Bricklayers Local 44

National Labor Relations Board - Board Decisions

Oct 28, 1980

253 N.L.R.B. 131 (N.L.R.B. 1980)

BRICKILAYE RS I.()CAI. 44
Bricklayers and Allied Craftsmen, Union No. 44,
AFI.-CIO and aborers International Union of
North America, Local Union Nos. 17 and 1000
and Corbetta Construction Company, Inc. Case
2-CD-617
October 28, 1980
DECISION AND DETERMINATION OF
DISPUTE
BY CIIAIRMAN FANNIN( ANI) MlNsBI:RS
JENKINS ANI) PI'NI lA.0O
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Laborers International Union
of North America, Local Union No. 17, AFL.
CIO, and Laborers International Union of North
America, Local Union No. 1000, AFL-CIO, herein
Laborers, alleging that Bricklayers and Allied
Craftsmen, Local Union No. 44, AFL-CIO, herein
Bricklayers, had violated Section 8(b)(4)(D) of the
Act by engaging in certain proscribed activity with
an object of forcing or requiring Corbetta Con-
struction Company, Inc., herein the Employer, to
assign certain work to employees represented by it
rather than to employees represented by Laborers.
Pursuant to notice. a hearing was held before
Hearing Officer John R. Westhoff on June 2 and 4,
1980. All parties appeared at the hearing and were
afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to adduce evi-
dence bearing on the issues. Thereafter, the Em-
ployer and Laborers filed briefs. Subsequently, La-
borers submitted two statements of position per-
taining to, inter alia, its request for a broad work
award, and Bricklayers filed a letter in response
thereto. All the materials filed have been duly con-
sidered.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority 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 af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THI BUSINESS OF THE FMPI.OYIR
The parties stipulated, and we find, that the Em-
ployer, a New York corporation with its principal
place of business in Hamden, Connecticut, is en-
gaged in general construction work. During the 12
months preceding the hearing, the Employer pur-
chased and received machinery, goods, and sup-
253 NLRB No. 15
plies valued in excess of S50,(00() directly fromn
points outside the States of New York and Con-
necticut.
Based on the foregoing, we find that Corbetta
Construction Company, Inc., is engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act, and that it wvill effectuate the purposes
of the Act to assert jurisdiction herein.
11. 1lil. I AIOR OR(AN IZ.xI ION IN, 0()1 %11)
The parties stipulated, and we find, that l.abor-
ers and Bricklayers are labor organizations within
the meaning of Section 2(5) of the Act.
Ill. [ tE I)ISI'tJ l:
A. Background and 'Facts o the Dispute
The Employer is enigaged as a structural con-
crete subcontractor to American Bridge Company,
which is erecting the Newburgh-Beacon Bridge
No. 2 across the Hudson River in the State of New
York. Pursuant to the terms of its contract with thile
American Bridge Company, the Employer is in-
stalling a concrete deck on the bridge surface.
On March 17, 1980,1 the Employer commllenced
work on the Newburgh, New York (west), side of
the bridge in preparation for the concrete pour.
Employees represented by carpenters started the
process by laying precut fabricated forms. Then,
other employees represented by ironworkers in-
stalled reinforcing bars on the forms before em-
ployees represented by carpenters set the end bulk-
heads.
After inspectors from the State of New York
had approved the progress of the structure, the
Employer placed an order for concrete on April
15. On this date, the Employer also contacted
Andrew Gallente, business agent of Bricklayers, to
obtain the services of those craftsmen needed to
complete this stage of the project. Gallente initially
refused to supply any men because the Employer
had not executed a collective-bargaining agreement
with Bricklayers. Jerry Corbetta, the Employcr's
president, immediately called Gallente and prom-
ised him that the Employer would sign a contract
with Bricklayers by Friday, April 18. Gallentc, in
turn, agreed to send bricklayers to the jobsite the
following day.
When the Employer began surfacing the deck on
April 17,2 employees represented by Laborers op-
erated the hoses which deposit concrete from a
holding tank into the precut fabricated forms in-
stalled previously. Employees represented by oper-
All dales arc , In {)SO, ilk I -t.. . dii.ted
- hi% ll [ *ork s idcl. d I di h IclCl ICrIt x' tl .
III
I)FtCISI()NS ()OF NATIONA. I.ABO()R RELAI I()NS It()ARI)
ating engineers then ran the finishing machines
used to level off the concrete. Thereafter. employ-
ees represented by Bricklayers used ining tools to
give the concrete a fine finish and hand trowels to
provide for smooth gutterline. The concrete pour
for that day was completed when an employee rep-
resented by Laborers performed the spray curing
function by hand-pumping a white pigmented sub-
stance, which retains water, onto the deck to pre-
vent suface cracking.
That night, Ben Puitti, the Bricklayers foreman,
informed Gallente that employees represented by
Laborers had been assigned the spray curing work
at the project. Gallente instructed Puitti that he
should tell Bricklayers shop steward, Benjamin
Trevelli, to grab the spray can the following day
so that employees represented by Bricklayers could
begin doing this work.
Early the next morning, Trevelli and Frank Mar-
chese, the Laborers shop steward, engaged in a
brief tugging match over possession of the spray
can. Trevelli then went to John Ahlsen, the Em-
ployer's project superintendent, and told him that
there would be no concrete poured that day unless
employees represented by Bricklayers were as-
signed the spray curing work. When Ahlsen con-
tacted Gallente later in the day concerning this
matter, Gallente remarked, "No spray curing, no
men," emphasizing that Trevelli's action had been
in accordance with the instructions he had given.
Gallente also mentioned that his men were work-
ing without a contract. After the parties were
unable to reach any agreement over these issues,
Gallente told Trevelli to take the bricklayers off
the job.
The Employer continued its operations the next
2 working days. On or about April 22, Bricklayers
began picketing the project with signs which
stated: "No contract between Corbetta and Local
44." Since laborers were the only employees who
would cross the picket lines, Ahlsen decided to
shut down the entire project. Consequently, the
Employer quickly executed a collective-bargaining
agreement with Bricklayers the following day. On
the basis of this contract, Bricklayers obtained a
temporary restraining order from a New York
State Supreme Court requiring the Employer to
assign spray curing work to employees represented
by Bricklayers. The court subsequently altered its
work assignment to divide the work equally among
employees represented by Laborers and employees
represented by Bricklayers. Consequently, the Em-
ployer currently is employing a laborer and a
bricklayer to perform what ordinarily is a one-man
job.
B. I'he Work in Dispute
The work in dispute concerns the spray curing
of poured concrete at the Newburgh-Beacon
Bridge Project No. 2.
C. The Contentions of the Parties
Bricklayers argued at the hearing that there is no
reasonable cause to believe that it has violated Sec-
tion 8(b)(4)(D) and that, therefore, the dispute is
not properly before the Board and the notice of
hearing should be quashed. It contended that there
is no clear showing that it threatened, coerced, or
restrained the Employer with an object of forcing
it to assign the spray curing work to employees
represented by it. In this regard, Bricklayers assert-
ed that the strike was based solely on the Employ-
er's refusal to enter into a collective-bargaining
agreement with it. In the event that the Board
should find that the dispute is properly before it,
Bricklayers claimed that its existing contract with
the Employer covers the disputed work and that
area practice favors an award to the employees it
represents. Finally, in its letter to the Board re-
sponding to Laborers request for a broad work
award, Bricklayers urges that the dispute herein
should be submitted to the Impartial Jurisdictional
Disputes Board for resolution.
The Employer and Laborers contend that the as-
signment of the disputed work to employees repre-
sented by Laborers should be upheld on the basis
of the Employer's preference and past practice,
area practice, and their collective-bargaining agree-
ment. Laborers also claims that there is a real pos-
sibility that the dispute will continue to recur at
other jobsites unless the Board makes a broad
award of the work. It therefore requests that the
Board extend the scope of the work award to
cover the performance of all spray curing work
within the geographical jurisdiction of Bricklayers.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of a dispute pursuant to Section 10(k) of the
Act, it must be satisfied that: (1) there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated, and (2) there is no agreed-upon method
for the voluntary resolution of the dispute.
With respect to (1), above, the record discloses
that the Employer assigned the work in dispute to
employees represented by Laborers when it com-
menced pouring concrete on April 17. The Em-
ployer's operations proceeded that day without in-
cident as the Bricklayers did not protest this work
assignment. The following day, however, Shop
Steward Trevelli told Ahlsen "unless he got the
132
BRICKIAYIRS I O()CA 44
spray curing job assigned to him, there will be no
Masons or, for that matter, no pour on that date."
Business Agent Gallente reiterated this position on
behalf of Bricklayers in a telephone conversation
with Ahlsen later that afternoon. After Ahisen re-
fused to comply with these demands, the bricklay-
ers walked off the job. On or about April 22. em-
ployees represented by Bricklayers picketed the
jobsite causing the Employer to shut down oper-
ations for 2 days. While Trevelli and Gallelte
denied threatening Ahlsen in any maniner, a con-
flict in testimony does not prevent the Board from
proceeding under Section 10(k) for, in this type of
proceeding, the Board is not charged with finding
that a violation did, in fact, occur, but only with
determining that reasonable cause exists for finding
such a violation. Accordingly, without ruling on
the credibility of the testimony at issue. :' we find
that there is reasonable cause to believe that Sec-
tion 8(b)(4)(D) has been violated. In reaching this
conclusion, we note Bricklayers contention that its
work stoppage resulted solely from the Employer's
failure to enter into a collective-bargaining relation-
ship with it. The record plainly shows, however,
that Bricklayers was willing to supply workers on
the project for several days without a contract
until the work assignment dispute arose. Thus, con-
trary to the argument raised by Bricklayers, we
find that the walkout and subsequent picketing was
undertaken with an object of securing the Employ-
er's assignment of the spray curing work."
With respect to (2), Bricklayers claims that both
labor organizations involved herein have agreed to
be bound by determinations of the Impartial Juris-
dictional Disputes Board. There is no evidence,
however, that the Employer participates in and is
bound by this method of adjudicating such dis-
putes. 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. Ac-
cordingly, we find that the matter is properly
before the Board for determination under Section
10(k) of the Act.
See. e.g., Local 'nion .Ao 334. Lahoreri Internationul 'nion t/ i.;rth
America 41L-CIO ( I terw Corporationm. 175 N RH Bo08, N)9 (190)
4The instant case is clearly distinguishable from nirted Selwuorkir, o!
America. Local 12970 (Rainbo., Securitr ,Seoumi. Inc.), 250 NRB t)10
(190), where Ihe hoard found that here didl il exist rcas'onahle caulle
to believe that Sec (b){4t1)) h ld hbeen violalItd ince the strike therei
was over ecn(lloriic demands, rather thail it work assiginlenlt isul I hre,
the parties had reached uhstantlial agrccmCnt regarding he ork aIsigin
mcnt issue pri(or to the pickctinlg 1i tlt itlistilllt cas. t ppears thai
Bricklayers had agreed to to rk on the tiinphi er ' prl ect shiile conlract
negtilatllons wuere in prl/gress
E. Merits o' lhe Dispute
Section 1()(k) of the Act requires that the Board
make an affirmative award of the disputed work
after giving due consideration to various relevant
flactors.' As the Board has frequently stated, the
determination in a jurisdictional dispute case is an
act of judgment based on commonsense and experi-
ence in weighing these factors. The followving fac-
tors are relevant in making a determination of the
dispute before us,
1. Board certifications and relevant collective-
bargaining agreements
'There is no evidence that either of the labor or-
ganizations concerned herein has been certified by
the Board as the collective-bargaining representa-
tive for a unit of the Employer's employees.
Section XVI of the existing collective-bargaining
agreement between the Employer and Laborers
provides. inter alia. that "waterproofing, spraying
and brushing of concrete for preservative pur-
poses" shall be assigned to employees represented
by Laborers. Therefore, we conclude that the La-
borers contract with the Employer covers the
work in dispute.
The Employer, as noted, subsquent to the begin-
ning of the dispute here, executed a contract with
Bricklayers on April 23, 1980. Article 4.4 of this
agreement states in relevant part as follows:
The application of the following materials in-
cluding the cleaning, priming and preparation
of concrete floor surfaces to receive concrete
stains. sealers, curers, hardeners and waxers;
the aforementioned materials included in con-
crete prior to pouring or in the finishing proc-
ess performed during the curing period (not to
exceed one week) is the work of the cement
masons.
In view of the circumstances surrounding the ex-
ecution of the Bricklayers agreement, as described
above, and the fact that the Employer previously
had assigned the disputed work to employees rep-
resented by Laborers pursuant to section XVI of
their agreement, we find that this provision is enti-
tled to less weight than that which we give to the
Laborers contract.
Accordingly, while there are no certifications
which would favor an award of the disputed work
to employees represented by either Laborers or
V 1 R If s Radio & lh'ivion flriad t hi in, eerr Union, 1 i local
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iti lru i a/!nig Si w I,, htn4 S 573 t 19l1 ), lni r It/ional 4 tatiron il
Afactll'll t Wi. I sgl . . / 74. -l1 . (10 J -I J i (Consrlruionii C ip'lip-
n,,, I N R 141)2 121
1I3
I)t..('ISI()NS ( NA I O()NAI. .AB()R Rl.A I I)NS BO()ARD)
Bricklayers, we find that the Laborers existing col-
lective-bargaining agreement with the E mployer
favors an award of the spray curing work to em-
ployces represented by Laborers.
2. Employer assignment and preference
The Employer has assigned the work in dispute
to its employees who are represented by Laborers,
and has manifested a preference to continiue that
assignment. We therefore firid that this factor
favors an aard of the disputed work to employees
represented by laborers.
3. Relative skills
I'here are no special skills required in the per-
formance of the disputed work. Accordingly we
find that this factor does not favor an award to em-
ployees represented by either Laborers or Bricklay-
ers.
4. Industry and area practice
There is no specific evidence regarding the in-
dustry practice as to the work in dispute. With re-
spect to area practice, John Obermeyer. project su-
perintendent for John Arborio, Inc., and Htoward
Wein, president of Halmar Construction Corp., tes-
tified that their established practice is to assign the
spray curing of concrete to employees represented
by Laborers and that they had done so on work
performed at the Newburgh-Beacon Bridge Project
No. 2. Construction contractors Anselm Avignone
and Sal Ferreira both testified, however, that their
companies regularly assign the disputed work to
employees represented by Bricklayers.
In view of the foregoing, we conclude that both
industry and area practice are inconclusive and do
not favor an award to employees represented by
either Laborers or Bricklayers.
5. Economy and efficiency of operations
The Employer's project superintendent, Ahlsen,
testified that the Employer's decision to assign the
disputed work to employees represented by Labor-
ers was not made for reasons of economy or effi-
ciency. Accordingly, we find that these factors are
inconclusive and do not favor an award of the dis-
puted work to employees represented by either La-
borers or Bricklayers.
Conclusions
Upon consideration of all the relevant factors,
we conclude that the Employer's employees who
are represented by Laborers International Union of
North America, Local Union No. 17, and Laborers
International Union of North America, Local
Union No. 10XX), are entitled to perform the work
in dispute. We reach this conclusion based on the
Employer's current collective-bargaining agree-
ment with Laborers and the Employer's preference
and past practice of assigning the disputed work to
these employees. Accordingly, we shall determine
the instant dispute by awarding the disputed work
to employees represented by Laborers International
Union of North America, Local Union No. 17, and
Laborers International Union of North America,
Local Union No. I(XX), but not to that Union or its
members. Additionally, we find that Bricklayers is
not entitled by means proscribed under Section
X(h)(4)(D) of the Act to force or require the Em-
ployer to assign the disputed work to employees
rcpresented by it.
Scope of the Award
Laborers requests that the Board issue a broad
award on behalf of the employees it represents to
be applicable throughout the Bricklayers territorial
jurisdiction. It subsequently reiterated this position
in its letter to the Board of July 17, noting that a
New York State Supreme Court recently had
granted Bricklayers a temporary restraining order
regarding performance of the disputed work at an-
other jobsite. In doing so, however, Laborers con-
cedes that Bricklayers did not employ illegal means
in that instance to secure the disputed work for
employees it represents.
Thus, absent evidence of any such activities, we
conclude that the conduct engaged in by Bricklay-
ers in this proceeding "does not demonstrate a pro-
clivity on [its] part . . . to engage in further unlaw-
ful conduct. Nor does [Bricklayers] alleged interest
in obtaining work similar to that in dispute here, as
such work becomes available on future [area] jobs,
demonstrate the likelihood that [it] will again resort
to unlawful means to obtain it. " 6 We therefore find
that the issuance of the broad order sought by La-
borers is not warranted in this case. Thus, our pres-
ent determination is limited to the particular con-
troversy 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
makes the following Determination of Dispute:
1. Employees of Corbetta Construction Compa-
ny, Inc., who are represented by Laborers Interna-
Loc(al l'fnion .Vo. 417. Inicrnat naul .4so atriton {o Bridgl'. Stru(tural
andt Ornamental Iron.orAcr .. ,. L ( /CO (.Spat'rt \eorthccu. In. , 21
NI RH 96. 99 (1975); I.,oal V\; 6, Internaurmnal 1to¢tarotfl o/ ridge
,Strut ural & ()rnoa cnal IrOonrnrrA (.Spat nrote .Aortheua. Int -I, 1g
NI R 1182, 1185 (1972)
114
BRICKILAYERS LO()CAI. 44
tional Union of North America, Local Union No.
17, and l.aborers International Union of North
America, Local Union No. 10(X), are entitled to
perform the work involved in the spray curing of
concrete at the Newburgh- Beacon Bridge Project
No. 2.
2. Bricklayers and Allied Craftsmen, Local
Union No. 44, AFL-CIO, is not entitled by means
proscribed by Section X(b)(4)(D) of the Act to
force or require Corbetta Construction Company,
Inc., to assign the disputed work to employees rep-
resented by it.
3. Within 10 days fromn the date of this l)ccision
and Detcrmination of Dispute, Bricklayers and
Allied Craftsmen, I.ocal Union No. 44, AFI.-C I(),
shall notify the Regional I)irector for Region 2, n
writing, whether or not it will refrain fromi forcilng
or requiring Corbetta ConstruCetiio Company. Inc.
by means proscribed by Section 8(b)(4)([)) of hC
Act, to assign the disputed work to employees rep-
resented by it rather than to employees rreslntcd
by Laborers International Union of North Amer-
ica, Local Union No. 17, and I aborers Internalion-
al Union of North America, I.ocal Union No. 1(00.
I ,