint Board. Carpenters essentially supports the position taken by Employer. D. Apphcabihty of the Statute Before the Board may proceed with a determination of 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 there is no agreed-upon method for voluntary adjustment of the dispute. All parties stipulated and agreed that Bricklayers commenced picketing the construction project on May 7, 1971, with an object of forcing or requiring the Employer to assign the installation of the precast concrete columns to bricklayers rather than to carpenters. Following the filing of the instant charge the picketing ceased. The parties stipulated that the Employer as a member of Associated General Contractors, herei- nafter AGC, is not a party to the Joint Board as presently constituted and has not been party since the Joint Board disbanded on September 30, 1969.3 The evidence also establishes that the Employer is not a 3 The new Joint Board was established in February of 1970 4 Neither the Employer, Carpenters, nor Iron Workers was party to or participated in any Joint Board proceeding concerning the subject matter of this dispute 5 Lathers Union Local 104, The Wood, Wire and Metal Lathers International Union, AFL-CIO (Associated General Contractors), 186 NLRB party to any agreement with Bricklayers and that Carpenters timely withdrew from the Joint Board on April 1, 1971, prior to the filing by the Bricklayers of the present dispute with the Joint Board .4 It is well established that regardless of whether the unions involved are bound to arbitration procedures such as the Joint Board (here Carpenters is not bound) if the employer has not agreed to be bound, this Board is empowered and directed under Section 10(k) of the Act to make a binding determination of the dispute that will be controlling on all the parties, including the employer.5 In these circumstances, we find there is reasonable cause to believe that Bricklayers has violated Section 8(b)(4)(D) of the Act, and that there is no agreement binding all parties to voluntary adjustment of the dispute here involved. 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 relevant factors. 1. Collective-bargaining agreements The Employer has no employees represented by Bricklayers; nor does it have a collective-bargaining agreement with Bricklayers either directly or through its affiliation with AGC. On the other hand, the Employer does have regular employees of long- standing covered by the AGC collective-bargaining agreement with Carpenters. 2. Company and area practice The Employer's consistent practice has been to assign the installation of precast work to composite crews of ironworkers and carpenters except in those instances where the work involved skills peculiar to bricklayers, such as the use of mortar or grouting, or the trimming and fitting of pieces of stone or marble, as required, for example, in the utilization of the Zibell system on the first 10 floors of the project herein. When bricklayer skills have been called for the Employer has subcontracted that work to specialty firms, such as Blaesing Granite herein, which employ members of Bricklayers. It appears that there has been a mixed practice concerning the installation of precast units in the Portland area. Overall, however, it appears that the precast work on the major projects in the area most No. 70, Cf. Plasterers Local Union No. 79 [Southwestern Construction Co.] v. N L.R B, 440 F.2d 174 (C.A.D.C, 1970), cert . granted 401 U.S. 973 (1971). The Board has expressed its respectful disagreement with the court's view in Plasterers Local Union No 79 See Lathers Local 104, supra at sec. 111, D. BRICKLAYERS UNION NO. 1 1097 similar to the project herein has been done by members of Carpenters. 3. Relative skill and efficiency and economy of operations It seems likely that either of the competing groups of employees could, after a reasonable period of time, be trained in the use of the techniques, tools, and equipment necessary to perform the work adequately. However, the record shows that the carpenters presently employed by the Employer now possess the skills to perform satisfactorily the work in dispute. The Employer is fully satisfied with the job perform- ance and safety record of its carpenters and wishes to continue assigning such work to them. The efficiency and economy to be derived from the continued use of the Employer's trained crew appears obvious. Also significant is the fact that the Employer can utilize its carpenters on other assignments at the jobsite when they are not doing the disputed work, whereas the Employer has no otherjobs available for the bricklayers to perform if they were not doing disputed work. 4. The Joint Board Award Although we do not consider the Joint Board award to Bricklayers binding on the Employer or Carpen- ters , we do consider it as a factor in determining the proper assignment of the work in dispute. However, in view of all the circumstances, we are of the opinion that the Joint Board award should not be given any weight herein.6 Conclusion Upon the entire record in this proceeding and after full consideration of all the relevant factors, in particular the contractual relationship between the Employer and Carpenters, employer practice, and efficiency and economy of operation, we conclude that employees of the Employer who are represented by Carpenters are entitled to the work in question and we shall determine the dispute in their favor. In s In this regard we note on two prior precast jobs in the Portland area the Joint Board awarded the work assignment to Carpenters rather than to Bricklayers . These awards were made at a time when Carpenters and the AGC were parties to an agreement binding them to the Joint Board's making this determination, we award the work to employees of the Employer who are represented by Carpenters but not to that Union or its members. The Employer and Carpenters request the Board to make a broad award proscribing Bricklayers from unlawfully attempting to force an assignment in the future of work like that involved in this proceeding. In our opinion the likelihood of work interruptions by Bricklayers is at best speculative. Accordingly, we hold that the issuance of a board award is not appropriate in this case. 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 Hoffman Construction Company who are currently represented by Portland and Vicinity District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are entitled to perform the work of setting, aligning, plumbing, and bolting on of the precast concrete columns from the 11th through 40th floors of the First National Bank Building in Portland, Oregon. 2. Bricklayers, Stone Masons, Plasterers, Marble Masons, Tilelayers, Cement Masons, Mosaic and Terrazzo Workers Union No. 1 of Oregon is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Hoffman Construction Company to assign such disputed work to bricklayers represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Bricklayers, Stone Masons, Plasterers, Marble Masons, Tilelayers, Ce- ment Masons, Mosaic and Terrazzo Workers Union No. 1 of Oregon shall notify the Regional Director for Region 36, in writing, whether or not it will refrain from forcing or requiring Hoffman Construction Co., by means proscribed by Section 8(b)(4)(D), to assign the disputed work to its members rather than to employees represented by Carpenters. procedures , which is no longer the case. The Joint Board award herein was unilaterally obtained and based solely on Bricklayers presentation of the dispute.