Laborers' Local No. 42

National Labor Relations Board - Board Decisions

May 27, 1970

182 N.L.R.B. 862 (N.L.R.B. 1970)

862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laborers ' Local No . 42, Affiliated with Laborers ' Interna-
tional Union of North America, AFL-CIO and J . Pella-
rin & Co.
Cement Masons Union Local 527, Operative Plasterers'
and Cement Masons' International Association of the
United States and Canada, AFL-CIO and J . Pellarin
& Co. Cases 14-CD-326 and 14-CD-327
Pellarin & Co . purchased and received goods and mate-
rials from outside the States of Missouri and Illinois
valued in excess of $50 ,000. The parties agree, and
we find , that the Employer is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act,
and it will effectuate the policies of the Act to assert
jurisdiction herein.
May 27, 1970
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
This is a proceeding under Section 10(k) of the Nation-
al Labor Relations Act, as amended , following charges
filed by J. Pellarin & Co ., herein called the Employer,
alleging violations of Section 8(b)(4)(D ) by Laborers'
Local No . 42, affiliated with Laborers' International
Union of North America , AFL-CIO , herein called the
Laborers , and by Cement Masons Union Local 527,
Operative Plasterers ' and Cement Masons ' International
Association of the United States and Canada , AFL-CIO,
herein called the Cement Masons . Pursuant to notice,
a hearing was held on October 22 and 23 , 1969, at
St. Louis, Missouri , before Hearing Officer Donald J.
Meyer . The Employer , the Laborers , the Cement
Masons, the Mosaic and Terrazzo Workers Union, Local
20 of St . Louis, Missouri , affiliated with Bricklayers,
Masons and Plasterers ' International Union of America,
AFL-CIO, herein called the Terrazzo Mechanics, and
Local 46, International Association of Marble, Slate
and Stone Polishers , Rubbers and Sawyers , Title and
Marble Setters ' Helpers and Marble , Mosaic and Terraz-
zo Workers ' Helpers, AFL-CIO , herein called the Ter-
razzo Helpers, 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 . None of the parties filed briefs with the
Board.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has delegated
its powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Hearing
O1fficer made at the hearing and finds that no prejudicial
error was committed . The rulings are hereby affirmed.
Upon the entire record in this case, the Board makes
the following findings:
1. THE BUSINESS OF THE EMPLOYER
J. Pellarin & Co., a Missouri corporation having its
principal office and place of business in the county
of St. Louis, Missouri, is engaged in the construction
business as a terrazzo contractor in the States of Missouri
and Illinois. The parties stipulated that during the year
ending August 1, 1969, which year is representative
of its operations during all times material herein, J.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the Laborers,
the Cement Masons, the Terrazzo Mechanics, and the
Terrazzo Helpers are labor organizations within the
meaning of Section 2(5) of the Act.
III. DISPUTE
A. Background and Facts of the Dispute
Gamble Construction Company, herein called Gamble,
is the general contractor for the construction of the
Central Hardware Store in a shopping center in the
city of Baldwin, county of St. Louis, Missouri. The
Employer is a subcontractor of Gamble for the purpose
of installing approximately 40,000 square feet of terrazzo
flooring in the store. The terrazzo work on the job,
begun in mid-May 1969, was temporarily halted by a
strike of ironworkers, unrelated to the instant dispute,
from the end of May until August 18, 1969. Work
covered by the above subcontract was resumed on
August 19, 1969.
The Employer has labor agreements with and assigned
the work to be done on this job to employees represented
by the Terrazzo Mechanics and Terrazzo Helpers. Gam-
ble has labor agreements with the Cement Masons and
the Laborers. Under Section 1.05 of its contract with
the Laborers, Gamble was bound to insert in its subcon-
tract documents a provision which would require the
subcontractor to be bound by the agreement creating
the National Joint Board for the Settlement of Jurisdic-
tional Disputes, herein called the Joint Board. When
the Employer's president executed the subcontract with
Gamble, however, he crossed out Joint Board and substi-
tuted NLRB in the clause which covers work assignments
and jurisdictional disputes. The subcontract, with this
modification, was then sent to Gamble, whose represent-
ative initialed the modification, signed the document,
and returned it to the Employer.
In May 1969, shortly after the Employer commenced
performance, the Cement Masons claimed that the dis-
puted work, including installation of the underbed for
the terrazzo flooring, belonged to employees it represent-
ed and, as assistants , to employees represented by the
Laborers. The Cement Masons and Laborers then sub-
mitted the dispute to the Joint Board which, prior, to
the resumption of work on August 19, 1969, made assign-
ments of the work to cement masons and laborers.
A request was then made by the Bricklayers, Masons,
and Plasterers' International Union of America, AFL-CI-
O, with whom the Terrazzo Mechanics is affiliated,
for consideration of an appeal. This request was denied.
.182 NLRB No. 118
LABORERS ' LOCAL NO 42
On August 19, 1969, the Employer resumed work
on the job, employing men represented by the Terrazzo
Mechanics and Terrazzo Helpers to perform the work
in dispute On that same day, business agents of the
Cement Masons, Laborers, Terrazzo Mechanics and
Terrazzo Helpers met with the Employer's president,
Pellarin, on the jobsite The Cement Mason's representa-
tive, Salmeri, asked Pellarin to abide by the Joint Board
award Pellarin replied that he was not bound by deci-
sions of that body, but rather by those of the NLRB
Salmeri then stated that he was going to put up a
picket line, and asked the Laborer 's agent , Shehane,
if he had men available for picket duty Salmeri finally
indicated that the picket line would be set up the follow-
ing day
On the morning of August 20, 1969, the Laborers
established a picket line at the jobsite The sign carried
by the pickets read,
GAMBLE CONSTRUCTION COMPANY UNFAIR
We have no dispute with and are making no appeals to
other
Employers and Employees working here
LABORERS INTERNATIONAL UNION OF NORTH AMERICA
AFL-CIO
LABORERS LOCAL UNION NO 42
As a result, tradesmen refused to cross the picket line
and the entire job was stopped Following the establish-
ment of the picket line, Gamble's superintendent, Breig,
was informed by the Laborer's agent, Shehane, that
Gamble was being picketed because the Employer was
on the jobsite Breig then called the Laborer's business
agent, Poelker, and asked that the pickets be removed
Poelker indicated that Gamble was in violation of its
agreement by subcontracting to the Employer who had
not agreed to be bound by the decisions of the Joint
Board Poelker stated that if the Employer's men were
taken off the job, the pickets would be removed That
evening, Terrazzo Helpers' business agent Torricelli
agreed not to pour any more concrete The picket line
was then removed, and the Employer's job has been
idle since that time
B Description of the Work
The type of floor contemplated by the Employer
and Gamble for this job is installed in layers First,
the preliminary steps of levelling the ground and laying
a 4-inch gravel bed are performed by employees of
the contractor, in this case Gamble Next, the Employer
employs terrazzo helpers to install a polyethylene vapor
barrier Six by six "ten-ten" mesh, which is ordered
by the Employer and brought to the jobsite by teamsters,
is then installed by ironworkers who are hired by the
Employer Following this, ready-mix trucks carrying
863
a sand and gravel mixture are driven in by teamsters
who are both summoned and paid by the Employer
A liquid "lumor" additive, which gives strength to the
ready-mix, is supplied by the terrazzo mechanics and
is now added to the ready-mix cylinder by the teamsters
The ready-mix is then chuted by the teamsters either
directly onto the prepared base or into wheelbarrows
The terrazzo helpers direct the chutes and roll the filled
wheelbarrows to the areas specified by the terrazzo
mechanics The terrazzo mechanics then "screed" the
mixture on the floor to the proper level Once poured
and screeded, the mixture is marked off into 5-foot
squares by the terrazzo mechanics, and '/e- by 2-inch,
and th- by 12-inch, metal strips are hammered into
the underbed mixture so as to protrude from it by
five-eighths of an inch These strips, which are brought
by the terrazzo helpers and installed by terrazzo mechan-
ics, must be put in place on the same day that the
bed is poured and still in a "workable condition " A
day or so after the strips have been placed, the underbed
having "set up," the terrazzo topping itself, which is
an aggregate of crushed marble and cement, is mixed
and conveyed by the terrazzo helpers and poured by
the terrazzo mechanics After this mixture is screeded,
the finishing steps are performed, including sprinkling,
rolling, and polishing
C The Work in Dispute
The work in dispute is the pouring and levelling
of a concrete underbed, and the installation of metal
dividing strips into that underbed while it is in a workable
condition in preparation for the installation of a terrazzo
floor in the Central Hardware store in a shopping center
in the city of Baldwin, county of St Louis, Missouri
There is no dispute between the Terrazzo Mechanics
and the Terrazzo Helpers, or between the Cement
Masons and the Laborers, as to division of the disputed
work Presumably, the Terrazzo Mechanics and Terrazzo
Helpers would follow the division outlined in the above
description of the work The Laborers, while claiming
no specific work, seek only to assist the Cement Masons
if an award is made to employees represented by that
union, and this presumably would result in a division
of the disputed work along the lines set out in the
Joint Board awards
D Contentions of the Parties'
The Employer contends that it is not now and never
has been bound decisions of the Joint Board, and that
the object of the picketing was to force it to assign
the disputed work to the employees represented by
Cement Masons and Laborers The Employer maintains
that it is bound by contract to assign the work to
employees represented by the Terrazzo Mechanics and
Terrazzo Helpers, and that, for reasons of efficiency,
' No briefs were filed with the Board in this case and thus the
record of the hearing is the only indication of the positions of the
participants
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
economy, past practice, and its own preference, an
award should be made to employees represented by
those unions. In substance, this is also the position
of the Terrazzo Mechanics and Terrazzo Helpers.
The Cement Masons and Laborers contend that the
work in dispute has been awarded to the employees
they represent by the Joint Board, that the Terrazzo
Mechanics and Terrazzo Helpers are bound by decisions
of the Joint Board, and that Gamble is bound to require
its subcontractors, such as the Employer, to abide by
such an award. The picketing, they maintain, had the
sole object of forcing Gamble to abide by its agreement.
Finally, they contend that the employees they represent
are capable of performing and have performed the type
of work in dispute.
E. Applicability of the Statute
Section 10(k) of the Act empowers the Board to
determine a dispute out of which an 8(b)(4)(D) charge
has arisen. However, before the Board proceeds with
a determination of such a dispute, it must be satisfied
that there, is reasonable cause to believe that Section
8(b)(4)(D) has been violated.
The record shows that in a jobsite meeting on August
19, 1969, Joseph Salmeri, a representative of the Cement
Masons, requested the Employer's president, Pellarin,
to abide by the Joint Board award which would have
required Pellarin to assign the work in dispute to employ-
ees represented by Cement Masons and Laborers. When
Pellarin refused to so comply, Salmeri stated that a
picket would be established. He then asked a representa-
tive of the Laborers if his men were available for
picket duty. On August 20, 1969, the Laborers did
establish a picket line, with the result that tradesmen
refused to enter upon the jobsite and the job was stopped.
On the above facts, we conclude that, whatever other
object the picketing may have had, as indicated by
the wording on the picket signs and the various state-
ments by union representatives, one object of the picket
line was to force the Employer to assign the work
in dispute to particular employees. We further conclude
that both the Cement Masons and the Laborers were
responsible for the picket line, and thus that there is
reasonable cause to believe that Section 8(b)(4)(D) has
been violated. We find, therefore, that this dispute is
properly before the Board for determination under Sec-
tion 10(k) of the Act.
F. The Merits of the Dispute
The Employer, as a member of the Mosaic and Terraz-
zo Contractors of St. Louis, Missouri , is bound by
that association's collective-bargaining agreements with
the Terrazzo Mechanics and Terrazzo Helpers. These
agreements, and specifically article IV, subsection (b),
of the Terrazzo Helpers' contract,2 and article 1, subsec-
2 "Work in the jurisdiction of Local 46 shall include the following,
(b) Preparing , mixing by hand , or by mixing machine and distributing,
with shovel , rake, or hoe or pail , all kinds of concrete foundations
tion 3, of the Terrazzo Mechanics' contract,3 cover
the work in dispute. The Employer has no agreement
with the Cement Masons or Laborers. We thus conclude
that the Employer's contracts clearly favor assignment
of the work in dispute to employees represented by
the Terrazzo Mechanics and Terrazzo Helpers.
The Terrazzo Mechanics and Terrazzo Helpers,
through their affiliate International unions, have agreed
to be bound by decisions of the Joint Board. The Employ-
er, however, is not and never has been bound to the
Joint Board. Furthermore, the Employer specifically
modified the Joint Board clause in its subcontract with
Gamble by substituting "NLRB" for Joint Board, so
that parties to the subcontract would be bound by NLRB
determinations regarding work performed thereunder.
This modification was initialed by Gamble's representa-
tive. We find, therefore, that the employer is not bound
by the decisions of the Joint Board, and there is conse-
quently no agreed-upon method for the voluntary adjust-
ment of the dispute herein.
The record shows that the Employer's president, Pella-
rin, has been in business for 25 years and has always
employed persons represented by the Terrazzo Mechan-
ics and Terrazzo Helpers, or by different local unions
of terrazzo workers, to perform this type of work.
In addition, Pellarin testified that other contractors in
the St. Louis area, who do about 99 percent of the
terrazzo work in the area, employ terrazzo workers,
as opposed to cement masons and laborers, to perform
the type of work in dispute. No evidence of a contrary
practice by the Employer, by St. Louis contractors,
or in the industry generally was presented. These facts
favor an award to employees represented by the Terrazzo
Mechanics and Terrazzo Helpers.
Much of Pellarin's testimony regarding efficiency of
operations was given under the assumption that terrazzo
mechanics would be setting the metal strips regardless
of who was installing the underbed, and this assumption
was not challenged on cross-examination. In such a
situation, where cement masons and laborers would
be performing installation of the underbed while terrazzo
mechanics set the metal strips,Pellarin's testimony indi-
cates that since the base "sets up" at different times,
and cannot stand overnight, the cement masons and
laborers would only be able to work 3 to 4 hours
per day, being idle while the strips were set. The record
also indicates that in these circumstances, a full day's
pay would be required both by the cement masons
and the laborers. Even assuming, however, that the
cement masons and laborers set the strips in addition
to installing the underbed, and this is the basis on
which this determination is being made, the terrazzo
necessary for Mosaic and Terrazzo work, dex-o-tex, latex , magnesite,
monolithic , epoxy and all similar materials and all precast terrazzo
work in shops on jobs, all scratch cost [ sic] used for mosaic and
terrazzo work and sub-bed, tar paper and wire lath."
3 "All bedding above concrete floors or walls. that the preparation,
cutting laying or setting of metal, composition or wooden strips and
grounds and the laying and cutting of metal, strips , lath or other
reinforcement, where used in Mosaic and Terrazzo work, shall be
the work of the Mosaic and Terrazzo worker."
LABORERS ' LOCAL NO.42
workers would still be required for the setting of the
topping . It seems reasonable to conclude that a certain
amount of inefficiency and lost time would result from
the presence of four separate crafts on the jobsite,
each with a limited function. We conclude that efficiency
and economy of operation would best be served by
an award to employees represented by the Terrazzo
Mechanics and Terrazzo Helpers.
In view of the foregoing , we believe that the work
in dispute should be awarded to employees represented
by the Terrazzo Mechanics and Terrazzo Helpers. Virtu-
ally all relevant factors favor such an award, including
the contracts, employer and area practice, efficiency,
economy, and employer preference. Neither the deci-
sions of the Joint Board,4 nor the fact that employees
represented by Cement Masons and Laborers may be
capable of performing work such as that disputed herein,
persuade us to the contrary. Therefore, we shall deter-
mine the dispute by assigning the work in question
to employees represented by the Terrazzo Mechanics
and Terrazzo Helpers . In making this determination,
which is limited to the controversy which gave rise
to this proceeding , we are not assigning the work to
the Terrazzo Mechanics, the Terrazzo Helpers, or their
members.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Rela-
tions Act, as amended , and upon the basis of the forego-
ing findings and the entire record in this proceeding,
the National Labor Relations Board hereby makes the
following Determination of Dispute.
1. Employees represented by the Mosaic and Terrazzo
Workers Union, Local 20 of St. Louis, Missouri , affiliat-
ed with Bricklayers , Masons and Plasterers International
Union of America, AFL-CIO, and by Local 46, Interna-
tional Association of Marble , Slate and Stone Polishers,
Rubbers and Sawyers, Tile and Marble Setters' Helpers
and Marble, Mosaic and Terrazzo Workers' Helpers,
AFL-CIO, rather than employees represented by Cement
865
Masons Union Local 527, Operative Plasterers' and
Cement Masons' International Association of the United
States and Canada, AFL-CIO, or by Laborers' Local
No. 42, affiliated with Laborers' International Union
of North America, AFL-CIO, are entitled to perform
the pouring and levelling of a concrete underbed, and
the installation of metal dividing strips into that underbed
while it is in a workable condition in preparation for
the installation of a terrazzo floor in the Central Hard-
ware store in a shopping center in the city of Baldwin,
county of St. Louis, Missouri.
2. Laborers' Local No. 42,, affiliated with Laborers'
International Union of North America, AFL-CIO, and
Cement Masons Union Local 527, Operative Plasterers'
and Cement Masons' International Association of the
United States and Canada, AFL-CIO, are not entitled
by means proscribed by Section 8(b)(4)(D) of the Act
to force or require the Employer, J. Pellarin and Compa-
ny, to assign the above work to employees represented
by them.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Laborers Local No. 42,
affiliated with Laborers' International Union of North
America, AFL-CIO and Cement Masons Union Local
527, Operative Plasterers' and Cement Masons' Interna-
tional Association of the United States and Canada,
AFL-CIO, shall notify the Regional Director for Region
14, in writing, whether or not they will refrain from
forcing or requiring the Employer , J. Pellarin and Compa-
ny, by means proscribed by Section 8(b)(4)(D) of the
Act, to assign the work in dispute to their members,
rather than to employees represented by the Mosaic
and Terrazzo Workers Union, Local 20 of St. Louis,
Missouri, affiliated with Bricklayers, Masons and Plaster-
ers' International Union of America, AFL-CIO, and
by Local 46, International Association of Marble, Slate
and Stone Polishers, Rubbers and Sawyers, Tile and
Marble Setters' Helpers and Marble, Mosaic and Terraz-
zo Workers' Helpers, AFL-CIO.
" Although, as indicated, the Employer is not bound by the decision
of the Joint Board , we have carefully considered its award here, but
find it unpersuasive as against the factors enumerated above