Bricklayers Local 1

National Labor Relations Board - Board Decisions

Jun 15, 1971

191 N.L.R.B. 174 (N.L.R.B. 1971)

174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bricklayers International Union , Local No. 1, of Ken-
tucky, AFL-CIO and its Agent, Norbert Stich and
Pankow Construction Co.' and Local No. 70, Inter-
national Association of Bridge , Structural and Or-
namental Iron Workers, AFL-CIO and Local No.
64, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO. Case 9-CD-224
June 15, 1971
DECISION AND DETERMINATION OF
DISPUTE
I. THE EMPLOYER
The parties stipulated that the Employer is a Cali-
fornia corporation engaged in building and construc-
tion, with its principal office in Altadena, California.
During the past year, a representative period, the Em-
ployer performed services for customers located out-
side the State of California valued in excess of $50,000.
Upon the basis of the facts the parties so stipulated, we
find that the Employer is engaged in a business affecting
commerce within the meaning of Section 2(6) and (7)
of the Act, and that it will effectuate the policies of the
Act to assert jurisdiction in this proceeding.
BY MEMBERS FANNING, BROWN, AND KENNEDY
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following
charges filed by Pankow Construction Co., hereinafter
called the Employer, alleging that Bricklayers Interna-
tional Union, Local No. 1, of Kentucky, AFL-CIO,
hereinafter called Bricklayers, and its agent, Norbert
Stich, had violated Section 8(b)(4)(D) of the Act. A
duly scheduled hearing was held before Hearing Officer
Francis A. Keenan on February 16, 17, and 18, 1971,
in Louisville, Kentucky.
Local No. 70, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO,
hereinafter called Ironworkers; Local No. 64, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, hereinafter called Carpenters; Cement Ma-
sons Local Union No. 694, AFL-CIO, hereinafter
called Cement Masons;' the Bricklayers; and the Em-
ployer appeared at the hearing and were afforded full
opportunity to be heard, to examine and cross-examine
witnesses, and to adduce evidence bearing on the issues.
Thereafter, the Employer and the Bricklayers filed
briefs.
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 powers
in connection with this case to a three-member panel.
The rulings of the Hearing Officer made at the hear-
ing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, the Board makes
the following findings:
The name of the Employer, the Charging Party, appears as corrected
at the hearing
Cement Masons received neither a formal notice of charge nor a formal
notice of hearing. Upon information received by the Regional Office from
the Charging Party to the effect that the Cement Masons should probably
be joined as a Party to the Dispute, it was notified of the hearing by tele-
graphic notice dated February 12, 1970, and was permitted to enter an
appearance over the objection of the Bricklayers. In the course of the hear-
ing, the Bricklayers disavowed any claim to the work being performed at the
jobsite in question by the Cement Masons, at which point the Cement
Masons withdrew from the hearing The Bricklayers, prior to the close of
the hearing, withdrew any objection to the Cement Masons appearance.
II. THE LABOR ORGANIZATIONS
The record shows, and we find, that the Bricklayers,
Ironworkers, and Carpenters are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A, The Work at Issue
The work in dispute is the erecting, installing, set-
ting, temporary bracing, leveling, aligning, plumbing,
and anchoring, including welding, of precast concrete
wall panels, including undulating walls, colunsn cover
panels, pier panels, and fascia panels, at the Citizens
Fidelity Bank Building, a building under construction
in Louisville, Kentucky.
B. Background and Facts of the Dispute
Since August 1969, the Employer has engaged in a
joint venture with Whittenberg Engineering and Con-
struction Company for the construction of the Citizens
Fidelity Bank Building, a project valued in excess of
$15 million. Actual construction of the building com-
menced in November 1969. The building is being con-
structed of concrete, with poured-in-place concrete col-
umns, cove walls, precast and prestressed floor beams
and slabs, and precast exterior wall panels. The precast
wall panels, which are involved in the instant dispute,
are manufactured and supplied by an outside contrac-
tor, Dolt and Dew, Inc.
The precast wall panels enclose the building for
structural purposes. The building is being built floor by
floor. The wall panels in dispute will appear only on the
first, second, and twenty-ninth floors. The Employer
has assigned the disputed work to a composite crew
consisting of carpenters and ironworkers.
Prior to the installation of wall panels, carpenters
establish a line on which the panels will be placed. The
carpenters do all of the preerection setting and align-
ment. The panels are then placed in position by the
composite crew of carpenters and ironworkers. Later
the panels are joined to the building by poured-in-place
191 NLRB No. 31
BRICKLAYERS , LOCAL 1 175
concrete columns. The carpenters build the forms for
these columns and perform any posterection align-
ment.
According to Ralph J . Tice , the Employer 's project
superintendent at the Citizens Fidelity Bank Building
jobsite, sometime in early February 1970, the Employer
assigned the disputed work to a composite crew of
carpenters and ironworkers . Shortly thereafter, Tice
was visited on the jobsite by the Bricklayers ' business
agent, Norbert Stich . Stich wanted to look at the job
plans to see if there was work on the job which brick-
layers would be performing. Upon learning that there
were precast panels on the building , Stich claimed that
work for members of the Bricklayers . Tice informed
Stich that Pankow had assigned this work to a compos-
ite crew of carpenters and ironworkers . According to
Tice, Stich then said that he would probably take his
claim to the National Joint Board for the Settlement of
Jurisdictional Disputes, hereinafter called the Joint
Board , whereupon Tice told him that the Employer, a
member of the General Contractors Association of
Louisville and also of the Associated General Contrac-
tors, did not recognize the Joint Board , would not par-
ticipate in any action before that board , and would not
be bound by any of its decisions.
Stich testified that on February 6, 1970, he and
Bricklayers Vice President Edgar Baker met again with
Tice. According to Stich , Louis E. Fogle , business
agent of the Carpenters , and Ed Waller , an Interna-
tional representative of the Carpenters , also attended
the meeting . Stich testified that he informed Tice in this
meeting that he planned to submit the Bricklayers
claim to the disputed work to the Joint Board. Tice
could not recall this meeting.
In early April 1970, Stich submitted his claim to the
Joint Board . On April 23, 1970, the Joint Board wrote
the Employer advising it of the Bricklayers claim on
the "plumbing , aligning, leveling and anchoring of ex-
terior precast panels" on the bank job and soliciting
participation by the Employer . On April 29 , 1970, the
Employer's vice president, Robert E. Carlson, wrote
the Joint Board advising it that the Employer did not
recognize the Joint Board.
The Employer did not participate in the Joint Board
proceeding and it is undisputed that the Employer is
not signatory to any agreement which compels it to
recognize a Joint Board award or to participate in a
Joint Board proceeding . The record does not show
whether the Carpenters or Ironworkers participated in
the Joint Board proceeding, although , in regard to the
Carpenters, a copy of the Joint Board award was sent
to the general president of the Carpenters in Washing-
ton, D .C., and to Louis E. Fogle, the Carpenters local
business representative . Fogle testified that, although
the Carpenters received notice of the Bricklayers filing
of a claim with the Joint Board , it did not submit
evidence in the proceeding before the Joint Board.
However, he stated that the Carpenters "national head-
quarters in Washington does" participate in Joint
Board proceedings and that he "assume [d]" a repre-
sentative in Washington "may have gone to this" al-
though he did not "know for sure."
On May 22, 1970, the Joint Board awarded the
"plumbing, aligning, leveling and anchoring of exterior
precast panels" on the bank job to the bricklayers.
Upon receipt of the Joint Board award , Carlson wrote
to the Joint Board advising it that the Employer would
not accept any decision by the Joint Board nor recog-
nize the May 22 decision.
According to Stich, shortly after the Joint Board's
award, he again visited the bank jobsite and spoke with
Tice, showing Tice the Joint Board award and claiming
that "[t]he work has been assigned to us. So we will do
it." Tice testified that he repeated that the Employer
did not recognize the Joint Board, did not participate
in the Joint Board proceedings, and would not abide by
the assignment . Tice further testified that he told Stich
that the work was assigned to a composite crew of
ironworkers and carpenters, and that Stich then said
that "if we proceeded to use ironworkers and carpen-
ters to perform the work that he'd put a picket on the
job."
The disputed work commenced on September 29,
1970. According to Tice, when he arrived at the bank
jobsite on November 12, 1970, at about 7: 45 a.m., there
was a Bricklayers picket on the job at the main gate to
the jobsite . This gate is used by all contractors and their
employees . The legend on the picket sign read
"BRICKLAYERS LOCAL #I OF KENTUCKY
ON STRIKE AGAINST PANKOW COMPANY
FOR VIOLATION OF NATIONAL JOINT
BOARD AWARD. WE ARE NOT REQUESTING
EMPLOYEES OF NEUTRAL EMPLOYERS TO
REFUSE TO WORK ON THIS PROJECT WE ARE
PICKETING THE PANKOW CO. ONLY." Stich
was also present . According to Tice, when he asked
Stich why the job was being picketed , Stich replied:
"You're performing work with other crafts that's been
assigned to us by the National Joint Board." Tice once
more repeated the Employer's position that it did not
recognize the Joint Board, did not participate in its
action , and would not abide by its decision . Tice further
told Stich that his picket was illegal and that the Em-
ployer would take legal action to have the picket
removed . According to Tice, Stich replied that "[t]he
picket was going to stay there until that work assign-
ment was changed and the work assigned to bricklay-
ers."
The picket remained at the jobsite the entire work-
days of November 12 and 13, 1970. Sheetmetal workers
and electricians, employees of subcontractors, reported
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to work on November 12, 1970, but refused to work on
the project because of the picket.
Stich testified that when he visited the jobsite and
spoke to Tice just after the Joint Board decision, he
"may have said I'd picket the job." However, Stich
specifically recalled that when Tice at that time told
him that he had no intention of changing the assign-
ment, Stich told Tice "he'd leave me no alternative."
Stich admitted at the hearing that the object of his
picket line was to, persuade the Employer to assign the
disputed work to members of Bricklayers rather than
to members of Carpenters.
C. The Contentions of the Parties
The Employer contends that the assignment of the
work to the composite crew of carpenters and iron-
workers should not be changed because the skills of
both the carpenters and the ironworkers are required to
perform the disputed work. In addition, the Employer
argues that this assignment to a composite crew is effi-
cient, economical, and safe, and has proven satisfac-
tory. The Employer also relies on the fact that it has a
consistent history of assigning the disputed work to
such a composite crew and that there is no consistent
area practice concerning assignment of the disputed
work.
The Carpenters, as stated at the hearing, contends
that the Employer's job assignment is correct.
The Ironworkers, as stated at the hearing, asserts
that the rigging, hooking on, signaling, and aligning of
the precast panels should be assigned to its members
exclusively, and that the plumbing, aligning, leveling,
and anchoring, including bolting or welding, should be
assigned to a composite crew of ironworkers and brick-
layers, pursuant to an interunion agreement between
the Ironworkers and the Bricklayers.
Although at the hearing the Bricklayers took alter-
nating positions as to the correct assignment of the
disputed work-first urging that its members should
perform the work exclusively and then asserting that
the work should be performed by a composite crew of
bricklayers and ironworkers-in its brief to the Board
the Bricklayers asserts that the disputed work should
properly be assigned to a composite crew of bricklayers
and ironworkers. The Bricklayers relies on testimony
adduced at the hearing concerning practice in the area
of Louisville, Kentucky, and disputes the Employer's
contentions concerning efficiency, economy, and safety.
The Bricklayers also relies on an interunion agreement
between the Bricklayers and the Ironworkers and the
similarity of the work to work in dispute in Pankow
Construction Company, 189 NLRB No. 45, which is-
sued prior to the submission of the Bricklayers brief.
Finally, the Bricklayers argues that the determination
of the Joint Board is binding on the Employer irrespec-
tive of whether the Employer took part in the Joint
Board proceeding.
D. Applicability of the Statute
Before the Board may proceed with a determination
of the dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that Section 8(b)(4)(D ) has been violated . In this
case, it is undisputed that the Bricklayers formally
claimed the disputed work . As set forth previously,
Tice testified that the Bricklayers Representative Stich
threatened to "put a picket on the job" if the Employer
proceeded to sue ironworkers and carpenters to per-
form the disputed work . Stich admitted that he "may
have said [he]'d picket the job" and specifically recalled
that when Tice told him he had no intention of chang-
ing the Employer 's assignment , Stich told Tice "he'd
leave me no alternative ." In addition , it is undisputed
that the Bricklayers picketed the jobsite on November
12 and 13, 1970. Moreover, Stich conceded that the
purpose of this picketing was to persuade the Employer
to reassign the disputed work to its members.
We find that the Bricklayers threatened to picket,
and did picket , the Employer with the object of requir-
ing the Employer to assign the disputed work to its
members . We also conclude that the Joint Board award
was not an effective voluntary adjustment of the dis-
pute, within the meaning of Section 10 (k), since the
Employer is not signatory to an agreement requiring it
to be bound by the Joint Board and did not participate
in the Joint Board proceeding.
On the basis of the entire record , we find that there
is reasonable cause to believe that a violation of Section
8(b)(4)(D) has occurred and that the dispute is prop-
erly before the Board for determination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work after giving due
consideration to various relevant factors.' As the Board
has stated, its determination in a jurisdictional dispute
case is an act of judgment based upon common sense
and experience in the weighing of these factors.' The
following factors are relevant in making a determina-
tion of the dispute:
3 N.L.R.B. v Radio & Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers (Columbia Broadcasting
System), 364 U.S. 573
' International Association of Machinists (J.A. Jones Construction Com-
pany), 135 NLRB 1402.
BRICKLAYERS , LOCAL 1 177
1. Collective-bargaining agreements
The Employer is a member of the General Contrac-
tors Association of Louisville and the Associated Gen-
eral Contractors. Through its membership in the
former organization, the Employer is a party to a col-
lective-bargaining contract with the Bricklayers. In ad-
dition, as a member of the latter organization, the Em-
ployer is signatory to a bargaining agreement with the
Carpenters. The ironworkers used in Pankow's com-
postie crew are directly employed by a subcontractor,
Universal Steel Erectors, which has a collective-bar-
gaining contract with the Ironworkers. None of these
contracts were put in evidence.
employment of only two to four bricklayers, and that
therefore the increased cost would be infinitesimal.
5. Skills of the employees
The Employer has consistently assigned the disputed
work throughout its existence to a composite crew of
carpenters and ironworkers and is apparently satisfied
with the skills and safety performance of these em-
ployees. The Bricklayers presented evidence that a 4-
year apprenticeship program and 3-year night school
program have given its members the necessary skills to
carry out the disputed work.
2. Company practice
The Employer presented evidence that since its for-
mation, in 1963, it has consistently assigned the dis-
puted work to a composite crew of carpenters and iron-
workers.
3. Area practice
The Bricklayers introduced a number of letters from
local and out-of-state employers who purportedly as-
signed precast concrete installation work either to the
bricklayers exclusively or to a composite crew of brick-
layers and ironworkers. However, Stich admitted that
some of these jobs were not comparable to the disputed
work and that he was not personally familiar with
many of these jobs so as to be able to make a compari-
son of the work involved. Stich also conceded that there
has been a "mixed past practice" in the Louisville area
on the "rigging, setting, erection, plumbing and align-
ing" of precast exterior concrete panels and that such
work assignments in the Louisville area have in the past
been assigned to bricklayers, to a composite crew of
bricklayers and ironworkers, to laborers, to carpenters,
and to a composite crew of carpenters and ironworkers.
4. Economy and efficiency
The Employer asserts that it would be uneconomical
and inefficient to assign the disputed work to bricklay-
ers as the work is only performed intermittently and
would amount to no more than "a very few days work
as compared to the total project" and, unlike the car-
penters and ironworkers, there is no other work for the
bricklayers to perform on the project if they are not
doing the disputed work. Thus, to employ bricklayers
would mean that they would either have to be called in
for only a few hours or kept on the job without any-
thing to do. In addition, the bricklayers are paid more
than the carpenters. The Bricklayers argues that the
assignment of the job to its members would result in the
6. National Labor Relations Board award
As pointed out by the Bricklayers in its brief, the
work involved in this case is very similar to part of the
work involved in Pankow Construction Company, 189
NLRB No. 45. In that case the dispute partially in-
volved the erection and installation of exterior precast
concrete wall panels, which were to be placed on floors
other than the floors involved in the instant proceeding.
The Board in that case, on factors comparable to those
present in this proceeding, awarded the disputed work,
which is similar to the instant disputed work, to a
composite crew of carpenters and ironworkers.
Conclusions
Based upon the entire record, and after full consider-
ation of all relevant factors, we conclude that the work
in dispute should be assigned to a composite crew of
employees represented by Carpenters and by Ironwork-
ers, rather than to a composite crew of employees
represented by Bricklayers and by Ironworkers or ex-
clusively to employees represented by Bricklayers. We
reach this conclusion relying on the Employer's assign-
ment of the disputed work to the composite crew, the
fact that the assignment is consistent with the Em-
ployer's past practice, the Employer's satisfaction with
the performance of the composite crew, the efficiency
and economy of operations that will result from such
assignment, and the pertinent part of our decision in
Pankow Construction Company, 189 NLRB No. 45.
In making this determination, we shall award the
disputed work to employees who are represented by
Carpenters and Ironworkers, but not to those Unions
or to their members. In consequence, we shall also
determine that Bricklayers and its agent, Stich, were
not and are not entitled, by means proscribed by Sec-
tion 8(b)(4)(D) of the Act, to force or require the Em-
ployer to assign the disputed work to members of the
Bricklayers.
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Re-
lations Act, as amended , and on the basis of the forego-
ing findings and the entire record in this case , the Na-
tional Labor Relations Board makes the following
determination of dispute:
A. Employees of Pankow Construction Company
currently represented by Local No. 64, United Brother-
hood of Carpenters and Joiners of America , AFL-CIO,
and by Local No. 70, International Association of
Bridge, Structural and Ornamental Iron Workers,
AFL-CIO, are entitled to perform the following work:
Erecting , installing, setting , temporary bracing,
leveling , aligning, plumbing , and anchoring, in-
volving welding , of precast concrete wall panels,
including undulating walls, column cover panels,
pier panels , and fascia panels at the Employer's
construction site for the Citizens Fidelity Bank
Building in Louisville , Kentucky.
B. Bricklayers International Union , Local No. 1, of
Kentucky, AFL-CIO, and its agent Norbert Stich are
not entitled by means proscribed by Section 8(b)(4)(D)
of the Act to force or require Pankow Construction Co.
to assign the above-described work either to members
of the aforesaid union exclusively , or to a composite
crew composed of its members and employees repre-
sented by Local No. 70 , International Association of
Bridge, Structural and Ornamental Iron Workers,
AFL-CIO.
C. Within 10 days from the date of this Decision and
Determination of Dispute , Bricklayers International
Union, Local No. 1, of Kentucky, AFL-CIO, and its
agent Norbert Stich shall notify the Regional Director
for Region 9, in writing , whether they will refrain from
forcing or requiring Pankow Construction Co., by
means proscribed by Section 8(b)(4)(D ) of the Act, to
assign the work in dispute to bricklayers represented by
Bricklayers International Union , Local No. 1, of Ken-
tucky, AFL-CIO, either exclusively or as part of a
composite crew composed of bricklayers and of iron-
workers represented by Local No . 70, International
Association of Bridge , Structural and Ornamental Iron
Workers, AFL-CIO, rather than to employees of Pan-
kow Construction Co. represented by Local No. 64,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, and by Local No. 70, Interna-
tional Association of Bridge , Structural and Ornamen-
tal Iron Workers, AFL-CIO.