Operative Plasterers, Local Union No. 21

National Labor Relations Board - Board DecisionsJun 16, 1975

218 N.L.R.B. 512 (N.L.R.B. 1975)

512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Operative Plasterers and Cement Masons Internation- al Association, Local Union No. 21 and Universal Terrazzo & Tile Co.' and Bricklayers, Masons and Plasterers Union of America, Local No. 1. Case 18-CD-179 June 16, 1975 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Universal Terrazzo & Tile Co., herein called Employer, alleging that Operative Plasterers and Cement Masons International Associ- ation, Local Union No. 21, herein called Cement Masons, violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to employees represented by Cement Masons rather than to employees represented by Bricklayers, Masons and Plasterers Union of America, Local No. 1, herein called Bricklayers Local 1. Pursuant to notice, a hearing was held before Hearing Officer Janies P. Miller on March 12 and 13, 1975. All parties, including the Employer, Cement Masons, and Bricklayers Local 1,2 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. Thereafter, the Employer and Cement Masons filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we fmd, that the Employer, a Nebraska corporation with its principal office in Omaha, Nebraska, is a subcontractor of terrazzo tile, marble, and specialty floor coverings. The Employer presently has a subcontract with Thompson-Klinger in excess of $140,000 for the 1 The name of the Charging Party appears as amended at the hearing. 2 Also appearing at the hearing were the following parties in interest: James Thompson & Sons, Inc. and W . A. Klinger, Inc., a Joint Venture, herein called Thompson-Klinger, is the general contractor who subcontract- ed the work in dispute to the Employer. It was represented at the hearing by 218 NLRB No. 96 installation of terrazzo and seamless floors at the Veterinary Medicine Facilities, Iowa State Universi- ty, Ames, Iowa. During the past year, which is a representative period, the Employer received at its Ames, Iowa, jobsite goods shipped to it from points located directly outside the State of Iowa valued in excess of $50,000. Accordingly, 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 purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated , and we find, that Cement Masons , Bricklayers Local 1, and Bricklayers Local 27 are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts The following facts are undisputed. On January 30, 1973, the Employer entered into a subcontract agreement with general contractor Thompson-Kling- er for the installation of terrazzo and seamless floors at the Veterinary Medicine Facilities, Iowa State University, Ames, Iowa, herein called the Ames Project. Thereafter, the Employer assigned the work of installing the conductive and seamless flooring (the terrazzo flooring work is not involved in this proceeding) to its own employees represented by Bricklayers Local 1. Prior to the commencement of work, the Employer contacted Bricklayers Local 27, which has jurisdiction over the geographic area in which the Ames jobsite is located, with respect to the availability of qualified workmen. Upon being informed that there were no members of Bricklayers Local 27 qualified to install conductive and seamless flooring, an agreement was reached between the two Bricklayers locals whereby employees represented by Local 1 could work for the Employer on the project. The Employer began installing the conductive and seamless flooring at the Ames Project during the first week of February 1975. On or about February 10 and 12, 1975, Carl Osterhoudt, business agent for Cement Masons, made claims for this work during meetings attended by representatives of the parties involved in this proceeding. On February 17, Osterhoudt placed a picket at the main entrance to the jobsite with a sign which read, "Universal Terrazzo & Tile subcontractor has no contract with the attorney representing the Employer . Bricklayers, Masons and Plasterers Union of America, Local No. 27, herein called Bricklayers Local 27, is the Bricklayers local which has jurisdiction over the geographic location of the disputed work . It was represented at the hearing by the individuals representing Bricklayers Local I. OPERATIVE PLASTERERS, LOCAL UNION NO. 21 513 Cement Masons Local 21, 1501 East Aurora, Des Moines." This picket with the above sign remained at the jobsite during the regular workday on February 17 and 18, 1975. On February 19, Osterhoudt changed the picket sign to read, "Thompson and Sons Construction Company, in violation of agree- ment, Cement Masons Local 21, 1501 East Aurora." This picket was removed on February 19 at approxi- mately 9:30 a.m., and Cement Masons has not engaged in any further picketing at the jobsite. During the picketing, employees of other Ames Project subcontractors did not perform their assigned work. On February 19, 1975, the charge in the instant case was filed. The work in dispute had not been completed at the time of the hearing. B. The Work in Dispute The work in dispute consists of the installation of the conductive and seamless flooring at the Veteri- nary Medicine Facilities, Iowa State University, Ames, Iowa, phases I and II. C. Contentions of the Parties Cement Masons contends that this proceeding is not properly before the Board. Specifically, Cement Masons argues that, in view of the fact that the Unions involved in this proceeding, through their respective Internationals, are bound to submit jurisdictional disputes to the Impartial Jurisdictional Disputes Board for the Construction Industry, herein called the Impartial Jurisdictional Disputes Board, the parties have provided a means for the private settlement of this dispute. Therefore, it asserts that this Board should not determine the instant dispute, but should defer to the procedures established by the Unions involved for the settlement of such disputes. Alternatively, Cement Masons claims the work on the basis of area and industry practice and on certain decisions by various dispute settlement bodies in the construction industry, herein collectively referred to as Impartial Board determinations. The Employer and Bricklayers Local 1 contend that there is no agreed-upon method for the voluntary settlement of the instant dispute to which all parties are bound. As to the merits of the dispute, they assert that the Employer's assignment of the work to employees represented by Bricklayers Local 1 is consistent with their collective-bargaining agree- ment, the past practice of the Employer, and area practice, and is further supported by considerations of skills, efficiency, and economy of operations. D. Applicability of the Statute Before the Board may proceed with a determina- tion of 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 there is no agreed-upon method for the voluntary settlement of the dispute. As stated above, it is uncontroverted that Cement Masons demanded the disputed work and picketed the jobsite in support of its demand. Based on the foregoing and the record as a whole, we fmd that an object of Cement Masons picketing was to force or require the Employer to assign the disputed work to employees represented by it rather than to employees represented by Bricklayers Local 1. Accordingly, we fmd that reasonable cause exists to believe that Cement Masons violated Section 8(bx4)(D) of the Act. We find no merit in Cement Masons contention that the parties have provided a means for the voluntary settlement of this dispute. The parties stipulated, and we find, that the Employer is not bound to submit this dispute to the Impartial Jurisdictional Disputes Board for settlement. There- fore, the fact that the Unions involved have agreed upon a method for settlement of the dispute does not compel the Board to dismiss this proceeding, as it is now well settled that the employer controlling the assignment of the work is a necessary "party" to the dispute and must agree to the method of adjustment of the dispute to satisfy the requirements of Section 10(k) of the Act .3 It is clear from the foregoing, and we fmd, that at the time of the instant dispute there did not exist any agreed-upon or approved method for the voluntary adjustment of the dispute to which all parties to the dispute were bound. Accordingly, the matter is properly before the Board for determination. E. 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 various relevant factors. 1. Certification and collective-bargaining agreements Neither of the labor organizations herein involved has been certified as the collective-bargaining repre- sentative for a unit of the Employer's employees. The Employer has no collective-bargaining agreement with Cement Masons. Although the Employer has a current collective-bargaining agreement with Brick- layers Local 1, it does not specifically cover the work 3 N.L.RB. v. Plasterers Local Union No. 79, Operative Plasterers' and Cement Masons' International Association, AFL-CIO, 404 U.S. 116 (1971). 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in dispute. The factors of certification and collective- bargaining agreements, therefore, are not helpful to a determination. 2. Employer's assignment and practice It is undisputed that the Employer, for the past 10 or 15 years, has consistently assigned the work in dispute to its employees represented by Bricklayers Local 1. The Employer's practice, therefore, favors the Employer's assignment. 3. Area and industry practice The Employer introduced into evidence a list of construction projects in Iowa, Nebraska, and South Dakota at which its employees represented by Bricklayers Local 1 installed special flooring similar to the conductive and seamless flooring required on the Ames Project. Similarly, Cement Masons submit- ted a list of projects covering the States of Minneso- ta, Wisconsin, North Dakota, South Dakota, and Iowa at which employees of the cement masons trade performed various types of special flooring work. Additionally, Cement Masons presented testimony that employees represented by it have installed seamless flooring at several jobsites within its jurisdiction. The evidence relating to area and industry practice is, therefore, inconclusive. 4. Relative skills, efficiency, and economy of operations Although both groups of employees are generally skilled in the installation of special flooring, the record reveals that the process is extremely complex and there are significant differences in the various types of products used. The particular flooring product being utilized by the Employer on the Ames Project is "Selbatuf ' manufactured by Selby, Batters- by and Company of Philadelphia, Pennsylvania, herein called Selby or Selby product. The Employer's exclusive franchise agreement with Selby, Battersby and Company requires that employees installing and applying the Selby product receive specialized training from the manufacturer. The Employer presented testimony that the flooring work on the Ames Project is being performed by three of its employees represented by Bricklayers Local 1 who have received this specialized training at an approxi- mate cost to the Employer of $1,200 per man. It is undisputed that employees represented by Cement Masons have not been schooled or trained by the manufacturer in the application of the Selby product. 4 The decision was so referred to because it is contained on p. 121 of a green booklet approved by the Building and Construction Trades Department, AFL--CIO, entitled "Plan for the Settlement of Jurisdictional The factor of relative skills, therefore, favors the Employer's assignment. The Employer urges that factors of economy and efficiency of operations support its assignment. Thus, the three specially skilled employees represented by Bricklayers Local 1 are maintained on the Employ- er's payroll throughout the year and are readily available to work at various jobsites of the Employer in Iowa and Nebraska. Furthermore, the Employer presented testimony that it would be prohibitively expensive to train workers in the application of the Selby product each time it has a project in a new locality. Since the record does not establish that it would be at least as economical to utilize employees represented by Cement Masons, we fmd that the factors of efficiency and economy of operations favor the Employer's assignment. 5. Impartial Board determinations Cement Masons contends that decisions of the Impartial Jurisdictional Disputes Board and the former National Joint Board for the Settlement of Jurisdictional Disputes favor awarding the disputed work to employees represented by it. Cement Masons introduced into evidence several such awards pertaining to the installation of seamless flooring. In addition, Cement Masons places particu- lar reliance on a 1926 decision of the National Board for Jurisdictional Awards in the Building Industry, generally referred to by the parties as the "green book decision." 4 The record reveals, however, that the use of chemical products, such as Selby, in flooring processes is a development of only the past 20 years and therefore it is unlikely that such products were contemplated at the time of the 1926 decision. The Employer and Bricklayers Local 1 contend that the several Impartial Board awards have no bearing upon the issue at hand because they involve work which is not completely comparable to the work herein and because they involve parties who did not participate in the dispute, were not bound by the decision, and are different from the ones in the instant case. Although we have considered such awards a factor in determining the proper assignment of the disputed work, we fmd that the awards submitted in, evidence by Cement Masons are neither binding on the Employer nor determinative of area or national practice. Disputes in the Construction Industry ." The decision involved the Internationals of the Unions who are here involved and is entitled "Placing of Trap Rock Floors by Terrazzo Methods." OPERATIVE PLASTERERS, LOCAL UNION NO. 21 515 Conclusion Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that the Employer's employees represented by Bricklayers Local 1 are entitled to perform the work in dispute. We reach this conclusion upon the facts that the assignment is consistent with the Employer's preference and past practice; it is not clearly inconsistent with area practice or the Employ- er's collective-bargaining agreement with Bricklayers Local 1; the employees represented by Bricklayers Local I possess the requisite skills and specialized training needed to perform the work; and such assignment will result in greater efficiency and economy of operations. Accordingly, we shall deter- mine the dispute before us by awarding the work in dispute to the Employer's employees represented by Bricklayers Local 1, but not to that Union or its members . In consequence, we also find that Cement Masons is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer to assign the disputed work to employees represented by it. DETERMINATION OF 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 makes the following Determination of Dispute: 1. Employees of Universal Terrazzo & Tile Co. who are currently represented by Bricklayers, Ma- sons and Plasterers Union of America, Local No. 1, are entitled to perform the work of installing the conductive and seamless flooring at the Veterinary Medicine Facilities, Iowa State University, Ames, Iowa, phases I and' II. 2. Operative Plasterers and Cement Masons International Association, Local Union No. 21, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Universal Terrazzo & Tile Co. to assign the above work -to employees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Operative Plasterers and Cement Masons International Association, Local Union No. 21, shall notify the Regional Director for Region 18, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to employees represented by Cement Masons rather than to employees represented by Bricklayers Local 1.