Cement Masons' Union, Local No. 526

National Labor Relations Board - Board Decisions

Jan 8, 1974

208 N.L.R.B. 204 (N.L.R.B. 1974)

204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cement Masons ' Union, Local No. 526 of the Opera-
tive Plasterers ' and Cement Masons' International
Association, AFL-CIO ' (Samuel W. McCleskey
Construction Company, Inc.) 2 and Associate
Trades and Crafts Construction Union , Local 2.3
Case 6-CD-499
January 8, 1974
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JE.NKINS, KENNEDY, AND
PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended , follow-
ing a charge filed on August 2, 1973,' by ATC,
alleging that Cement Masons had violated Section
8(b)(4)(D ) of the Act. A hearing was held pursuant to
notice at Pittsburgh , Pennsylvania , on October 5,
before Hearing Officer Michael H. Beck . Cement
Masons and ATC 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 , Cement Masons
and ATC filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case , the Board
makes the following findings:
1. THE EMPLOYER
The parties stipulated that McCleskey, a corpora-
tion with its principal office in Atlanta, Georgia, is
engaged as a contractor constructing principally
mausoleums. McCleskey has a current contract for
construction work at the Butler County Memorial
Park in Butler, Pennsylvania.
During the past 12-month period, McCleskey
performed services outside the State of Georgia
valued in excess of $50,000. During the same period,
McCleskey received in excess of $500,000 for work
performed outside the Commonwealth of Pennsylva-
nia. The Butler project is valued at approximately
$140,000.
Upon the facts so stipulated, we find that McCles-
I Hereinafter called Cement Masons or Respondent Respondent's name
appears as amended at the hearing.
2 Herein called McCleskey or the Employer The Employer's name
key is engaged in commerce within the meaning of
the Act and that it will effectuate the purposes of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS
The parties stipulated. and we find, that Cement
Masons and ATC are labor organizations within the
meaning of the Act.
III. 1HE DISPUIE
A. The Work in Dispute
The work in dispute, as stipulated by the parties, is
the work of cement pouring and finishing at the
construction site of McCleskey at the Butler County
Memorial Park in Butler, Pennsylvania.
B. Background and Facts of the Dispute
The Butler County Memorial Park project involves
building a community mausoleum . The parties
stipulated that on July 1, when work first com-
menced on the project, McCleskey assigned the
disputed work to a crew of its employees represented
by ATC. Thereafter, on July 12 and 24, an agent of
Cement Masons demanded of McCleskey that
employees represented by Cement Masons be as-
signed to the work in question. The July 24 demand
was accompanied by a threat to picket unless the
work reassignment demanded was, in fact, made.
After this demand was refused by the Employer, on
July 25, the Cement Masons commenced picketing
the McCleskey worksite for the admitted purpose of
requiring McCleskey to assign the disputed work to
the employees represented by Cement Masons. The
picketing effectively closed down the jobsite.
According to Richard Harris, McCleskey's opera-
tions manager, solely in order to stop the picketing
and to allow construction to proceed, McCleskey
agreed to allow workers represented by Cement
Masons to assist employees represented by ATC in
the cement finishing. At the time the employees
represented by Cement Masons were employed,
about 90 percent of the work had been completed.
The present phase of construction work at the project
had been completed as of the date of the hearing, but
additional work will be performed on a yearly basis.
Harris testified that the typical work performed by
a mausoleum builder is specialty construction involv-
ing form work, carpentry work, labor work, cement
finishing, cement pouring, and iron work simultane-
ously. Each man on the crew is skilled in each of the
aforementioned crafts.
appears as amended at the hearing.
3 Herein called ATC.
I All dates hereinafter are in 1973, unless otherwise stated
208 NLRB No. 34
CEMENT MASONS ' UNION, LOCAL NO. 526
A typical day on the project will go as follows. The
first part of the day will involve the pouring of
cement by about five men, two of whom are
finishers. While these latter two men are finishing the
cement, the remaining three men will be working on
form work. When the cement dries in the afternoon,
the men start breaking out the forms and setting the
forms up for the next day. A unique form is used by
the Employer which must be vibrated in a certain
way. The crypt is set up with spacers rather than with
the usual wall ties. When the form is set up, the men
tie in the steel. There may be a half day's work for
two cement finishers when they make the pour and
finish it. Then the cement finishers will be through
cement finishing and will start breaking out the
forms. The workers use a special scaffolding that fits
back inside the crypts which does not have to be
built each time.
The parties stipulated that there is presently no
existing method for voluntary 'adjustment of the
dispute.
C. Contentions of the Parties
ATC takes the position that the assignment of the
disputed work to the employees of McCleskey
represented by ATC should not be changed because
this assignment is efficient , economical , and has
proven satisfactory . It also relies on the fact that
McCleskey has, in most instances on a nationwide
basis, assigned the disputed work to employees
represented by ATC, based on McCleskey's collec-
tive-bargaining agreement with ATC, and on the fact
that Cement Masons jurisdiction does not include all
of the disputed work.
Cement Masons relies on its two contracts with
McCleskey and disputes the contentions of ATC
concerning economy, efficiency , skills, and employer
practice.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the 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 and stipulated by the parties,
Cement Masons threatened to cause and did cause a
work stoppage on the Employer's jobsite while
employees of McCleskey represented by ATC were
performing the disputed work, with the object of
requiring the Employer to assign the disputed work
to its members. We also conclude that, as stipulated
by the parties, there exists no effective method for
NLRB. v. Radio and Television Broadcast Engineers Union, Local
1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 U S. 573 (1961)
205
the voluntary adjustment of the dispute within the
meaning of Section 10(k) of the Act.
On the basis of the entire record, we find that there
is reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred and that the dispute
is properly before the Board for determination.
E. 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 factors.5 The Board has
held that its determination in ajurisdictional dispute
is an act of judgment based on commonsense and
experience reached by balancing those factors
involved in a particular case.6
The following factors are relevant in making the
determination of the dispute before us:
1. Company practice
ATC adduced evidence that, of 50 mausoleums
which were constructed by McCleskey throughout
the United States in the last 2 years, employees who
are members of ATC performed work on 90 percent
of them. McCleskey completed two mausoleum
construction jobs in the Pittsburgh area prior to the
Butler job herein which it assigned to employees
represented by ATC. One involved subcontracting
by McCleskey to another company which hired
employees represented by Respondent. In the other
instance, employees represented by ATC did all of
the work including cement pouring except for the
cement finishing, which was performed by a crew of
employees represented by Respondent but super-
vised by an ATC member. Testimony was presented
that Cement Masons was permitted to do this work
only to avoid a work stoppage by the regular
employees of the cemetery.
We find that this factor favors the position of the
ATC.
2. Skills of the employees
The record shows that the employees represented
by Cement Masons are only qualified to finish the
cement, while the employees represented'by ATC are
qualified to perform all the disputed work, which
includes cement pouring and finishing. In fact, the
employees who are ATC members have performed
the disputed work to the satisfaction of the Employ-
er.
ATC adduced evidence that one job in the area
was completed by members of Respondent in such
6 International Association of Machinists, Lodge No 1743, AFL-CIO (J
A Jones Construction Company), 135 NLRB 1402.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an improper and unworkmanlike manner as to
require their removal from the job. Another job in
the area was completely performed by employees
represented by ATC except for the cement finishing
which was done by Cement Masons members.
We find that this factor tends to favor the position
of ATC.
3. Economy and efficiency
ATC presented testimony that the disputed work
can be done by five or six employees represented by
ATC. Once the job is started, it must be completed
rapidly. Each of the skills involved in form work,
carpentry work, labor work, iron work, and cement
pouring and finishing must be employed almost
simultaneously. If a crew of employees represented
by ATC could not be used, the number of men
necessary to complete the work would double.
Employees represented by Cement Masons would
work only part of a day, leave, and come back a
portion of another day. As a consequence, the
Employer was required to spend $2,500 to $3,000 in
additional funds as a result of the employees
represented by Cement Masons being put on the job
at Butler just to do the cement finishing.
We find that these factors tend to favor the
position of the ATC.
4. Collective-bargaining agreements
The Employer assigned the work to employees
represented by ATC pursuant to a 'contract with the
ATC dated April 27, 1972, having a term starting
January 1, 1971, and ending December 31, 1973.
Phil Williams, the national president of ATC and
at the time of this contract the Ohio business
manager of the ATC, testified that the contract
coA ers all construction activities of the Employer and
that under its terms it was contemplated that ATC
would provide journeyman cement finishers and
pourers for McCleskey. There is no geographical
limitation in the agreement or any mention of work
limitations.
()n two occasions, the Employer executed identical
collective-bargaining agreements with Cement Ma-
sons. The initial agreement dates from June 1, 1970,
to May 31, 1973, but is operative from August 23,
1971, when it was executed. An identical contract
was dated May 8, 1973, with an expiration date of
May 31, 1973. These contracts both contain language
providing that termination of the contract would
only be effective if notice is given 60 days prior to the
termination date. No notice was given. These two
agreements are limited to an 11-county area in
Western Pennsylvania and cover work "which
traditionally has been performed by Cement Ma-
sons."
As the evidence is inconclusive, we do not find that
this factor tends to favor the positions of any of the
parties.
Conclusion
Upon the record as a whole, and after full
consideration of all relevant factors involved, we
conclude that the work in dispute should be assigned
to employees employed by McCleskey and currently
represented by ATC, rather than to cement masons
represented by Cement Masons. In reaching this
conclusion, we rely on the Employer's assignment of
the disputed work to its own employees represented
by ATC; the fact that the Employer's employees
represented by ATC possess the requisite skills to do
all the disputed work; the fact that the assignment to
employees represented by ATC will result in eco-
nomy and efficiency of operations; and the fact that
this assignment is consistent with the Employer's
predominant practice in the past.
In making this determination, we shall award the
disputed work to McCleskey's employees who are
represented by ATC but not to that Union or to its
members. In consequence, we shall also determine
that the Cement Masons was not and is not entitled,
by means proscribed by Section 8(b)(4)(D) of the
Act, to force or require McCleskey to assign the
disputed work to its members. Our present determi-
nation is limited to the particular controversy which
gave rise to this proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended , and on the basis of the
foregoing findings and the entire record in this case,
the National Labor Relations Board makes the
following Determination of Dispute:
1. Employees employed by McCleskey , currently
represented by ATC, are entitled to perform the
following work:
Cement pouring and finishing at McCleskey's
construction site at the Butler County Memorial
Park in Butler , Pennsylvania.
2. Cement Masons is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force
or require McCleskey to assign the above -described
work to cement masons whom it represents.
3. Within 10 days from the date of this Decision
and Determination of Dispute , Cement Masons shall
notify the Regional Director for Region 6, in writing,
whether it will refrain from forcing or requiring
CEMENT MASONS' UNION, LOCAL NO. 526 207
McCleskey , by means proscribed by Section employees of McCleskey who are represented by
8(b)(4)(D) of the Act , to assign the work in dispute to ATC.
cement masons whom it represents rather than to