Alley Drywall, Inc.

National Labor Relations Board - Board Decisions

Apr 18, 2001

333 N.L.R.B. 1005 (N.L.R.B. 2001)

ALLEY DRYWALL, INC. 1005
Alley Drywall, Inc. and Operative Plasterers and Ce-
ment Masons International Association, Local 5,
AFL–CIO, Petitioner. Case 13–RC–20531
April 18, 2001
ORDER DENYING REVIEW
BY CHAIRMAN TRUESDALE AND MEMBERS
HURTGEN AND WALSH
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel,
which has considered the request for review of the Re-
gional Director’s Decision and Direction of Election
(pertinent portions are attached as an appendix) filed by
the Intervenors, the International Union of Bricklayers
& Allied Craftworkers, Locals 56 and 74, AFL–CIO1
The request for review is denied as it raises no substan-
tial issues warranting review.2

1 The only issues raised in the request for review were (1) whether
the Regional Director properly concluded that the petitioned-for unit of
all plasterers of the Employer was an appropriate unit in light of the
parties’ bargaining history and (2) whether the Regional Director prop-
erly denied the Intervenors’ request to defer the processing of this peti-
tion so as to afford the Petitioner and the Intervenors the opportunity to
resolve this matter through the AFL–CIO’s Building and Construction
Trades Department’s Plan for the Settlement of Disputes in the Con-
struction Industry (the Plan).
2 There are numerous related cases involving the same parties and
the same issues pending in the Regional Office. In two of those
cases—Smith Plastering, Inc., Case 13–RC–20512, and Pilon Lath &
Plasterers, Inc., Case 13–RC–20513—the Regional Director, at the
Intervenors’ request, deferred processing the petitions for more than 30
days for resolution under art. XX of the AFL–CIO’s constitution.
When resolution through art. XX was not available due to the nature of
the dispute and the industry involved, the Regional Director resumed
processing the petitions in all pending cases, including the instant peti-
tion. The Intervenors now seek another deferral, contending that the
parties should be afforded time to resolve their dispute under the proce-
dures outlined in art. X of the Plan. The Regional Director denied this
request by order dated March 21, 2001, finding that processing under
art. X would likely not resolve the parties’ dispute and that further
delay in processing these petitions was unwarranted. Although we
agree that the petitions should not be deferred, we do not pass on the
Regional Director’s finding that art. X does not apply to this dispute.
We nevertheless agree with the Regional Director that further delay in
processing these petitions is unwarranted. Even assuming that this
dispute could be resolved under art. X of the Plan, the Board’s Case-
handling Manual does not provide for suspension of the processing of a
petition for such proceedings. Further, more than 30 days has elapsed
from the Intervenor’s submission on March 5, 2001, of this dispute
under art. X of the Plan, and neither the Regional Director nor the
Board has been notified that the dispute has been accepted for resolu-
tion under the Plan. In these circumstances, even if we were to treat
art. X proceedings like art. XX proceedings, the Casehandling Manual
provides for the processing of the petitions, absent extraordinary cir-
cumstances. See Sec. 11018.1(e). Accordingly, we perceive no basis
for deferring the processing of these petitions.
APPENDIX
DECISION AND DIRECTION OF ELECTION
The Petitioner (Local 5) has a collective-bargaining agree-
ment with the Employer pursuant to Section 8(f) of the Act
covering the employees it seeks to represent under Section 9(a)
through the instant petition. The 8(f) agreement between the
Petitioner and the Employer is a multiemployer association
agreement through the Chicagoland Association of Wall and
Ceiling Contractors (the Association). Due to agreements be-
tween the International Unions of the Petitioner (International
Association of Operative Plasterers and Cement Masons, (Op-
erative Plasterers) and the Intervenors (International Union of
Bricklayers & Allied Craftworkers (the Bricklayers), establish-
ing certain geographical limitations on each other where there
was overlapping coverage of job classifications, the 8(f) collec-
tive-bargaining agreements between the Petitioner and the Em-
ployer have not been applicable to plastering work performed
by the Employer in DuPage County, Illinois. In DuPage
County, the work performed by the employees covered by the
instant petition has been under the jurisdiction of Bricklayers
Locals 56 and 74 which also have 8(f) Association collective-
bargaining agreements with the Employer with regard to work
in DuPage County. The record does not reflect how long the
Employer has had 8(f) relationships with the Petitioner and the
Intervenors based upon their separate geographical jurisdic-
tions.
In 1998, the Operative Plasterers unilaterally revoked its
agreement with the Bricklayers regarding geographical restric-
tions. This action by the Operative Plasterers was upheld at the
convention of the Building and Construction Trades Depart-
ment of the AFL–CIO in July 2000. Thereafter, the Operative
Plasters authorized the Petitioner to expand its geographic ju-
risdiction to include DuPage County among other areas. As a
result, the Petitioner filed the instant petition seeking to become
the certified representative under Section 9(a) of the Act of the
employees of the Employer covered by its 8(f) collective-
bargaining agreement with the Employer, without regard to the
previous geographical restrictions. The Petitioner contends the
unit it seeks to represent here is an appropriate single employer
unit in which the employees share a sufficient community of
interests. The Intervenors, on the other hand, contend that the
unit sought by the Petitioner is inappropriate as it is broader
than that which the Petitioner has historically represented
through its 8(f) agreements with Employer, asserting that the
history of collective bargaining under Section 8(f) of the Act is
controlling as to the scope of the unit under Board precedent.
Accordingly, the Intervenors assert that petition must be dis-
missed, or alternatively, that the unit description be amended to
exclude DuPage County from its scope to conform the unit to
its historical scope. The Employer agrees with the Petitioner
that the unit sought is appropriate, however, it asserts that the
unit description should include the counties covered by the
Petitioner’s current geographic jurisdiction. The Petitioner
objects to the insertion of any geographical limitation in the
unit description.
333 NLRB No. 132
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1006
Facts
Alley Drywall Business Operations
The Employer is located in Oswego, Illinois, and is engaged
in performing plastering work in the Chicago metropolitan area
and surrounding counties. Gary Alley is the president of the
Employer and also serves to hire, fire, discipline, and supervise
his work force of approximately 35 to 40 employees. In addi-
tion to a work force of 35 carpenters and painters, the Employer
also has a regular staff of approximately 5 plasterers. The plas-
terers are hired on a regular basis, not on a job-to-job contin-
gency. Of these five plasterers, one has worked for the Em-
ployer for 8 years, another for 7 years, and a third for 2 years.
The remaining two have worked for the Employer for approxi-
mately 6 months prior to the filing of the instant petition. In
January 2001, however, the Employer was forced to lay off the
last of the plasterers, but it anticipates that all plasterers will be
brought back to work in 4 to 8 weeks.
In addition to Alley, a superintendent supervises the progress
of work at all sites. Alley, however, decides where plasterers
are dispatched. At the time prior to the final layoff in January
2001, all plasterers were members of Local 5 and all were per-
forming the same work. All the plasterers may work together
on one jobsite or they may work on different jobsites, depend-
ing on the number and nature of the jobs that the Employer has
at any given time. Employees are assigned to jobs based on the
complexity and scope of the job, not upon the job situs, the
employees’ local union membership, or the geographical cov-
erage of any particular local union. The record indicates that
the county in which a jobsite is located has absolute nothing to
do with the employees assigned to work at that site. Generally,
the employees report to work at the jobsite to which they are
assigned and not to the Employer’s Oswego, Illinois facility.
They are commonly supervised. The Employer has utilized the
Local 5 hiring hall in the past as well as the Local 5 apprentice-
ship school, but has never consulted the Bricklayers Local 54 or
76 for the same services.
Within the last 2 years, the Employer has completed projects
in at least the counties of Cook, DuPage, Lake, Kendall, Kane,
and Will. The record also shows that the Employer has bid for
jobs in McHenry County but has not worked jobs in that county
recently. The projects range in size and duration from as long
as several months to as short as a few hours. Notwithstanding
the historical separate geographical jurisdictions between the
Petitioner and the Intervenors and the coverage of the Em-
ployer’s plasterers in DuPage County by an 8(f) agreement with
the Intervenors, the record shows that the Employer has applied
the terms of its agreement with the Petitioner to its plasterers
regardless of where they work. Thus, the Employer pays its
plasterers the hourly rate set forth in its agreement with the
Petitioner, regardless of whether they were working in the Peti-
tioner’s geographical jurisdiction or outside of it. Similarly, the
Employer’s testimony indicates that it paid the fringe benefits
set forth in its agreement with the Petitioner to the Petitioner,
regardless of whether the employees were working within the
historical geographic jurisdiction of the Petitioner or not.
Analysis
Appropriateness of the Bargaining Unit
Section 9(b) of the National Labor Relations Act directs the
Board to “decide in each case whether, in order to assure em-
ployees the fullest freedom in exercising the rights guaranteed
by this Act, the unit appropriate for the purposes of collective
bargaining shall be the employer unit, craft unit, plant unit, or
subdivision thereof. . . . ‘[T]he selection of an appropriate bar-
gaining unit lies largely within the discretion of the Board
whose decision, ‘if not final, is rarely to be disturbed.’” South
Prairie Construction v. Operating Engineers Local 627, 425
U.S. 800, 805 (1976) (citation omitted). There is nothing in the
Act that requires the unit for bargaining be the only appropriate
unit or the most appropriate unit—the Act only requires that the
unit for bargaining be appropriate so as to assure employees the
fullest freedom in exercising the rights guaranteed by the Act.
Overnite Transportation Co., 322 NLRB 723 (1996); Brand
Precision Services, 313 NLRB 657 (1994); Phoenix Resort
Corp., 308 NLRB 826 (1992). In defining the appropriate bar-
gaining unit to ensure employees the fullest freedom in exercis-
ing the rights guaranteed by the Act, the key question is
whether the employees share a sufficient community of interest.
Alois Box Co., 326 NLRB 1177 (1998); Washington Palm, Inc.,
314 NLRB 1122, 1127 (1994).
In determining whether employees share a sufficient com-
munity of interests to constitute an appropriate unit, the Board
weighs various factors, including the similarity of skills, func-
tions, and working conditions throughout the proposed unit; the
central control of labor relations; transfer of employees among
the Employer’s other construction sites; and the extent of the
parties’ bargaining history. P. J. Dick Contracting, Inc., 290
NLRB 150, 151 (1988), citing Metropolitan Life Insurance Co.,
380 U.S. 438 (1965). Also, the Board will consider a differ-
ence in method of wages or compensation; different hours of
work; different employment benefits; separate supervision; the
degree of similar or dissimilar qualifications, training and
skills; differences in job functions; amount of working time
spent away from the facility; and integration of work functions.
Kalamazoo Paper Box Corp., 136 NLRB 134, 137 (1962);
Banknote Corp. of America v. NLRB, 84 F.3d 637, 647–648 (2d
Cir. 1996).
It is clear that the unit petitioned for here would, upon appli-
cation of the foregoing community-of-interest factors, be found
to be an appropriate unit for collective bargaining, in the ab-
sence of any consideration of the history of collective bargain-
ing. Thus, the record shows that the petitioned-for unit consti-
tutes a single-employer unit consisting of all of the Employer’s
employees who are engaged in shared and clearly identifiable
job functions1 and who share the same terms and conditions of
employment irregardless of the job situs that they may be work-
ing on. In addition, the employees contained in the petitioned-
for unit also have a continuity of employment from job to job
with the Employer given their combined tenure of 18 years, a

1 There is no contention here that the plasterers do not constitute an
appropriate unit apart from other construction trades as a clearly identi-
fiable group of employees engaged in distinct job functions. Laborers
Local 18 (R. B. Butler, Inc.), 160 NLRB 1595 (1966).
ALLEY DRYWALL, INC. 1007
significant amount given the small work force and transitory
nature of the construction industry. The Intervenor’s, however,
contend that the petitioned-for unit is inappropriate because it is
broader in scope than the historical bargaining unit in the 8(f)
collective-bargaining agreements between the Petitioner and
the Employer. The Intervenors, based on the following lan-
guage in the Board’s decision in John Deklewa & Sons, 282
NLRB 1375, 1377 (1987), assert that the scope of the peti-
tioned-for unit must be the same as that in the 8(f) agreement
between the Petitioner and the Employer:

[S]uch agreements [8f] will not bar the processing of valid pe-
titions filed pursuant to Section 9(c) and Section 9(e) . . . in
processing such petitions, the appropriate unit normally will
be the single employer’s employees covered by the agree-
ment. . . .

The Intervenors assert that Board’s decision in P. J. Dick Con-
tracting, Inc., 290 NLRB 150 (1988), supports its view that
where there is a historical relationship under Section 8(f) of the
Act, the Board’s decision in Deklewa requires that the scope of
the petitioned-for unit be the same as that found in the 8(f)
agreement. In P. J. Dick Contracting, the Board rejected the
petitioning union’s request for a unit covering 33 counties,
finding that the petitioning union’s alternative request for a unit
confined to the 11 counties it had covered in its 8(f) agreements
with the employer to be appropriate. In reaching that conclu-
sion, the Board stated:

[T]he Board’s traditional deference to bargaining history is
generally applicable in the construction industry. Indeed
based on the limited evidence presented, it is the determina-
tive factor in finding in this case that the 11 county jurisdic-
tion of the MBA agreement is the appropriate unit.

Id. at 151.
While it is clear, based upon the foregoing, that bargaining
history is a factor to be weighed and considering in determining
whether a petitioned-for unit is appropriate, I find that the In-
tervenor’s reading of Deklewa language to be too restrictive.
Bargaining history pursuant to 8(f) agreements is not the con-
clusive consideration in determining whether a petitioned-for
unit is appropriate. The very language that the Board used in
Deklewa, 282 NLRB at 1377–1378, “the appropriate unit nor-
mally will be the single employer’s employees covered by the
agreement” (emphasis added), clearly sets forth that 8(f)
agreement unit is not necessarily conclusive as to the determi-
nation of the appropriate unit. Furthermore, the language in
Deklewa cited by the Intervenors was used by the Board to
express its rejection of the merger doctrine in 8(f) situations,
rather than to define the scope of single employer units. Under
the merger doctrine, the employees of a single employer that
belonged to a multiemployer bargaining association were
merged into a multiemployer bargaining unit. As such, the
employees of the single employer could only exercise their
right to select their bargaining representative in conjunction
with all the other employees of the other employers who were
included in the multiemployer bargaining unit. In Deklewa,
the Board rejected the merger doctrine’s application to repre-
sentation petitions where the employees had been covered by
multiemployer agreements under Section 8(f) of the Act in
order to allow the employees of a single employer an opportu-
nity to exercise their Section 7 rights to vote on whether to
accept or reject the 8(f) bargaining representative. See City
Electric, Inc., 288 NLRB 443 fn. 9 (1988). Thus, it is clear that
Board’s language in Deklewa, cited by the Intervenors, was not
meant to limit the scope of a single-employer unit in the con-
struction industry under Section 9(b) of the Act to the unit de-
fined by the previous 8(f) bargaining agreement.
The Board’s decision in P. J. Dick Contracting, supra, also
makes it clear that, while 8(f) bargaining history is a factor to
be weighed in determining the appropriate unit, it is not conclu-
sive. In finding the historical unit to be appropriate, the Board
did not find that its decision in Deklewa compelled a finding
that only the historical unit was appropriate. Rather, the Board
made it clear that the broader unit sought by the petitioner
might be appropriate; however, the Board found that the peti-
tioner had failed to present any evidence to demonstrate its
appropriateness. P. J. Dick Contracting, supra at fn. 8.
While the Board gives substantial weight to bargaining his-
tory in furtherance of the statutory objective of stability in in-
dustrial relations, I find no basis on the record for giving the
bargaining history involved herein weight over the other com-
munity of interests factors that make the unit sought by the
Petitioner otherwise appropriate. For all intents and purposes,
the Petitioner has been the collective-bargaining representative
of the Employer’s employees for all purposes permissible under
the Act. The historical geographical exclusions of the employ-
ees of the Employer when they work in certain counties from
coverage of the 8(f) agreements between the Petitioner and the
Employer has no discernable impact upon the employees and
their community of interest. For the most part, it appears that
the geographical exclusions, as a practical matter, have been
completely ignored by the Employer and have made no differ-
ence to the employees of the Employer with regard to their
terms and conditions of employment.
On the other hand, to find as the Intervenors’ contend, that
the unit sought by the Petitioner must under Section 9(b) of the
Act be confined geographically to the unit the Petitioner repre-
sented under the 8(f) agreements only serves, on the facts here,
to perpetuate an arbitrary geographical division of the same
employees into separate units based upon where they are work-
ing. The only basis on the record in the instant case for the
historical geographical division of the units between the Peti-
tioner and the Intervenors were political considerations of
maintaining geographical integrity for the local unions without
competition among the local unions regarding the representa-
tion of employees. The record evidence shows that the geo-
graphical divisions have little, if anything, to do with the terms
and conditions of employees whom these locals represent.
Here, it is the same group of employees working under the
same general terms and conditions of employment whom the
Intervenors’ would divide into different units depending solely
on what county that they happen to be working in.
It is my opinion, based upon the foregoing, that the 8(f) bar-
gaining history between the parties is not entitled to controlling
weight over the community of interests that exists in the unit
sought by the Petitioner. In A. C. Pavement Striping Co., 296
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1008
NLRB 206, 210 (1989), the Board adopted the decision of the
Acting Regional Director which set forth in relevant part:

The Board has long given substantial, but not conclusive,
weight to a prior history of collective bargaining. General
Electric Company, 107 NLRB 70, 72 (1953). In John Dek-
lewa and Sons, supra, the Board set forth that in making unit
determinations where the employees in question were covered
by 8(f) agreements, the appropriate unit will normally be the
unit as defined in the agreements. Nevertheless, the Board
has also long held that it will not give controlling weight to a
history of collective bargaining “to the extent that it departs
from statutory provisions or clearly established Board policy
concerning the composition and scope of bargaining units.”
Williams J. Keller, Inc., 198 NLRB 1144, 1145 (1972).
Herein, the record shows no rational basis exists for the two
historical units other than being purely historical accidents.

In sum, the record herein demonstrates no rational basis for
continuing the geographical division of the same groupings of
employees into different units based upon local union jurisdic-
tions. Accordingly, based upon the foregoing and the entire
record here, I find that the unit sought by the Petitioner is not
limited to that previously covered under its 8(f) agreement with
the Employer and that the unit may appropriately include plas-
terers working in DuPage County. Similarly, with regard to the
Employer’s request at the hearing that the unit description
should include the counties in Illinois within the Petitioner’s
jurisdiction, the Board has long held that a union’s territorial
jurisdiction and limitations do not generally affect the determi-
nation of the appropriate unit. Groendyke Transport, 171
NLRB 997, 998 (1968); CCI Construction Co., 326 NLRB
1319 (1998). Accordingly, I find the unit sought by the Peti-
tioner to be appropriate and I will not include either the geo-
graphical limitation regarding DuPage County sought by the
Intervenors nor the Petitioner’s territorial jurisdiction as sought
by the Employer in the unit’s description. Inasmuch as I have
rejected both the Intervenors’ and the Employer’s geographical
limitations in defining the unit; no party raises any other issues
regarding the description of the unit’s scope; and the unit found
appropriate encompasses all of the Employer’s plasterers who
share a substantial community of interests regardless of job
location and have a continuity of employment with the Em-
ployer from job to job, I find no basis to define the unit or limit
the unit in any other geographical terms that might be appropri-
ate in different circumstances. See Oklahoma Installation Co.,
305 NLRB 812 (1991).