Tile and Marble Helpers Local 11

National Labor Relations Board - Board Decisions

Nov 7, 1975

221 N.L.R.B. 411 (N.L.R.B. 1975)

TILE AND MARBLE HELPERS LOCAL 11
Tile and Marble Helpers , Finishers and Shopmen's
Union, Local No. 11, Affiliated with the Interna-
tional Association of Marble, Slate and Stone
Polishers, Rubbers and Sawyers , Tile and Marble
Setters' Helpers, and Marble Mosaic and Terrazzo
Workers' Helpers , AFL-CIO' and George D.
Jeuck, d/b/a Mercury Tile Co. and Tile Layers
and Terrazzo Workers Local No. 18 , Brick Masons
and Plasterers ' International Union of America,
AFL-CIO.' Case 21-CD-384
411
directly outside the State of California. 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 policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
We find, as stipulated by the parties, that the Tile
Helpers and Tile Layers are labor organizations
within the meaning of Section 2(5) of the Act.
November 7, 1975
DECISION AND DETERMINATION OF
DISPUTE .
III. THE DISPUTE
Background and Facts 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 George D. Jeuck, d/b/a Mercury
Tile Co., herein the Employer, alleging that Tile and
Marble Helpers, Finishers and Shopmen's Union,
Local No. 11, herein Tile Helpers or Respondent, has
violated Section 8(b)(4)(D) of the Act. A hearing was
held in Los Angeles, California, before Hearing
Officer Harry C. Malcom on December 2 and 3,
1974, and January 8, 9, and 10, 1975. The Employer,
Tile Helpers, and Tile Layers and Terrazzo Workers
Local No. 18, herein referred to as Tile Layers,
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, Tile Helpers and Tile
Layers filed briefs, and the Employer filed a
statement of position.
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 rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are hereby
affirmed.
'Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated that George D. Jeuck, d/b/a
Mercury Tile Co., is a sole proprietorship located in
Los Angeles, California, and is engaged in the
business of installing ceramic tile for the building
industry. During the past 12 months, a representative
period, the Employer purchased and received goods
valued in excess of $50,000 from suppliers located
The dispute centers around the layoff of a tile
helper represented by Tile Helpers and the Employ-
er's retention of a first-year tile setter apprentice
represented by Tile Layers. John Ala, an experienced
helper, had been working with journeyman tile setter
Tony Bracovich for 35 crew days paving a courtyard
and putting in a floor at the city hall in Gardena,
California, when he was laid off on August 19, 1974.
On the assumption that there were only 2 or 3 more
crew days remaining on the job, the Employer chose
to use the services of first-year tile setter apprentice
Raymond Bell rather than Ala to complete the job.
The Employer chose Bell, despite Ala's acknowl-
edged experience, because Bell was the lower paid
crewman. Besides performing traditional tile setter's
work such as the cutting and laying of tile, Bell also
performed tasks to which Ala had been assigned-
grouting, mixing the "thin-set," and distributing the
tile which had not yet been put down.
The next day, August 20, Tile Helpers secretary,
Shuster, wrote to the Employer advising it that the
assignment of Bell to do Ala's work was in violation
of their collective-bargaining agreement. The letter
also stated that unless the Employer paid Ala his lost
wages before the close of business on August 22,
Respondent would undertake economic action.
Finally, Shuster warned that a "similar misassign-
ment of work within the jurisdiction of Local I1" in
the future would also result in economic action. The
following day, August 21, the Employer answered
Tile Helpers letter, indicating that it would pay Ala's
wages under protest. Thereafter, on September 12,
the Employer filed the present 8(b)(4)(D) charge.
B. The Work in Dispute
The disputed work concerns assignment of the
mixing of mortar, all cleanup work, grouting, and the
handling of all materials that may be used by tile
layers or similar workmen.
1 The names of the Unions appear as corrected at the hearing
221 NLRB No. 68
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Contentions of the Parties
Tile Helpers contends that the work in dispute
involves a high level of skill, and that it is performed
nationwide by well-trained tile helpers. Tile Helpers
relies, in part, on the contract which it has negotiated
with the Employer, asserting that the agreement
provides for the disputed work to fall within its
jurisdiction. Moreover, Tile Helpers points out that
the constitutions of both Unions, as well as the
National Agreement between the National Tile
Contractors Association of America and the two
Internationals to which Tile Helpers and Tile Layers
are affiliated, provide that the disputed work belongs
to Tile Helpers.
Respondent also claims that the Brick Masons and
Plasterers' International Union-with which Tile
Layers is affiliated-began raiding operations
throughout various sections of the country in late
1971 in retaliation against the Marble Mosaic and
Terrazzo Workers' Helpers refusal to merge with it.
Such raiding operations resulted in decisions by the
National Joint Board for the Settlement of Jurisdic-
tional Disputes which found that tile helpers affiliat-
ed with the Marble Mosaic and Terrazzo Workers'
Helpers were entitled to perform work similar to, or
the same as , that which is in dispute in the instant
case.
Respondent 's primary contention, however,, in-
volves' a 1970 amendment to the Tile Layers 4-year
apprentice plan. It asserts that the addition of 2,000
extra hours to the existing 250 hours of training
required during the first year for "tile setter assist-
ants" was a "sophisticated raiding tactic", calculated
to deprive helpers of their jobs. Respondent rejects
Tile Layers claims that the hours were increased
because the Bureau of Apprenticeship Training had
advised in 1970 that the Tile Layers must conform to
Federal affirmative action programs by admitting
untrained minority group members into its appren-
tice plan. Respondent asserts that the plan was
actually amended in order to further the Brick
Masons and Plasterers ' International Union's policy
of applying pressure for a merger of the two
Internationals . Respondent further claims that by
amending its plan, the Tile Layers has, in effect, put
tile contractors on notice that they must use the
services of tile setter apprentices to perform tile
helpers' work. Respondent thus suggests that Tile
Layers has, by this "raiding tactic," impliedly
2 Contrary to our dissenting colleague, we find that Tile Layers alleged
disclaimer , which is conditioned upon the Employer 's maintenance of past
assignment practices, may not be deemed to be "unequivocal." Moreover,
we differ from his characterization of Tile Layers position as that of
"willingness" to abide by past assignment practices . Rather, since Tile
Layers decision to refrain from objecting to adverse work assignments is
claimed the work for its members, Respondent also
submits that tile helpers are experiencing significant
job losses. Thus, it is argued that a jurisdictional
dispute exists in this case and the Board should issue
a broad order awarding the disputed work to
journeyman tile helpers and tile helper apprentices
represented by Respondent.
Tile Layers, on the other hand, contends that the
instant case does not present a jurisdictional dispute
because it has not made a competing claim for the
disputed work, nor will it demand such work in the
future so long as past assignment practices are
maintained. It asserts that the custom of the trade is
to allow for a "crossing-over" of tile helpers and tile
setter apprentices to perform portions of each other's
work so that an employer may, for purposes of
efficiency and economy on a particular job, decide to
retain either the tile helper or tile setter apprentice.
Tile Layers submits that if the situation in this case
had been reversed and the tile setter apprentice
rather than the helper had been laid off, Tile Layers
would not have filed a grievance., Thus, Tile' Layers
argues that the Board should quash the notice of
hearing.
D. Applicability of the Statute
Before the Board proceeds with a determination of
a 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.
The record shows that Tile Helpers threatened to
take economic action against the Employer unless
the laid-off helper was made whole for wages lost. As
a result, the Employer paid the helper 3 days' wages
under protest. In addition, the Tile Helpers threat-
ened future economic action should the Employer
fail to assign the disputed work to its members. On
the other hand , Tile Layers asserts that it does not
claim the work ' and that consequently no jurisdic-
tional dispute exists. However , since its "disclaimer"
is contingent upon the Employer following past
assignment practices , it is clear that Tile Layers is not
effectively giving up all claim to the disputed work.
Although Tile Layers states that it will continue to
respect the Employer 's decision to, from time to time,
lay off a tile setter apprentice and retain a helper, it
does not disclaim that portion of the work which the
Employer has traditionally given to a tile setter
apprentice after laying off a helper.2
contingent on the Employer's adherence to past practice , it is clearly
implied that variance from past practice will not be accepted by Tile Layers.
Tile Layers insistence on the Employer's abiding by past practice is
intended to insure the assignment of the disputed work from time to time to
employees represented by Tile Layers . We find our colleague's assertion
TILE AND MARBLE HELPERS LOCAL 11
The record thus presents a situation in which two
labor organizations, Tile Helpers and Tile Layers,
acting on behalf of employees they represent, are
competing for the assignment by the Employer of
certain work. Since there has been no clear, unambi-
guous, and unequivocal disclaimer of the work by
either Union, it cannot be said that "competing
claims" do not exist ,for the work in dispute. Indeed,
the concept that "no competing claims" exist when
one group of employees silently performs the
disputed work in a nonbelligerent manner while the
other seeks by proscribed means to obtain its
assignment has,long been rejected by the Board and
the courts as providing a basis for quashing the
notice of hearing in a 10(k) proceeding.3
This is not a case where the Employer has
transferred work away from the group claiming it
and assigned it to the other. It appears instead that
both labor groups had competing claims to the work
and the Employer, faced with a declining workload
and hence no need for an employee from each group,
had to choose which of the two employees to lay off
and which to retain. The fact, however, that such
economic considerations provided the genesis for this
dispute does not render it any less cognizable under
Section 10(k). Indeed, such or similar economic
considerations provide the background to many if
not most jurisdictional disputes. On the basis of the
entire record, we conclude 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.
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.4
The following factors are relevant to a determination
of the dispute before us:
1. Collective-bargaining agreements
Tile Helpers contends that its contract with the
Associated Tile Contractors of Southern California
which bargains collectively with the Employer, as
well as with ceramic tile contractors throughout Los
Angeles, Ventura, and Orange Counties, encompas-
ses the disputed work. The contract provides in
pertinent part:
that Tile Layers has not laid claim to the work either directly or indirectly is
inconsistent with the realities of Tile Layers position
3 Local 1291, International Longshoremen's Association, AFL-CIO,
(Pocahontas Steamship Company), 152 NLRB 676, 680 (1965), enfd 368 F.2d
107 (C.A. 3, 1966), cert. denied 386 U.S. 1033 (1967)
4 International Association of Machinists, Lodge No 1743, AFL-CIO (J
Article II
413
Section 3-Tile Helpers shall mix all mortar by
hand or machine, do all cleaning and grouting of
all tile installed by the Tile Layer, or similar
workmen, handle all sand, cement, tile and all
materials that may be used by the Tile Layer or
similar workmen, after being delivered on the job
....[Emphasis supplied.]
The agreement between the Associated Tile Con-
tractors of Southern California and Tile Layers, on
the other hand, provides in pertinent part:
Article II
Section 2. Tile Layers Work is defined as:
(a) The laying, cutting or setting of all tile
where used for floors, walls, ceilings, walks ...;.
also to prepare and set all concrete, cement, -brick
work or other foundations or material that may
be required to properly set and complete such
work.
The National Agreement between the Tile Con-
tractors Association of America and both Interna-
tional Unions provided in pertinent part:
Article V
Section 5-Helpers shall do the cleaning and
grouting of tile, unpacking of all tile, and shall
handle all materials, such as sand, cement, lime,
tile, all types of tile panels, prefabricated tile
units, and any other form of tile or material that
may be used by tile layers, after being delivered
on the jobsite. [Emphasis supplied.]
The Tile Layers-Associated Tile Contractors con-
tract provision quoted above does not specifically
assign the disputed work to employees represented
by Tile Layers. The disputed work is specifically
mentioned in the contract between Tile Helpers and
the Associated Tile Contractors and in the National
Agreement between the Tile Contractors Association
of America and both International Unions. '5 This-is a
factor which favors awardingthe work to employees
represented by Tile Helpers,
2. Company and area practice
The record shows that employees represented by
Tile Helpers have traditionally had jurisdiction over
A Jones Construction Company), 135 NLRB 1402 (1962).
5 Although the term of the National Agreement was from October 1,
1966 to January 20, 1969, the record shows that the work jurisdiction of tile
helpers as provided in the contract between Tile Helpers and the Associated
Tile Contractors is identical to that set forth in the National Agreement.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the disputed work. However, the record also shows
that the custom of the trade is to allow for a
"crossing-over" of tile helpers and tile setter appren-
tices to perform portions of each other's work. The
instant dispute centers around such an instance of
"crossing-over" jurisdictional lines. Thus we find that
company and area practice does not favor an award
to the employees represented by either Union.
3. Relative skills, efficiency, and economy
The record reveals that both tile setter apprentices
and tile helpers are skilled workmen, and both
groups of employees are capable of performing the
disputed work. The record correspondingly shows
that tile contracting jobs may be done efficiently
where either tile helpers or tile setter apprentices
perform the- disputed work. In fact, the Employer
stated that tile helper Ala was laid off for reasons of
economy, not, efficiency. In this regard, the record
shows that when a tile contractor has a job nearing
completion, or when there are several days on a job
primarily requiring the setting of tile, it is more
economical for the contractor to lay off the higher
paid helper and retain the lower paid tile setter
apprentice. Alternatively, the Employer stated that
during the times when helpers are retained to do tile
setters' work the number of hours that tile setters
have to spend on the job decreases, signifying a
corresponding economic saving for the contractor.
Thus, we -find that the evidence of relative skills
and efficiency and economy does not support an
assignment of the disputed work to either group of
employees.
4. Board certification
There is no evidence indicating that a Board
certification covers the disputed work.
5. Impartial Jurisdictional Dispute Board
determinations
Respondent, in support of its claim that the Brick
Masons International Union was engaged in improp-
er raiding tactics,6 introduced into evidence several
decisions by the Impartial Jurisdictional Dispute
Board for the Construction Industry and its prede-
cessor , the National Joint Board for Settlement of
Jurisdictional Disputes , which awarded the disputed
work on-individual jobs to tile and terrazzo helpers.
We find that this , is a factor which favors awarding
the work to employees represented by Tile Helpers.7
CONCLUSION
Upon the entire record and having considered all
the relevant factors involved, including the collec-,
tive-bargaining agreements and prior awards, we
conclude that employees represented by Tile Helpers
are entitled to the work in question, and we shall
determine the dispute in their favor. In making this
determination, however, we are assigning the disput-
ed work to tile helpers represented _, by Tile and
Marble Helpers, Finishers and Shopmen's Union,
Local No. 11, affiliated with the International
Association of Marble, Slate and Stone Polishers,
Rubbers and Sawyers, Tile and Marble Setters'
Helpers, and Marble Mosaic and Terrazzo Workers'
Helpers, AFL-CIO, and not to that Union or its
members. Our present determination is limited to the
particular controversy t 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 findings and the entire record in this
proceeding, the National Labor Relations Board
hereby makes the following Determination of Dis-
pute:
Employees of George D. Jeuck, d/b/a Mercury
Tile Co. who currently are represented by Tile and
Marble Helpers, Finishers and Shopmen's Union,
Local No. 11, affiliated with the International
Association of Marble, Slate and Stone Polishers,
Rubbers and Sawyers, Tile and Marble Setters'
Helpers, and Marble Mosaic and Terrazzo Workers'
Helpers, AFL-CIO, are entitled to perform the
mixing of mortar, all cleanup work, grouting and the
handling of all materials that may be used by tile
layers or similar workmen at the Employer's Garde-
na, California, city hall jobsite.
MEMBER JENKINS, dissenting:
Briefly stated, I disagree with my colleagues'
conclusion that there exist, in the circumstances of
this case, competing claims for certain work assigned
by the Employer to an apprentice represented by the
Intervenor Tile Layers. For, while it is clear that the
Respondent Tile Helpers claimed this work and,
further, threatened economic action when one of its
members was removed by the Employer and re-
placed by the Tile Layers apprentice, in my view the
record fails to establish that the Tile Layers, , or
anyone else other than the Tile Helpers, claimed the
work. Thus, I would quash the notice of hearing for
6 We find no merit in Respondent's allegation that Brick Masons Local Union No. 21 (Universal Terrazzo & Tile Co), 218 NLRB No. 96
International Union engaged in improper raiding tactics. (1975) Sheet Metal Workers International Association, Local 162, AFL-CIO,
7 CE Operative Plasterers and Cement Masons International Association, et al. (Lusterlite Corporation), 151 NLRB 195 (1965).
TILE AND MARBLE HELPERS LOCAL 11 415
lack of evidence of a "jurisdictional dispute" within
the purview of Section 8(b)(4)(D).8
My colleagues recognize that there is no direct
evidence that the Tile Layers have asserted a
competing claim to the work assigned by the
Employer to the tile setter apprentice. Indeed, the
record shows that the Tile Layers have unequivocally
stated that it asserts no claim to the work involved
herein , and, further, that it will continue-to respect,
without protest, the Employer's (or any other
signatory contractor's) past assignment practices
even though such assignments are made to the tile
helpers represented by the Respondent. Finally, they
reject the Respondent's "primary contention" that
the Tile Layer has "impliedly claimed the work"
because past assignment practices and the promulga-
tion of the Tile Layers 4-year apprenticeship favor
assignments to members of that Union.
Nevertheless, my colleagues argue that the Tile
Layers disclaimer is tainted because that Union's
willingness to abide by past assignment practices
impliedly suggests that the Union has "not effectively
giv[en] up all claim to the disputed work." But this
circuitous reasoning merely begs the question wheth-
8 See, e.g, Highway Truckdrivers & Helpers, Local 107, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
Amenca, Independent (Safeway Stores, Incorporated), 134 NLRB 1320
(1961), Sheet Metal Workers International Association, Local Union No. 272,
et at (Valley Sheet Metal Company), 136 NLRB 1402 (1962), Penello v Local
U.:ian No. 59, Sheet Metal Workers International Association, AFL-CIO, [E
L du Pont de Nemours and Company j, 195 F.Supp 458 (D C Del, 1961)
9 Thus, the instant case is not the "have-cake-and-eat-it-too" situation
alluded to by my colleagues . See fn . 2, supra In Local 1291, Intl
er the Tile Layers have ever claimed the work in the
first place. Thus, my colleagues fail to come to grips
with the uncontroverted fact that, as interpreted by
the Tile Layers, past assignment practice dictates
that the decision to use tile helpers or tile setter
apprentices rests solely with the contractor involved.
Thus, adherence to the past practice "insures"
nothing but continued and unfettered employer's
discretion in assigning work. The Tile Layers
maintains, and the Respondent readily admits, that
this past practice is consistent with industry practice
which is characterized by cooperation between the
Tile Helpers and Tile Layers in permitting the
crossing over of jurisdictional lines in deference to
contractor flexibility. For this reason, as the majority
tacitly concedes, the Tile Layers do not view the
contractor's work assignment to a tile helper as a
"transfer" of unit work from the tile setter appren-
tice.9
In view of the foregoing, it is abundantly clear to
me that the Tile Layers have not, either directly or
indirectly, laid claim to the work involved here.
Accordingly, I would quash the notice of hearing.
Longshoremen 's Assn. (Pochontas Steamship), supra, we held that a union
could not effectively disclaim work which it was contractually bound to
perform. Thus, even if the employer had made a different assignment the
union's members would still be paid for work performed by members of the
oval union In those circumstances, the "disclaiming" union stood to lose
nothing by its "disclaimer " Here , by way of contrast , the Tile Layers
admits, against its own interest , that it has no claim on the work involved,
and I find no evidence to the contrary