Local No.2 of Detroit, Bricklayers, Masons, Etc.

National Labor Relations Board - Board Decisions

Apr 29, 1965

152 N.L.R.B. 278 (N.L.R.B. 1965)

278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Employees of Prestress Erectors, Inc., currently represented by
the Carpenters' District Council of Miami, Florida and Vicinity,
AFL-CIO, are entitled to perform the following work :
Erecting and installing all precast concrete items performed by
Prestress Erectors, Inc., in its building construction work within
Dade and Broward Counties, Florida.
2. Local Union No. 272, International Association of Bridge, Struc-
tural and Ornamental Iron Workers, AFL-CIO, is not entitled, by
means proscribed by Section 8(b) (4) (D) of the Act, to force or
require the Employer to assign the above work to ironworkers who
are represented by it.
3. Within 10 days from the date of the Decision and Determination
of Dispute, Local Union No. 272, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO, shall notify
the Regional Director for Region 12, in writing, whether it will refrain
from forcing or requiring the Employer, by means proscribed in Sec-
tion 8 (b) (4) (D), to assign the work in dispute to ironworkers rather
than to carpenters.
Local No. 2 of Detroit, Bricklayers , Masons , and Plasterers In-
ternational Union of America, AFL-CIO' and Decora, Inc.
Case No. 7-CD-116. April 29,1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, following the filing of charges by Decora, Inc. (herein
called the Employer) alleging that Local No. 2 of Detroit, Brick-
layers, Masons and Plasterers International Union of Amercia, AFL-
CIO (herein called Local No. 2), had violated Section 8 (b) (4) (D) of
the Act. The charge alleges, in substance, that Local No. 2 threatened,
restrained, and coerced the Employer with an object of forcing or
requiring the Employer to assign particular work to employees repre-
sented by Local No. 2 rather than to employees who were members of,
and represented by, Local No. 32, Bricklayers, Masons and Plasterers
International Union of America, AFL-CIO (herein called Local No.
32). Thereafter, a duly scheduled hearing was held before Hearing
Officer Alfred J. Morad, on November 12 and 13, 1964. All parties 2
appeared at the hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to adduce evidence
i The full name of Local No 2 appears as stipulated by the parties at the hearing.
'Although a timely notice of hearing was issued to Local No . 32, its representatives
did not appear at the hearing . However , members of Local No 32 who were employed
by Decora , Inc., and to whom the Employer had assigned the work, appeared and were
represented by the Employer ' s counsel.
152 NLRB No. 17.
LOCAL NO. 2 OF DETROIT, BRICKLAYERS, MASONS, ETC. 279
bearing on the issues . The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are hereby affirmed. A
brief was submitted by Local No. 2.
Upon the entire record in the case, the Board 3 makes the following
findings :
1. THE BUSINESS OF THE EMPLOYER
Decora, Inc., is a Michigan corporation engaged in the installation
and erection of marble and other structural stone. During the past
year, Decora, Inc., received supplies of marble shipped directly to its
place of business in Detroit, Michigan, from points oustide the conti-
nental United States valued in excess of $50,000. We find, therefore,
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 jurisdic-
tion herein.
II. THE LABOR ORGANIZATION INVOLVED
Respondent Local No. 2 and Local No. 32 are sister locals of the
Bricklayers, Masons, and Plasterers International Union of America,
AFL-CIO. We find that Local No. 2 and Local No. 32 are labor
organizations within the meaning of Section 2(5) of the Act.
M. THE WORK IN DISPUTE
A. Background facts
Local No. 2 is what is commonly described in the construction indus-
try as a "Brick Mason" local and Local No. 32 is a "Marble Mason"
local . Although the members of each local appear to utilize similar
skills in their work, one of the basic distinctions between the two groups
is that marble masonry consists of the installation or erection of marble
or structural glass or stone in the interior of buildings and brick ma-
sonry involves work on the exterior of buildings.4 However, exterior
work is further subdivided into another skill called stone masonry.
Stone masonry encompasses the erection or installation of all types
of structural stone to the exterior of buildings. In order to qualify
as a stonemason , an apprenticeship or certain other requirements of
the International Union must be fulfilled. When a brickmason or a
marble mason has completed the necessary requirements, the Inter-
national certifies him by placing an extra "M" on his union card .5
s Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman McCulloch and
Members Brown and Jenkins].
'There is no evidence in the record concerning the limitations on the types of mate-
rial a brick mason may handle, but in view of the range of materials involved in stone
masonry, infra, we assume that some limitation in this respect does exist.
6 The cards of stonemason members of Local No. 2 contain "BMM" designations, and
the stonemason members of Local 32 have " MMM" designations.
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This indicates that the member is a journeyman stonemason in addi-
tion to his basic trade. It is the application of this latter skill with
which we are here concerned.
The Employer is a marble mason contractor, and is signatory to a
collective-bargaining contract with Local No. 32. The contract by its
terms is supplemental to, and made a part of, a national agreement
between the National Association of Marble Dealers and the Brick-
layers, Masons and Plasterers International Union of America. The
national agreement expressly limits its application to "the erection or
installation of interior marble, structural glass, slate or stone work,
both natural or artificial ... in any public or private building."
The Employer contracted to install interior marble and exterior
granite on the new addition to the Detroit Institute of Arts. The con-
tract between the Employer and the general contractor, Barton-Malow
Company, contains a provision requiring the Employer to abide by
the rules, regulations, and procedures of the National Joint Board for
the Settlement of Jurisdictional Disputes.6
The Employer assigned the work on the Institute of Arts project
to its own employees represented by Local No. 32. However, only
those employees who were also qualified stonemasons were assigned to
install the exterior granite. During the period material to the dispute
the Employer normally used two stonemasons on the project. But on
at least one occasion it had four stonemasons on the job.7 The number
of stonemasons was dependent upon the amount of preparatory work
completed by other crafts, and there is testimony in the record that
the Employer anticipated utilizing four stonemasons on the project
once the work of the other crafts had progressed enough to make this
possible.
B. The dispute
In August 1964, Fergus Johnson and William Smith, president and
business representative, respectively, of Local No. 2, visited the Insti-
tute of Arts project. They were accompanied by John Lodge, an
International vice president of the Union. Smith informed employee
Richard Savage that he would see to it that Savage and his brother
would not install the exterior granite. Savage insisted that the work
belonged to them as stonemasons. On September 8, 1964, the manager
of labor relations of the Detroit Chapter of the Associated General
Contractors (of which the general contractor is a member) wired the
6 In this connection, we note that neither the national agreement nor the Employer's
contract with Local No. 32 requires the Employer to use the services of, or abide by
the decisions of, the National Joint Board
'Two employees , Richard and Raymond Savage, were permanently assigned as stone-
masons on the project Employees Gray and Meredyk also worked on the project in-
termittently. However, as the rate of progress of the other crafts generally was such
that only two stonemasons could be used, the latter employees were assigned duties at
various other projects of the Employer.
LOCAL NO. 2 OF DETROIT, BRICKLAYERS, MASONS, ETC. 2S1
International Union advising it of the dispute and requesting a deter-
mination on jurisdiction of the works The International Union
replied by wire on September 9, 1964, that the installation of exterior
granite was the work of stonemasons. On the basis of the latter wire,
Johnson informed Brace, the Employer's business manager, on Sep-
tember 10, 1964, that the work belonged to Local No. 2 and that the
Employer would have to sign a contract with Local No. 2. Brace pro-
tested that the Employer had qualified stonemasons performing the
work and that the Employer had a current contract with Local No. 32.
At this point Johnson threatened to picket the job the following morn-
ing a However , the Employer continued to refuse to alter the assign-
ment or to execute a contract with Local No. 2.
By letter dated September 25, 1964, the International Union notified
the Employer that the installation of the exterior granite was the work
of the stonemasons affiliated with Local No. 2. Thereafter, a meeting
was held on October 5, 1964, among the representatives of Local No. 2,
Vice President Lodge of the International Union, the Employer, the
business representative of Local No. 32, and employee Richard Savage.
Local No. 2 again insisted that the work was under its jurisdiction and
that the Employer sign a contract with it. The business representative
of Local No. 32, indicating that he was under pressure from the Inter-
national Union, acquiesced in the demands of Local No. 2. However,
Savage, speaking on behalf of the Employer's stonemason employees,
insisted that the work assignment remain unchanged. Local No. 2
then offered to allow the Employer to keep the two Savage brothers
on the job, but insisted that the Employer sign a contract with it and
that the problem of additional stonemasons on the job be worked out
by Local No. 2 and the employee involved. The Employer refused to
accede to the demands of Local No. 2 and filed the charge herein.
C. Contentions of the parties
The Employer contends that it has a collective-bargaining agree-
ment with Local No. 32 and that the work has been properly assigned
to its employees who are represented by Local No. 32. The Employer
further contends that the installation of exterior granite has only been
assigned to employees who are stonemasons, and have been so qualified
by the International Union.
The employees to whom the work has been assigned claim that they
are stonemasons and are qualified to perform the work.
Local No. 2 claims that no jurisdictional dispute exists within the
meaning of Section 10 (k) as both it and Local No. 32 agree that the
work is within the jurisdiction of Local No. 2, and further, that there
'The wire stated in part that "Decora has assigned this work to marble setters and
stonemasons of Bricklayers ' Local No. 2 , Detroit are claiming it "
9 The threat to picket was never carried out by Local No 2
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has never been a demand that the Employer discharge any employees
and replace them with members of Local No. 2. Local No. 2 also
claims that even if there is a jurisdictional dispute, there is an agreed-
upon method of resolving the dispute under the terms of the Employ-
er's contract with the general contractor, and the notice of hearing
should be quashed.
IV. APPLICABILITY OF THE STATUTE
As observed above, Local No. 2 denies that a jurisdictional dispute
exists. We do not agree. The record clearly shows that Local No. 2
claims the work to be within its trade jurisdiction. Although Local
No. 2 alleges that it made no demand for the discharge of any member
of Local No. 32 presently performing the work and offered to allow
the Employer's assignment to remain unchanged as to two employees,
we note that, on at least one occasion, the Employer had four employ-
ees assigned to install the granite and reasonably expected to assign
additional employees as the work progressed. We find, therefore, that
Local No. 2, by insisting that the Employer sign a contract with it,
was claiming jurisdiction over the work and the employees performing
the work. Concededly, the business representative of Local No. 32
acquiesced in the demands of Local No. 2, but it is pertinent to observe,
in this connection, that the Employer's employees, members of Local
No. 32, continue to assert their claim to the work.
We also reject the contention that there is an agreed-upon method,
binding on the parties, for voluntary adjustment of the dispute. The
controversy here is intraunion in character, and examination of the
procedural rules of the National Joint Board reveals that disputes of
this type would not be entertained by that forum. Accordingly, we
find that the agreement between the Employer and the general con-
tractor does not provide a means of adjusting the competing claims
within the meaning of Section 10 (k) of the Act.
On the basis of the entire record before us, including the admission
of Local No. 2 that it threatened to picket the project, we find that
there is reasonable cause to believe that a violation of Section 8(b)
(4) (D) of the Act has occurred and that the dispute is properly before
the Board for determination under Section 10(k) of the Act.
V. THE 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, and the Board has held that its determination in a
jurisdictional dispute case is an act of judgment based upon common-
sense and experience and a balancing of all relevant factors 10
10lnternational Association of Machinists , Lodge No. 1743, AFL-CIO (J. A. Jones
Construction Co.), 135 NLRB 1402.
LOCAL NO. 2 OF DETROIT, BRICKLAYERS, MASONS, ETC. 283
Examination of the factors normally considered by the Board reveal
many of them to be of minimal assistance in determining the dispute
in this case. The contract between the Employer and Local No. 32
by its terms only relates to the installation of marble and structural
stone in the interior of buildings, and is silent with respect to exterior
work. Thus the contract presents no basis on which to predicate a
determination in favor of Local No. 32.
Nor do the skills involved offer a solution. The stonemason mem-
bers of both Local Unions are certified as such by the same Interna-
tional Union and possess identical skills. As their basic trades are
not relevant in performing the work in dispute, i.e., brick masonry
vis-a-vis marble masonry, there is no valid basis for distinguishing
between the skills of the stonemason members of either Local Union.
The testimony shows that stonemason contractors in the area who
have collective-bargaining agreements with a labor organization gen-
erally have such agreements with Local No. 2. However, the testimony
also shows that marble mason contractors, while they generally con-
tract for interior work, assign whatever exterior work they are required
to perform to their own employees. Because of the apparent over-
lapping of the types of work performed by the specialized contractors,
the area practice does not offer a consistent pattern which weighs in
favor of either disputant.
Local No. 2 claims jurisdiction over the disputed work by virtue of
the award by the International Union. However, we do not find this
factor to be controlling. In this connection, we note that the Employer
was not a party to the request for the determination. Moreover, the
Employer's subsequent actions clearly indicate that it does not intend
to be bound thereby.1'
In the particular circumstances of this case, we have decided to
award the contested work to the Employer's stonemason employees
who are represented by Local No. 32. These employees have been
assigned the work, they have performed the work to the Employer's
satisfaction, and the Employer desires to retain them on the job.
Moreover, this assignment is consistent with the Employer's past prac-
tice and allows the use of skilled craftsmen, qualified by the Interna-
tional Union, in their specialized area of work. In making this deter-
mination, we are awarding the controverted work to the Employer's
stonemason employees represented by Local No. 32 and not to that
Local Union or its members. Furthermore, our determination is lim-
ited to the particular controversy that gave rise to this proceeding.
n Cf. Local 69, United Association of Journeymen and Apprentices of the Plumbing
and Pspefittcng Industry , etc. (Bellezza Company, Inc.), 149 NLRB 559.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Relations Act, as
amended, and upon the basis of the foregoing findings, the National
Labor Relations Board makes the following Determination of
Dispute.
1. The stonemasons employed by Decora, Inc., who are represented
by Local No. 32, Bricklayers, Masons, and Plasterers International
Union of America, AFL-CIO, are entitled to perform the work of
installing and erecting the exterior granite on the new addition to the
Detroit Institute of Arts building, Detroit, Michigan.
2. Local No. 2 of Detroit, Bricklayers, Masons and Plasterers Inter-
national Union of America, AFL-CIO, is not entitled, by means pro-
scribed by Section 8(b) (4) (D) of the Act, to force or require Decora,
Inc., to assign the above work to stonemasons represented by Local
No. 2.
3. Within 10 days from the date of this Decision and Determination
of Dispute, Local No. 2 of Detroit, Bricklayers, Masons, and Plasterers
International Union of America, AFL-CIO, shall notify the Regional
Director for Region 7, in writing, whether it will or will not refrain
from forcing or requiring Decora, Inc., by means proscribed by Sec-
tion 8 (b) (4) (D) of the Act, to assign the work in dispute to stone-
masons represented by Local No. 2 rather than stonemasons repre-
sented by Local No. 32.
New Fashion Cleaners, Inc. and Laundry, Dry Cleaning and Dye
House Workers ' International Union , Local No . 52, Union-Peti-
tioner. April 29,1965
DECISION AND ORDER GRANTING MOTION TO
CLARIFY NONCERTIFIED BARGAINING UNIT
Upon a motion for clarification of noncertified unit, filed by Laundry,
Dry Cleaning and Dye House Workers' International Union, Local No.
52, herein called Local 52, and New Fashion Cleaners, Inc., herein
called New Fashion, a hearing was held before Hearing Officer Barton
W. Robertson of the National Labor Relations Board.' The Hearing
Officer's rulings made at the hearing are free from prejudicial error
and are hereby affirmed.2
i white Front Stores, Inc ., was permitted to intervene in this proceeding because of
its lease agreement with New Fashion, the Employer-Petitioner. Retail Clerks Union,
Locals Nos . 770 and 905 , API-CIO, herein referred to as the Retail Clerks, was
permitted to intervene on the basis of its claim that it is a party to contracts covering
the employees involved in this proceeding.
2 The Hearing Officer referred to the Board the Retail Clerks ' motion to dismiss the
motion for clarification . For the reasons stated infra, this motion is hereby denied.
152 NLRB No. 16.