Bricklayers Local 15 (Fusco Corp.)

National Labor Relations Board - Board Decisions

Mar 14, 1986

278 N.L.R.B. 967 (N.L.R.B. 1986)

BRICKLAYERS LOCAL 15 (FUSCO CORP.) 967
Bricklayers Local #15, International Union of
Bricklayers & Allied Craftsmen, AFL-CIO and
Fusco Corporation and Laborers Local 665,
Construction & General Laborers, Connecticut
Laborers District Council , LIUNA, AFL-CIO.
Case 39-CD-27
14 March 1986
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS DENNIS , BABSON, AND
STEPHENS
The charge in this Section 10(k) proceeding was
filed 18 October 1985 and amended 1 November
1985 by Fusco Corporation (Fusco), alleging that
the Respondent , Bricklayers Local #15, Interna-
tional Union of Bricklayers & Allied Craftsmen,
AFL-CIO (Bricklayers Local 15), violated Section
8(b)(4)(D) of the National Labor Relations Act by
engaging in proscribed activity with an object of
forcing Fusco to assign certain work to employees
it represents rather than to employees represented
by Laborers Local 665 , Construction & General
Laborers, Connecticut Laborers District Council,
LIUNA, AFL-CIO (Laborers Local 665). The
hearing was held 4 December 1985 before Hearing
Officer Howard D. Neidig Jr.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board affirms the hearing officer 's rulings,
finding them free from prejudicial error. On the
entire record, the Board makes the following find-
ings.
1. JURISDICTION
Fusco, a Connecticut corporation, with its prin-
cipal offices located in New Haven , Connecticut, is
engaged as a general contractor in the construction
industry. During the 12-month period preceding
December 1985 , Fusco received over $50,000 for
services performed outside the State of Connecti-
cut. We find that Fusco is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act and that Bricklayers Local 15 and Laborers
Local 665 are labor organizations within the mean-
ing of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Fusco is the general contractor at a construction
project located in Shelton, Connecticut, for a
building to be rented by Black & Decker Corpora-
tion . In mid- to late-September 1985 Fusco as-
signed to the employees represented by Laborers
Local 665 the work of setting and laying precast
concrete pavers for walkways at the Black &
Decker jobsite. The work involves placing the 12-
inch by 12-inch by 1-1/2-inch concrete pavers side
by side onto a styrofoam sheet laid over a floor of
poured concrete . The paving requires no mortar
(the paving is "dry"), pitch , or leveling . Fusco pro-
vides a dry concrete cutting saw , known as a
German skill saw, to cut the pavers where neces-
sary to fit them along the side of a paving area.
The only other tools needed for the work are a
stick or ruler and a pencil to mark where the
pavers are to be cut.
Three days after the paving work began , Brick-
layers Local 15 's Business Agent Gene DiGiovanni
visited Construction Superintendent Patrick Pizzo-
ferrato's trailer at the jobsite and objected to the
work assignment . According to Pizzoferrato, Di-
Giovanni threatened to pull employees represented
by Bricklayers Local 15 off the job unless Pizzofer-
rato reassigned the paving work to employees rep-
resented by Bricklayers Local 15 . DiGiovanni testi-
fied he threatened only a contractual grievance and
not a work stoppage if the work was not reas-
signed. Thereafter , Fusco temporarily halted the
paving work. Representatives of Fusco , Laborers
Local 665 , and Bricklayers Local 15 met to discuss
the dispute on 16 October, but neither Union was
willing to accept a compromise. On 18 October
Fusco filed the 8(b)(4)(D) charge against Bricklay-
ers Local 15 . At some point Fusco decided to con-
tinue the paving work with its Laborers -represent-
ed employees, and by the hearing on 4 December
the work was nearly completed.
B. Work in Dispute
The work in dispute is the dry setting and laying
of 12-inch by 12-inch by 1-1/2-inch precast con-
crete pavers for walkways at the Black & Decker
Corporation jobsite in Shelton , Connecticut.
C. Contentions of the Parties
Fusco contends the disputed work 's assignment
to employees represented by Laborers Local 665
was consistent with its past practice.
Laborers Local 665 contends that Fusco was ob-
ligated to assign the disputed work to the employ-
ees it represents based on its collective-bargaining
agreement . Laborers Local 665 also contends that
the type of paving work in dispute is distinguish-
able from the type of paving traditionally done by
Bricklayers, and that employees represented by La-
borers Local 665 have, in the past , performed the
type of paving work in dispute and possess the nec-
essary skills to operate the required tools safely and
efficiently and to lay the pavers properly.
278 NLRB No. 135
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bricklayers Local 15 contests the credibility of
Pizzoferrato 's testimony that it threatened to strike
over the work assignment. Bricklayers Local 15
further maintains that Fusco was obligated to
assign the disputed work to the employees it repre-
sents based on its collective -bargaining agreement,
and that the disputed work should have been as-
signed to it based on area and industry practice,
relative skill considerations, efficiency, and safety.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of 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) of the Act
has been violated and there is no agreed-upon
method for the voluntary resolution of the dispute.
Fusco Construction Superintendent Pizzoferrato
testified that Bricklayers Local 15 Business Agent
DiGiovanni threatened a strike unless Fusco reas-
signed the disputed work to employees represented
by Bricklayers Local 15. Although DiGiovanni
denied making the threat, it is well settled that a
conflict in testimony does not prevent the Board
from proceeding under Section 10(k) because in
this type of proceeding the Board is not charged
with finding that a violation did in fact occur, but
only that reasonable cause exists for finding such a
violation.' There is no evidence in the record, and
no party contends, that an agreed-upon method
exists for the voluntary resolution of the instant
dispute.
We find reasonable cause to believe that a viola-
tion of Section 8(b)(4)(D) has occurred and that
there is no agreed method for voluntary adjustment
of the dispute within the meaning of Section 10(k)
of the Act. We therefore find that the dispute is
properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an af-
firmative award of disputed work after considering
various factors. NLRB v. Electrical Workers IBEW
Local 1212 (Columbia 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 experience , reached by bal-
ancing 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
determination of this dispute.
' Painters Local 813 (Cincinnati Floor Ca), 261 NLRB 462 (1982).
1. Certification and collective -bargaining
agreements
There are no Board orders awarding the work in
dispute to a particular group of employees and nei-
ther Union has been certified by the Board as the
collective-bargaining representative of a unit of the
Employer's employees . Accordingly , these factors
are not helpful in determining the dispute.
The collective-bargaining agreement between
Fusco and Laborers Local 665, effective 1 June
1984 through 30 April 1987 , states that Fusco rec-
ognizes that Laborers Local 665 claims "All work
in connection with loading, unloading, handling,
signaling , slinging and setting of all paving blocks,
rip-rap or retaining walls , such as stone, wood,
metal , concrete or other material and the prepara-
tion of surfaces to receive same." The collective-
bargaining agreement between Fusco and Bricklay-
ers Local 15, effective 4 June 1984 through 31
March 1987, states that Fusco acknowledges that
Bricklayers Local 15 claims "The laying or setting
of all tile where used for floors, walls, ceilings,
walks . . . ." "Tile" is defined as including tiles
made of "burned clay products," as well as "all
composition materials," made in single units up to
15 inches by 20 inches by 2 inches.
As both Unions have colorable contractual
claims to the disputed work, we find that the factor
of collective-bargaining agreements does not clear-
ly favor an award of the work to either Laborers-
represented or Bricklayers-represented employees.
2. Company preference and past practice
Fusco Construction Superintendent Pizzoferrato,
who has held his position with Fusco for 9 years,
testified that if paving work requires no mortar or
leveling, his practice is to assign the work to labor-
ers. Pizzoferrato testified that 2 years earlier Fusco
was responsible for precast concrete paving similar
to the work in dispute , which Fusco assigned to
employees represented by a Laborers local. Fusco
has also assigned dry brick paving work at the
Black & Decker jobsite to employees Laborers
Local 665 represents . Fusco further indicated a
preference that the disputed work be assigned to
laborers.
Accordingly, these factors favor an award of the
disputed work to employees Laborers Local 665
represents.
3. Area practice
Although the record on area practice is not en-
tirely without doubt, it appears that paving with
bricks or concrete pavers requiring mortar or level-
ing work is generally assigned to Bricklayers -repre-
BRICKLAYERS LOCAL 15 (FUSCO CORP.) 969
sented employees , while dry paving with brick or
concrete pavers is generally assigned to Laborers-
represented employees . Bricklayers Local 15 repre-
sentatives testified that Bricklayers locals have
always handled brick or concrete block paving
both wet and dry, but only two of the examples
they cited involved dry paving . One of the two
dry jobs was in the early 1960s, and the other, the
Tetley Tea job, was very small and involved bricks
laid on sand. Bricklayers Local 15 Business Agent
DiGiovanni admitted he could recall no instance
where employees Bricklayers Local 15 represents
have been assigned work laying pavers on styro-
foam with no mortar or leveling involved. Labor-
ers Local 665 Business Agent Ronald Nobili testi-
fied that, except for the Tetley Tea job, employees
represented by Laborers Local 665 have done all
the dry paving in its jurisdiction in the recent past.
Accordingly , we find the area practice favors an
award of the disputed work to employees Laborers
Local 665 represents.
4. Relative skills
As the disputed work, the setting and laying of
precast concrete pavers, involves no mortar, pitch,
leveling, or complicated paving pattern, and both
bricklayers and laborers possess the required skills
to lay the concrete pavers and operate safely a dry
concrete cutting saw, we find that this factor does
not clearly favor either group of employees.
5. Economy and efficiency of operations
Bricklayers Local 15 Business Agent DiGiovanni
testified that while it might be less expensive per
hour to hire employees represented by Laborers
Local 665, employees represented by Bricklayers
Local 15 might get the job done faster. In view of
the ambiguity of this evidence , we find that this
factor does not clearly favor either group.
Conclusions
After considering all the relevant factors, we
conclude that employees represented by Laborers
Local 665 are entitled to perform the work in dis-
pute . We reach this conclusion relying on area
practice and the Employer 's preference and past
practice . In making this determination, we are
awarding the work to employees represented by
Laborers Local 665 , not to that Union or its mem-
bers. The determination is limited to the controver-
sy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. Employees of Fusco Corporation represented
by Laborers Local 665 , Construction & General
Laborers, Connecticut Laborers District Council,
LIUNA, AFL-CIO are entitled to perform the dry
setting and laying of precast concrete pavers on
walkways at the Black & Decker jobsite in Shel-
ton, Connecticut.
2. Bricklayers Local #15, International Union of
Bricklayers & Allied Craftsmen, AFL-CIO is not
entitled by means proscribed by Section 8(b)(4)(D)
of the Act to force Fusco Corporation to assign
the disputed work to employees represented by it.
3. Within 10 days from this date , Bricklayers
Local #15 , International Union of Bricklayers &
Allied Craftsmen, AFL-CIO shall notify the Offi-
cer-in-Charge of Subregion 39 in writing whether
it will refrain from forcing the Employer, by means
proscribed by Section 8(b)(4)(D ), to assign the dis-
puted work in a manner inconsistent with this de-
termination.