Plasterers' Local #155

National Labor Relations Board - Board DecisionsNov 14, 1975

221 N.L.R.B. 695 (N.L.R.B. 1975)

PLASTERERS ' LOCAL #155 Plasterers' Local # 155, affiliated with Operative Plasterers ' and Cement Masons ' International Association of the United States and Canada, AFL-CIO and The Ba -Mor Company, Inc. and Bricklayers' and Masons' P & B Union # 1 of Maryland . Case 5-CD-215 November 14, 1975 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by The Ba-Mor Company, Inc., herein called the Employer, on July 16, 1975, alleging that Plasterers' Local # 155, affiliated with Operative Plasterers ' and Cement Masons' International Asso- ciation of the United States and Canada, AFL-CIO, herein referred to as Plasterers, '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 the work in dispute to employees represented by Plasterers rather than to employees represented by Bricklayers' and Masons' P & B Union # 1 of Maryland, herein called Bricklayers. A hearing was held before Hearing Officer John M. Bates , Jr., on August 5, 6, and 15, 1975. All parties 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. 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 made by the Hearing Officer 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: I. THE BUSINESS OF THE EMPLOYER The Employer is a Maryland corporation engaged in the business of installing specialty finishes for buildings. It was stipulated that during the past 12 months the Employer has purchased goods and materials valued in excess of $50,000 from points located outside of the State of Maryland. We find that the Employer is engaged in commerce within the meaning of the Act and it will effectuate the policies of the Act to assert jurisdiction herein. 221 NLRB No. 88 H. THE LABOR ORGANIZATIONS INVOLVED 695 It was stipulated and we find that Plasterers and Bricklayers are labor organizations within the mean- ing of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The R. S. Noonan Company, Inc., is the general contractor at the Harbor Campus, Community College project in Baltimore, Maryland. After enter- ing into a contract with Noonan for the installation of ceramic and quarry tile, the Employer subcon- tracted the plastering work on the tilesetting job to E. L. Stebbins Company. A party to a multiemployer collective-bargaining agreement with the Plasterers, Stebbins began the preliminary work for laying the tile in early May 1975. The lathers initially nailed the waterproof felt paper to the underblock before affixing the metal lathe to the paper. Upon completion of these steps, the plasterers applied a mixture of lime and cement known as the "scratch coat" to the outside walls of the building. The Employer assigned the remaining portion of the work to its own employees represented by the Bricklayers. The Employer is a member of the Tile, Marble and Terrazzo Contractors Association of Baltimore, which has a collective-bargaining contract with Bricklayers. However, the Plasterers claimed the work which involved the coating of the walls with Portland cement mortar to serve as a base for receiving the tile. The Plasterers subsequently took the dispute to the Impartial Jurisdictional Disputes Board. On July 11, the Impartial Jurisdictional Disputes Board found that the work in dispute "is governed by, the agreement of August 22, 1917 and shall be assigned to plasterers, except that any coat to be applied wet the same day under tile shall be placed by tile setters. In the thin-set or adhesive method of applying tile to walls and ceilings, the plasterer shall apply the first and second coats of mortar; that is, the scratch coat and plumb coat. The plasterer shall plumb, rod and square all walls, rod and leve' all ceilings; and the tile setter shall apply the final setting bed for his tile." After the plasterers had completed, the "scratch coat," the bricklayers began applying the disputed second coat of Portland cement mortar upon which ceramic tile was to be installed (called the "brown coat" by the plasterers and "float coat" by the bricklayers). Plasterers continued its attempts to obtain this work, but the Employer refused to accede to such demands. The plasterers eventually picketed the jobsite for 4-1/2 hours on July 17, 1975. When 696 DECISIONS OF , NATIONAL LABOR RELATIONS BOARD the general contractor encouraged the Employer to assign the work to plasterers or withdraw from the job, the Employer filed the instant charge with the Board. The plasterers have not picketed since that date. During the interim before the hearing, the Employer resumed construction operations at the community college. B. The Work in Dispute The work in dispute relates to the plumbing, rodding,, and squaring of walls to receive tile by the thin-set method, commonly referred to as "float coat" work by the' Bricklayers and "brown coat" by the Plasterers. C. The Contentions of the Parties The Plasterers argues that the established past practice in the Baltimore area requires assignment of the disputed work to its members . In this connection, the Plasterers asserts the disputed work could be done equally well by both unions. The Plasterers also contends that the agreement of August 22, 1917, between the Plasterers and Bricklayers , as well as subsequent decisions by the Impartial Jurisdictional Disputes Board are dispositive of the dispute. It further argues that plasterers have always been entitled to the last coat of mortar which is plumbed, rodded , squared, and allowed to dry before the installation of the tile. The Employer contends that the Plasterers violated Section 8(b)(4)(D) of the Act by seeking to compel the assignment of the disputed work to members of the Plasterers . The Employer also submits that the award of the disputed work to employees represented by Bricklayers is appropriate in view of their possession of the requisite skills, efficiency and economy of operation, the contract between the Employer and the Bricklayers, past company prac- tice , and the Employer 's assignment of the work. Furthermore , the Employer points out that there is no evidence that the Employer has agreed to be bound by the procedures of the Impartial Jurisdic- tional Disputes Board and the Employer did not participate in the Impartial Jurisdictional Disputes Board proceedings referred to herein. The position of the Bricklayers is in agreement with that of the Employer. D. Applicability of the Statute Before the Board may proceed to a determination of a dispute under Section 10(k) of the Act , it must i N L.R B. v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting System], 364 U S. 573 ( 1961), International Association of 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, which is binding on all parties, for, the voluntary adjustment of the dispute. The record indicates, and the Plasterers does not deny, that its representative, Pat Sorrentino, sought and demanded from the Employer the assignment of the work in dispute. When these efforts failed to obtain the work, the plasterers picketed the project at the Harbor Campus, Community College on July 16, 1975. As a consequence of the Employer's steadfast refusal to give the disputed work to the plasterers, the general contractor requested the Employer to with- draw from the job if the controversy could not be resolved without a work stoppage: In a jurisdictional context, the Board is not charged with finding that a violation did in fact occur, but only that there is reasonable, cause to believe that there has been a violation of Section 8(b)(4)(D) of the Act. We find there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. Although the Plasterers and the Bricklayers have agreed to be bound by determinations of the Impartial Jurisdictional Disputes Board, the Employ- er does not participate in and is not bound by this method of adjudicating such disputes. It is therefore clear that at the time of the instant dispute there did not exist any agreed-upon method for the voluntary adjustment of the dispute to which all parties to the dispute were bound. Accordingly, we find that the matter is properly before the Board, for determina- tion under Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to various relevant factors. As the Board has stated, the determination in a jurisdictional dispute case is an act of judgment based on commonsense and experience in weighing these factors.' The following factors are relevant in making a determination of the dispute before us. 1. Board certifications and relevant collective-bargaining agreements Neither of the labor organizations concerned herein has been certified by the Board as the collective-bargaining representative for a unit.of the Employer's employees. As a member of a multiemployer bargaining unit, the Employer contends that the current collective- Machinists, Lodge No 1743, AFL-CIO (J.A Jones Construction Company), 135 NLRB 1402 (1962) PLASTERERS' LOCAL # 155 697 bargaining agreement between the Tile, Marble and Terrazzo Contractors Association of Baltimore and the Bricklayers requires assignment of the disputed work to employees represented by the Bricklayers. Although the aforesaid contract does not contain provisions which specifically cover work of the type in dispute, testimony adduced at the hearing shows that employees represented by the Bricklayers or its predecessor have exclusively handled the work in dispute for the past 23 years. In addition, the Employer noted that it has no current collective- bargaining agreement with the Plasterers. We find that this factor favors award of the disputed work to employees represented by the Bricklayers. 2. Employer and area practice The Employer has assigned the work in dispute to its employees represented by the Bricklayers for the past 23 years, and it is clear that the Employer wishes to continue this assignment of the work. Both the Plasterers and Bricklayers presented evidence con- cerning specific construction projects in the area on which the respective crafts performed the work in dispute . It appears that area practice is inconclusive. The assignment here nevertheless accords with the 23-year-old practice of the Employer, and is not inconsistent with area practice. The Employer's past practice favors an award to the employees represented by the Bricklayers and Masons. that this factor does not favor an award to employees represented by either party. 4. Other factors According to evidence introduced at the hearing, the Plasterers entered into an agreement with the Bricklayers and Masons on August 22, 1917, pertain- ing to the preparation or plastering of walls and ceilings to receive tile. The agreement provided that plasterers "shall plumb, rod and square all walls and scratch 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." A 1924 award by the former Joint Board spelled out the division of work in substantial- ly the same terms. According to the record, the adhesive technique for application of tile involved in this proceeding did not exist when the aforementioned agreement was consummated. For this reason, we conclude that the agreement and subsequent interpretations thereof are not material to this proceeding. Inasmuch as the decision rendered by the Impartial Jurisdictional Disputes Board on July 11, 1975, is based on the 1917 agreement between the unions here involved, the decision of the Impartial Jurisdic- tional Disputes Board similarly is not material to our determination herein. Moreover, the Employer was not a party to such agreement, nor did it participate in the proceedings. Conclusion 3. Relative skills, efficiency, and economy of operations The Employer asserts that the quality of the "float coat" work is a critical factor in the appearance of the structure after the application of the tile to its surface. Since the Employer is responsible for the ultimate work product under the subcontract with R. S. Noonan, the Employer desires an award of the work to its employees because of their experience in performing similar jobs. The Employer also contends that it is more efficient, especially in an instance where only one coat of mortar is to be applied, to use the same craft for both the mortar work and the tilelaying. However, the Plasterers contends, and the record supports such contention, that its members are trained and have proven capacity to perform work relative to the application of the mortar cement coat to receive the tile. The Board concludes from the entire record that neither union can claim superior skill with regard to the application of the mortar bed. It appears the assignment of such work to either group of employ- ees would be equally efficient. Accordingly, we find Upon consideration of all relevant factors, we conclude that the Employer's employees who are represented by Bricklayers' and Masons' P & B Union # 1 of Maryland are entitled to the work in dispute. We reach this conclusion based on the Employer's current collective-bargaining agreement with the Bricklayers and the Employer's 23-year assignment of the disputed work to these employees. Accordingly, we shall determine the dispute before us by awarding the application of the "float coat" work in dispute to employees represented by Brick- layers' and Masons' P & B Union # 1, but not to that Union or its members. We find that the Plasterers is not entitled by means proscribed under 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 on the basis of the foregoing findings and the entire record in this proceeding, the National Labor Relations Board 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hereby makes the following Determination of Dis- pute: 1. Employees of The Ba-Mor Company, Inc., who are represented by Bricklayers' and Masons' P & B Union ,# I of Maryland, are entitled to perform the work involved in the plumbing, rodding, and squaring of walls to receive tile by the thin-set method, commonly referred to as "float coat" work, at the Harbor Campus, Community College in Baltimore, Maryland. 2. Plasterers' Local # 155, affiliated with Opera- tive Plasterers' and Cement Masons' International Association of the United States and Canada, AFL- CIO, is not entitled,by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Ba-Mor Company, Inc., to assign the disputed work de- scribed in paragraph 'I of this Determination of Dispute'to employees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Plasterers' Local # 155, affiliated with Operative Plasterers' and Cement Masons' International Association of the United States and Canada, AFL-CIO, shall notify' the Regional Director for Region 5, in writing, whether or not it will refrain from forcing or requiring The Ba-Mor Company, Inc., by means proscribed by Section 8(b)(4)(D), to assign the above-described disputed work to employees represented by it rather than to employees represented by Bricklayers' and Masons' P & B Union # 1 of Maryland.