Bricklayers (W.R. Weis Co.)

National Labor Relations Board - Board Decisions

Oct 1, 2001

336 N.L.R.B. 699 (N.L.R.B. 2001)

BRICKLAYERS (W. R. WEIS CO.) 699
International Union of Bricklayers & Allied Craft-
workers, AFL–CIO and W. R. Weis Company,
Inc. and Bridge, Structural & Reinforcing Iron
Workers, Local 1, AFL–CIO and Iron Workers
Architectural & Ornamental Union, Local 63,
AFL–CIO. Case 13–CD–579
October 1, 2001
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN HURTGEN AND MEMBERS
TRUESDALE
AND WALSH
The charge in this Section 10(k) proceeding was filed on
January 4, 2000, by W. R. Weis Company, Inc. (the Em-
ployer), alleging that the Respondent, International Union
of Bricklayers and Allied Craftworkers, AFL–CIO (Brick-
layers), violated Section 8(b)(4)(D) of the National Labor
Relations Act by engaging in proscribed activity with an
object of forcing the Employer to continue to assign cer-
tain work to employees it represents rather than to em-
ployees represented by Iron Workers Architectural and
Ornamental Union, Local 63, AFL–CIO (Local 63), and
Bridge, Structural and Reinforcing Iron Workers, Local 1,
AFL–CIO (Local 1). The hearing was held on January 19
and 28, 2000, before Hearing Officer Kevin M. McCor-
mick. The Employer, Bricklayers, and Local 1 each filed
posthearing briefs.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board affirms the hearing officer’s rulings, finding
them free from prejudicial error. On the entire record, the
Board makes the following findings.
I. JURISDICTION
The Employer, a corporation, engaged in the installation
of stone on buildings, is located in Chicago, Illinois.
Within the calendar year ending in January 2000, a repre-
sentative period, it purchased and received at Illinois loca-
tions goods and materials valued in excess of $50,000
directly from points outside the State of Illinois. The par-
ties stipulated, and we find, that the Employer is engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act. The parties also stipulated, and we find, that
Bricklayers, Local 63, and Local 1, are labor organizations
within the meaning of Section 2(5) of the Act.

1 Local 63 was neither present at the hearing nor filed a posthearing
brief.
II. THE DISPUTE
A. Background and Facts of Dispute
In September 1999,2 general contractor, Morse-Diesel
International, engaged the Employer as a subcontractor
responsible for the reinstallation of the exterior historic
limestone on a high-rise commercial building located at
520 North Michigan Avenue, Chicago, Illinois. The
stonework installation involved the reinstallation of large
pieces of historic limestone using a steel support system to
attach the stone to the building’s structural members, i.e.,
the steel columns and concrete floors.
On about December 9, the Employer received notice
from the Joint Conference Board of the Construction Em-
ployer’s Association and the Chicago and Cook County
Building and Construction Trades Council (Joint Confer-
ence Board) that Local 63 had filed a claim to certain work
being performed by the Employer at the project. Specifi-
cally, Local 1 and Local 63 claimed the installation of
relief angles to support stone and the installation of multi-
purpose supports. This work had been assigned by the
Employer to its employees represented by the Bricklayers.
The Employer does not employ iron workers.
On December 23, the Employer received a letter from
the Joint Conference Board advising it that the Joint Con-
ference Board had awarded the work in dispute to Local 1
and Local 63. Following receipt of this letter, the Em-
ployer did not change the work assignment.
On December 30, the Employer received a letter from
the Bricklayers acknowledging receipt of the Joint Confer-
ence Board decision. Ken P. Lambert, executive vice
president of the Bricklayers, advised the Employer that the
Union was prepared to picket, handbill, demonstrate, and
apply other appropriate means of pressure if the employ-
ees represented by the Bricklayers were replaced by em-
ployees represented by the Iron Workers3 to perform the
work in dispute on the project.
B. Work in Dispute
As specified in the original notice of hearing, the work
in dispute concerns the unloading, handling, stockpiling,
hoisting and installation of relief angles to support stone,
and the unloading, handling, stockpiling, hoisting and in-
stallation of multipurpose supports on the jobsite at 520
North Michigan Avenue, in Chicago, Illinois.
C. Contentions of the Parties
The Employer and Bricklayers contend that there is rea-
sonable cause to believe that Bricklayers violated Section
8(b)(4)(D) of the Act; that no voluntary means exists for
2 All dates are in 1999 unless otherwise indicated.
3 Hereinafter, references to the Iron Workers include both Local 1
and Local 63.
336 NLRB No. 51
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 700
adjustment of the jurisdictional dispute; and that the work
in dispute should be awarded to employees represented by
Bricklayers based on the factors of its collective-
bargaining agreement with the Employer, the Employer’s
preference and past practice, area and industry practice,
relative skills, and economy and efficiency of operations.
Local 1 contends that the notice of hearing should be
quashed, arguing that: (1) the Bricklayers’ threats are a
sham to invoke the Board’s authority and obtain a deter-
mination favoring the current assignment of the disputed
work to employees represented by Bricklayers; (2) there
existed a method for voluntary adjustment of the jurisdic-
tional dispute binding on all the parties; and (3) the Re-
gional Director’s failure to promptly and properly provide
notice to one of the actual parties claiming the disputed
work, Local 63, divests the Board of jurisdiction to finally
adjudicate this dispute. Local 1 alternatively contends that
the disputed work should be awarded to employees it
represents based on the factors of efficiency and economy
of operations, the skills and work involved, the area and
industry practice, the agreements between Iron Workers
and Bricklayers, and the awards of arbitrators and joint
boards, including the Joint Conference Board.
Although afforded notice and opportunity to appear at
the hearing, as noted above, Local 63 was neither present
at the hearing nor filed a posthearing brief. Consequently,
Local 63 has made no contentions before the Board with
respect to the work in dispute.4
D. Applicability of the Statute
Before the Board may proceed with a determination of
the dispute pursuant to Section 10(k), it must be satisfied
that there is reasonable cause to believe that Section
8(b)(4)(D) has been violated and that the parties have not
agreed on a method for voluntary adjustment of the dis-
pute.
Around December 9, Local 1 claimed the disputed work
at 520 North Michigan Avenue, which had originally been
assigned by the Employer to its employees who are repre-
sented by Bricklayers. The Joint Conference Board found
that the disputed work should be awarded both to Local 1
and Local 63, and submitted a letter to the Employer in-

4 We reject Local 1’s claim concerning the alleged insufficiency of
service of the charge and notice of hearing on Local 63. Local 1 has
failed to demonstrate any prejudice to Local 1 by the asserted insuffi-
ciency of service on Local 63. In addition, Local 63 has failed to allege
any insufficiency of service, and the evidence indicates that the Region
served Local 63 with the charge and notice of hearing. The 10(k) hear-
ings are nonadversary in character and are designed solely to assist the
Board in making the proper award. The failure of a party to participate
in the hearing does not operate to stay the proceeding, or preclude the
Board from making a finding on the record. Broadcast Employees
NABET Local 16 (American Broadcasting Co.), 207 NLRB 880, 882
fn. 4 (1973); cf. Bricklayers (Sesco, Inc.), 303 NLRB 401, 402 (1991).
forming it of this decision on or about December 23, 1999.
On December 30, the executive vice president of Brick-
layers threatened to picket and exert other economic pres-
sure at the Employer’s jobsite unless employees repre-
sented by Bricklayers were allowed to continue to perform
the disputed work.
Local 1 contends that by virtue of the Employer’s “War-
ranty and Acceptance” with the Laborers, the Employer is
bound to the Laborer’s District Council’s Multiemployer
Agreement, and that, pursuant to that agreement, the Em-
ployer is bound to the Standard Agreement and the Joint
Conference Board procedure. Article XVII, paragraph 4 of
the Laborer’s District Council Agreement states:

The Standard Agreement formulated by the Joint
Conference Board of the Construction Employers As-
sociation and the Chicago and Cook County Building
Trades Council, as amended and readopted, shall be
and hereby is adopted as a part of this Agreement for
the Builders’ Association of Greater Chicago and its
members only, as fully and completely as if incorpo-
rated herein, except as to any provisions of said Stan-
dard Agreement which may override or be in conflict
with any of the Articles or provisions of the Agree-
ment. [Emphasis added.]

It is undisputed that the Employer is not, and has never
been, a member of the Builders’ Association of Greater
Chicago. Further, the “Warranty and Acceptance” between
the Employer and the Laborers Union does not discuss the
Joint Conference Board or its authority to resolve jurisdic-
tional disputes. Therefore, the Laborer’s contract cannot
bind the Employer to the Joint Conference Board proce-
dure.5
The Bricklayers advised the Employer in writing that it
expected the Employer to abide by the terms of its agree-
ment with the Bricklayers and to continue assigning the
disputed work to the employees it represents. The Brick-
layers threatened that it was prepared to picket, handbill,
demonstrate, and apply other appropriate means of pres-
sure if the employees it represents were replaced with
ironworkers.
Local 1 contends that the Bricklayers’ threats were
shams. As detailed above, however, the statements made
in writing by a representative of the Bricklayers clearly
constitute threats of economic action, and the Employer’s
sales manager, William R. Weis, testified that after receiv-
5 Operating Engineers Local 150 (Interior Development), 308
NLRB 1005 (1992). Since neither the Laborer’s District Council
Agreement nor the “Warranty and Acceptance” binds the Employer to
the Joint Conference Board procedure, we find it unnecessary to deter-
mine whether the Employer’s signing of the “Warranty and Accep-
tance” actually bound it to the Laborers’ District Council Agreement.
BRICKLAYERS (W.R. WEIS CO.) 701
ing the letter the Employer filed a charge with the Board.
Apart from its assertions, Local 1 has brought forth no
evidence establishing that the Bricklayers’ threats were not
genuine or were made in collusion with the Employer.
See Plumbers Local 562 (C & R Heating & Service Co.),
328 NLRB 1235, 1235–1236 (1999).
Based on the foregoing, we find reasonable cause to be-
lieve that a violation of Section 8(b)(4)(D) has occurred
and that there exists no agreed method for voluntary ad-
justment of the dispute within the meaning of Section
10(k) of the Act. Accordingly, we deny Local 1’s Motion
to Quash the Notice of Hearing and find that the dispute is
properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirmative
award of disputed work after considering various factors.
NLRB v. Electrical Workers Local 1212 (Columbia
Broadcasting), 364 U.S. 573 (1961). The Board has held
that its determination in a jurisdictional dispute is an act of
judgment based on common sense and experience, reached
by balancing the factors involved in a particular case.
Machinists Lodge 1743 (J. A. Jones Construction), 135
NLRB 1402 (1962).
The following factors are relevant in making the deter-
mination of the dispute.
1. Collective-bargaining agreements
The Employer and Bricklayers have a collective-
bargaining agreement. Article II of this agreement is enti-
tled “Scope, Work Assignments, Manpower, Training.” It
refers specifically, inter alia, to work assignments involv-
ing the work in dispute. The Employer does not have a
collective-bargaining agreement with the Local 1 or Local
63. We find that this factor favors an award to employees
represented by Bricklayers.
2. Company preference and past practice
The Employer prefers that the work in dispute be per-
formed by employees represented by Bricklayers. The
Employer has consistently, over its 10-year history, as-
signed exterior stone work, including the steel support
system, to employees represented by Bricklayers. We find
that this factor favors an award to employees represented
by Bricklayers.
3. Area and industry practice
Witnesses for the Employer and Bricklayers testified
that the practice of employers in the Chicago area and
elsewhere has been to assign the disputed work to employ-
ees represented by Bricklayers. The Employer’s sales
manager, William R. Weis, testified that for the past 20
years it has been the practice in Chicago and in other areas
throughout the country that the disputed work be per-
formed by employees represented by Bricklayers. In addi-
tion, business records retained by a local affiliate of Brick-
layers described the construction of a 15-story building in
Chicago which used metal-frame support systems for the
installation of stone panels and employed 25 employees
represented by Bricklayers. Other exhibits introduced by
Bricklayers are letters from contractors from three Penn-
sylvania cities explaining that employees represented by
Bricklayers are used exclusively to install support systems
for masonry projects. Letters from contractors from vari-
ous states described the general practice of assigning to
employees represented by Bricklayers the welding and
other installation work including unloading, hoisting, and
setting in connection with metal support systems for vari-
ous type of masonry products.
Local 1 contends that, based on the Chicago area and
industrywide practice, the disputed work should be
awarded to the employees that Union represents. Kevin
Johnson, vice president and general superintendent for
Morse-Diesel, testified that, based on his experience with
similar construction projects throughout the United States,
ironworkers should install the steel support system. John-
son testified that since 1990 he had overseen about 20 total
jobs for Morse-Diesel and that he has supervised about 12
jobs in Cook County that involved steel with limestone or
granite attached to it. Johnson testified that when the dis-
puted work involves affixing the “red” iron to the steel
beams which form the structural members of the building
itself, the purpose of the “red” iron becomes structural in
nature because it now supports other materials in addition
to the stone.
Michael Hebda, financial secretary/treasurer of Local 1,
testified that based on his 25 five years of experience as a
member of that Union in the Chicago area and throughout
the United States, the installation of the “red” iron or “red”
steel at issue here was the work of an ironworker. Hebda
agreed that the purpose of the steel support system was
multiple support. Albert Bass, the apprenticeship coordi-
nator for Local 1, testified that the “red” ironwork would
be considered ironworker’s work in the Chicago area.
Patrick Clark, a contractor trained as an iron worker who
was also the president of the Associated Steel Erectors of
Chicago, testified that the disputed work would typically
be performed by ironworkers. In addition, 34 Chicago
area contractors who were surveyed all stated in their cor-
respondence to Local 1 that the disputed work would typi-
cally be assigned to ironworkers.
Based on the above we find that this factor favors an
award to neither the employees represented by Iron Work-
ers nor those represented by Bricklayers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 702
4. Relative skills
Both the employees represented by the Bricklayers and
the employees represented by the Iron Workers have the
necessary skills to perform the work. This factor favors
neither group of employees.
5. Efficiency and economy of operation
William R. Weis, sales manager for the Employer, testi-
fied that employees represented by Bricklayers are the
most efficient at installing the stone system. Weis testified
that the bricklayers performed phases of the work that are
not in dispute and that if they did not perform the work in
dispute as well the process would be less efficient and
more costly. Both trades would have to work off one scaf-
folding and when one trade was working, the other would
be idle or inefficient. We find that this factor favors an
award of the work in dispute to employees represented by
Bricklayers.
Conclusions
After considering all the relevant factors, we conclude
that employees represented by Bricklayers are entitled to
perform the work in dispute. We reach this conclusion by
relying on the factors of collective-bargaining agreements,
employer preference and past practice, and efficiency and
economy of operations. In making this determination, we
are awarding the work to employees represented by Brick-
layers not to that Union or its members.
Scope of Award
The Employer contends that, based on the actions of the
Iron Workers and the Board’s decision in Bricklayers
(Sesco Inc.), 303 NLRB 401 (1991), a broad order is nec-
essary to avoid similar jurisdictional disputes in the future.
The Board customarily declines to grant an area wide
award in cases, such as the instant case, in which the
charged party represents the employees to whom the work
is awarded and to whom the employer contemplates con-
tinuing to assign the work. See, e.g., Laborers Local 243
(A. Amorello & Sons), 314 NLRB 501, 503 (1994); La-
borers (Paul H. Schwendener), 304 NLRB 623, 625–626
(1991).6 Accordingly, we shall limit the present determi-
nation to the particular controversy that gave rise to this
proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of W. R. Weis Company, Inc., represented
by International Union of Bricklayers & Allied Crafts-
workers, AFL–CIO, are entitled to perform the unloading,
handling, stockpiling, hoisting and installation of relief
angles to support stone, and the unloading, handling,
stockpiling, hoisting, and installation of multipurpose sup-
ports on the jobsite at 520 North Michigan Avenue, Chi-
cago, Illinois.

6 For the Board to issue a broad area wide award, there must be evi-
dence that the disputed work has been a continuing source of contro-
versy in the relevant geographic area and that similar disputes are likely
to recur. There must also be evidence which demonstrates that the
charged party has a proclivity to engage in unlawful conduct to obtain
work similar to the disputed work. Electrical Workers Local 211
(Sammons Communications), 287 NLRB 930, 934 (1987). In this case,
employees represented by the Bricklayers have been assigned the work
from the outset, and their conduct was aimed at retaining the work in
the face of Local 1’s demands.