Bricklayers Union, Local No. 6

National Labor Relations Board - Board Decisions

Jun 29, 1971

191 N.L.R.B. 774 (N.L.R.B. 1971)

774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bricklayers Union, Local No . 6 and Fitzgerald and
Stutz, Inc.
Laborers ' International Union of North America,
AFL-CIO, Local 41 and Fitzgerald and Stutz, Inc.
Cases 13-CD-197 and 13-CD-198
June 29,.1971
DECISION AND DETERMINATION OF
DISPUTE
a part of the project. The total value of this subcontract
was approximately $45,000. We find that the Company
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 INVOLVED
The parties stipulated , and we find, that Bricklayers
and Laborers are labor organizations within the mean-
ing of Section 2(5) of the Act.
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
This is a proceeding,under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following
charges filed by Fitzgerald and Stutz, Inc., herein called
Company, alleging violations of Section 8(b)(4)(D) by
Bricklayers Union, Local No. 6, herein called Bricklay-
ers, and by Laborers' International Union of North
America, AFL-CIO, Local 41, herein called Laborers,
respectively. Pursuant to notice, a hearing was held
before Hearing Officer Glenn A. Sunness on February
4 and 12, 1971. All parties 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, briefs were filed by
the Employer, Bricklayers, and Laborers.
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 these cases to a three-member panel.
The Board has reviewed the Hearing Officer's rulings
made at the hearing and finds that they are free from
prejudicial error. They are hereby affirmed.
Upon the entire record in these cases, the Board
makes the following findings:
I. THE BUSINESS OF THE COMPANY
The Company is an Indiana corporation engaged in
the utility contracting business. During the latter part
of 1969, the Company participated in a joint venture
contract with Hernly Bros., Inc., by entering into an
agreement with the Sanitary District of the city of East
Chicago, Indiana, to install storm and sanitary sewers
for a water pollution abatement project. The total
amount of the contract was approximately $14,500,-
000, and materials shipped from points outside Indiana
to this project were in excess of $600,000. About Febru-
ary or March 1970, the Company subcontracted with
the William Holman Construction Company, herein
called Illiana,' to do some sewer installation work on
' William Holman did business under this name until the spring of 1970,
at which time it became known as the Illiana Piping Company.
191 NLRB No. 130
III. THE DISPUTE
A. Background-land lFacts.:of, the-Dispute
The Company is engaged, principally inJndiana; ,in,
utility contracting work involving the installation of,'
sewer pipe. As noted above, the Company was engaged
in this type of work at a jobsite in East Chicago, In-
diana.
For a period of about 8 years prior to the hearing it
was common practice in the installing of sewer pipes to
use mortar for sealing the connecting joints, and there
was an understanding between the Bricklayers and La-
borers that the application of the mortar was bricklay-
ers' work. This installation procedure changed with the
advent of slip-seal sewer pipes, which are made of ei-
ther vitrified clay or concrete. The vitrified type has
premolded hard rubber valves and spigot ends, to
which a lubricant is applied either by hand or brush
prior to the joining of the pipe. The concrete type has
a flat rubber gasket fitting the end of the spigot part of
the pipe, to which a tar mastic is applied by hand or
epoxy by brush prior to the joining of the pipe. All of
the pipe used on the East Chicago project was of the
new slip-seal variety. With on isolated exception, the
manholes on this project have been connected with
poured concrete and such work has been done by labor-
ers.
The installation procedure for both types of pipe is
the same. The Company utilizes eight-men crews on
this project, consisting of four laborers from the Labor-
ers, one oiler and two equipment operators from the
Operating Engineer, and a foreman. The overall opera-
tion starts with the opening of a ditch by an equipment
operator with a back hoe and with the laborers then
leveling the bottom of the ditch with hand shovels prior
to the laying of the pipe. A laborer then attaches a cable
to the pipe so that it may be picked up and lowered into
the ditch by an equipment operator with a crane. The
application of the lubricant, tar mastic or epoxy, de-
pending on the type of pipe used, is done by a laborer.
Once the pipe is lowered into the ditch, two laborers
help in guiding the pipe as an equipment operator,
using a back hoe, forces the pipe together and makes
a joint. After the pipe has been joined, an operating
BRICKLAYERS UNION, LOCAL NO. 6 775 °
engineer pushes a small amount of dirt over the pipe
with an endloader. Two laborers in the ditch then use
hand shovels to fill around the bottom half of the pipe
and over the top of the pipe. This backfiiling and bed-
ding is done to prevent the pipe from being broken by
large falling pieces of dirt or rock. The general cleanup
duties are performed by laborers.
Illiana's pipe installation procedure on this project
was basically the same as used by the Company, except
that Illiana had crews consisting of three laborers and
three operating engineers . After laying pipe for about
3 days on the project, Illiana hired a bricklayer, Carl
Brown, under circumstances set forth below. Brown's
hiring did not result in any layoffs of laborers and his
duties were limited to manhold installation work dur-
ing his short, period of employment.
On March 4, 1970, Charles Fitzgerald, the president
of the Company, was called to the Illiana jobsite by
William Holman, the president of Illiana, regarding a
claim then being made for the sewer laying work by
William Kos, a business representative of the Bricklay-
ers. When Fitzgerald arrived on the scene and told Kos
that this work had been assigned to the Laborers 2 Kos
replied, "Well, you had better get the Laborers out."
Eugene Trippeer, a business representative of the La-
borers, arrived shortly thereafter and both he and Kos
claimed the work for their respective Unions. Although
Trippeer and Kos agreed that they would have their
respective Internationals- resolve the dispute, there is no
showing in the record of any such resolution.
On March 9, Trippeer, Kos, and Carl Brown, a
member of the Bricklayers, met with William Holman,
but the parties were unable to agree as to which union
should perform the disputed work. After the meeting,
Kos approached Holman and stated, "Until this thing
is straightened out, why' don't you put the bricklayer,
my bricklayer (Carl Brown) to work." Holman agreed
and hired' Brown as a bricklayer.
On March 12, Trippeer met with Fitzgerald at the
latter's office and stated, "If that Bricklayer isn't off
that job this week we are going to pull all our laborers
out [of] here." Fitzgerald agreed that he would see that
Brown was laid, off on the following day. Whereupon
Fitzgerald went to Holman and told him to lay off
Brown, which Holman did-on the very next day. In
addition to the foregoing, there,is uncontradicted tes-
timony that, during this same part of the week, Virgil
Wynkoop, a field representative of the Laborers, told
Holman, "get rid of the bricklayer ... if I didn't get rid
of the bricklayer that I wouldn't have any laborers
working, he would pull all his laborers off my job."
' By letter, dated February 6, 1970, the Company advised the Laborers
that it was being assigned all sewer work on the water pollution abatement
project at East Chicago, Indiana.
There is testimony by William Holman that, on
March 16, Kos asked him why he had laid off Brown,
to which Holman explained that if he had not done so
he would not have any laborers. Whereupon Kos
stated, "It looks like I am going to have to picket your
job now that you have gone this way and laid off a
bricklayer." Kos denied that he had made any such
threat to Holman.
B. The Work in Dispute
The disputed work involves the handling and install-
ing of sewer pipes on the East Chicago water pollution
project.
C. Contentions of the Parties
The Company contends that the disputed . work
should be assigned to employees represented by the
Laborers because it has always been the Company's
practice to assign such work to laborers; that it has
never used bricklayers for this type of work; that it has
assigned the work to the Laborers; that the laborers
have demonstrated the skill needed for the proper per-
formance of the work; that there is a considerable in-
crease in efficiency when the assignment is to the labor-
ers alone rather than to a combined crew of bricklayers
and laborers since the, latter perform all the jobs in-
volved in the disputed work; and that it is able to
operate more economically when the assignment is to
the laborers because a bricklayer receives more pay
without employing any, required skill not possessed by
the laborers. Moreover, the Company contends that, at
the time of the East Chicago project; both it and Illiana
were parties to a collective-bargaining agreement with
the Laborers, and that neither it nor Illiana had any
such agreement with the Bricklayers.
The position of the Laborers is essentially in accord
with that of the Company.
The Bricklayers contends that the disputed work
should be assigned to employees represented by them
because of the area and trade practice; that the laborers
involved herein are not engaged in laying vitrified clay
tile, but rather, that they are doing more work properly
classified in the labor category such as diggers, brick-
layer tenders, tampers, and cleanup men; and that
bricklayers have a specific job of laying and aligning
vitrified clay tile and concrete pipe, the making of all
joints, and the making up of manholes, all of which
requires the requisite skill of a bricklayer.
D. Applicability of the Statute
Before the Board may proceed with a determination
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) has been violated.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The evidence is uncontradicted that the Laborers
threatened to strike to secure the disputed work for its
members. Although Kos of the Bricklayers denied
making any threats of picketing during the March 16
conversation with Holman at that jobsite, the record is
sufficient to establish that there is at least reasonable
cause to believe that a violation of Section 8(b)(4)(D)
by the Bricklayers has occurred. The dispute is there-
fore properly before us for determination.
E. The Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the dispute work after
giving due consideration to various relevant factors.'
The following factors are relevant in making a deter-
mination of the dispute before us.
1. Certification and collective-bargaining agreements
Although the Company is not a member of any of the
six employer associations that were parties to an agree-
ment with the Laborers in effect during the period
involved herein, a written acceptance of this agreement
was signed by a representative of the Company on Au-
gust 10, 1969. In addition, Illiana was not a member of
any of the said employer associations but a similar
acceptance of the agreement was signed by Holman on
July 22, 1968. Article IV of the aforesaid agreement
with the Laborers states that the jurisdiction of work
shall be in accordance with the "Manual of Jurisdic-
tion" as adopted by the Laborers' International Union
of North America in October 1961. As to sewers,
drains, culverts, and multiplate, said manual provides,
inter alia, for jurisdiction to the Laborers in "Pipe
laying, leveling and making of the joint of any pipe used
for main or side sewers and storm sewers. All of the
laying of clay, terra cotta, ironstone, vitrified concrete
or other pipe and the making of joints for main or side
sewers and storm sewers and all pipe for drainage."
2. Company practice
The record shows that the Company's practice in the
State of Indiana, where the Company does its business,
is to award to laborers such work as is in dispute herein.
The record further shows that the Company has never
used bricklayers for this type of work.
' International Association of Machinists, Lodge No. 1743, AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402.
3. Area practice
The laborers have been assigned to and have per-
formed numerous sewer projects within the jurisdiction
of the Bricklayers. The latter offered evidence showing
that on various occasions bricklayers have been used by
certain contractors to perform the disputed work.
4. Efficiency and economy of operations
Charles Fitzgerald testified that his Company did
not want to use bricklayers because their duties would
be limited only to the application of materials to the
joint of the pipe or the handling of mortar and brick.
Consequently, bricklayers would only be used during 2
or 3 hours on the days that the pipe was actually being
laid. Thus, pipe would be laid for 15 working days out
of approximately 22 working days during each month,
with no work available for them during the remaining
days. In addition, the use of precast concrete manholes
had eliminated the need to brick up the openings be-
tween the pipe and such manholes, thereby eliminating
the possibility of work for a bricklayer when pipe was
not actually being laid. Holman's testimony regarding
this lack of work for bricklayers was in support of
Fitzgerald's testimony.
Conclusions
Based upon the entire record, and after full consider-
ation of all relevant factors, we find- that the above
factors favor the assignment of the disputed work to the
employees represented by the Laborers and conclude
that these employees are entitled to perform the work
here in dispute. In making this determination, we are
assigning the disputed work to employees who are
represented by the Laborers and not to the Laborers or
its members.
Scope of the Award
The Company requests a broad order to avoid such
future disputes. In support of this request, the Com-
pany submits that the record herein indicates that fu-
ture disputes regarding this type of work are likely to
occur. However, the record before us does not warrant
a conclusion that the work in dispute has been a recur-
ring source of controversy in the area involved or that
other similar disputes may occur in the future. There-
fore, we shall restrict the scope of our determination
herein to the specific project that gave rise to this pro-
ceeding.
BRICKLAYERS UNION, LOCAL NO. 6 777
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Re-
lations Act, as amended , and upon the basis of the
foregoing findings and the entire record in this proceed-
ing, the National Labor Relations Board makes the
following Determination of Dispute:
1. Employees employed as laborers by Fitzgerald
and Stutz , Inc., and by Illiana Piping Company, cur-
rently represented by Laborers ' International Union of
North America, AFL-CIO, Local 41 , are entitled to
perform the work of handling and installing sewer
pipes on the water pollution abatement project at East
Chicago , Indiana.
2. Bricklayers Union , Local No . 6, is not entitled by
means proscribed by Section 8(b)(4)(D) of the Act to
force or require the above-named Employers to assign
such work to individuals represented by the aforesaid
labor organization.
3. Within 10 days from the date of this Decision and
Determination of Dispute , Bricklayers Union, Local
No. 6, shall notify the Regional Director for Region 13,
in writing , whether or not it will refrain from forcing
or requiring the above -named Employers, by means
proscribed by Section 8(b)(4)(D ), to assign the work in
dispute in a manner inconsistent with the above deter-
mination.