Laborers Local 317 (Grazzini Bros.)

National Labor Relations Board - Board Decisions

Jul 15, 1992

307 N.L.R.B. 1290 (N.L.R.B. 1992)

1290
307 NLRB No. 195
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The original charge was filed on February 20, 1991, naming only
the Bricklayers Local 19. An amended charge was filed on February
26, 1991, against the Bricklayers Local 19 and the Laborers Local
317. A second amended charge was filed, against the same two labor
organizations on February 28, 1991.
2 Whether the agreement had expired or was in effect at the time
of these claims is in dispute. This case does not involve the applica-
tion of Laborers Local 731 (Slattery Associates), 298 NLRB 787
(1990), which involved an attempt to enforce a signatory subcon-
tracting clause.
3 The tilesetters and the finisher bricklayer came from Minnesota
out of Bricklayers Local 18, a Minnesota local. While working in
the Eau Claire area, however, they did so as travelers subject to the
jurisdiction of Bricklayers Local 19, a Wisconsin local. The laborers
come from Laborers Local 317.
4 The notice of hearing describes the disputed work as follows:
Installation of ceramic tile on the St. Croix Meadows Greyhound
Racing Track, located in Hudson, Wisconsin.
Although the parties did not stipulate to a description of the dis-
puted work, all parties agreed that the actual tilesetting is properly
performed by the Bricklayers. Further, the Tile Finishers only claims
the finishing work. Finally, we note that the Bricklayers and the La-
borers have an agreement to share the finishing work, which in-
cludes, inter alia, grouting, cleanup, and movement of materials on
the jobsite.
General Laborers Union, Local 317; Bricklayers
and Allied Craftsmen, Local 19 of Wisconsin
and Grazzini Brothers & Company and Tile,
Marble, Terrazzo Finishers and Shopworkers,
Local 47-T. Case 18–CD–313
July 15, 1992
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed February 28, 1991,1 by the Employer alleging
that the Respondents, Bricklayers Local 19 (Brick-
layers) and Laborers Local 317 (Laborers), violated
Section 8(b)(4)(D) of the National Labor Relations Act
by engaging in proscribed activity with an object of
forcing the Employer to assign certain work to em-
ployees they represent rather than to employees rep-
resented by Tile Finishers Local 47-T (Tile Finishers).
The hearing was held on April 10, 11, 23, 24, and 29,
1991, before Hearing Officer Deborah K. Rogers.
The National Relations Board has delegated its au-
thority 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 parties stipulated that the Employer, Grazzini
Brothers & Company, is a Minnesota corporation with
its principal place of business located in Minneapolis,
Minnesota, where it is engaged in contracting marble,
tile, terrazzo, and ceramic tile work. During the past
12 months, a representative period, the Employer per-
formed services valued in excess of $50,000 for cus-
tomers located outside the State of Minnesota. We find
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. The par-
ties stipulate, and we find, that the Bricklayers, Labor-
ers, and Tile Finishers are labor organizations within
the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
In December l990, the Employer was awarded a
contract to install ceramic tile at the St. Croix Mead-
ows Greyhound Racing Track project located in Hud-
son, Wisconsin. The Employer planned to staff this
project, which was to begin on February 1, 1991, with
one tile setter and one tile finisher from its regular
crew in Minnesota represented by Bricklayers Local
18. As a result of changes in the timing requirements
for commencing and completing the project, the Em-
ployer had to increase the size of its work force.
Various conversations occurred between representa-
tives of the Employer and representatives of the Brick-
layers, Laborers, and Tile Finishers, in January and
February 1991, concerning claims for the finishing
work. Tile Finishers filed a formal grievance against
the Employer for violations of the ‘‘current agree-
ment’’ in the course of its claim.2 In response to the
Employer’s inquiries about using tile finishers on the
project, the bricklayers and laborers, in mid-February,
threatened to picket the jobsite if the Employer used
tile finishers on the project.
On February 19, 1991, the Employer commenced
working on the project with a crew of five journeymen
and one apprentice tilesetter, a finisherbricklayer,3 and
two laborers. At various times thereafter, two finisher
bricklayers, as well as two laborers, performed the fin-
ishing work.
B. Work in Dispute
The evidence indicates, and we find, that the dis-
puted work is the finishing work associated with the
ceramic tile installation on the St. Croix Meadows
Greyhound Racing Track, located in Hudson, Wis-
consin.4
C. Contentions of the Parties
The Employer contends that the dispute is properly
before the Board for determination because there is
reasonable cause to believe that Section 8(b)(4)(D) has
been violated by threats to picket. On the merits the
Employer contends that it is a member of the Tile
Contractors Association of America (TCAA) and is
bound by the National Agreement between the TCAA
1291LABORERS LOCAL 317 (GRAZZINI BROS.)
5 The Tile Finishers contend that, as part of a conspiracy to
produce threats, the Employer mentioned to the Bricklayers and the
Laborers the possibility of using Tile Finishers. The Tile Finishers
also implies that the Employer was not serious in suggesting that it
might use its members. The Tile Finishers therefore claims that the
situation was ‘‘rigged’’ to create a jurisdictional dispute under Sec.
8(b)(4)(D) of the Act. This is supposition; the Tile Finishers have
presented no evidence to show collusion between the Employer and
the other Unions.
6 The addendum reads:
The Employer agrees to be bound to the Agreement for an ad-
ditional three (3) years (June 1, 1987 through May 31, 1990)
with the same terms and conditions agreed to by the Union and
the Madison Area Ceramic Tile Contractor’s Association.
and the International Bricklayers Union (BAC). In ad-
dition to relying on the collective-bargaining agree-
ments and a project agreement it signed with the La-
borers after this dispute arose, the Employer contends
that the Bricklayers and Laborers should be awarded
the disputed work on the basis of employer preference,
economy and efficiency of operations, and area prac-
tice.
The Bricklayers and the Laborers filed a joint brief
in which they contend that they share jurisdiction over
the disputed work. They rely on grounds similar to
those expressed by the Employer (except they do not
appear to be urging the Laborers’ project agreement as
a basis on which to be awarded the work), and also
on developments in the tile trade nationally.
The Tile Finishers contend that no reasonable cause
exists for finding a jurisdictional dispute because the
threats to picket resulted from collusion among the
Employer, the Bricklayers, and the Laborers to obtain
a 10(k) determination. On the merits, the Tile Finishers
relies on employer past practice, industry practice, cer-
tain impartial dispute board determinations, and its al-
leged collective-bargaining agreement.
D. Applicability of the Statute
Before the Board proceeds 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 the Act has been violated. As described above, the
record shows that the bricklayers and laborers both
threatened to picket the jobsite if the Employer as-
signed members of the Tile Finishers to perform the
disputed work.5
No party to this proceeding contends that there is an
agreed-on voluntary method for resolving this dispute.
We find reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred and that there exists
no agreed method for voluntary adjustment of the dis-
pute within the meaning of Section 10(k) of the Act.
Accordingly, we find that the dispute is properly be-
fore 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. Certifications and collective-bargaining
agreements
There is no evidence that the Board has certified any
of the three Unions as the exclusive collective-bar-
gaining representative of the Employer’s employees,
and thus certification is not a factor favoring either
group of employees. Similarly, for the reasons set forth
below, ‘‘collective-bargaining agreements’’ also do not
amount here to a factor on which we can rely in
awarding the disputed work.
At the time the dispute arose, no collective-bar-
gaining agreement existed between the Employer and
the Laborers. Although the Employer subsequently
signed an agreement with the Laborers that covered the
instant project and future ones, that agreement was en-
tered into after the Laborers threatened to picket in fur-
therance of its claim to a portion of the disputed work.
Consequently, we place no reliance on the agreement.
See Electrical Workers IBEW Local 400 (E. T. Elec-
trical), 285 NLRB 1149, 1151 (1987). Further, even if
an agreement entered into under coercive cir-
cumstances were entitled to be given some weight, the
Laborers’ agreement conditioned its continued exist-
ence on the outcome of this proceeding. Obviously, we
can give no weight here to an agreement whose very
existence, is contingent on our determination of the
dispute at issue.
With respect to the Tile Finishers, the existence of
an agreement with the Employer is at best problematic.
There is strong disagreement between that labor orga-
nization and the Employer over whether the latter,
after May 31, 1990, was bound to adhere to the terms
of an agreement between the Tile Finishers and the
Madison Area Tile Contractor’s Association
(MATCA). They are agreed that, in 1987, in settlement
of an unfair labor practice charge, the Employer signed
the 1984–1987 Tile Finishers–MATCA contract. There
also is no dispute between them that pursuant to the
parties’ ‘‘Addendum,’’6 the Employer obligated itself
for an additional 3 years to follow the ‘‘same terms
and conditions’’ agreed to by the Tile Finishers and
MATCA. Their disagreement centers on the nature and
scope of the addendum. Thus, they disagree on wheth-
er the addendum is part of the 1987 settlement, as the
1292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 In support of this contention, the Tile Finishers primarily argue
that it would not have made any sense for the addendum to be part
of the 1984–1987 contract, because that agreement had expired be-
fore the settlement was signed.
8 In furtherance of this assertion, the Employer notes that the ad-
dendum was prepared in 1986 by the Tile Finishers, and argues that
if it were not an attachment to the 1984–1987 agreement there
would have been no reason to sign that already expired contract or
for the addendum to refer to it.
9 The evidence shows that the Employer was not required to sign
these contracts, and that it did not.
10 Referred to erroneously, given the record evidence, as ‘‘January
1, 1991,’’ in the Tile Finishers’ brief.
Tile Finishers contend,7 or whether it relates back to
the 1984–1987 agreement, as the Employer asserts.8
More importantly, they urge different interpretations of
the addendum that cannot be reconciled on the state of
this record.
The Tile Finishers makes the following claims: that
the addendum bound the Employer to the ‘‘same terms
and conditions’’ of any MATCA contracts entered into
within the addendum’s June 1, 1987 to May 31, 1990
period, including an evergreen clause that automati-
cally renewed the contract unless a timely cancellation
notice was sent; that two such contracts were entered
into with MATCA during the 1987–1990 period, the
last of which was effective from June 1, 1988, through
May 31, 1991;9 and that this latter agreement applied
for its full 3-year term ending May 31, 1991, because
the Employer failed to send the appropriate termination
notice, as required by the evergreen clause, before the
3-year period covered by the addendum expired on
May 31, 1990. The Employer counters that these
claims ignore the plain meaning of the addendum
which, under the Employer’s interpretation, limits its
obligation to abide by the terms of a MATCA contract
or contracts for the 3-year period set forth in the ad-
dendum. Thus, once that period ended on May 31,
1990, the obligation to adhere to the terms of the
MATCA contract then in existence ended with it. The
Employer further notes that the addendum contains no
termination notice or renewal provisions, and that the
evergreen clause in the 1989–1991 agreement that the
Tile Finishers claims was binding on the Employer,
would not have matured until after the 3-year period
of the addendum had expired.
In light of the foregoing, we find that the status and
meaning of the addendum are ambiguous and, thus,
that no firm basis exists for finding that an agreement
existed between the Employer and the Tile Finishers
after May 31, 1990.
The existence of a current agreement between the
Employer and the Bricklayers is also disputed and not
free from doubt. Any such agreement depends on
whether there is an effective national agreement be-
tween the TCAA and the BAC, an agreement to which
the Employer would be bound by virtue of its member-
ship in the TCAA and which would require it to apply
local Bricklayers’ agreements when performing work
in various jurisdictions around the country, such as the
area of Eau Claire, Wisconsin. The record shows that
the last signed national agreement expired on Decem-
ber 31, 1989, more than 2 years before the instant
work dispute arose, and that the TCAA sent timely no-
tification to the BAC that it was reopening negotia-
tions on that agreement, which otherwise would have
automatically renewed.
The Employer and the Bricklayers concede that no
new agreement had been entered into as of the 10(k)
hearing and that negotiations were continuing on sub-
contracting and doublebreasting, the two issues on
which they were at odds. Nevertheless, they claim that,
in November 1990, the TCAA and the BAC orally
agreed that, except for the articles relating to those two
subjects, the 1989 agreement was still in effect and,
hence, the other terms of that agreement applied to the
Greyhound Track Project at all times material. The
Tile Finishers argue, however, that the TCAA has
never rescinded its termination of the last signed na-
tional agreement, and that its report to its member em-
ployers expressly contradicts the claim that the agree-
ment was still in effect after January 1, 1990.10 The
report told TCAA members that effective January 1,
1990, they had no rights or obligations to their union
employees based on the national agreement.
We do not find that a definite, stable current con-
tractual relationship existed between the Employer and
the Bricklayers when this dispute arose. There is no
signed new agreement; the contracting parties did not
extend the expired agreement upon its expiration on
December 31, 1989; the terms of that agreement were
not resurrected, with the two exceptions noted, until
November 1990 (and then only by oral agreement be-
tween the two principal negotiators); and negotiations
on a new agreement could founder at any time.
In any event, even assuming that the national agree-
ment was in effect when the dispute arose, that agree-
ment would not provide—in the absence of an
uncoerced, timely, and firm concurrent agreement be-
tween the Laborers and the Employer—a sufficient
contractual basis to support the Employer’s assignment
of the disputed work to a mixed crew of finisher brick-
layers and laborers that reflects a coalition agreement
between the two Unions that represent them.
Accordingly, we attach no weight to collective-bar-
gaining agreements as a factor in awarding the work
in dispute to either one of the competing groups of
employees.
2. The Employer’s assignment and preference
The Employer prefers to assign, and has assigned,
the disputed work to employees represented by the
Bricklayers and Laborers. This factor favors an assign-
1293LABORERS LOCAL 317 (GRAZZINI BROS.)
11 The disputed work is located within the 14-county area served
by the Building Trades Council of Eau Claire, Wisconsin.
12 We note that there was testimony to the effect that there are a
limited number of experienced laborers within the geographic area
of the jobsite. While the number of such employees may be small,
we also note that on the job in question no more than two laborers
were required at any one time to supplement the bricklayers.
ment of the disputed work to the employees rep-
resented by the Bricklayers and the Laborers.
3. Employer past practice
Because the work is being done in Wisconsin, we
shall focus on the Employer’s practice of work assign-
ments in that State, albeit the evidence concerning
such assignments is limited.
The Tile Finishers claims that between 1978 and
1990 the Employer performed tile-contracting work in
Wisconsin and was contractually obliged to use em-
ployees represented by it to do tile-finishing work, and
that until the Dayton Hudson and Greyhound Track
jobs—both of which were in the Eau Claire area—the
Employer used ‘‘Finishers to do tile finishing work in
Wisconsin.’’ In support of these claims, Tile Finishers
Representative Judziewicz cited jobs in Sparta and
Roberts, Wisconsin, both of which jobs were done in
1990. However, there were two projects on which the
Employer Grazzini did not abide by these contractual
obligations. One was the La Crosse area Valley View
Mall project, and the other was the redoing of the
Clark County home project. Further, the Employer pre-
sented evidence that it has, at least recently, used
BAC-represented finishers, as well as those who are
members of the Tile Finishers, on jobs in Wisconsin
other than the one that has given rise to this jurisdic-
tional dispute; and the Bricklayers and Laborers jointly
point to evidence of BAC-represented finishers em-
ployed by the Employer on two Eau Claire area jobs,
besides the one involved in this case. Accordingly, we
find that the Employer’s past practice in Wisconsin is
unsettled and thus this factor favors neither of the
competing employee groups.
4. Area practice
Representatives of the Bricklayers, the Laborers, and
the Eau Claire area building trades all testified that fin-
ishing work has been awarded exclusively to employ-
ees represented by the Bricklayers and Laborers in the
Eau Claire area.11 These assignments are substantially
a result of the virtual monopoly of the area market by
the area’s major tile contractor, Eau Claire Tile and
Terrazzo Company, which has a local understanding
with these two Unions.
The Tile Finishers appear to concede that the current
area practice favors the Bricklayers and Laborers. Nev-
ertheless, it points out that it had previously performed
finishing work in the Eau Claire area and it attempts
to expand the area by citing the Employer’s operation
throughout Wisconsin. Even in this expanded area,
however, the Tile Finishers do not claim a preponder-
ance of this work.
We find that this factor favors an award to employ-
ees represented by the Bricklayers and Laborers.
5. Industry practice
The Tile Finishers argues that tile contracts through-
out the United States have observed jurisdictional lines
as regards tile finishers and tile setters, and that the
TCAA in general continues to respect the longstanding
jurisdictional practice recognizing tile finishing work
for employees represented by the Tile Finishers and
tile setting work for employees represented by the
Bricklayers. It acknowledges, however, that since the
merger of the Tile Finishers with the Carpenters in late
1988, disputes have arisen between the Tile Finishers
and the Bricklayers over the assignment of the tile fin-
ishing work. The Bricklayers and Laborers jointly con-
tend that in the last 7 years the Bricklayers have
gained ascendancy over the Tile Finishers as the union
representing tile finishers and performing tile-finishing
work in the United States and Canada. They further
contend that technological change in the tile trade has
significantly altered the relationship between tile set-
ting and tile finishing so that the ratio between tile-
setters and tile finishers has gone from one to one, to
as high as three or four to one in favor of the former.
As a result, they assert, tile finishers have joined
Bricklayers apprenticeship programs to progress to tile-
setters, and in the process the Bricklayers have re-
placed the tile finishers as the preeminent union rep-
resenting the tile finishers.
We find that industry practice is mixed and thus, as
a factor, favors neither of the competing employee
groups.
6. Relative skills
Although the parties make claims disputing the ade-
quacy of the skills of various individual employees,
and concerning the quality of the Clark County Home
job performed by the Tile Finishers, it has not been es-
tablished that either the Tile Finishers or the
Bricklayers/Laborers coalition could not supply the
necessary number of employees possessing adequate
skills to perform the work in dispute.12 Accordingly,
we find that this factor favors neither of the competing
groups of employees.
7. Economy and efficiency of operations
The Employer contends that a number of factors
make it more economical and efficient to use employ-
ees represented by the Bricklayers and the Laborers.
The primary factor emphasized by the Employer’s evi-
1294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Our reliance on the different union contracts in this section of
our determination represents nothing more than recognition of cer-
tain contractual terms that would be imposed on the Employer under
the three union contracts if they were in place and given effect.
dence was the manpower ratio provisions present in
the Tile Finishers’ contract, but not in the Bricklayers’
or Laborers’ contracts, and the flexibility in scheduling
and costs that this afforded it.13 Thus, the Tile Fin-
ishers’ contract requires a contractor to maintain a cer-
tain ratio of tile finishers to tilesetters. Various wit-
nesses offered opinions concerning the percentages of
each type of work required on a job and on the chang-
ing nature of the industry, including a decline in the
percentage of finishing work which further undermines
the use of fixed ratios to achieve efficient operations.
The Employer showed that it used approximately 607
tilesetting hours but only 186 tile-finishing hours at the
site of the disputed work using its combined crew of
bricklayers and laborers. In contrast, the Tile Finishers’
representative testified that, if there were 615 tile-set-
ting hours, the Tile Finishers’ contract would require
500 tile-finishing hours if that were the only project
completed in the contract year.
The Employer also cited the more flexible hours that
the Laborers’ contract provides for a workday of 6
a.m. to 6 p.m. (the Tile Finishers’ is 8 a.m. to 5 a.m.),
available local personnel (no employees represented by
the Tile Finishers are located in the Eau Claire 14-
county area), and the fact that the Laborers’ contract,
but not that of the Tile Finishers,’ allows for use of
motorized vehicles by covered employees to transport
materials on the jobsite.
The Tile Finishers disputed certain of this evidence
and offered testimony that it was the Employer’s frus-
tration with the Tile Finishers’ effective enforcement
of its contract, rather than efficiency and economy of
operations, that motivated the Employer’s assignment
of the work. In assessing the merits of competing
claims under this factor, however, we look only to evi-
dence that shows which employee group likely will
most efficiently perform the disputed work, rather than
which group the Employer prefers or the Employer’s
motivation in assigning the disputed work.
Accordingly, having considered the evidence pre-
sented concerning efficiency and economy, we find
that this factor favors an award to the mixed crew rep-
resented by the Bricklayers and Laborers.
8. Impartial jurisdictional dispute Board
determinations
In support of its claim for the disputed work, the
Tile Finishers rely on a series of awards by the Impar-
tial Jurisdictional Disputes Board for the AFL–CIO
during the period 1970–1980. The Bricklayers contend
that these awards are irrelevant citing, inter alia, the
absence of any awards since 1980 as well as the dra-
matic changes in the tile trade since 1980 that have in-
creased the ratio of setters to finishers, with a cor-
responding rise in the preeminence of the Bricklayers.
We find that this factor favors none of the respective
competing groups of employees.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by Bricklayers Local
19 and Laborers Local 317 are entitled to perform the
work in dispute. We reach this conclusion relying on
Employer preference, area practice, and economy and
efficiency.
In making this determination, we are awarding the
work to employees represented by General Laborers
Union, Local 317 and Bricklayers and Allied Crafts-
men, Local 19 of Wisconsin, not to those Unions or
their members. The determination is limited to the con-
troversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees represented by General Laborers Union,
Local 317 and Bricklayers and Allied Craftsmen, Local
19 of Wisconsin, are entitled to perform that portion
of the installation of ceramic tile which does not in-
volve setting tile on the St. Croix Meadows Greyhound
Racing Track, located in Hudson, Wisconsin.