Bricklayers, Local Union No. 1

National Labor Relations Board - Board Decisions

Jan 27, 1971

188 N.L.R.B. 148 (N.L.R.B. 1971)

148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bricklayers, Stone Masons, Marble Masons, Tile Set-
ters and Terrazzo Workers Local Union No. 1 of
Tennessee and Bricklayers , Masons and Plasterers
International Union of America and Shelby Marble
& Tile Co. Case 26-CD-77
January 27, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS BROWN AND
JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by Shelby Marble & Tile Co., herein
called the Employer, alleging that the Bricklayers,
Stone Masons, Marble Masons, Tile Setters and Ter-
razzo Workers Local Union No. 1 of Tennessee,
herein called Local No. 1, and Bricklayers, Masons
and Plasterers International Union of America,
here the International, with both correctly referred to
as Respondents, had violated Section 8(b)(4)(D) of
the Act by engaging in certain proscribed activity with
an object of forcing or requiring the Employer to
assign the work in dispute to bricklayers represented
by the amalgamated Local No. 1 rather than to tileset-
ters also represented by the same local. Pursuant to
notice, a hearing was held before Hearing Officer Jo-
seph I. Nachman in Memphis, Tennessee, on August
25, 26, and 27, 1970. All parties appeared at the hear-
ing and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce
evidence bearing on the issues. Thereafter, briefs were
filed by the Employer and by the Respondents.
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 Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
The Board has considered the entire record in this
case, including the briefs,' and hereby makes the fol-
lowing findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated that the Employer is engaged
in the sale and installation of tile and related products
at Memphis, Tennessee, and that during the past year
' The Eidployer's request for oral argument is hereby denied as the briefs
and the entire record adequately present the issues and positions of the
parties.
it has purchased and received goods and materials
valued in excess of $50,000 from points located out-
side the State of Tennessee. Accordingly, the parties
stipulated, and we find, that the Employer is engaged
in 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 herein.
II THE LABOR ORGANIZATIONS
The parties stipulated, and we find, that Local No.
1 and the International are labor organizations within
the meaning of Section 2(5) of the Act.
III THE DISPUTE
A. The Background Facts
The Employer entered into a contract with Arthur
G. McKee & Company, a general contractor, to in-
stall acid proof paver floors and related toppings and
coatings and furnish the materials necessary to such
installation in the construction of a brewery for Jo-
seph Schlitz Brewing Company. The installation of
said floors, which constitutes the disputed work, was
assigned to employees of the Employer who are tiles-
etters represented by Local No. 1.
Prior to its assignment of the work in dispute, the
Employer entered into a contract with the Interna-
tional in which the Employer agreed, inter alia, "to
work the hours, pay the rate of wages and abide by
the working conditions agreed upon or established by
the Bricklayers, Masons and Plasters' International
Union of America in the locality in which any work
is being performed by our company." In addition, the
"National Agreement" contains the following prov-
isions:
5. The Employer and Union severally agree to be
governed by the terms and provisions of the
Agreement effective May 1, 1948, creating the
National Joint Board for Settlement of Jurisdic-
tional Disputes to which plan both Employer and
Union are signatory.
* * *
8. The Employer and the Union also agree that
no stoppage of work or any strike of its members
either collectively or individually shall be entered
into until said dispute or misunderstanding has
been referred to the International Office of the
Union and arbitrated between such International
Office of the Union and the Home Office of the
Employer.
The disputed work is the installation of material
referred to in the job specifications as "acid proof
188 NLRB No. 15
BRICKLAYERS , LOCAL UNION NO. I
floor brick," which is also often called "quarry tile
paver," and "acid proof paving brick," interchangea-
bly. The contract between Arthur G. McKee & Com-
pany and the Employer provided for the installation
of 180,000 square feet of the disputed paving material
over a 9-month period. The Employer assigned the
installation to the tilesetters, who are represented by
Local No. 1, rather than the bracklayers, who are also
represented by the amalgamated union, Local No. 1,
and began performance of the installation in April
1970 2 '
Sometime in mid-April, Blackney, business agent
for the bricklayer members of Local No. 1, indicated
to Young, business agent for tilesetter members of
Local No. 1, that he (Blackney) thought the work in
dispute was properly bricklayer work. Thereupon,
Young and Blackney jointly requested that Interna-
tional Vice President Parks review the disputed work
in Memphis and determine whether it was properly
bricklayer or tilesetter work. At that point, after ap-
proximately 5,000 or 180,000 feet had been laid, the
work was stopped for reasons unconnected with the
dispute.
Parks met with Young, Blackney, and employer
officials Hill, Price, and Rulman on May 14 at the
jobsite, reviewed the work, and advised them that he
was awarding the work to the bricklayers. He did
offer, however, to allow the work to be performed by
a composite crew of 50 percent from both crafts pro-
vided that all were paid bricklayer rates. Parks claims
that his decision was based on the work jurisdictional
provisions of the International constitution and rules
of order. At the time Parks announced his decision he
also explained to those present that his decision was
not final and was subject to review first by the Union's
executive board and then by the Union's biannual
convention.
It is unclear who, at this point, announced an ap-
peal would be filed. However, there is no dispute that
the Employer's vice president, Price, and the Tile Set-
ter Business Agent Young went to the Employer's
office where a call was made to a vice president of the
International to obtain information on the procedure
to be followed in perfecting an appeal, after which
Price prepared a rough draft of a document which he
claims he wrote to assist Young in appealing Parks'
decision. Price gave Young permission to use the
Employer's office clerical employees to prepare the
appeal, and Young admits that in so doing he made
some changes in the draft. The appeal, in its final
form, was written on the stationery of Local No. 1,
dated May 15, and signed by Business Agent Young.
There is no indication on the face of the document
that the Employer participated. On May 17, parks
2 Unless otherwise indicated, all dates fall in 1970
149
sent a report of his investigation and award to the
executive board to assist it in its review. By letter
dated June 3, addressed to Price as vice president of
the Employer, the executive board indicated that the
work in dispute "properly falls within the jurisdiction
of the bricklayer members of this international Un-
ion." The letter further indicates that the executive
board "took into account a letter you directed to [In-
ternational] President Thomas F. Murphy, under date
of May 18, 1970 ...." The record does not indicate
why the letter was sent to Price when the appeal was
filed by Young without mention of Price's participa-
tion in drafting the appeal. The record also does not
indicate whether any communication from Price to
the International dated May 18 existed.
On June 11, after the International' s decision is-
sued, the parties met to discuss the assignment of the
work. The parties present included Parks, Blackney,
Young, and representing the Employer, Hill, Rulman,
and Price. At the meeting , Price stated that he intend-
ed to proceed using tilesetters and asked Tile Setter
Business Agent Young if he would supply the men.
Young stated he would, whereupon Parks reminded
them that the work had been awarded to the bricklay-
ers and that is the way it would have to be. Price stated
he could not comply with the decision and asked what
would happen if he used tilesetters to perform the
work. Hill, Rulman, and Price testified that Parks told
Price that if Price persisted in using tilesetters for the
work the Respondents would not supply men for the
work on the Schlitz site and Price was badly mistaken
if he thought he would be able to run any of his other
jobs. Parks testified that he responded to Price by
posing the question, how could the Employer expect
to have members of the Union on its other jobs if it
failed to comply with its commitment to submit the
dispute to the executive board and failed to honor the
decision. Parks further admitted that either Hill or
Rulman told Price that what Parks meant was that if
he did not comply with the decision, he would not
have men on his jobs, and that he (Parks) did not
speak out to affirm or deny this interpretation of his
position.
On July 21, the Tile Setter Business Agent Young
sent the Employer a telegram withdrawing its claim to
the laying of the acid proof floors. Nevertheless, the
Employer continued using tilesetters to lay the floors
and the work was proceeding, at the end of the hear-
ing, without any action taken by the Union to inter-
fere with the work since it was resumed in
mid-August.
B. Work in Dispute
The work in dispute is the laying of acid proof
floors by the installation of acid proof pavers, which
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is also called "acid proof floor brick" and "quarry tile
paver." The Floors are being installed as part of the
construction of a brewery for Joseph Schlitz Brewing
Company in Memphis, Tennessee. The manner in
which the acid proof pavers are to be installed is set
forth in sec on 8 of the specifications (Joint Exh. 4).
Briefly, the installation involves the application of
primer and of glass reinforced asphalt membrane (the
former is spread by brush, squeegee, or broom and the
latter by a tempered Masonite Squeegee). Thereafter,
the specifications call for the application of acid proof
mortar spread with a notched trowel. The bottom of
the brick is buttered and the specifications direct that
after buttering the workman is to "strike off to insure
that grooves are filled flush with brick bottom ...."
Then, after the acid proof mortar bed is set and the
brick is secured to the floor, the specifications require
the pouring of fresh grout on waxed surfaces of the
brick and the spreading and working of the grout into
the brick joints using a rubber faced or plasterer's
trowel with an unserrated edge. Finally, the split brick
pavers are to be cleaned.
C. Contentions of the Parties
The Employer contends that Respondents violated
Section 8(b)(4)(D) of the Act by threatening the Em-
ployer with a work stoppage in an effort to have the
Employer assign the work in dispute to the bricklayer
members of Local No. 1.
The Employer further contends that the work has
been assigned to the tilesetters and that such work
should properly be awarded to the tilesetters in view
of area and industry practice; considerations of skill,
efficiency, and economy; and the absence of a volun-
tary method for settling disputes.
Respondents contend that the work in dispute
should be assigned to the bricklayers. In support of
their position, Respondents argue that the parties
have agreed to a voluntary method of settlement and
that the work has been awarded to the bricklayers
pursuant to that arrangement. Respondents also ar-
gue that, on the merits, the work should be assigned
to the bricklayers as the method of installation is more
akin to the work of bricklayers than to tilesetters work
as indicated by the specifications for the work in dis-
pute and comports with area practice.
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 there is reasonable cause to
believe that Section 8(b)(4)(D) has been violated. As
set forth previously, according to the testimony of
Employer Representatives Hill and Rulman and the
testimony of Employer's Vice President Price, Inter-
national Vice President Parks threatened that if the
Employer refused to abide by the International award
of the disputed work, Respondents would not supply
men to the Schlitz job and that Price was badly mis-
taken if he thought he was going to be able to run any
of his other jobs. Although Parks denied that state-
ment, he testified that he stated to Price that he
(Parks) did not know what would happen if the Em-
ployer used tilesetters on the Schlitz job and did ask
Price how the Employer could expect to have mem-
bers of the Union on its other jobs if it failed to honor
its commitment to submit this dispute to the executive
board and comply with its decision. Parks also admit-
ted that when one of the Employer's representatives
explained to Price that what he (Parks) meant was
that if Price did not comply with the decision, Price
would not have men on the Employer's jobs, Parks
neither affirmed nor denied such interpretation of his
remarks.
In a jurisdictional dispute context, the Board is not
charged with finding that a violation did in fact occur,
but only that there is reasonable cause to believe that
there has been a violation.' On these facts, and with-
out ruling on the credibility of the testimony in
issue ,4 we are satisfied that there is reasonable cause
to believe Respondents threatened to strike and that
an object of such threat was to force the Employer to
assign the disputed work to individuals who are brick-
layer members of Local No. 1, rather than to those
employees who are tilesetter members of Local No. 1.
We do not find merit in the contention by Respon-
dents that the Employer agreed to voluntary dispute
settlement machinery in connection with the work
assignment dispute.
Section 5 of the national agreement, set out, supra,
provides for the settlement of jurisdictional disputes
by the National Joint Board for Settlement of Juris-
dictional Disputes. None of the parties contends that
section 5 is relevant to the settlement of the intraunion
dispute herein, and, insofar as the procedural rules of
the National Joint Board reveal that disputes of this
type would not be entertained by that forum, it is clear
that section 5 of the national agreement does not pro-
vide a voluntary method of dispute settlements How-
ever, Respondents argued at the hearing, but not in
their brief, that section 8 of the national agreement,
to which the Employer is a party, is evidence of such
a method for the voluntary adjustment of the dispute.
' Locals 138, 138A, 138B, 138C, and 138D, International Union of Operating
Engineers, AFL-CIO (Cafasso Lathing & Plastering, Inc), 149 NLRB 156,
158-159
See Local Union No 3, International Brotherhood of Electrical Workers,
AFL-CIO (Western Electric Company, Incorporated), 141 NLRB 888, 893.
5 Cf Local No 2 of Detroit, Bricklayers, Masons, and Plasterers Internation-
al Union of America, AFL-CIO (Decora, Inc ), 152 NLRB 278, 282.
BRICKLAYERS , LOCAL UNION NO. I
We find no merit in this contention. Section 8, set out,
supra, refers to strikes and work stoppages and does
not refer to jurisdictional disputes, either specifically
or impliedly. Nor are we persuaded that the Employ-
er, through Vice President Price, evinced an unequi-
vocal intent to be bound by the intraunion method of
dispute settlement. The facts that Price allowed Brick-
layer Business Agent Young to use the Employer's
offices and clerical service to draft the appeal to the
International Union executive board and Price helped
to draft it, cannot be regarded as a submission to the
union executive board by the Employer. The Employ-
er never committed itself either by its course of con-
duct, or in writing, to such a submission, but rather
persisted in its assignment of the work after Parks'
initial determination for the International and, in ad-
dition, never appeared on the appeal documents
which were sent by Young alone to the executive
board. We find, therefore, that the Board is not pre-
cluded from making its determination in this proceed-
ing.6
E. Merits of the Dispute
On the basis of the entire record in this case, we find
that there is reasonable cause to believe that a viola-
tion of Section 8(b)(4)(D) has occurred and that the
dispute is properly before the Board for determjna-
tion.
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after giving
due consideration to various relevant factors.' The
Board has held that its determination in a jurisdiction
dispute is an act of judgment based upon common
sense and experience, reached by balancing those fac-
tors involved in a particular case.'
The following factors are relevant in making a de-
termination of the dispute before us:
1. Collective-bargaining agreements
As previously indicated, the Employer entered into
a contract with the International. However, as the
disputed work will be awarded to either bricklayers or
tilesetters represented by an amalgamated local un-
ion, the existence of a collective-bargaining agree-
ment alone is not a relevant factor in making a
determination of the dispute before us. But insofar as
6 Cf. Local 169, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO (W H Condo, Brick Contractor and Masons Contractors ' Associa-
tion of East St Louis), 119 NLRB 583; International Union of Operating
Engineers, AFL-CIO, Local 520 (Biebel Bros., Inc), 170 NLRB No. 38.
N.L.R.B v Radio & Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO (Columbia Broad-
casting System), 364 U.S. 573.
6 International Association of Machinists, Lodge No 1743, AFL-CIO (J.A.
Jones Construction Company), 135 NLRB 1402
151
the Employer contractually agreed "to work the
hours, pay the rates of wages and abide by the work-
ing conditions ... established by the [International]
... in the locality in which any work is being per-
formed by our company," the definitions of bricklay-
er and tilesetter as set forth in the International
constitution are relevant considerations in reviewing
area practice though, as Respondents admit in their
brief, the work in dispute falls somewhere between the
two definitions.
The material involved in the work in dispute is
known as both split brick and quarry tile. It is approx-
imately an inch thinner than standard brick and an
inch thicker than standard tile. The constitution
makes operative distinctions: if the method by which
the material is installed can be said to constitute bed-
ding and jointing with one operation, it is bricklayers'
work and if the bed is floated or screeded and the
joints grouted, it is tilesetters' work. The record indic,
"ates that the installation in the instant dispute in-
volved the pouring of a glass reinforced asphalt
membrane of uniform thickness, layer upon layer un-
til a bed of uniform and measured thickness is ob-
tained. Thereafter, an acid proof mortar bed is spread,
also of uniform and measured thickness, upon-which
the buttered paver is set. Finally, an acid proof grout
is applied. Whether the application of a uniform as-
phalt membrane and mortar layer is called screeding
as the Employer contends, or is not characterized at
all, the entire' installation process is more akin to the
tilesetter's two step screeding or floating and grouting
than to the bricklayer's craft which, according to the
International constitution, requires bedding and
jointing in one operation. .
2. Area and industry practices
It is undisputed that tilesetters laid the identical
material at issue herein several years ago in Memphis
at Plough, Inc. There the installation process used was
substantially the same as that used herein, particularly
in that a layer of furane resin was spread with a ma-
sonite edge which constitutes, according to tilesetter
Nichols, "screeding." Further, tilesetters have, in fact,
laid the disputed material over approximately 2 mil-
lion square feet nationwide including the laying of the
acid proof paver pursuant to specifications similar to
those herein at another Joseph Schlitz Brewing Com-
pany plant in the Los Angeles area. The Employer
called as witnesses tile contractors operating out of
various areas 9 who testified, in substance, that such
work is performed by tilesetters and not by bricklay-
ers. The Union introduced testimony indicating that
such work has, on occasion, been performed in the
9 These areas, in addition to Memphis , were Nashville , Baton Rouge,
Atlanta, Raleigh, Detroit, Wichita Falls (Texas), and Jackson (Mississippi).
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Memphis area by bricklayers. In addition, it appears
that bricklayers performed similar work in another
plant constructed for Schlitz in Winston-Salem,
North Carolina. We are persuaded, however, that the
more prevalent and more widely accepted area and
industry practice is to employ tilesetters to lay acid
proof paver.
3. Skills, efficiency , and economy
While it appears from the record that bricklayers
have, on occasion , successfully performed the work
similar to that in dispute , the work is essentially instal-
lation involving more than a single step . It involves
spreading layers of certain surface materials of spec-
ified thickness , and, in addition , involves buttering
and grouting . The bricklayers require some training to
perform this work while tilesetters perform the work
without any preparatory training . Furthermore, the
Employer is satisfied with the skills and performance
of the tilesetters and has introduced evidence indica-
ting that it is more efficient and economical to assign
the work to the tilesetters in that they can do the work
more quickly than bricklayers and at a lower cost to
the Employer . Accordingly , considerations of skill,
efficiency , and economy of operation all tend to favor
an assignment consistent with that made by the Em-
ployer.
F. Conclusions
Having considered all pertinent factors present
herein, we conclude that employees who are tilesetters
represented by Local No. 1 are entitled to perform the
work in dispute . This assignment is not inconsistent
with the collective-bargaining agreement between the
International and the Employer , and is consistent
with area and industry practice of masonry contrac-
tors. In addition, tilesetter members of Local No. I
possess sufficient skills to perform the disputed work
and the Employer has been satisfied with the quality
of their work and the resulting efficiency and econo-
my of operations . We conclude from all the foregoing
that the Employer's assignment of work to tilesetter
employees represented by Local No. 1 should not be
disturbed . On the basis of the entire record, therefore,
we shall determine the existing jurisdictional contro-
versy by awarding the work of laying acid proof paver
to the tilesetter employees of the Employer repre-
sented by Local No. 1, rather than to bricklayer indi-
viduals represented by Local No . 1. In making this
determination , we are assigning the disputed work to
the employees of Shelby Marble & Tile Co., who are
represented by Local No. 1, but not to that Union or
its members . The present determination is limited to
the particular controversy which gave rise to this pro-
ceeding.
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 case,
the National Labor Relations Board hereby makes
the following determination of dispute:
1. Tilesetter employees of Shelby Marble & Tile
Co., who are represented by Bricklayers, Stone Ma-
sons, Marble Masons , Tile Setters and Terrazzo
Workers Local Union No . 1 of Tennessee , are entitled
to perform the work of laying all acid proof paver in
the construction of the Joseph Schlitz Brewing Com-
pany brewery at Memphis, Tennessee.
2. Bricklayers , Stone Masons , Marble Masons, Tile
Setters and Terrazzo Workers Local Union No. 1 of
Tennessee and Bricklayers , Masons and Plasterers In-
ternational Union of America are not entitled by
means proscribed by Section 8(b)(4)(D ) of the Act to
force or require Shelby Marble & Tile Co. to assign
such laying of acid proof paver to bricklayers repre-
sented by Bricklayers , Stone Masons , Marble Ma-
sons , Tile Setters and Terrazzo Workers Local Union
No. 1 of Tennessee.
3. Within 10 days from the date of this Decision and
Determination of Dispute , Bricklayers, Stone Ma-
sons , Marble Masons, Tile Setters and Terrazzo
Workers Local Union No. 1 of Tennessee and Brick-
layers , Masons and Plasterers International Union of
America shall notify the Regional Director for Region
26, in writing, whether or not it will refrain from forc-
ing or requiring the Employer , by means proscribed
by Section 8(b)(4)(D) of the Act, to assign the work
in dispute to bricklayers represented by Bricklayers,
Stone Masons, Marble Masons , Tile Setters and Ter-
razzo Workers Local Union No. 1 of Tennessee, rath-
er than to tilesetter employees represented by
Bricklayers , Stone Masons, Marble Masons, Tile Set-
ters and Terrazzo Workers Local Union No. 1 of
Tennessee.