Bricklayers (Cretex Construction Services)

National Labor Relations Board - Board Decisions

Dec 16, 2004

343 N.L.R.B. 1030 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
343 NLRB No. 110
1030
International Union of Bricklayers and Allied Craft-
workers, AFL–CIO and Bridge, Structural and
Reinforcing Iron Workers, Local Union No. 1 of
the International Association of Bridge, Struc-
tural, Ornamental and Reinforcing Iron Work-
ers, AFL–CIO and Cretex Construction Ser-
vices, Inc. Case 13–CD–720
December 16, 2004
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
The charge in this Section 10(k) proceeding was filed
on August 25, 2004, by Cretex Construction Services,
Inc. (Cretex). It alleges that the Respondent, Interna-
tional Union of Bricklayers and Allied Craftworkers,
AFL–CIO (the Bricklayers) violated Section 8(b)(4)(D)
of the National Labor Relations Act by engaging in pro-
scribed activity with an object of forcing Cretex to assign
certain work to employees represented by the Bricklayers
rather than to employees represented by the Bridge,
Structural and Reinforcing Iron Workers, Local Union
No. 1 of the International Association of Bridge, Struc-
tural, Ornamental and Reinforcing Iron Workers, AFL–
CIO (the Iron Workers). A hearing was held on Septem-
ber 15 and 23, 2004, before Hearing Officer Lisa Fried-
heim-Weis. Thereafter, Cretex, the Bricklayers, and the
Iron Workers filed briefs in support of their positions.
The Iron Workers also filed a motion to quash the Sec-
tion 10(k) notice of hearing.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire record,
the Board makes the following findings.
I. JURISDICTION
The parties stipulated that the Employer is an Illinois
corporation engaged in the business of erecting precast
concrete and that it annually ships goods valued in ex-
cess of $50,000 from its facility in Rochelle, Illinois, to
customers located outside the State of Illinois. Accord-
ingly, on the basis of the parties’ stipulations, we find
that Cretex is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act, and that the Bricklay-
ers and the Iron Workers are labor organizations within
the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts
The current dispute involves precast concrete erection
work at Midway Airport in Chicago, Illinois.
Cretex is a construction company that performs precast
concrete erection projects in the Chicago area. It recog-
nizes the Bricklayers as the exclusive bargaining repre-
sentative of its field employees under Section 9(a) of the
Act. It is party to a collective-bargaining agreement with
the Bricklayers providing that employees represented by
the Bricklayers shall perform all its precast concrete
erection work, and its practice is to employ only employ-
ees represented by the Bricklayers for this purpose.
In January 2004, Cretex submitted a bid to a general
contractor, F. H. Paschen/S. N. Nielsen, Inc. (Paschen),
to perform the precast concrete erection work for a park-
ing deck at Chicago’s Midway Airport (the Midway Pro-
ject). In January or February of that year, Paul Heiman,
Cretex’s vice president, was informed orally that Cretex
had been awarded the subcontract.
In late 2003 and early 2004, Iron Workers Local 1 was
attempting to organize several of the precast concrete
erection contractors in the Chicago area. On March 25,1
Iron Workers representative, Danny Caliendo, met with
Cretex employees working on another Cretex project. In
the course of his conversation with them regarding the
organizing drive, he stated that Cretex had been awarded
the Midway Project, that the Iron Workers traditionally
perform this type of work, and that the Iron Workers
would take whatever actions were necessary to get the
work back.
On April 12, the city of Chicago executed a contract
with Paschen for the Midway Project, which named Cre-
tex as the subcontractor for the precast concrete erection
work. On August 9, Paschen sent Cretex a letter of in-
tent to award it the precast concrete erection work, and
on August 11 Cretex sent a letter of assignment to the
Bricklayers giving notice that its Bricklayers-represented
employees would perform Cretex’s work on the Project.
On August 23, Heiman spoke on the telephone with
Bricklayers Business Agent Don Newton about the
Midway Project. Newton said he had heard rumors that
the Iron Workers were going to claim the precast con-
crete work and reminded Heiman that Cretex was
obliged to assign the work to Bricklayers-represented
employees under the collective-bargaining agreement.
Heiman acknowledged hearing similar rumors and said
that he intended to assign the work to employees repre-
sented by the Bricklayers, but that he did not know what
he would do if the Iron Workers claimed the work.
Heiman also stated that he had heard from a Paschen
representative that the Iron Workers had been asking
who would be erecting the precast concrete on the Mid-
way Project and that the Paschen representative was con-

1 All dates are in 2004.
BRICKLAYERS (CRETEX CONSTRUCTION SERVICES) 1031
cerned about potential labor issues. Around this time,
Heiman contacted Bricklayers regional director, Thomas
McClanahan, informed him of these same concerns, and
sought assurance that “we’re going to be represented
well with the Bricklayers.” On August 24, Heiman re-
ceived a letter from McClanahan stating that the Brick-
layers were “fully prepared to picket . . . and apply other
appropriate means of lawful pressure on all effective
parties to this project” if Bricklayers-represented em-
ployees were replaced with employees represented by the
Iron Workers. On August 25, Cretex filed the instant
charge.
On August 31, the Iron Workers requested a hearing to
determine jurisdiction over the Midway Project before
the Joint Conference Board (JCB) established under the
standard agreement between the Cook County Building
Trades Council and the Construction Employers Associa-
tion. The JCB arbitrator dismissed the case on Septem-
ber 22 on the ground that the JCB had no jurisdiction
over Cretex because Cretex was not bound by the stan-
dard agreement.
Meanwhile, over the course of August and September,
Paschen and Cretex settled the details of their subcon-
tracting agreement. Paschen confirmed its intent to
award Cretex the subcontract by a letter dated September
14, and the parties executed the final subcontract on Sep-
tember 21. In this final contract, the parties deleted the
clause of Paschen’s standard subcontracting agreement
that required the submission of work jurisdiction disputes
to the JCB.
B. Work in Dispute
The notice of hearing states, and Cretex and the Brick-
layers stipulate, that the work in dispute is “the precast
concrete erection work for an elevated parking structure
and dedicated busway route at Midway Airport in Chi-
cago, Illinois.” The Iron Workers characterize the work
in question as “structural” precast concrete erection.
Since this distinction does not vary the nature or scope of
the work in dispute, we find that the work in dispute is as
set forth in the notice of hearing.
C. Contentions of the Parties
The Iron Workers moves to quash the notice of hear-
ing, arguing that there is no reasonable cause to believe
that Section 8(b)(4)(D) of the Act has been violated. It
argues that there are no competing claims to the work
because Caliendo’s March 25 remarks had an organiza-
tional object and were made before Cretex had the au-
thority to assign the disputed work, and that the JCB fil-
ing was an attempt to settle the dispute rather than a
claim to the work. It further contends that the threat
made by the Bricklayers in its letter to Heiman was a
sham intended only as a maneuver to bring this dispute
before the Board. On the merits, the Iron Workers ar-
gues that the work should be awarded to employees it
represents on the basis of relative skills and safety, area
and industry practice, and a 1962 agreement between the
Iron Workers and Bricklayers international unions as-
signing structural precast concrete work to employees
represented by the Iron Workers.
Cretex asserts that this dispute is properly before the
Board. It contends that the Iron Workers claimed the
work through its JCB filing and Caliendo’s remarks re-
garding the Midway Project on March 25, and that the
Bricklayers’ letter to Heiman provides reasonable cause
to believe that the Bricklayers violated Section
8(b)(4)(D) of the Act. It further asserts that the work
should be awarded to employees represented by the
Bricklayers on the basis of Cretex’s collective-bargaining
agreement with the Bricklayers, employer preference,
relative skills, economy and efficiency of operations, and
industry and area practice. Cretex also contends that the
Board should issue a broad order awarding all Cretex’s
precast concrete erection work in the Chicago area to
employees represented by the Bricklayers.
The Bricklayers contends that the statute is applicable
because competing claims exist and there is reasonable
cause to believe that the Bricklayers violated Section
8(b)(4)(D) of the Act. The Bricklayers also argues that
the work should be assigned to employees represented by
the Bricklayers on the basis of collective-bargaining
agreements, employer preference and practice, industry
and area practice, relative skills and training, economy
and efficiency of operations, loss of existing jobs, and
prior Board awards.
D. Applicability of the Statute
Before the Board may proceed with a determination of
a dispute pursuant to Section 10(k) of the Act, it must be
established that reasonable cause exists to believe that
Section 8(b)(4)(D) has been violated. This requires a
finding that there is reasonable cause to believe that there
are competing claims to disputed work between rival
groups of employees and that a party has used proscribed
means to enforce its claim.2
Although the Iron Workers denies that it claimed the
work in dispute, we find that there is reasonable cause to
believe that there are competing claims. As discussed
above, on March 25 Iron Workers business agent,
Caliendo, made remarks to Cretex employees that on
their face constituted a claim to the Midway Project pre-

2 In addition, the Board must find that no method for voluntary ad-
justment of the dispute has been agreed on. None of the parties con-
tends that such a method presently exists.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1032
cast concrete erection work. The Iron Workers cite tes-
timony that during the same meeting, Caliendo also en-
gaged in discussions and activities related to the Iron
Workers’ drive to organize precast concrete erection con-
tractors in the Chicago area. The possibility that acts or
statements that constitute a claim to work may also have
an organizational object outside the scope of Section
8(b)(4)(D) is, however, insufficient to prevent a finding
of reasonable cause.3
We also reject the Iron Workers’ contention that
Caliendo’s remarks regarding the Midway Project cannot
constitute a claim for work because, at the time they were
made, Cretex had only received oral notification that it
had been awarded the subcontract and so did not possess
the authority to assign the Midway Project to its employ-
ees. By the time the case reached the Board, Cretex and
Paschen had executed a formal contract for the precast
work on the Midway Project, dispelling any uncertainty
about Cretex’s authority to assign the work and rendering
the dispute ripe for our determination.4
We find also that there is reasonable cause to believe
that the Bricklayers used means proscribed under Section
8(b)(4)(D) when, in its letter to Heiman, it threatened to
picket Cretex if the Midway Project work were reas-
signed. The Iron Workers urges the Board to find that
this threat was a sham because it was made immediately
after discussions between Cretex and Bricklayers repre-
sentatives, the letter’s wording mirrored that of an earlier
letter sent by the Bricklayers after the Iron Workers
claimed another precast project involving Cretex, the
Bricklayers took no steps to invoke its rights under its
collective-bargaining agreement with Cretex, and realiza-
tion of the threat would have violated the no-strike clause

3 Cf. Longshoremen ILA (Reserve Marine Terminals), 317 NLRB
848, 850 (1995) (finding charged union’s conduct within ambit of Sec.
8(b)(4)(D) where that conduct had “an area standards purpose” as well
as a proscribed jurisdictional object). Our finding that there is reason-
able cause to believe that Caliendo’s statements constituted a claim for
work is further supported by the fact that the Iron Workers later filed a
claim for the work with the Joint Conference Board. See, e.g., Brick-
layers (W. R. Weis Co.), 336 NLRB 699, 700 (2001).
4 The Iron Workers’ reliance on Sheet Metal Workers Local 28
(Hausman Engineering), 316 NLRB 1149 (1995), is misplaced. In
Hausman Engineering, the Board found that no competing claims
existed, although four subcontractors had bid on the work at issue and
the union representing three of the subcontractors’ employees had
claimed the work, because none of the bids had been accepted, and the
general contractor had indicated its intent to perform the work in-house
with employees represented by unions who were not parties to the
proceeding. Id. at 1150. Also distinguishable is Printing & Paper
Trades Workers 520 (Cuneo Eastern Press), 168 NLRB 531, 532
(1967), where the Board declined to determine possible disputes over
future work assignments. Here, as stated above, a general contractor
has formally awarded disputed work to a subcontractor, and the sub-
contractor has made a specific assignment of that work to a defined
group of employees.
of the agreement. The Iron Workers does not, however,
offer any direct evidence to show that the Bricklayers did
not intend its threat seriously. In the absence of such
evidence, it is well settled that where a charged party has
used language that on its face threatens economic action,
the Board will find reasonable cause to believe that Sec-
tion 8(b)(4)(D) has been violated.5
We therefore find reasonable cause to believe that a
violation of Section 8(b)(4)(D) has occurred. Accord-
ingly, we find that the dispute is properly before the
Board for determination, and we deny the Iron Workers’
motion to quash the notice of hearing.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive award of disputed work after considering various
factors. NLRB v. Electrical Workers Local 1212 (Co-
lumbia Broadcasting), 364 U.S. 573 (1961). The Board
has held that its determination in a jurisdictional dispute
is an act of judgment based on common sense and ex-
perience, reached by balancing the factors involved in a
particular case. Machinists Lodge 1743 (J. A. Jones
Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Certifications and collective-bargaining agreements
There is no evidence of any Board certifications con-
cerning the employees involved in this dispute.
As noted above, Cretex has a collective-bargaining
agreement with the Bricklayers that encompasses precast
concrete erection work. The agreement provides that
Bricklayers are to perform “the erection, installation and
remedial work concerning all precast, prestressed and
prefabricated concrete building systems.” The Employer
is not, and has never been, a signatory to an Iron Work-
ers’ collective-bargaining agreement. Accordingly, we
find that the factor of collective-bargaining agreements
favors an award of the work in dispute to employees rep-
resented by the Bricklayers.

5 See Teamsters Local 6 (Anheuser-Busch), 270 NLRB 219, 220
(1984) (rejecting contention that a threat was a sham because its reali-
zation would have involved violating a no-strike clause in the collec-
tive-bargaining agreement between the employer and the charged un-
ion); Lancaster Typographical Union No. 70, 325 NLRB 449, 450–451
(1998) (rejecting argument that the timing of a picketing threat showed
that the threat was a sham). Compare Iron Workers Local 433 (Cres-
cent Corp.), 277 NLRB 670, 673 fn. 6 (1985) (finding that union attor-
ney’s threat to take job action did not constitute reasonable cause to
believe Sec. 8(b)(4)(D) had been violated where the employer testified
that the attorney said “[y]ou can have your magic words” before deliv-
ering the threat).
BRICKLAYERS (CRETEX CONSTRUCTION SERVICES) 1033
2. Employer preference and past practice
Cretex prefers to assign the work to employees repre-
sented by the Bricklayers. Cretex’s consistent past prac-
tice has been to assign all precast erection work exclu-
sively to the Bricklayers. Therefore, we find that these
factors favor awarding the disputed work to employees
represented by the Bricklayers.
3. Area and industry practice
Both the Bricklayers and the Iron Workers offered
evidence that employees represented by their respective
unions have performed the disputed work nationally and
at sites within the Chicago area. Thus, we find that this
factor does not favor awarding the disputed work to em-
ployees represented by either union.
4. Relative skill and experience
Both the Bricklayers and the Iron Workers offered
evidence that employees represented by their respective
unions were qualified to do the work. Accordingly, we
find that this factor does not favor awarding the disputed
work to either group of employees.
5. Economy and efficiency of operations
The Bricklayers offered evidence that, because the
employees it represents are able to perform the grouting
and caulking tasks involved in precast concrete erection,
they are able to continue to work even when equipment
failure interrupts the erection of panels. Cretex Vice
President Heiman testified that, based on his personal
observation of Iron Workers crews, employees repre-
sented by the Iron Workers do not perform grouting and
caulking and are therefore unable to work in the event of
equipment failure. The Iron Workers do not dispute
Heiman’s testimony in this regard. Accordingly, we find
that this factor favors awarding the disputed work to em-
ployees represented by the Bricklayers.
6. Interunion agreements
The Iron Workers offered evidence of a 1962 agree-
ment between the Iron Workers and Bricklayers interna-
tional unions assigning structural precast concrete erec-
tion work to employees represented by the Iron Workers.
However, the Bricklayers offered uncontradicted evi-
dence that the Bricklayers international repudiated the
application of the 1962 agreement in the Chicago area in
1967, and that the 1962 agreement has not been followed
in that area. Accordingly, we find that this factor does
not favor awarding the disputed work to either group of
employees.
Conclusions
After considering all of the relevant factors, we con-
clude that employees represented by International Union
of Bricklayers and Allied Craftworkers, AFL–CIO, are
entitled to perform the work in dispute. We reach this
conclusion relying on the factors of collective-bargaining
agreements, employer preference, employer past prac-
tice, and economy and efficiency of operations. In mak-
ing this determination, we are awarding the work to em-
ployees represented by the Bricklayers, not to that Union
or its members.
Scope of the Award
The Employer contends that the Board should issue a
broad order with respect to the disputed work because
disputes between the Iron Workers and Bricklayers con-
cerning the erection and installation of precast concrete
have been prevalent in the Chicago area and are likely to
reoccur.
The Board customarily declines to grant an areawide
award in cases in which the charged party represents the
employees to whom the work is awarded and to whom
the employer contemplates continuing to assign the
work. See, e.g., Plumbers Local 562 (Charles E.
Jarrell), 329 NLRB 529 (1999). Accordingly, we shall
limit the present determination to the work jurisdiction
dispute that gave rise to these proceedings.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of Cretex Construction Services, Inc., rep-
resented by International Union of Bricklayers and Al-
lied Craftworkers, AFL–CIO, are entitled to perform the
precast concrete erection work for an elevated parking
structure and dedicated busway route at Midway Airport
in Chicago, Illinois, on behalf of Cretex Construction
Services, Inc.