Bricklayers Union No. 18 of Ohio

National Labor Relations Board - Board Decisions

Feb 28, 1968

169 N.L.R.B. 1085 (N.L.R.B. 1968)

BRICKLAYERS UNION NO. 18 OF OHIO 1085
Bricklayers , Terrazzo , Mosaic and Tile Layers Union
No. 18 of Ohio, Bricklayers , Masons and Plasterers
International Union of America , AFL-CIO and
Tobasco Prestressed Concrete Co. and United
Brotherhood of Carpenters and Joiners of Amer-
ica, Ohio Valley Carpenters District Council,
AFL-CIO and David Hummel Building Company
Iron Workers Local Union #44, International As-
sociation of Bridge , Structural and Ornamental
Iron Workers , AFL-CIO and Tobasco
Prestressed Concrete Co. and United Brotherhood
of Carpenters and Joiners of America, Ohio Valley
Carpenters District Council, AFL-CIO and Ray
Evers Welding Co.
Reinforced Concrete Iron Workers Local #372 Inter-
national Association of Bridge, Structural and Or-
namental Iron Workers, AFL-CIO and Tobasco
Prestressed Concrete Co. and United Brotherhood
of Carpenters and Joiners of America, Ohio Valley
Carpenters District Council , AFL-CIO and
Stephen Gross c& Sons, Inc. Cases 9-CD-106-1,
9-CD-106-2, and 9-CD-106-3
February 28, 1968
rulings of the Hearing Officer made at the hearing
are free from prejudicial error and are hereby af-
firmed. Briefs filed on behalf of the Charging Party
and the Respondents have been duly considered.
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.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The record establishes that Tobasco is an Ohio
corporation, with its principal offices at Tobasco,
Ohio, and is engaged in business as a contractor and
manufacturer of prefabricated and prestressed
concrete building products, and that during the
previous year it had direct purchases in excess of
$50,000 from firms located outside the State of
Ohio.
Accordingly, we find that Tobasco 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.
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Tobasco Prestressed Concrete
Company, herein called Tobasco, or the Charging
Party, alleging in substance that Bricklayers, Ter-
razzo, Mosaic and Tile Layers Union No. 18 of
Ohio, Bricklayers,, Masons and Plasterers Interna-
tional Union of America, AFL-CIO; Iron Workers
Local Union #44, International Association of
Bridge, Structural and Ornamental Iron Workers,
AFL-CIO; and Reinforced Concrete Iron Workers
Local #372, International Association of Bridge,
Structural and Ornamental Iron Workers,
AFL-CIO; herein referred to respectively as Local
18, Local 44, and Local 372, and collectively as the
Respondents, violated Section 8(b)(4)(D) of the
Act.
Pursuant to notice, a hearing was held before
Donald G. Logsdon, Hearing Officer, on June 14,
July 10, 31 and August 2, 3 and 4, 1967.1 The
Charging Party and Respondents 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.2 The
All dates hereinafter appearing will be in 1967 unless otherwise in-
dicated
2 While named as parties in the pleadings and served with Notice of
Hearing, the United Brotherhood of Carpenters and Joiners of America,
Ohio Valley Carpenters District Council, AFL-CIO (hereinafter called
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find , that Local 18,
Local 44, Local 372, and Carpenters are labor or-
ganizations within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
The work in dispute concerns the assignment of
all jobsite work necessarily required for the
complete erection and permanent installation of
prestressed, precast, or prefabricated concrete
products manufactured by Tobasco for installation
on the Summit Elementary School Building, Hamil-
ton County, Ohio.
A. Background Facts
Tobasco manufactures at its plant a variety of
precast concrete products such as roof and floor
slabs, beams, columns, and wall panels. The term
precast includes prefabrication and prestressed, the
latter being a particular way of reinforcing a piece
of concrete. The precast products vary greatly in
size, weight, and shape-columns and beams vary-
ing from 8 to 36 square inches, from 10 to 70 feet
long, and from 1,000 to 60,000 pounds. Similar
variances apply to floor, roof, and wall slabs. While
Carpenters), David Hummel Building Company (hereinafter called Hum-
mel), and Ray Evers Welding Co (hereinafter called Evers), did not make
an appearance at the hearing Stephen Gross & Sons, Inc (hereinafter
called Gross), also did not make an appearance, but its vice president,
Emerick Gross appeared as a witness called by the Charging Party
169 NLRB No. 161
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tobasco does provide precast products which are
installed by other companies, on most jobs where it
provides the precast items it also does the erection
and installation work.3
Since 1959 Tobasco has recognized the Carpen-
ters as bargaining representative for its employees.
On February 12, 1964, the Board certified the Car-
penters as the bargaining representative for all of
Tobasco's "production, prefabrication and erection
employees," and since then there have been succes-
sive collective-bargaining contracts between
Tobasco and the Carpenters. The current contract,
executed February 21, 1967, is effective from
January 1, 1967 to December 31, 1969. Tobasco
has consistently assigned erection work for its
products to its employees represented by the Car-
penters. The Respondents claim installation of the
precast concrete items on this job should be made
by a composite crew of two structural ironworkers,
two reinforced concrete ironworkers, and, one
bricklayer.
Stephen Gross & Sons, Inc., is the general con-
tractor for the Summit School job. The specifica-
tions listed five manufacturers who were qualified
to fabricate and erect the precast concrete work for
the job. Subcontracts were solicited from all five,
but only Tobasco bid on the job and it was awarded
the contract.
On or about February 1, Clarence Herbert, busi-
ness agent of Local 18, called Clem Fox, general
manager of Tobasco, and said that the erection of
the precast items should be assigned to members of
Local 18 or Tobasco was likely to have trouble as
it did on the Avondale school job.4 Several days
later, James Harlow, business agent of Local 372,
called and stated his men should erect the precast
items. Fox informed him that Tobasco planned to
use its regular erection crew.
Tobasco began installation of the precast items
about March 29. On or about March 31, members
of Local 18 employed by Hummel, the masonry
subcontractor, members of Local 44 employed by
Evers, the subcontractor for structural iron work,
and members of Local 372 employed by Gross,
failed to man the job. On April 3 or 4, Evers and
Qualified Erection Company (from which Gross
hired men) informed Gross that structural ironwor-
kers and reinforcing ironworkers would not work
on the job because of the dispute between Tobasco
and the bricklayers. At a meeting in the school
board's office on April 5, Herbert of Local 18
stated that the men had unilaterally decided to walk
off the job because they felt the work Tobasco was
doing belonged to them. On April 11, business
agents of the Respondents visited Emerick Gross,
3 Clemis Fox, general manager of Tobasco, testified that since 1959
Tobasco has furnished prestressed concrete for approximately 580 jobs
and has erected approximately 550 of these using its own employees
represented by the Carpenters.
4 The Avondale job involved a jurisdictional claim by the Cement
Masons over certain work on precast items erected by Tobasco. The
vice president of Gross, on the jobsite and informed
him their men would return to work if three condi-
tions were met: (1) Tobasco hired a composite crew
consisting of bricklayers and ironworkers to erect
the precast items, (2) members of Local 18
(bricklayers) be placed on Tobasco's payroll, and
(3) members of Local 44 and Local 372 be placed
on Gross' payroll, with the charge being deducted
from Tobasco's subcontract. These proposals were
submitted to Tobasco and the school board, but
Tobasco rejected it, pointing out that it had a con-
tract with the Carpenters, the certified bargaining
agent for its employees covering the work.
On or about April 13, George Dooley, business
agent of Local 44, spoke to Gross and indicated the
men would return if certain conditions, including
Gross' guarantee that Respondents would not have
this trouble again, were met. However, the next day
Gross rejected Dooley's offer on the basis that due
to the competitive nature of its business it did not
wish to meet such conditions, in that it would
probably wish to award subcontracts to Tobasco in
the future.
On May 5, in response to a May 3 request of
Gross, Tobasco withdrew from the erection portion
of its contract giving appropriate credit on the con-
tract for the work remaining to be done. Gross then
requested bids for the erection work for other com-
panies, including Hummel and Evers, but was un-
able to obtain any bids. Subsequently Gross
requested Tobasco to resume the erection of the
precast items. Members of Respondents, as a result
of injunction proceedings, returned to work about
the middle of May.
B. Contention of the Parties
The Respondents contend that the erection and
installation (but not the delivery) of the precast
concrete products should be performed by a com-
posite crew of bricklayers and ironworkers, pur-
suant to a standing agreement between their unions,
as set forth in an agreement of December 6, 1962,
between the International Unions, and in ac-
cordance with decisions of the National Joint Board
for the Settlement of Jurisdictional Disputes.
Respondents further contend that area practice is
to assign such work to a composite crew. Respond-
ents also suggest as a possible solution the assign-
ment of the work to a composite crew, including
carpenters as well as ironworkers and bricklayers.
Tobasco contends essentially that since 1959,
and more particularly since 1964, when the Carpen-
ters were certified as the exclusive bargaining
representative of its employees, it has always as-
Board assigned the work to the employees of Tobasco represented by the
Carpenters ; see Cement Masons' Local Union No. 524, affiliated with
The Operative Plasterers ' and Cement Masons ' International Associa-
tion of The United States and Canada , AFL-CIO [Tobasco Prestressed
Concrete Company, Division of Bethel Supply Company], 163 NLRB
609.
BRICKLAYERS UNION NO. 18 OF OHIO
signed the erection of its products (when it has the
contract to erect as well as manufacture its precast
items) to its erection crew represented by the Car-
penters. Tobasco also asserts it is more efficient to
assign the work to its regular five-man crew than to
pick up new men of different crafts for each new
erection job.
C. Applicability of the Statute
In accordance with the requirements of Section
10(k) of the Act, the Board must first ascertain
whether there is reasonable cause to believe that a
violation of Section 8(b)(4)(D) of the Act has oc-
curred.
Under the facts described above, including the
warning by Herbert of Local 18 on February 1 of
trouble if the work was not assigned to members of
his Local, the walkout of ironworkers and
bricklayers when Tobasco began to install precast
items on the job, and the business agents' demands
made to Gross on April 11 and April 13 as a
prerequisite for the return of the men, there is ample
and sufficient evidence to establish reasonable
cause to believe that Respondents violated Section
8(b)(4)(D) of the Act. In these circumstances it is
clear that the decision of employees to stop work
was initiated and/or supported, or ratified, by the
Respondents. Accordingly, we find that there is a
reasonable cause to believe that a violation of Sec-
tion 8(b)(4)(D) has occurred and that the dispute is
properly before the Board for determination under
Section 10(k) of the Act.
D. 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 all relevant factors. The
following factors are asserted in support of the
claims of the parties herein:
1. Collective-bargaining contracts
The Carpenters, certified by the Board on
February 12, 1964, as the exclusive representative
of Tobasco's production, prefabrication, and
erection employees, has had successive contracts
with Tobasco since 1964. The current contract, ef-
fective from January 1, 1967, until December 31,
1969, provides, in part, that the Carpenters are "the
sole bargaining agent, for all production employees
employed at their plant and all employees used in
the installation and erection of the products manu-
factured and installed or erected by the Employer
(Tobasco)."
None of the Respondents has a contract with
Tobasco. In these circumstances it is clear that
Tobasco's employees, represented by the Carpen-
ters, have a strong contractual claim to the work in
dispute.
1087
2. Employer and area practice
Since its organization, Tobasco has assigned
erection work to its own crews who have been
represented by the Carpenters. Since 1959,
Tobasco has manufactured precast concrete for
roughly 580 jobs and has installed and erected the
precast concrete on about 550 of these jobs using its
own crews. The only variance noted in the record
concerns a job at the Marion High School, where it
appears that Tobasco used a partial composite crew
for about 1 week utilizing a member of Local 44 and
a member of Local 372. However, this involved
only 20 percent of the total work involved in erect-
ing the precast products.
As to area practice, the record indicates that
composite crews, utilizing members of all the
Respondents, have been used where Tobasco's or
another manufacturer's products have been erected
by another company or where precast products are
manufactured and erected by companies other than
Tobasco. Thus, the general area practice with
respect to installation has been to use composite
crews where firms other than Tobasco have per-
formed the work. However, Tobasco is the only
company in the Cincinnati area that manufactures
precast items off the jobsite and also does the instal-
lation. No evidence was produced to indicate the
proportion of the erection work done by Tobasco to
the total erection work done in the area.
Thus it appears that the Employer with limited
exceptions has consistently assigned the erection
and installation work to its own crews, represented
by the Carpenters. The general area practice, how-
ever, seems to be to employ composite crews and,
except for Tobasco's work, appears to support
Respondents claims to the disputed work.
3. Adjustment of dispute
Under a submission made by the Bricklayers, the
National Joint Board for Settlement of Jurisdic-
tional Disputes, on July 26, awarded most of the
work to the bricklayers, leaving the remainder
under the contractor's (Tobasco) assignment.
Respondents claim that under the agreement of
December 1962 between the Internationals of the
Bricklayers and Ironworkers, the award meant the
work should be done by a composite crew. How-
ever, neither the Carpenters nor Tobasco was a
party to the Joint Board submission, and, moreover,
Tobasco has no agreement under which it is bound
by the Joint Board.
4. Skill, efficiency, economy
Since it. began operations, Tobasco has used a
regular erection crew composed of its own em-
ployees. When not engaged on an erection project,
the members of the erection crew work in the
Tobasco manufacturing plant. The same employees
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are used for all erection jobs. The erection of the
precast concrete items involves a number of skills
such as delivery, unloading , setting, aligning,
plumbing, welding, bolting, cutting, grouting,
pitching, and mixing and setting mortar. All this
work can be and has been done by Tobasco's regu-
lar erection crew. All the men in the crew do vari-
ous jobs, although some men are, of course, better
at certain phases of the work than at others. When
Tobasco uses its crew, the work is integrated and it
is unnecessary to delay a portion of the job while
awaiting employees of a craft different from those
working on one phase.
Apprenticeship training of all of Respondents'
members involves some training in skills related to
precast concrete erection work. In addition, certain
members of Respondents work primarily in this
field. Despite Respondents' contention that a com-
posite crew is appropriate because of the specific
skills necessary, Respondents also claim that such
crews do not rigidly adhere to craft lines in per-
formance of the work. Moreover, although Respond-
ents originally contended that it was the area prac-
tice to use composite crews of bricklayers and iron-
workers, it was brought out in the course of the
hearing that under certain circumstances employees
with other skills might be needed with the com-
posite crew. Respondents original position was
revised to the extent that it acknowledged that
craftsmen such as hod carriers and cement workers
might also be needed to do incidental work. The
record, on the other hand, shows that Tobasco's
five-man crew represented by the Carpenters would
perform all the tasks necessary for a complete job.
It is quite evident that a crew, such as Tobasco's,
which is continuously engaged in precast erection
work is collectively more efficient than a pickup
crew of different crafts, to which other crafts may
have to be added or subtracted as work progresses.
Consequently, the factors of skill and efficiency in
erection of the precast concrete items weigh in
favor of the assignment of the disputed work to
Tobasco's employees represented by the Carpen-
ters.
It is also apparent that assignment of the erection
work to Tobasco's employees, represented by the
Carpenters, is at least as economical as assignment
to a composite crew, because of continuity of work
on the various phases of the erection process.
Moreover, it is obvious that any other of the alter-
natives proposed by Respondents, such as the addi-
tion of Respondents' members to the crew, or the
placement of Respondents' members on Gross'
payroll with a charge to Tobasco, would entail costs
well over and above the assignment solely to
Tobasco's crew.
S See also our decision in Cement Masons' Local No. 524 [Tobacco
Prestressed Concrete Company), supra, where certain aspects of erection
Conclusions as the Merits of the Dispute
After full consideration of the record and all rele-
vant factors, we conclude that all the jobsite work
necessarily required for the complete erection and
installation of prestressed, precast, or prefabricated
concrete products manufactured by Tobasco
should be awarded to employees of Tobasco
represented by the Carpenters. Although the.
general area practice lends some support to
Respondents' claims for the work, Tobasco's con-
sistent and long-time practice, the language of the
Board's certification of employees represented by
the Carpenters, and the language of their current
contract appear to cover the disputed work.
Moreover, the factors of skill, economy, and effi-
ciency further support the award of the work to em-
ployees represented by the Carpenters.5 This deter-
mination is limited to the particular controversy giv-
ing rise to this dispute, and our award of the work in
dispute runs to employees of Tobasco represented
by the Carpenters but not to the Union or its mem-
bers.
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
proceeding , the National Labor Relations Board
makes the following Determination of Dispute.
1. Employees employed on jobsite erection
crews by Tobasco Prestressed Concrete Company,
who are represented by the United Brotherhood of
Carpenters and Joiners of America , Ohio Valley
Carpenters District Council , AFL-CIO, are enti-
tled to perform all jobsite work necessarily required
for the complete erection and permanent installa-
tion of prestressed , precast , or prefabricated
concrete products manufactured by Tobaco
Prestressed Concrete Company at its plant in
Tobasco, Ohio.
2. Bricklayers , Terrazzo, Mosaic and Tile
Layers Union No. 18 of Ohio , Bricklayers , Masons
and Plasterers International Union of America,
AFL-CIO; Iron Workers Local Union #44, Inter-
national Association of Bridge, Structural and Or-
namental Iron Workers, AFL-CIO; Reinforced
Concrete Iron Workers Local #372, International
Association of Bridge , Structural and Ornamental
Iron Workers, AFL-CIO, are not entitled, by
means proscribed by Section 8(b)(4)(D ) of the Act,
to force or require, directly or indirectly, the
Tobasco Prestressed Concrete Company to assign
the above-described work to employees they
represent.
and installation work (patching and rubbing) were similarly awarded to
employees represented by the Carpenters.
BRICKLAYERS UNION NO. 18 OF OHIO 1089
3. Within 10 days from the date of this Decision
and Determination of Dispute , Bricklayers , Terraz-
zo, Mosaic and Tile Layers Union No. 18 of Ohio,
Bricklayers , Masons and Plasterers International
Union of America, AFL-CIO; Iron Workers Local
Union #44, International Association of Bridge,
Structural and Ornamental Iron Workers,
AFL-CIO; Reinforced Concrete Iron Workers
Local #372, International Association of Bridge,
Structural and Ornamental Iron Workers,
AFL-CI O, shall notify the Regional Director for
Region 9 , in writing , whether they will or will not
refrain from forcing or requiring , directly or in-
directly, the Tobasco Prestressed Concrete Com-
pany, by means proscribed by Section 8(b)(4)(D) of
the Act, to assign the above -described work in
dispute to their members rather than to Tobasco
Prestressed Concrete Company employees,
represented by the United Brotherhood of Carpen-
ters and Joiners of America, Ohio Valley Carpen-
ters District Council , AFL-CIO.