Bricklayers Local 15 (Jacor Contracting)

National Labor Relations Board - Board Decisions

Sep 24, 2003

340 N.L.R.B. 304 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 304
Missouri and Kansas Bricklayers Local Union No. 15,
of the International Union of Bricklayers and
Allied Craft Workers, AFL–CIO and Jacor
Contracting, Inc. and D. H. Restoration, Inc.
and Cement Masons Local 518 of the Operative
Plasterers’ and Cement Masons’ International
Association, AFL–CIO. Cases 17–CD–367, 17–
CD–368, and 17–CD–369
September 24, 2003
DECISION AND ORDER QUASHING NOTICE
OF HEARING
BY CHAIRMAN BATTISTA AND MEMBERS
SCHAUMBER
AND WALSH
This is a consolidated1 proceeding under Section 10(k)
of the National Labor Relations Act, following the filing
of charges in Case 17–CD–367 on May 1, 2003,2 by
Jacor Contracting, Inc. (Jacor or the Employer) and in
Cases 17–CD–368 and 17–CD–369 on May 5 and May
14 by D. H. Restoration, Inc. (D. H. Restoration or the
Employer). It is alleged that Missouri and Kansas Brick-
layers Local Union No. 15 of the International Union of
Bricklayers and Allied Craft Workers, AFL–CIO (BAC
Local 15) violated Section 8(b)(4)(D) of the Act by en-
gaging in certain proscribed activity with an object of
forcing the Employers to assign certain work to employ-
ees represented by BAC Local 15 rather than to employ-
ees represented by Cement Masons Local Union 518 of
the Operative Plasterers’ and Cement Masons’ Interna-
tional Association, AFL–CIO (Plasterers or Local 518).
A hearing was held on June 4 and 6, 2003, before Hear-
ing Officer Susan A. Wade-Wilhoit. Thereafter, BAC
Local 15, Jacor, and D. H. Restoration filed briefs in
support of their positions. BAC Local 15 also filed a
motion to quash the Section 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 re-
cord, the Board makes the following findings.
I. JURISDICTION
The parties stipulated that Jacor, a Missouri corpora-
tion, is engaged in the business of restoration and water-
proofing for commercial and industrial entities, and that,
during the past calendar year, Jacor has sold and shipped
goods and services valued in excess of $50,000 from its
facility in Kansas City, Missouri, to customers located

1 An order consolidating cases and notice of hearing was issued on
May 28, 2003.
2 All dates refer to 2003 unless otherwise indicated.
outside the State of Missouri. In addition, the parties
stipulated that, during the same period, Jacor has re-
ceived goods and services valued in excess of $50,000
from suppliers located outside the State of Missouri. The
parties also stipulated that D. H. Restoration, a Missouri
corporation, is engaged in the business of contract caulk-
ing, restoration, and waterproofing for commercial and
industrial entities and that, during the past calendar year,
it has sold and shipped goods and services valued in ex-
cess of $50,000 from its facility in Pleasant Hill, Mis-
souri, to customers located outside the State of Missouri.
Accordingly, on the basis of the parties’ stipulations, we
find that Jacor and D. H. Restoration are engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act. The parties also stipulated, and we find, that
BAC Local 15 and Plasterers Local 518 are labor organi-
zations within the meaning of Section 2(5) of the Act.
II. THE DISPUTES
A. Background and Facts
Jacor is a masonry and concrete contractor. Its principal
business is centered on the preservation, maintenance res-
toration, and waterproofing of masonry and concrete mate-
rials and includes the caulking of all related materials.
Jacor has been in business since 1993, and its president is
Ted Jacques. In August 1996, Jacor established a Section
8(f) relationship with Local 518. Jacor became a party to
the multiemployer collective-bargaining agreement nego-
tiated between the Builders Association of Missouri
(Builders Association) and Local 518. In August 1997,
Jacor entered into an 8(f) relationship with BAC Local 15.
Jacor executed a designation of exclusive bargaining rep-
resentative form that assigned Jacor’s bargaining rights to
the Builders Association. From August 1997 through
March 2003, Jacor was signatory to contracts with both
Unions and employed workers represented by both. The
assignment of work was made at the discretion of Jacor’s
president without regard to which Union represented the
employees. The assignment of work in this fashion went
unchallenged by both Unions during this period.
In early 2003, Jacor decided to withdraw its assign-
ment of bargaining rights from the Builders Association
and terminate its signatory status with BAC Local 15.
Jacor advised its employees who were represented by
BAC Local 15 of its decision and told them they could
remain Jacor employees and be represented by Local
518. All of Jacor’s BAC Local 15-represented employ-
ees except one became Local 518-represented employ-
ees.3 Jacor’s contract with BAC Local 15 terminated on
March 31, 2003. Local 518 became the recognized rep-
resentative of Jacor’s employees.
3 That one employee left Jacor’s employ.
340 NLRB No. 41
MISSOURI & KANSAS BRICKLAYERS LOCAL 15 (JACOR CONTRACTING) 305
In early April, BAC Local 15 Representative Steven
McClanahan and two other BAC representatives fol-
lowed a Jacor employee, James Baglin, as Baglin was
driving his van to a jobsite. Baglin testified that
McClanahan said that all caulking work belonged to
BAC Local 15 and that the only way that Baglin could
continue to perform the work was if Jacor signed a col-
lective-bargaining contract with BAC Local 15.
At about the same time, McClanahan and another BAC
representative visited Jacques at Jacor’s office. Jacques
testified that McClanahan told Jacques that BAC Local
15 claimed the work being performed by the Local 518-
represented employees and that McClanahan said that
“things were going to get ugly” if BAC Local 15 were
not assigned the work.
The factual background concerning D. H. Restoration
is similar. From 1993 until March 31, 2003, D. H. Res-
toration had an 8(f) relationship with BAC Local 15. All
of D. H. Restoration’s hourly field workers were repre-
sented by BAC Local 15. In January 2003, D. H. Resto-
ration gave notice of its intent to terminate this relation-
ship upon the contract’s expiration of March 31, 2003.
Effective April 1, 2003, D. H. Restoration signed an 8(f)
agreement with Local 518. All of its workers except one
became Local 518-represented employees.4
The general counsel for the Builders Association held
meetings on April 17 and 21. Representatives from the
two Unions, the Builders Association, and J. E. Dunn,
the largest general contractor in the area, attended. The
general counsel testified that he realized that certain
companies had not signed contracts with BAC Local 15
and had signed with Local 518, and that he was con-
cerned that some jurisdictional issues could arise. At the
first meeting, BAC Local 15 President Steve Mullen told
the parties that the work belonged to the Bricklayers and
that he would picket Jacor and D. H. Restoration jobsites
to protect that work. No agreement was reached at the
meeting. Although some of the participants thought that
a tentative agreement was reached at the second meeting,
no formal resolution was ever entered into.
The parties stipulated that for limited periods between
April 24 and May 8, BAC Local 15 engaged in picketing
at various sites in the Kansas City area where Jacor and
D. H. Restoration had jobs. The parties also stipulated
that the language used on the picket signs was:
Notice to the Public (Jacor or D. H. Restoration) does
not have a contract with BAC Local 15, and is break-
ing down standards and wages for working condi-
tions in the area.

4 That one employee left D. H. Restoration’s employ.
B. Work in Dispute
The work in dispute involves the caulking, waterproof-
ing, sealing, and restoration of construction services at
the following jobs: (1) Sysco Foods, Olathe, Kansas; (2)
St. Joseph Parish-K-8, Shawnee, Kansas; (3) Intervet,
Desoto, Kansas; (4) The Jones Store, Independence Cen-
ter, Independence, Missouri; (5) Vine Street Lofts, Kan-
sas City, Missouri; (6) Nebraska Furniture Mart, Kansas
City, Kansas; (7) Cerner Development, North Kansas
City, Missouri; (8) Lee’s Summit West High School,
Lee’s Summit, Missouri; and (9) Ash Grove World
Headquarters.
C. Contentions of the Parties
BAC Local 15 moves to quash the notice of hearing,
arguing that it has a representational dispute with each of
these Employers concerning which labor organization
should be representing the employees who were formerly
represented by BAC Local 15 and who continue to be
assigned to perform the work. It emphasizes that it never
suggested or demanded that these contractors change any
work assignments. BAC Local 15 contends that the key
element for finding an 8(b)(4)(D) violation: “an attempt
to take a work assignment away from another group, or
to obtain the assignment rather than have it given to the
other group” is missing.
In the event that the Board finds that there is reason-
able cause to believe that a violation of Section
8(b)(4)(D) has occurred, BAC Local 15 contends that the
Board should award the work, with the exception of
caulking and/or waterproofing of concrete “flat” work,”
to bricklayers on the basis of employer past practice and
area practice.
The Employers and Local 518 contend that a bona fide
jurisdictional dispute is properly before the Board because
BAC Local 15 has not made a demand for recognition and
has not demanded that the Employers execute a new
agreement with BAC Local 15. Instead, they argue, BAC
Local 15 has claimed the work for its members. Jacor
contends that the Board should award the work to employ-
ees represented by Local 518 on the basis of its collective-
bargaining contract with Local 518, industry and area
practice, employer past practice, and employer preference.
D. H. Restoration argues that the work should be awarded
to employees represented by Local 518 on the basis of
employer preference and assignment, efficiency and econ-
omy of operations, collective-bargaining contracts, and
experience and expertise in the work. Both Employers
request a broad award with respect to the work in dispute
throughout the Kansas City area. Jacor additionally asks
that the award apply to other geographic areas where it
performs the work in question.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 306
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
satisfied that: (1) there are competing claims for the
work; (2) there is reasonable cause to believe that Section
8(b)(4)(D) has been violated; and (3) the parties have not
agreed on a method for the voluntary adjustment of the
dispute.5
On the record before us, we are not satisfied that there
are rival groups competing for the work. Although the
Employers have framed the issues in terms of a jurisdic-
tional dispute, it is clear that the dispute is not over the
assignment of the work to one group of employees instead
of a different group, within the meaning of Section
8(b)(4)(D). Rather, the dispute “involves the question of
which union will represent the employees who are cur-
rently performing the . . . work.”6 None of the parties has
objected to the performance of the work by the Employ-
ers’ current employees. On the contrary, the Employers
would like to retain their current employees but prefer that
Local 518 represent them. The Employers, BAC Local 15,
and Local 518 are in dispute only over which union should
represent the employees currently performing the work at
the various jobsites.
The situation here is analogous to the one in Carpenters
Local 275 (Lymo Construction), 334 NLRB 422 (2001).
In that case, the employer assigned metal siding work to a
composite crew of employees, some of whom were repre-
sented by the Sheet Metal Workers and some by the Car-
penters. The employer’s core employees gradually transi-
tioned their membership from the Sheet Metal Workers to
the Carpenters. The employer contended that the Sheet
Metal Workers’ filing of a grievance and the Carpenters’
threat to strike if the employer changed the assignment
constituted violations of Section 8(b)(4)(D) and required
the Board to enter a 10(k) award. The Sheet Metal Work-
ers argued that, “for there to be a jurisdictional dispute
there must be a dispute between two groups of employees
over which group should perform the challenged work.” It
contended that there was only one core group of employ-
ees who performed the disputed work and that the Carpen-
ters had replaced the Sheet Metal Workers in representing
those core employees. The Board agreed with the Sheet

5 Teamsters Local 259 (Globe Newspaper Co.), 327 NLRB 619, 622
(1999); Laborers Local 113 (Super Excavators), 327 NLRB 113, 114
(1998); Laborers’ District Council of West Virginia (Michel, Inc.), 325
NLRB 1058, 1059 (1998).
6 Carpenters Local 1307 (Dearborn Village), 331 NLRB 245, 246
(2000).
Metal Workers, finding that “the dispute is over which
union will represent the single group of employees cur-
rently performing that work.”7 Similarly, the dispute in
the instant case is over which union will represent the sin-
gle group of Jacor or D. H. Restoration employees cur-
rently performing the work.8
It is well established that a dispute within the meaning
of Section 8(b)(4)(D) requires a choice between two
competing groups.9 In this regard, the Board has stated:
There must, in short, be either an attempt to take a work
assignment away from another group, or to obtain the
assignment rather than have it given to the other
group.10
Thus, in light of the foregoing, we conclude that the
dispute here does not concern the assignment of work to
one group of employees rather than another within the
meaning of Section 8(b)(4)(D). Accordingly, as this mat-
ter is not a jurisdictional dispute within the meaning of
Section 10(k), we shall quash the notice of hearing.
ORDER
It is ordered that the notice of hearing issued in this
case is quashed.

7 Lymo Construction Co., supra at 423.
8 Compare Bricklayers Local 5 (Jersey Panel), 337 NLRB 168
(2001). In that case, the employer’s core employees had been repre-
sented by Bricklayers Local 5. After the core employees signed au-
thorization cards to be represented by the Plasterers, the employer
entered into a collective-bargaining contract with the Plasterers. The
vice president of Bricklayers Local 5 stated that if Bricklayers Local 5
could not get the core employees back as members, then he wanted “it
all.” The Board did find that these comments reflected “a primary rep-
resentational objective.” However, the Board continued, “they go
further and also reveal a jurisdictional object, should the representa-
tional goal fail.” Namely, the Board stated, these comments can rea-
sonably be interpreted to mean that Bricklayers Local 5 wanted the
employer to use Bricklayers Local 5 members rather than its core em-
ployees. In the instant case, there is no evidence that BAC Local 15
wanted the Employers to use any employees other than the ones they
were using, and thus no jurisdictional objective is presented.
9 Laborers Local 1 (DEL Construction Co.), 285 NLRB 593, 595
(1987), citing Food & Commercial Workers Local 1222 (FedMart
Stores), 262 NLRB 817, 819 (1982), and Teamsters Local 222 (Jelco,
Inc.), 206 NLRB 809, 810–811 (1973).
10 FedMart Stores, supra at 819, citing Communications Workers
(Mountain States Telephone), 118 NLRB 1104, 1107 (1957).