Cement Masons Local 694, Etc.

National Labor Relations Board - Board Decisions

Nov 4, 1963

144 N.L.R.B. 1358 (N.L.R.B. 1963)

1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the elevators belonged to Westinghouse, and the question of whether
the Engineers or the Constructors should have been assigned to that
work appears to be one in which Westinghouse, and perhaps the gen-
eral contractor, McCloskey, are also concerned. Neither Westing-
house nor McCloskey is a party to this proceeding. Accordingly, we
shall not decide this aspect of the dispute.
DETERMINATION OF THE DISPUTE
Upon the basis of the foregoing findings, and the entire record, the
Board makes the following Determination of Dispute pursuant to
Section 10 (k) of the Act :
1. Employees of The Bell Telephone Company of Pennsylvania
engaged as elevator operators and currently represented by the Fed-
eration of Telephone Workers of Pennsylvania are entitled to operate
Bell's own automatic elevators at its Parkway Building, Philadelphia,
Pennsylvania, while furniture is being moved into this building, if Bell
elects to assign elevator operators to such work. Accordingly, neither
International Union of Operating Engineers, Local No. 542, and its
agents, Robert Walsh and Robert P. Cahill, nor International Union
of Elevator Constructors, Local No. 5, and its agent, Robert M. Wil-
liams, is entitled to force or require Bell Telephone Company of
Pennsylvania to assign the above-mentioned disputed work to elevator
operators currently represented by their respective unions.
2. Within 10 days from the date of this Decision and Determination
of Dispute, International Union of Operating Engineers, Local No.
542, and its agents, Robert Walsh and Robert P. Cahill, and Inter-
national Union of Elevator Constructors, Local No. 5, and its agent,
Robert M. Williams, shall notify the Regional Director for the Fourth
Region, in writing, whether or not they will refrain from forcing or
requiring The Bell Telephone Company of Pennsylvania, by means
proscribed by Section 8(b) (4) (D) of the Act, to assign the work in
dispute to members of Engineers Local No. 542, or Constructors Local
No. 5, respectively.
Cement Masons Local 694, Operative Plasterers ' and Cement
Masons' International Association of the United States and
Canada, AFL-CIO, and its Agent , Ray E . Edwards and Edgar
H. Hughes Company , Inc.' Case No. 9-CD-67. November 4,
1963
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10 (k) of the National
Labor Relations Act following a charge filed by Edgar H. Hughes
"The name of the Employer , the Charging Party , appears as amended at the hearing.
144 NLRB No. 122.
CEMENT MASONS LOCAL 694, ETC. 1359
Company, Inc., herein called the Employer, alleging that Cement
Masons Local 694, Operative Plasterers' and Cement Masons' Inter-
national Association of the United States and Canada, AFL-CIO,
herein called Local 694 or Respondent, and its agent, Ray E. Edwards,
had violated Section 8 (b) (4) (i) and (ii) (D) of the Act. The charge
alleges, in substance, that the Respondent induced and encouraged
employees to engage in a strike or refusal to work, and threatened,
coerced, and restrained the Employer with an object of forcing or
requiring Edgar H. Hughes Company, Inc., to assign particular work
to employees represented by Respondent rather than to employees
represented by Local 795, International Hod Carriers, Building and
Common Laborers' Union of America, AFL-CIO, herein called Labor-
ers Local 795. Thereafter, a hearing was held before Hearing Officer
Mark Fox, on June 17 and 18, 1963. All parties appeared at the hear-
ing and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence bearing on the issues.
The rulings of the Hearing Officer made at the hearing are free from
prejudical error and are hereby affirmed. The brief filed by the
Employer has been duly considered.
Pursuant to Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chair-
man McCulloch and Members Fanning and Brown].
Upon the entire record in the case, the Board makes the following
findings :
1. The business of the employer
Edgar H. Hughes Company, Inc., is an Indiana corporation engaged
in heavy construction, including the construction of highways. Dur-
ing the calendar year 1962 it purchased and caused to be shipped from
outside the State of Indiana, directly into Indiana, equipment and
supplies valued in excess of $50,000. During the same period it per-
formed services for customers, including work on interstate high-
ways, valued in excess of $1,500,000. The parties stipulated, and we
find, that the Employer is engaged in commerce within the meaning
of the Act and we further find that it will effectuate the policies of
the Act to assert jurisdiction herein.
2. The labor organization involved
The parties stipulated, and we find, that Respondent Local 694
and Laborers Local 795 are labor organizations within the meaning
of Section 2(5) of the Act.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The dispute
A. Basic facts
In September 1962, the Employer was awarded the work of building
an overpass over Seventh Street in Jeffersonville, Indiana, in connec-
tion with Interstate Highway No. 65. It began the work later that
same month. In October 1962, the Employer was awarded, and
began, work on an overpass at the junction of Route 62 and Interstate
Highway No. 65, near Clarksville, Indiana. The work at issue
involves the rubbing of concrete on the bridges and approaches to
these two jobs.
"Concrete rubbing," as customarily done in highway and bridge
construction work, is the process of rubbing the surface of set-hard-
ened concrete after the forms have been removed. The "rubbing"
is accomplished by rubbing over the concrete a carborundum stone
which is affixed to a handle. This process improves the appearance
and increases the surface density of the concrete. The Employer
assigned the work of concrete rubbing on the above-mentioned proj-
ects to employees represented by Laborers Local 795. This was
done pursuant to the provisions of a collective-bargaining agreement
between the Indiana Highway Constructors, Incorporated, and Dis-
trict Council #57 of the Laborers Union. Both the Employer and
Laborers Local 795 are signatories to this contract.
Late in February 1963,2 Vincent Lee, International vice president
of the Cement Masons Union, visited the Employer's project super-
intendent, Charles Crawford, on the Seventh Street job in Jefferson-
ville, and requested, unsuccessfully, that Crawford assign concrete
rubbing to members of Respondent.
Early in March, Ray Edwards, Respondent's business agent, spoke
with George Hughes, the Employer's president, and claimed that
the work of concrete rubbing belonged to the Respondent. Hughes
advised Edwards that the Employer had a contract with the Laborers
and suggested that Edwards take the problem up with Carl Booker,
business representative of Laborers Local 795.
Subsequently, the Employer received a letter from the Joint Board
for Settlement of Jurisdictional Disputes in the Building and Con-
struction Industry, herein called the Joint Board, in relation to the
"jurisdictional dispute" between the Cement Masons and the Laborers
over "concrete rubbing." Replying to this letter, the Employer stated
that the Companyhad a contract with tthe Laborers covering the work
in dispute and that it intended toabide by that contract.
On March 25, Edwards again spoke with Hughes and stated that
the Joint Board had awarded concrete rubbing to "his local." In
I Unless otherwise indicated , all dates hereafter refer to 1963.
CEMENT MASONS LOCAL 694, ETC. 1361
support of his claim, Edwards presented the Joint Board decision
which awarded the "rubbing, chipping and patching of concrete"
on the Employer's two jobs to members of the Respondent. Edwards
again asked the Employer to award the disputed work to Respondent.
When Hughes replied that he was bound by the Laborers contract,
Edwards said, "Well, I can see where I am not getting anywhere here,
I just might have to picket."
On May 8, Edwards visited Superintendent Crawford and left
copies of the contract between Respondent and the Louisville Chap-
ter of the Associated General Contractors. Crawford, however, failed
to deliver them to his Employer until the time of the picketing, dis-
cussed infra.
On May 13, Respondent picketed both jobs with signs reading, in
essence, that the Edgar H. Hughes Company, Inc., refused to abide
by decisions of the Joint Board. As a result of the picketing, em-
ployees of Whalen Erection Company of Louisville, Kentucky, a
subcontractor placing reenforcing steel at the Employer's jobsites,
refused to cross the picket line. Picketing ceased on May 15, and
Whalen employees returned to their work at the jobsites on May 16.
Pursuant to a stipulation entered into during the course of a district
court suit for injunction under Section 10 (1) of the Act, no further
work stoppages have occurred. Under the stipulation, Respondent
and its agents agreed not to coerce the Employer into reassigning the
work of concrete rubbing from Laborers Local 795 to the Respondent.
However, 'at the instant hearing, both Respondent and Laborers Local
795 reiterated their respective claims to the disputed work.
Neither union has been certified as bargaining representative of
the employees performing the disputed work.
B. Contentions of the parties
It is Respondent's contention that it is entitled to the work classified
as "concrete rubbing" by virtue of the Joint Board award. The
Respondent urges that the Employer shouldbe and is bound by awards
of the Joint Board because of its membership in the A.G.C. and the
Indiana Highway Constructors, Incorporated. Respondent also
argues that the work of concrete rubbing is 'a task traditionally
assigned to members of, or employees represented by, the Cement
Masons throughout the United States.
The Employer, on the other hand, contends that it is bound by the
terms of the present bargaining 'agreement to assign the work in dis-
pute to Laborers Local 795. It further argues that it has been the
Company's practice since 1945 to assign concrete rubbing to laborers
and that cement masons have never been assigned such work. The
Employer also takes the position that the practice in Indiana histori-
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tally has been and is to assign such work to laborers . The Employer
contends that it is not bound by decisions of the Joint Board, either
through membership in A.G.C. or Indiana Highway Constructors,
Incorporated.
Laborers Local 795 contends that it is entitled to the work by virtue
of its contract with the Employer and its past practice of performing
the work.
C. Applicability of the statute
Section 10 (k) of the Act empowers the Board to hear and determine
a dispute out of which a Section 8(b) (4) (D ) charge has arisen, unless
the parties to such dispute submit to the Board satisfactory evidence
that they have adjusted, or agreed upon methods for the voluntary
adjustment of, the dispute. Before the Board proceeds with a deter-
mination of dispute, however , it is required to find that there is rea-
sonable cause to believe that Section 8(b) (4) (D ) has been violated.
The record shows that the Employer assigned the disputed work
to employees represented by Laborers Local '195 , whereupon Respond-
ent claimed that its members were entitled to the work. The Respond-
ent thereafter threatened to picket and did picket the Employer's
jobsites, from May 13 through May 15, and, as a result of the picketing,
Whalen Erection Company's employees refused to work. It is clear
that the object of these 'threats and inducements was to force the
Employer to change work assignments, an object prohibited by Sec-
tion 8(b) (4) (D). We find reasonable cause to believe that Section
8(b) (4) (i) and (ii) (D) of the Act has been violated.
Implicit in the Respondent's argument that the Employer is bound
by the Joint Board decision is the contention that the Joint Board
proceeding is an agreed -upon method for voluntary adjustment be-
tween the parties which, under the statute, precludes this Board from
any further consideration of the issue . On the record before us, how-
ever, we reject the contention that the Employer is bound in this case
by any decision rendered by the Joint Board.
First, the agreement establishing the Joint Board, to which the
A.G.C. and the Building and Construction Trades Department, AFL-
CIO, are signatories, provides that the only contractors who are bound
by the Joint Board procedures are those who have signed a stipulation
setting forth that they are willing to subscribe to and be bound by the
terms and provisions of the agreement. The procedural rules of the
Joint Board state that the procedures shall apply only to contractors
who : (1) have signed a, stipulation setting forth that they are willing
to be bound ; or (2) are members of a signatory association of con-
tractors with authority to bind its members; or (3) are parties to a
collective -bargaining agreement providing for the settlement of juris-
dictional disputes under the Joint Board procedures. According to
CEMENT MASONS LOCAL 694, ETC. 1363
the uncontradicted testimony of Hughes and W. M. Holland, executive
secretary of the Indiana Highway Constructors, Incorporated, the
Employer has not signed a stipulation agreeing to be bound by the
Joint Board procedures either as a member of the A.G.C. or through
the Indiana Highway Constructors, Incorporated. ITolland testified
that the Indiana Highway Constructors, Incorporated, had absolutely
no authority to bind its members to the Joint Board procedures.
Hughes testified that, as an individual member of A.G.C., the Em-
ployer is not bound to those procedures. There is nothing in the
record to contradict this testimony. Further, the contract between
the Employer and the Laborers makes no provision for the referral of
any dispute to the Joint Board, and the Employer has never had a
collective bargaining agreement with the Respondent. Finally, there
is no evidence that the Employer participated in the Joint Board pro-
ceedings. The only contact the Employer has had with the Joint
Board was its letter addressed to the Joint Board stating that the
Employer intended to abide by its contract with the Laborers. We
find from the above that there is no agreed-upon method for the volun-
tary settlement of the dispute, and that the dispute is properly before
this Board for determination under Section 10 (k) of the Act.
D. The merits of the dispute
There is no claim by either Union, nor does the record indicate, that
any special skill or training is required to rub concrete, or that either
of the two competing groups of employees is more capable than the
other of performing the disputed work. There is no certification of
bargaining representatives issued by the Board that can be said to
apply to zany of the employees involved in this dispute. There are
other factors, however, which we find persuasive in making a deter-
mination in this case :
1. Collective-bargaining agreements
The Employer has had contractual relations with the Laborers since
1945. When the Employer began highway construction, it agreed to
be bound by the contract executed by the Indiana Highway Construc-
tors, Incorporated, and the Laborers. In 1959, the Indiana Highway
Constructors and the Laborers included in their contract the classifi-
cation of "concrete rubber," as well as a wage rate for such classifica-
tion. This classification was continued in the 'current agreement
between the Indiana Highway Constructors, Incorporated, and the
Laborers, to which the Employer has become a party. The Employer
has had no contractual relations with the Respondent.
727-083-64-vol. 144-87
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Company and industry practice
The Employer has assigned concrete rubbing on highway work to
employees represented by Laborers Local 795 since 1955. Although
the Employer has hired employees represented by Respondent for
other work, the Employer has never assigned the disputed work
exclusively to such employees. The most the record shows is that the
only times employees represented by Respondent did concrete rub-
bing on highway work for the Employer over the past 5 years were
when the Employer put its whole crew on concrete rubbing to meet
certain time limitations set by the State of Indiana.
The evidence is overwhelming that it is long-established industry
practice within the State of Indiana for laborers to do "concrete
rubbing" on highway work. The parties 'are in agreement that all
concrete rubbing on highway work now being performed in Indiana is
being performed by laborers.
3. The efficient operation of the Employer's business
The laborers' rate for concrete rubbing is $2.70 per hour, while the
Employer would have to pay cement masons $3.70 per hour for the
same work. Although not determinative, this is a relevant factor to
be considered in the Board's evaluation of the record,3 particularly
where the work to be performed is unskilled. Further, it is clear that
the laborers are capable of performing the work in dispute to the
Employer's satisfaction.
4. Joint Board award
Although the Joint Board decision awarding concrete rubbing to
the Respondent is a factor to be considered, it cannot be controlling,
since, as found above, all of the parties herein had not agreed to be
bound by decisions of the Joint Board.
In view of all the foregoing, particularly the evidence as to area
practice, the Employer's long-standing assignment, and the collec-
tive-bargaining agreement between the Employer and Laborers Local
795, we shall determine the jurisdictional dispute herein by awarding
the disputed work of concrete rubbing to laborers. Our determina-
tion is limited to the particular controversy which gave rise to this
proceeding. In making this determination, the Board is assigning the
disputed work to laborers, who are represented by Laborers Local 795,
but not to that Union or its members.
In view of the above, we find that Respondent was not and is not
entitled by means proscribed by Section 8(b) (4) (i) and (ii) (D) to
3 See, e g , Local 46 , Wood, Ware and Metal Lathers International Union, AFL-CIO, etc.
(Precrete , Inc ), 136 NLRB 1072, 1078
LOCAL 18, INT'L UNION OF OPERATING ENGINEERS 1365
force or require Edgar H. Hughes Company, Inc., to assign the work
of concrete rubbing to cement masons rather than to laborers.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings and the entire record in
this proceeding, the Board makes the following determination of
dispute pursuant to Section 10(k) of the Act:
1. Employees engaged as laborers, currently represented by Local
795, International Hod Carriers' Building and Common Laborers'
Union of America, AFL-CIO, are entitled to perform the work of
concrete rubbing for Edgar H. Hughes Company, Inc., on bridges
and approaches in connection with Interstate Highway No. 65 in
Clark County, Indiana.
2. Cement Masons Local 694, Operative Plasterers' and Cement
Masons' International Association of the United States and Canada,
AFL-CIO, and its agent, Ray E. Edwards, are not entitled by means
proscribed by Section 8(b) (4) (i) and (ii) (D), to force or require
Edgar H. Hughes Company, Inc., to assign the aforementioned work
of concrete rubbing to employees engaged as cement masons, who
are currently represented by Cement Masons Local 694, Operative
Plasterers' and Cement Masons' International Association of the
United States and Canada, AFL-CIO.
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Cement Masons Local 694, Operative Plasterers' and
Cement Masons' International Association of the United States and
Canada, AFL-CIO, and its agent, Ray E. Edwards, shall notify the
Regional Director for the Ninth Region in writing, whether or not
they will refrain from forcing or requiring Edgar H. Hughes Com-
pany, Inc., by means proscribed by Section 8(b) (4) (i) and (ii) (D),
to assign the work in dispute to cement masons rather than laborers.
Local Union No. 18, International Union of Operating Engineers,
AFL-CIO, and its Agent, George E. Miller [Ohio Pipe Line
Construction Company] and Richard A. Long
Local Union No. 18, International Union of Operating Engineers,
AFL-CIO, and its Agent , George E. Miller [Ohio Pipe Line
Construction Company] and Curtis Pipes and Vernon Mann.
Cases Nos. 9-CB-1062, 9-CB-1075-1, and 9-CB-1075-2. Novem-
ber 4, 1963
DECISION AND ORDER
On June 6, 1963, Trial Examiner Eugene E. Dixon issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
144 NLRB No. 127.