Operative Plasterers & Cement Masons, Etc.

National Labor Relations Board - Board Decisions

Jun 15, 1965

152 N.L.R.B. 1609 (N.L.R.B. 1965)

OPERATIVE PLASTERERS & CEMENT MASONS, ETC. 1609
ing estimators, all other crafts, office clericals, guards, and super-
visors,10 as defined in the Act.ll
10 Individual employers designate their foremen and general foremen from among the
journeymen employees referred to particular jobs pursuant to the hiring hall provisions
of the bargaining agreement here involved These designations continue only for the
referral period , and, upon termination , the employees who served as foremen and general
foremen return to the hall and register as journeymen The record indicates that there
is a rapid and frequent change in the journeymen employees thus selected to serve as
foremen and general foremen Consequently , we find that whatever supervisory authority
is exercised by employees acting either as foremen or general foremen is irregular and
sporadic and does not warrant a finding that such employees are excluded from the unit
u The unit is set forth above substantially as amended at the hearing
APPENDIX
The following employers are signatories to letters of "Assent A"
and constitute the multiemployer bargaining unit herein found
appropriate :
Bomur-Chauvin Kelly Electric Co.
Boone Electric Company Las Vegas Electric
Bowers Electric , Inc. McDowell Electric
Britt Electric Co. Mesa Electric Co.
Carnell Electric Modern Electric Co.
L. H. Chant Electric Co. Newbery Electric Corp.
City Electric Co., Inc. of Arizona
K. L. Conwell Electric Co. Powell Electric Corp.
Dawson Electric , Inc. Reno Electric Co.
Dee Electric Co. Reynolds Electrical &
Eagle Electric , Inc. Engineering Co.
Fulkerson Electric State Electric Co.
Gamblin Electric Company Titan Electric Service Co.
Grimes & Morris, Inc. Wearden Electric
Heights Electric Co. Yearout Electric Co., Inc.
Imperial Electric
Operative Plasterers and Cement Masons International Associa-
tion , Plasterers and Cement Masons, Local No. 65 , and Dan
Gustafson 1 and Twin City Tile and Marble Company 2 and Tile
Layers Union No. 18 of the State of Minnesota , of the Brick-
layers, Masons and Plasterers International Union of America,
AFL-CIO; and Tile and Marble Setters Helpers, Twin City
Local 34, Marble, Slate and Stone Polishers, Rubbers and
Sawyers, Tile and Marble Setters Helpers, AFL-CIO.' Case
No. 18-CD-36. June 15,1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10 (k) of the National Labor
Relations Act, as amended, following a charge filed by Twin City Tile
'The name of the Respondent Union , herein called the Plasterers , appears as amended
at the hearing.
2 Herein called Twin City or the Employer.
2 Herein called the Tile Layers.
152 NLRB No. 148.
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Marble Company, alleging a violation of Section 8(b) (4) (D) of
the Act by the Plasterers, Local No. 65, and its business agent, Dan Gus-
tafson. The charge alleges, in substance, that the Plasterers threat-
ened, coerced, and restrained the Employer and others with an object
of forcing or requiring the Employer to assign particular work to
employees represented by the Plasterers rather than to employees rep-
resented by the Tile Layers. Pursuant to notice, a hearing was held
before Hearing Officer David R. Hols, on September 22, 23, 24, and 25
and October 13, 14,15, and 16, 1964. 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
prejudicial error and are hereby affirmed. The Plasterers, the Tile
Layers, and Twin City filed briefs which have been duly considered.
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 [Chairman McCulloch and Members
Fanning and Brown].
Upon the entire record in this case, the Board makes the following
findings :
1. The business of the Employer
Twin City Tile and Marble Company is engaged in the business of
furnishing and installing marble, terrazzo, and ceramic tile. It has its
principal office and place of business in Minneapolis, Minnesota. It
yearly makes purchases of goods and materials valued in excess of
$500,000 from points located outside the State of Minnesota. The par-
ties stipulated, and we find, that Twin City Tile and Marble Company
is engaged in commerce within the meaning of the Act.
2. The labor organizations involved
All parties stipulated, and we find, that the Plasterers and the Tile
Layers are labor organizations within the meaning of Section 2(5) of
the Act.
3. The dispute
The Work In Issue
The work in dispute is the application to walls of a coat of Portland
cement mortar (described as the "one-coat" or "float-coat" method)
to receive ceramic tile; this coat is applied with a hawk and trowel and
is plumbed, rodded, and squared.
The Basic Facts
The job which gave rise to the dispute was the construction of an
addition to, and the remodeling of, the Roanoke Building in downtown
OPERATIVE PLASTERERS & CEMENT MASONS, ETC. 1611
Minneapolis, Minnesota. An official of the property owner, Baker
Properties, Inc., testified that the specifications for the installation of
ceramic tile called simply for one coat of mortar, tile to be applied
thereon. Bids were let on the assumption that the same contractor
would do both the mortar backup and the tilesetting, and the work was
awarded to Twin City. Twin City assigned the work of applying both
the mortar and the tile to employees represented by the Tile Layers. It
has no contract with the Plasterers and does not employ plasterers.
On July 30, 1964, Plasterers' Representative Gustafson went to the
office of Baker Properties' Vice President O. H. Swanson and stated
that the work of applying mortar backup belonged to the Plasterers
because it had been awarded such work by the National Joint Board
for the Settlement of Jurisdictional Disputes, and that if the Tile Lay-
ers continued to perform the work, it would be necessary to pull the
plasterers off the job and picket. He expressed his belief that other
trades would respect the picket line. Gustafson also called Twin City
and requested it to hire plasterers to do the disputed work. The work
was thereupon suspended until September, at which time Baker Prop-
erties ordered Twin City to resume the work. There was no picketing
and the job has been completed.
Contentions of the Parties
The Plasterers admits having threatened a strike in support of its
claim for the disputed work, but contends that the threat was not
unlawful because it was entitled to the work on the basis of the skill,
relative efficiency and quality of its work, area practice, the awards
made by the Joint Board in the instant case and in a number of related
cases, and an agreement made between the Plasterers' and the Tile Lay-
ers' International Unions. It further argues that the Plasterers have
always been entitled to, and have often been awarded, the application
of the last coat of mortar which is plumbed, rodded, and squared to
receive tile, where that coat is allowed to dry before the application of
tile. If the tile is applied while the last coat of mortar is still "wet," it
does not now claim the applications of that coat, which admittedly has
always been the work of the Tile Layers.4 Here, the tile was applied
by the Tile Layers after the coat of mortar had been allowed to dry.
The Tile Layers contends that it is entitled to the work in dispute on
the basis of the skill, relative efficiency, and quality of its work, indus-
try practice, and its contract with Twin City, which is not bound by
any Joint Board awards. It argues further that it is always entitled
to the work of applying the last coat of mortar, which is plumbed, rod-
Although the Plasterers ' position is clear in the record and briefs, when it made its
demands upon Baker Properties and Twin City, it claimed the work even if the tile were
to be set in a wet bed of mortar.
1612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ded, and squared to receive tile , whether or not that coat is allowed to
dry before tile is applied . It admits that it is bound by Joint Board
procedures , but contends that the Joint Board awards alluded to by the
Plasterers in effect award the work to it, not to the Plasterers, as the
awards state simply that the Plasterers is entitled to the work in dis-
pute on the basis of the original ( 1917 ) "Green Book" agreement
between the parties, and that the green book referred only to the con-
ventional three -coat method of plastering , in which the Tile Layers
always applied the final coat of mortar.
Twin City contends that the work should be awarded to the Tile
Layers on the basis of its contract granting them the work , and espe-
cially in view of the fact that Twin City is not bound by Joint Board
decision for this project . It contends further that the Tile Layers'
relative skills are greater, and that it is preferable , both in cost and
quality, to have tile layers apply the coat of mortar in the one-coat
method used here . Twin City concedes that plastering contractors
employing plasterers have done such backup for tile, but it contends
that when this is so , the specifications have called for separate bids on
the backup material and the application of the tile . Here, the speci-
fications called simply for the one -coat method , tile to be applied
thereon; Twin City bid on the basis of obtaining both the mortar and
the tile applications , and was awarded the job on that basis by Baker
Properties.
Applicability of the Statute
The charge herein alleges a violation of Section 8(b) (4) (D) of the
Act. The record shows, and the Plasterers does not deny, that, on
July 30, 1964, its representative, Gustafson, threatened to remove all
plasterers from the project if Baker Properties, the owner of the build-
ing at which the instant dispute arose, would not cease using tile layers
to perform the disputed work and assign it to plasterers.
We find that there is reasonable cause to believe that a violation of
Section 8(b) (4) (D) has occurred, and that the dispute is properly
before the Board for determination under Section 10 (k) of the Act.
Merits of the Dispute
Section 10 (k) of the Act requires the Board to make an affirmative
award of the disputed work after giving due consideration to all rele-
vant factors. The following factors are asserted in support of the
claims of the parties herein :
1. Collective-bargaining agreements
Twin City has delegated its bargaining authority to the Tile Con-
tractors' Association of America, and Twin City Tile Contractors'
Association. Both of these associations have collective-bargaining
OPERATIVE PLASTERERS & CEMENT MASONS, ETC. 1613
agreements with the Tile Layers' International Union. Twin City is
also party to a collective-bargaining agreement pertaining to local
conditions with Tile Layers Union No. 18. The agreements awards
to tile layers the setting of tile and the preparation and setting of "alI
concrete, cement, brick work, or other foundations or material that may
be required to properly set and complete such work." Twin City has
no contracts with the Plasterers, and does not employ plasterers.
There have been no Board certifications bearing on the work in dispute.
2. Company, area, and industry practice
It has always been the practice of Twin City to use tile layers to per-
form the disputed work. The Plasterers and the Tile Layers offered
considerable evidence as to area and industry practice, but this evidence
is inconclusive. Although the record indicates that in some localities
agreements have been made between the two unions as to the disputed
work, it also clearly appears therefrom that in the Minneapolis-St.
Paul area here involved, as in many other areas, some contractors have
been employing plasterers to perform the dispute work, while others
have been employing tile layers. Thus, the assignment here of the
disputed work to tile layers accords with the practice of Twin City, and
is not inconsistent with area or industry practice.
3. Relative skills and efficiency of operation
The Tile Layers contends that tile layers are more skilled and more
efficient in applying a backup coat which is plumbed, rodded, and
squared to receive tile, because only a tile layer knows exactly how to
prepare a wall to the closest possible tolerance to receive tile. Twin
City agrees basically with the Tile Layers, and also contends that it is
more efficient, especially where only one coat of mortar is to be applied,
to use the same craft for both the mortar work and the tile laying. The
Plasterers contends, however, and the record supports its contention,
that plasterers are trained to work to as close tolerance as do tile lay-
ers. It contends further that plasterers can work faster because they
do plastering full-time rather than part-time, and that it is therefore
more economical to use plasterers.
The Board is satisfied from the entire record that neither craft can
claim superior skill with regard to the application of the mortar bed.
Although it appears to be a necessity to use the same craft for both the
last mortar coat and the tile laying if the tile is to be set while the last
coat is wet, it further appears that where the last coat is allowed to dry
before application of the tile, as was the case on the instant project,
using one craft or two is equally efficient.
Twin City's assignment, therefore, was not inconsistent with either
the relative skills involved, or with efficiency of operation.
1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Other agreements
Offered in evidence was a copy of the 1917 "Green Book" agreement
between the Plasterers and the Tile Layers. This agreement dealt
with the rights of the two unions under the conventional method of
applying tile; i.e., the method which entailed the use of three coats of
mortar. This agreement provided that ". . . plasterers ... shall pre-
pare or plaster all walls which are to receive tile. They shall plumb,
rod and square all walls and scratch the same so as to guarantee
adhesion of the final coat which shall be put on by the Tilelayer to act
as a bed for his tile." Incorporated into the "Green Book" is a copy
of a 1924 award which spelled out this division of work in substan-
tially the same terms.
The Plasterers gave evidence of an agreement between Chicago locals
of the Plasterers and the Tile Layers which allowed the Tile Layers
to apply the mortar backup in the one-coat method only if the tile were
to be set while the mortar was still plastic. However, the Tile Layers
offered a resolution of their union repudiating that agreement. The
Plasterers also gave evidence of a similar agreement as to a particular
project in the Minneapolis area in 1962; however, the Tile Layers
offered evidence showing that such agreement was adopted only as a
temporarly expedient.
5. Action of the Joint Board
Both the Plasterers and the Tile Layers agree that they are bound by
the National Joint Board for the settlement of jurisdictional disputes.
Twin City stated that it has in the past signed contracts containing
clauses which bound it to the joint board for particular projects, but
its contract for the instant project does not so bind it. Nor were the
associations of which it is a member bound by joint board decisions at
the time of the assignment.
There are in evidence a substantial number of joint board decisions
awarding work of the type in dispute to plasterers rather than to tile
layers. One of those decisions pertains to the instant project. With
one exception, however, all of those decisions award the work to plas-
terers because the joint board felt that the "work in dispute is gov-
erned by the agreement [Green Book] of record of August 22, 1917,
and the decision of record of February 21, 1964." But, as to the North
Star Building project in the Minneapolis area, the Joint Board stated :
"The final setting bed shall be applied by tile setters. Plasterers shall
plumb, rod and square all walls which are to receive tile." 5
6 The uncertainty of the terms of this award necessitated a meeting and discussion
between the Tile Layers and the Plasterers . While not agreeing that the award granted
the work to the Plasterers, the Tile Layers agreed to withdraw from the work of applying
the mortar backup as a temporary expedient.
OPERATIVE PLASTERERS & CEMENT MASONS, ETC. 1615
It is undisputed that under the conventional method used exclu-
sively in 1917 and 1924 the third coat or final coat of mortar was con-
sidered the "setting bed" for the tile. The Plasterers contends, how-
ever, that under the one-coat method, the mortar coat can be called
the setting bed only if tile is applied to it while the coat is still plastic
or wet. It therefore contends that a coat of mortar that is allowed to
dry cannot be called the setting bed, and hence is work properly
assigned to plasterers. The Tile Layers admits no such distinction. It
takes the position that a setting bed is a coat of mortar prepared to
proper tolerance to receive tile, whether the mortar is wet or dry when
the tile is applied. It argues further that under the terms of the
"Green Book" award, the Plasterers was awarded only the work of
preparing walls for proper "adhesion of the final coat which shall be
put on by the Tile Layers to act as a bed for his tile." Hence, it argues
that the Joint Board erred because, even granting that the 1917 agree-
ment and 1924 award are applicable, its conclusion and award did not
follow from the terms of the agreements It therefore refused to abide
by the decision of the Joint Board in the instant case.
On the basis of the foregoing factors, and upon the entire record,
including the fact that Twin City was not bound by the Joint Board
award for the instant project, the Board is of the opinion that the
Joint Board award in the instant case should not be accorded control-
ling weight.?
CONCLUSION AS TO THE MERITS OF THE DISPUTE
Upon consideration of all pertinent factors, we shall assign the work
in dispute to tile layers. They are at least as skilled in the performance
of the work as plasterers, and Twin City, which assigned them to the
work, has been satisfied with both the quality of their work and the
cost of employing them. The assignment of the disputed work to tile
layers was consistent with Twin City's past practice, and not incon-
sistent with area or industry practice. We conclude that Twin City's
assignment of the work to tile layers should not be disturbed. We shall,
accordingly, determine the existing jurisdictional dispute by deciding
that tile layers, rather than plasterers, are entitled to the work in dis-
pute. In making this determination, we are assigning the disputed
work to the employees of Twin City, who are represented by the Tile
Layers, but not to that Union or its members.
The work which gave rise to the instant dispute has already been
completed. Twin City and the Tile Layers request the Board to make
an award not limited to the Roanoke project, and suggest that such
award be made coextensive with the geographical territory in which
6 Twin City takes the same position as does the Tile Layers in this regard
7 However, note below the discussion as to the reconstituted Joint Board.
1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Twin City operates, in view of the fact that the dispute promises to
arise repeatedly in the future. Where the Board, as here, makes an
award in a dispute that promises to recur between the same parties, it
would ordinarily make that award broad enough to encompass at least
the geographical area in which the employer operates, and in which
the jurisdictions of the unions coincide. We shall, however, limit our
award herein to the Roanoke project, in view of the fact that since this
case arose the Joint Board has been reconstituted.
On February 2,1965, an agreement establishing a new National Joint
Board for the Settlement of Jurisdictional Disputes was signed by all
unions affiliated with the Building and Construction Trades Depart-
ment, AFL-CIO, in the building and construction industry, and by the
Associated General Contractors of America and The Participating
Specialty Contractors Employers' Associations. The agreement
became effective April 1, 1965. Membership on this new Joint Board
will rotate so that all building trades unions of the AFL-CIO, and all
participating contractors will have the opportunity to take part in
making decisions.
The new agreement adds to the criteria to be considered by the Joint
Board efficiency and economy of operation. It also provides for an
appeals board to be composed of members other than those on the board
that rendered the initial decision.
The Board has on numerous occasions asserted its belief in the desir-
ability of voluntary settlement of disputes. This agreement seems to
be an important step in that direction. Because the parties might well
be able to resolve recurrences of this dispute before the present Joint
Board, we think it desirable at this time not to make the broader award
that has been requested.8 We therefore limit our award to the Roanoke
project.
DETERMINATION OF THE DISPUTE
Pursuant to Section 10 (k) of the National Labor Relations Act, as
amended, and upon the basis of the foregoing findings and the entire
record in this proceeding, the National Labor Relations Board hereby
makes the following Determination of Dispute.
1. Tile layers employed by Twin City Tile and Marble Company,
who are represented by Tile Layers Union No. 18 of the State of Min-
nesota, of the Bricklayers, Masons and Plasterers International Union
of America, AFL-CIO, and Tile and Marble Setters Helpers, Twin
City Local 34, Marble, Slate and Stone Polishers, Rubbers and Saw-
yers, Tile and Marble Setters Helpers, AFL-CIO, are entitled to per-
form the work of applying the one coat or float-coat of Portland cement
B We are not to be understood as intimating any view as to what that award should be.
A & A MAINTENANCE CORP . 1617
mortar as backup material to receive ceramic tile in the Roanoke Build-
ing at Minneapolis , Minnesota.
2. Operative Plasterers and Cement Masons International Associa-
tion, Plasterers and Cement Masons, Local No. 65, and Dan Gustaf-
son, are not entitled, by means proscribed by Section 8 (b) (4) (D) of
the Act to force or require Twin City Tile and Marble to assign the
above work to plasterers.
3. Within 10 days from the date of this Decision and Determination
of Dispute, Operative Plasterers and Cement Masons International
Association, Plasterers and Cement Masons, Local No. 65, and Dan
Gustafson, shall notify the Regional Director for Region 18, in writing,
whether they will or will not refrain from forcing or requiring Twin
City Tile and Marble Company, by means proscribed by Section 8(b)
(4) (D), to assign the work in dispute to plasterers rather than tile
layers.
A & A Maintenance Corp . and Taxi Drivers Organizing Commit-
tee, AFL-CIO. Case No. 2-CA-10292. June 16, 1965
DECISION AND ORDER
On March 12, 1965, Trial Examiner Ivar H. Peterson issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, and orders that
152 NLRB No. 157.
789-730-66-vol. 152-103