Bricklayers, Masons, Etc., Local No. 26

National Labor Relations Board - Board Decisions

Jul 15, 1964

147 N.L.R.B. 1615 (N.L.R.B. 1964)

BRICKLAYERS, MASONS, ETC., LOCAL NO. 26 1615
Employees may communicate directly with the Board's Regional Office, Sixth
Floor, Meacham Building , 110 West Fifth Street , Fort Worth, Texas, Telephone
No. Edison 5-4211, Extension 2131, if they have any question concerning this notice
or compliance with its provisions.
Bricklayers , Masons and Plasterers ' International Union of
America, Local No. 26 and Fox Valley General Contractors
Association [August Wilson & Son Company]. Case No. 13-
CD-134.1 July 15, 1964
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the Act, following a
charge filed by Fox Valley General Contractors Association, herein
called the Association, alleging that Bricklayers, Masons and Plas-
terers' International Union of America, Local No. 26, herein called the
Bricklayers or Local 26, had violated Section 8(b) (4) (D) of the Act
by inducing and encouraging employees of August Wilson & Son Com-
pany, herein called the Employer, to -cease work for the purpose of
forcing or requiring the Employer to assign the work in dispute to em-
ployees who are members of the Bricklayers, rather than to employees
who are represented by Operative Plasterers' and Cement Masons'
International Association of the United States and Canada, Local
No. 638, herein called the Plasterers or Local 638. A hearing was held
before Hearing Officer Allen P. Haas, on April 27, 1964. All parties
who appeared at the hearing 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 Association,
the Bricklayers, and the Plasterers.
Upon the entire record in the case, the Board 2 makes the following
findings :
1. The business of the Employer
August Wilson & Son Company is engaged in the building con-
struction industry in Geneva, Kane County, Illinois. During 1963, it
purchased materials valued in excess of $50,000 which were shipped to
its plant in Geneva from points outside the State of Illinois. We find
that the Employer is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act and that it will effectuate the policies of
the Act to assert jurisdiction herein.
On March 27, 1964 , the Regional Director issued an Order consolidating this case with
Case No. 13-CD-125. At the hearing , the Hearing Officer granted a motion of the
Charging Party in Case No. 13-CD-125 for severance in view of a settlement reached
during the hearing.
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Members Leedom, Fanning,
and Brown].
147 NLRB No. 171.
1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The labor organizations involved
The Bricklayers and the Plasterers are labor organizations within
the meaning of Section 2 (5) of the Act.
3. The dispute
A. The work in dispute; background facts
The disputed work which gave rise to this proceeding is cement
finishing which was being performed by the Employer's employees in
connection with the construction of a warehouse for the Employer's
own use at Geneva, Kane County, Illinois. The Employer assigned
this work to its employees who are representedby the Plasterers. The
Bricklayers engaged in picketing, claiming that its members should
be assigned the disputed work.
Both the Bricklayers and the Plasterers have members who are capa-
ble of performing the disputed work of cement finishing., In the year
1911, the International Unions of the Bricklayers and the Plasterers
entered into a general policy' agreement in an attempt to resolve
jurisdictional disputes between the respective Local Unions of the
International groups. The 1911 agreement made no specific reference
to Kane County, Illinois, where the instant work dispute occurred.
In 1959 the International Unions reached an agreement which deter-
mined the geographical jurisdiction throughout the United States of
each local of the Bricklayers and the Plasterers. Maps were compiled
for each State which delineated the precise jurisdictional area of each
local. In Illinois, certain counties were assigned to specific locals
of each International. Kane County, which includes the township
of Geneva, where the instant dispute arose, was assigned to the Plas-
terers Local 638.
The Employer is a member of Fox Valley General Contractors As-
sociation which represents approximately 150 employers for the pur-
pose of negotiating collective-bargaining agreements with various
building and construction trades unions in Illinois. Each employer
that the Association represents signs individual contracts.
During May and June 1962, the Association met jointly with Brick-
layers Local 26 and Plasterers Local 638.3 It was agreed that Brick-
layers Local 26 would have "jurisdiction" in the central townships of
Kane County, including Geneva; at the same time, they agreed that
Plasterers Local 638 would have jurisdiction over all of Kane County.
3 Prior to 1962 , the Association had agreed with Local 638 and Local 26 that cement
finishing work was to be distributed as follows : In Kane County, the northern two tiers
of six townships were within the jurisdiction of Local 638 The central tier of seven
townships, including Geneva, were within the jurisdiction of Local 26 The remaining
southern tier of three townships were assigned to Bricklayers Local 16, which is not
involved in this proceeding
BRICKLAYERS, MASONS, ETC., LOCAL NO. 26 1617
In the face of this patent inconsistency and apparent conflict with the
1959 agreement reached between the two International Unions, the
Employer and Plasterers Local 638 executed a collective-bargaining
contract on June 22, 1962, effective to June 1963, which covered the
Employer's employees engaged in cement finishing in all of Kane
County.4 In May 1963, the Employer and Local 638 extended this
contract, with revised wage rates, to June 1965. Between 1962 and
1964, Bricklayers Local 26 had no contract with the Employer and it
appears that Local 26 had never executed a contract with the Employer.
On February 27, 1964, Bricklayers Local. 26 engaged in picketing
activities at the Employer's warehouse construction site, admittedly
because the Employer refused to assign the disputed work to its
members. On the same date, the instant charge was filed.
B. Applicability of the statute
The charge, which was duly investigated by the Regional Director,
alleges -,l, violation of Section 8 (b) (4) (D) of the Act. The Regional
Director was satisfied upon the basis of such investigation that there
was reasonable cause to believe that a violation had been committed
and directed that a hearing be held in accordance with Section 10 (k)
of the Act. On the basis of the entire record, including the Brick-
layers' picketing to force the Employe'r'to assign the disputed, work to
its members; we find there is reasonable cause to believe that a violation
of the Act has occurred and that the dispute is properly before the
Board for determination. • '
C. 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 and the Board has held that its determination in a
jurisdictional dispute case is an act of judgment based upon common
sense and experience and a balancing of such factor's 5
Certain of the usual factors considered by the Board in,these cases,
such as certifications, skills, or agreements between unions provide
little basis for determining the instant dispute. Thus, neither union
has been certified by the Board as the exclusive bargaining representa-
tive for any of the Employer's employees. The requisite skills to per-
form the work in question are possessed by members of both unions.
4In September 1962, at a biennial convention of the Bricklayers International, the
membership voted to overrule the 1959 agreement ' s division of work within Illinois to
which the Bricklayers and Plasterers Internationals had subscribed Thereafter, the
Bricklayers International notified the Association of this action and requested that it recog-
nize Local 26 "in the area controlled " by that local
G International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A Jones
Construction Company ), 135 NLRB 1402.
7 5 6-2 3 6-6 5-v of 14 7-10 3
1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The steps taken by the International Unions to resolve disputes be-
tween their respective locals have not been fruitful with regard to
the instant dispute, as the recited facts demonstrate. Nor can Local 26
avail itself of any arrangement pertaining to the assignment of work
within Kane County, for such arrangements have been of an incon-
sistent and conflicting nature. And the contention of Local 26 that
it is entitled to the work by virtue of the 1911 agreement of the Inter-
nations is plainly without merit.
Significant factors remain, however. They are the Employer's as-
signment of the cement finishing work to the Plasterers and the Em-
ployer's contract with the Plasterers which clearly grants recognition
to that union as the exclusive bargaining representative of the em-
ployees engaged in the disputed work. No other factors have been
established that outweigh these.' In the circumstances, and on con-
sideration of the record as a whole, we shall determine the existing
jurisdictional dispute by deciding that the employees currently em-
ployed by the Employer and represented by Plasterers Local 638 are
entitled to perform the cement finishing work involved herein.
Because there is evidence that similar disputes may occur in the
future, we shall not restrict the scope of our determination herein to
the specific job giving rise to this dispute.' Accordingly, our determi-
nation in this case applies to all cement finishing work performed by
the Employer's employees in Kane County pursuant to the Employ-
er's contract with Plasterers Local 638. In making this determination,
we are assigning the disputed work to employees represented by
Plasterers Local 638, but not to that union or its members.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings and the entire record in
the case, the Board makes the following Determination of Dispute
pursuant to Section 10(k) of the Act:
1. Employees of August Wilson & Son Company, currently repre-
sented by Operative Plasterers' and Cement Masons' International
Association of the United States and Canada, Local No. 638, are en-
titled to perform cement finishing work for their Employer.
2. Bricklayers, Masons and Plasterers' International Union of
America, Local No. 26, is not entitled, by means proscribed by Sec-
tion 8(b) (4) (D) of the Act, to force or require the Employer to as-
sign the above work to its members.
9 Local 853, International Union of Operating Engineers, AFL-CIO, and its business
manager, Richard J. Carney, Jr. (Schiavone & Sons, Inc, and Schiavone Terminals , Inc.),
136 NLRB 993.
7 Teamsters Local Union No. 5, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, Ind. (Hart-McGowan Foundation Co.,
rite ), 147 NLRB 1216
DANVILLE PRINTING PRESSMEN, ETC., UNION NO. 257 1619
3. Within 10 days from the date of this Decision and Determination
of Dispute, Bricklayers, Masons and Plasterers' International Union
of America, Local No. 26, shall notify the Regional Director for the
Thirteenth Region, in writing, whether or not it will refrain from
forcing or requiring the Employer, by means proscribed by Section
8(b) (4) (D) of the Act, to assign the work in dispute to its members,
rather than to employees represented by Operative Plasterers' and
Cement Masons' International Association of the United States and
Canada, Local No. 638.
Danville Printing Pressmen & Assistants Union No. 257, Inter-
national Printing Pressmen & Assistants Union of North
America, AFL-CIO and Danville Typographical Union No. 230,
International Typographical Union , AFL-CIO and Recording
& Statistical Company, Division of Sperry Rand Corporation.
Case No. 13-CD-135. July 15, 1964
DECISION AND ORDER QUASHING NOTICE
OF HEARING
STATEMENT OF TILE CASE
This is a proceeding under Section 10(k) of the Act following
a charge filed by Recording & Statistical Company, Division of Sperry
Rand Corporation, herein called the Employer, against Danville
Printing Pressmen & Assistants Union No. 257, International Printing
Pressmen & Assistants Union of North America, AFL-CIO, herein
called the Pressmen, alleging that the Pressmen induced and en-
couraged employees of the Employer to engage in a strike and refusal
to perform services and have threatened and restrained the Employer
with the object of forcing the Employer to assign negative filing, nega-
tive opaquing, and plate proofreading work to employees represented
by the Pressmen rather than to employees who are currently perform-
ing the work and who are neither represented by, nor are members of,
the Pressmen. Danville Typographical Union No. 230, herein called
the ITU, intervened and asserted its right to perform the work in dis-
pute. A duly scheduled hearing was held before Hearing Officer Hy-
men Bear on April 7 and 24, 1964, in Danville, Illinois, at which all
parties were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence bearing upon the
issues. The rulings of the Hearing Officer made at the hearing are free
from prejudicial error and are hereby affirmed. Briefs were filed by
the Employer, the Pressmen, and the ITU.
147 NLRB No. 172.