Local 13, Bricklayers, Mason & Plasterers International Union of North America AFL-CIO (Bjork Builders, Ltd.)

National Labor Relations Board - Board Decisions

Nov 23, 1982

265 N.L.R.B. 448 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 13, Bricklayers, Masons & Plasterers Interna-
tional Union of North America, AFL-CIO and
Bjork Builders, Ltd. Case 22-CD-384
November 23, 1982
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Bjork Builders, Ltd., herein
called the Employer, alleging that Local 13, Brick-
layers, Masons & Plasterers International Union of
North America, AFL-CIO, herein called Bricklay-
ers, violated Section 8(b)(4)(D) of the Act by en-
gaging in certain proscribed activity with an object
of forcing or requiring the Employer to assign cer-
tain work to its members rather than to the Em-
ployer's unrepresented employees.
Pursuant to notice, a hearing was held before
Hearing Officer William F. Grant on July 29, 1982.
All parties appeared and were afforded full oppor-
tunity to be heard, to examine and cross-examine
witnesses, and to adduce evidence bearing on the
issues.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The record indicates, and we find, that the Em-
ployer, a New Jersey corporation with a place of
business in Franklin Lakes, New Jersey, is engaged
in the business of constructing industrial, institu-
tional, and commercial buildings. During the past
year, the Employer derived gross revenues in
excess of $50,000, and purchased goods and materi-
als valued in excess of $50,000 directly from suppli-
ers located outside the State of New Jersey. Ac-
cordingly, we find that the Employer is engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act and that it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
11. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that Brick-
layers is a labor organization within the meaning of
Section 2(5) of the Act.
265 NLRB No. 57
11l. THE DISPUTE
A. Background and Facts of the Dispute
On June 7, 1982, the Employer entered into a
contract with Fairfield Factory Market Mall of
Hawthorne, New Jersey, for the renovation of a
building called Fairfield Market Square in Fair-
field, New Jersey. The renovation included the in-
stallation of new entrances, elevators, facades, and
sidewalks, which required the performance of var-
ious types of concrete and masonry work. The Em-
ployer commenced work on the project on June 9
using its own employees who are not represented
by any labor organization.
On the morning of June 14, Kenneth Bjork, the
Employer's president, received a telephone call
from Joseph D'Argenio, business agent for Local
694, Laborers International Union of North Amer-
ica, AFL-CIO, herein called Laborers. D'Argenio
asked Bjork why he had not called Laborers for
any men. Bjork explained to D'Argenio that he
was a "merit shop" contractor and had no agree-
ments with any hiring halls or local unions. D'Ar-
genio then informed Bjork that there was "no way
[he] could work any way but union in Essex
County" and that, if Bjork expected to build this
job, he would have to use D'Argenio's men. Bjork
was further advised by D'Argenio that he was
going to picket the job. The next morning, about a
dozen pickets-unidentified by signs-appeared at
the jobsite.
Late in the afternoon on June 15, Bjork received
a telephone call from Robert Thompson, business
agent for Local 1342 United Brotherhood of Car-
penters and Joiners of North America, AFL-CIO,
herein called Carpenters, who asked Bjork why he
had not called Carpenters for any men. Bjork gave
Thompson the same answer he gave D'Argenio the
day before. At the end of their conversation,
Thompson stated that he would like to meet Bjork,
to which Bjork replied that he would be at the job-
site the next day. Thompson also stated that he was
going to do anything he could to get his men on
the job.
On the morning of June 16, approximately 25
pickets without signs appeared at the jobsite. D'Ar-
genio also was there. When Bjork arrived at the
site, he introduced himself to D'Argenio, who pro-
ceeded to swear at Bjork and tell him "there was
no way [he] was going to build this job." Bjork
went back to his office and reported the incident to
the police. That afternoon, Bjork returned to the
jobsite for a meeting with the architect and the
heating contractor. When he arrived, he noticed
D'Argenio and four other men talking with the
pickets. Bjork approached the five men and invited
448
LOCAL 13, BRICKLAYERS
them to step inside a doorway. Besides D'Argenio,
the group included Thompson for Carpenters, a
Mr. Daly for Bricklayers,' and two unnamed rep-
resentatives for Electricians and Plumbers locals.
At this meeting, Bjork told the Electricians and
Plumbers representatives that the owner of the
mall was going to award a separate contract for
such work and that no plumbing or electrical work
was being done at that time. Bjork was informed
by the representatives of Carpenters, Bricklayers,
and Laborers that he was never going to build the
job unless they got the work. The same representa-
tives also stated that they would continue to picket
the job. The Bricklayers representative stated that
the Employer was putting his men out of work.
Bjork replied that if he hired employees represent-
ed by Bricklayers he would be putting his own
men out to work. Daly also asked Bjork about the
wages he was paying his employees. The meeting
broke up, and the union representatives went out-
side and talked to the pickets.
About 15 minutes later, a man identifying himself
as a mason from Newark told Bjork that he wanted
employment and wanted to know how much the
Employer paid bricklayers or masons. Bjork re-
plied that there were no set wage rates and that
wages depended on the skill of the individual.
Bjork also told him that, if he wished to fill out an
employment application, Bjork would be happy to
consider him for employment. After refusing to fill
out an application, Bjork saw the man walk over to
the picket line and talk to some of the pickets.
Bjork also saw the man on the picket line a day or
two later.
The picketing continued from June 15 to July 21.
On a few occasions, pickets carried signs bearing
legends to the effect that the project did not meet
area standards for various named trades. Although
Bjork did not recall seeing any Bricklayers signs,
Daly admitted that two bricklayers carrying signs
were on the picket line on the morning of June 16.
Daly further testified, however, that he removed
the two pickets right after the meeting on June 16
and that they had not returned to the jobsite
since. 2
Bjork testified at the hearing that it was only after the June 16 meet-
ing that Daly was identified to him as the man who represented Bricklay-
ers at the meeting. Bjork stated, however, that he was uncertain that the
Mr. Daly at the meeting was the same Mr. Daly who was representing
Bricklayers at the hearing. Daly testified at the hearing that he had in
fact represented Bricklayers at the meeting, although he recalled the
meeting as having occurred on the morning of June 16.
s When asked by the Hearing Officer why he had removed the pickets,
Daly refused to elaborate beyond stating that it was "because things were
sid between Mr. Bjork and other business agents."
B. The Work in Dispute
The notice of hearing describes the work in dis-
pute as involving "demolition rubbish removal and
mason tending; laying concrete blocks and finishing
concrete slabs; and carpentry, installation of
gypsum board and acoustical ceiling, and setting
forms for footings." However, it is clear from the
record that the instant dispute involves block and
brick laying, concrete finishing, pouring of con-
crete, and patching of masonry work.3
C. Contentions of the Parties
At the hearing, the Employer in essence took the
position that the instant dispute is properly before
the Board, based on Bricklayers participation in a
joint demand with other unions for the work in dis-
pute, and on Bricklayers participation in the picket-
ing at the jobsite. With regard to the merits of the
dispute, it appears that the Employer contends that
the work in dispute should be awarded to its unre-
presented employees based on the factors of Em-
ployer practice, assignment, and preference; em-
ployee skills and training; and economy and effi-
ciency of operations.
At the hearing, Bricklayers took the position that
its picketing on June 16 was solely for the purpose
of informing the public that the "prevailing wages
and conditions were not being abided by" on the
job. Bricklayers presented no evidence at the hear-
ing with respect to the merits of the dispute.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the 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 the parties have not agreed upon
a method for the voluntary adjustment of the dis-
pute.
As indicated above, at a meeting on June 16,
representatives of the several local unions made a
joint demand on the Employer for the assignment
of work-including the work in dispute herein-to
employees represented by them. It is uncontrovert-
ed that Bricklayers was one of the unions repre-
sented at that meeting. It is also uncontroverted
that picketing occurred at the Employer's jobsite
from June 15 to July 21, 1982, and that Bricklayers
participated in the picketing, albeit for a limited
time. Although the picket signs, including those
' The notice of hearing described the work in dispute based on three
charges filed by the Employer, i.e., the instant charge and separate
charges alleging that Laborers and Carpenters had engaged in conduct
violative of Sec. 8(b)(X4XD) of the Act. Subsequently, and before the
hearing in the instant case, the cases involving Laborers and Carpenters
were severed and the charges against them were withdrawn.
449
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
carried by Bricklayers, apparently referred to the
project's alleged substandard wages and working
conditions, there is insufficient evidence in the
record to support a finding that the picketing by
Bricklayers was solely for the purpose of publiciz-
ing the Employer's alleged failure to meet area
standards, particularly since Bricklayers representa-
tive Daly had no knowledge of the Employer's
wages prior to the picketing and at no time sought
to ascertain the Employer's working conditions.
Under these circumstances, we find that, at the
time it engaged in picketing, Bricklayers failed to
make a bona fide attempt to determine whether the
Employer in fact failed to conform to area stand-
ards.4 Based on the foregoing and on the record as
a whole, we find that an object of Bricklayers con-
duct was to force or require the Employer to
assign the disputed work to employees represented
by it rather than to the Employer's unrepresented
employees. Therefore, we conclude that reasonable
cause exists to believe that a violation of Section
8(b)4)(D) of the Act has occurred.
No party contends, and the record contains no
evidence showing, that an agreed-upon method for
the voluntary adjustment of this dispute exists to
which all parties are bound. Accordingly, we find
that the dispute is properly before the Board for
determination under Section 10(k) of the Act.
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 fac-
tors. 5 The Board has held that its determination in
a jurisdictional dispute is an act of judgment based
on commonsense and experience reached by bal-
ancing those factors involved in a particular case."
The following factors are relevant in making the
determination of the dispute before us:
I. Certification and collective-bargaining
agreements
Bricklayers has never been certified as collec-
tive-bargaining representative for a unit of the Em-
ployer's employees. The Employer has no collec-
tive-bargaining agreement with Bricklayers, or
with any other labor organization. Accordingly,
this factor is not helpful to our determination.
4 See, e.g., Esre County Building and Construction Trades Council and
its Constituent Member eat aL (Index Construction Corporation), 243
NLRB 249, 252 (1979); Painters and Drywall Finishers Local No. 79, af-
fliated with International Brotherhood of Painters and Allied Trades AFL-
CIO (Richard O'Brien Plastering Ca), 213 NLRB 788, 790 (1974).
' N.LR.B. v. Radio d Television Broadcast Engineers Union. Local
1212 International Brotherhood of Electrical Workers AFL-CIO [Colum-
bia Broadcasting Systeml, 364 U.S. 573 (1961).
6 International Association of Machinists Lodge No 1743. AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402 (1962).
2. Employer assignment, practice, and
preference
The Employer, since its incorporation in 1976,
has consistently assigned work similar to that in
dispute to its unrepresented employees according
to their particular skills. Consistent with this prac-
tice, the Employer assigned the disputed work at
the Fairfield Market Square project to its unrepre-
sented employees. We find, therefore, that the Em-
ployer's assignment and practice favors an award
to the Employer's unrepresented employees.
Through the testimony of its president, the Em-
ployer expressed its preference for assigning the
disputed work to its own employees who have
demonstrated the necessary skills. Accordingly, we
find that this factor, although not entitled to con-
trolling weight, tends to favor an award to the Em-
ployer's unrepresented employees.
3. Area practice
The record indicates that some employers in the
northern New Jersey area use employees represent-
ed by Bricklayers and some do not to perform
work similar to that in dispute. We therefore find
that the factor of area practice is inconclusive.
4. Relative skills and training
It is undisputed that the Employer's employees
possess the requisite skills to perform the disputed
work and that they have performed this work to
the Employer's satisfaction in the past and on this
project. The work appears to require a high degree
of skill, dexterity, and training. As noted above,
Bricklayers presented no evidence on the merits;
therefore, it has not shown that employees repre-
sented by it possess the requisite skills to perform
the disputed work. Accordingly, we find that this
factor favors an award to the Employer's unrepre-
sented employees.
5. Economy and efficiency of operations
The Employer presented undisputed testimony
that using its own employees, who are multiskilled,
results in greater efficiency in the assignment or
work. Further, since the employees can perform a
variety of tasks, there is no time on the job when
the employees stand idle, thereby resulting in great-
er economy of operations. Thus, since Bricklayers
presented no evidence showing that it would be as
efficient or economical to utilize employees repre-
sented by it to perform the disputed work, we find
that this factor favors an award to the Employer's
unrepresented employees.
450
LOCAL 13, BRICKLAYERS
Conclusion
Upon' the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that the Employer's unrepresented employees
are entitled to perform the work in dispute. We
reach this conclusion based on the facts that the
Employer's assignment is consistent with its past
practice and preference; the Employer's employees
possess the requisite skills and training to perform
the work in dispute; and such assignment appears
to be both economical and efficient. The present
determination is limited to the particular controver-
sy which gave rise to this proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of
the foregoing factors and the entire record in this
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. The unrepresented employees of Bjork Build-
ers, Ltd., are entitled to perform block and brick
laying, concrete finishing, pouring of concrete, and
patching of masonry work at the Employer's Fair-
field Market Square project in Fairfield, New
Jersey.
2. Local 13, Bricklayers, Masons & Plasterers In-
ternational Union of North America, AFL-CIO, is
not entitled by means proscribed by Section
8(bX4)(D) of the Act to force or require Bjork
Builders, Ltd., to assign the disputed work to em-
ployees represented by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local 13, Bricklay-
ers, Masons & Plasterers International Union of
North America, AFL-CIO, shall notify the Re-
gional Director for Region 22, in writing, whether
or not it will refrain from forcing or requiring the
Employer, by means proscribed by Section
8(bX4)(D) of the Act, to assign the disputed work
in a manner inconsistent with the above determina-
tion.
451