Derrickmen & Riggers Local No. 197

National Labor Relations Board - Board Decisions

Nov 17, 1978

239 N.L.R.B. 319 (N.L.R.B. 1978)

DERRICKMEN & RIGGERS LOCAL NO. 197
United Derrickmen & Riggers Association local No.
197 of New York, all Long Island and Vicinity, In-
ternational Association of Bridge, Strnctural and
Ornamental Iron Workers, AFL-CIO' and Milne
Construction Co., Inc. and Cemetery Stone Han-
dlers, Erectors and Granite Yard Helpers Union.
Local No. 106, Tile, Marble, Terrazzo Finishers and
Shopmen's International Union, AFL-CIO.' Case
2 CD--559
November 17. 1978
DECISION AND DETERMINATION OF
DISPUTE
BY MEMlEI RS JENKINS. MI:RPIHY. \N) TRi I SI) 1 1.
This is a proceeding under Section 0()k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Milne Construction Co.. Inc..
herein called the Employer. alleging that United Der-
rickmen & Riggers Association Local No. 197 of
New York, all Long Island and Vicinity, Association
of Bridge, Structural and Ornamental Iron Workers,
AFL-CIO, herein called Local 197, had violated Sec-
tion 8(b)(4)(D) of the Act by engaging in certain pro-
scribed activity with an object of forcing or requiring
the Employer to assign certain work to its members
rather than to employees represented by Cemetery
Stone Handlers, Erectors and Granite Yard Helpers
Union, Local No. 106. Tile, Marble. Terrazzo F:inish-
ers and Shopmen's International Union. AFL (IO.
herein called Local 106.
Pursuant to notice, a hearing was held before
Hearing Officer Clifford P. Chalet on June 21. 1978.2
All parties appeared and were afforded full opportu-
nity to be heard, to examine and cross-examine wit-
nesses, and to adduce evidence bearing on the issues.
Thereafter, briefs were filed by the Employer and the
Respondent Union.
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 au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
Name as corrected at the hearing
2 All dates hereinafter are in 1978. unless cthervise specified
. IHE BL SINESS OF TIlE EMPION I R
TIhe parties stipulated, and we find, that the Em-
ployer. a Louisiana corporation with its principal
place of business in Portland, Oregon, is engaged in
the general construction contracting business includ-
ing the construction of community mausoleums in
cemeteries. The Employer has gross annual revenues
in excess of $500,000 and it annually purchases
goods and materials valued in excess of $50,000 di-
rectly from firms located outside the State of New
York which goods and materials are used within the
State of New York. We find that the Employer is
enegaged ill commerce within the meaning of Section
2(6) and (7) of the Act and it will effectuate the pur-
poses of the Act t.) assert jurisdiction herein.
11 IFit I \B()R ()R(i;NV7AIO()NS INVOIVED
We find that Local 197 and Local 106 are labor
organizations within the meaning of Section 2(5) of
the Act.
I1 1iE DISPL TE
A. Ihe h 'ork in Dispute
The work in dispute consists of the work per-
formed by granite-setter helpers employed by Milne
Construction Co.. Inc., including such work as was
being performed at the time of the notice of hearing
herein. June 7. at Trinity Church Cemetery, 155th
Street and Riverside Drive. New York. New York.
B. Background and Facts of the Dispute
For approximately the last 20 years the Employer
has been engaged in the construction of community
mausoleums in cemeteries in New York City and its
vicinity. Within the last 10 years alone the Employer
has constructed eight such mausoleums at various
cemeteries in the area.
The construction of garden-type (unenclosed)
community mausoleums, which are involved in the
dispute in this case, basically entails the building of
crypts. set in rows. on top of each other, to a height
of approximately 14 feet, so that an empty, unshut-
tered mausoleum looks like a honeycomb. The shut-
ters or doors of the crypts. which weigh approximate-
ly 85 pounds and measure approximately 3 feet by'
2-1/2 feet, are made of polished granite. These shut-
ters are placed or hung on the crypt fronts by a stone
setter assisted by a helper. The helper is responsible
for unloading and delivering the shutters to the stone
setter, drilling and setting the threaded pipes which
319
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are a part of the fastening process, and the mixing of
mortar. It is the work of the helper which is the sub-
ject of the dispute in this case.
Prior to mid-1976, the Employer utilized members
of Local 10 of the Tile, Marble, Terrazzo Finishers
and Shopmen's International Union to perform the
disputed work. In mid-1976, in a proceeding to which
the Employer was not a party, the New York Build-
ing and Construction Trades Council (hereinafter
Council) awarded the work of assisting stone setters
to members of Local 197. As a result, Local 10.
which is a member of the Council, informed the Em-
ployer that employees represented by it could no
longer perform such work.
Shortly after the award was rendered by the Coun-
cil, Local 106, which belongs to the same Interna-
tional union as Local 10, requested that employees it
represents be given the work previously performed
by employees represented by Local 10. The Em-
ployer subsequently hired employees represented by
Local 106 to perform the work and they have contin-
ued to perform such work since that time. On Janu-
ary 17, 1977, the Employer executed a rider agree-
ment to the Local 106 collective-bargaining
agreement, the term of which is from March 31,
1976, to March 31, 1979.
Since the award by the Council, Local 197 has at-
tempted, by letter and by visits to various jobsites, to
contact James Milne, the Employer's president, to
discuss the assignment of the work to Local 197
members. Local 197 was unsuccessful in this regard
and on May 25 placed pickets at the entrance to one
of the Employer's jobsites. Consequently, other
tradesmen employed by Milne left the jobsite and
refused to return. The picketing continued until June
6, when Local 197 withdrew the picketers, once it
was determined that the issue would be resolved by
the Board.
C. Contentions of the Parties
The Employer contends that there is no agreed-
upon method for resolving the dispute and that Local
197 threatened to and did picket the Employer's
Trinity Church jobsite with the object of forcing the
Employer to assign the work in dispute to members
of Local 197 rather than to employees represented by
Local 106 and, therefore, there is reasonable cause to
believe that Local 197 has violated Section 8(b)(4)(D)
of the Act. With respect to the merits, the Employer
contends that the work should be awarded to em-
ployees represented by Local 106 on the basis of its
collective-bargaining agreement with that labor orga-
nization, the Employer's past practice and prefer-
ence, area and industry practice, economy and effi-
ciency of assigning the work to employees repre-
sented by Local 106, the skills and training possessed
by members of Local 106, and because the work of
setting headstones traditionally performed by mem-
bers of Local 106 is decreasing due to the increased
use of community-style mausoleums instead of tradi-
tional cemeteries.
Although Local 106 did not file a brief, its position
as expressed at the hearing is in accord with that of
the Employer.
Local 197 also did not file a brief with the Board
but at the hearing took the position that the disputed
work should be awarded to employees represented
by it because of the award by the Council, past and
area practice, and, impliedly, because Local 10, Lo-
cal 106, and the Employer engaged in subterfuge to
defeat the award of the work by the Council to Local
197.
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 (I) there is reasonable
cause to believe that Section 8(b)(4)(d) of the Act has
been violated. and (2) the parties have not agreed
upon a method for the voluntary adjustment of the
dispute.
As to (1 . above, the record establishes that, be-
tween May' 25 and June 6, Respondent picketed the
jobsite of the Employer when unable to contact or
meet with the Employer and that the stated object of
the picketing was to force assignment of the work in
dispute to members of Local 197. In these circum-
stances, we find that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) of the Act has been vio-
lated.
As to (2), above, there is no evidence that an
agreed-upon method exists for the voluntary adjust-
ment of this dispute. Accordingly, we find the dis-
pute is properly before the Board for determination
under Section 10(k) of the Act.
On the basis of the entire record, we conclude that
there is reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred and that there exists
no agreed-upon method for the voluntary adjustment
of the dispute within the meaning of Section 10(k) of
the Act. Accordingly, we find that this 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
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DERRICKMEN & RIGGERS, LOCAL NO. 197
giving due consideration to various factors.' The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on com-
monsense and experience reached by balancing those
factors involved in a particular case.4
The following factors are relevant in making the
determination of the dispute before us:
1. Collective-bargaining agreement
The record contains no evidence with regard to
Board certification of either Local 106 or Local 197
to represent employees in the dispute herein.
As noted above, the Employer has executed a rider
agreement to the most recent Local 106 contract; this
rider is effective from March 31, 1976, to March 31,
1979. The bargaining unit definition in this contract
includes the following language:
. . . shall govern all stone handling and erecting
in the shop and in the cemetery.... This in-
cludes crane and derrick operators, hook-up
men drillers, yard and shop helpers, bed setters,
sawyers helpers, erector-drivers, erectors, help-
ers who handle stone in the granite cutting
yards, cemeteries, stores and showrooms.
The record indicates that this rider was first execu-
ted by the Employer on January 17, 1977, and fol-
lowed the award of such work by the Council to Lo-
cal 197 and, as reflected by the record, unsuccessful
attempts by Local. 197 representatives to contact the
Employer for the purpose of discussing the disputed
work. As noted above, the Employer has not execu-
ted a collective-bargaining agreement with Local
197. Accordingly, we find that the Employer's collec-
tive-bargaining agreement with Local 106 tends to
favor an award of the disputed work to employees
represented by that labor organization.
2. Employer practice
The record shows that since mid-1976, all the jobs
of the Employer, the work in dispute has been per-
formed by members of Local 106. The record estab-
lishes that the Employer has never employed mem-
bers of Local 197 to perform the disputed work.
Accordingly, we find that this factor tends to favor
award of the work in dispute to employees repre-
sented by Local 106.5
}N.LR.B. Radio, & 'lerlltioon Brida du tnlneererl s I nli. 1i a i 1i'1.
InternaionalBroiherhbad of E'ctr i ai uIl i,{erArs .4f. I ( 1() ( ,linhlai. Hroad
casting Sil,em/., 364 U S 573 (1961h
Internatrional Asso( tation ' ,-ar hilnrii. l. drge %'. ] 743. 4 f. ( () . 4
Jones C(ontnruction ( omprani), 135 NLRB 1402 (1962)
5On the basis of a revier of the entire record In this, cae. s e [rild nlo
evidence to support Local 197's contennhoin that L ,ocal 10, lIocal 106( and the
Employer engaged in subterfuge to h a aid l ,srlennlerlt ofi the disputed
3. Area practice
As noted above, the Council has awarded work of
the type in dispute herein to Local 197, and the testi-
mony of John Humphrey, business agent for Local
197, indicates that members of Local 197 have per-
formed such work since at least 1949 for other em-
ployers. The record does not indicate to what extent
Local 106 has performed work such as that in dispute
for area employers other than the Employer. Accord-
ingly, we conclude that the factor of area practice,
while not dispositive of the issues before us, tends to
favor an award of the work in dispute to employees
represented by Local 197.
4. Skills, efficiency, and economy
The record indicates that members of both unions
possess the skills and training required to perform
the disputed work. James Milne, president of the
Employer, testified without contradiction, however,
that the Employer uses its own patented process to
perform the work in dispute and that members of
Local 106 have been trained in the procedures associ-
ated with that process.
The testimony of Milne and Humphrey indicates
that only one member of Local 106 is required per
stone setter while two members of Local 197 are re-
quired per stone setter. Humphrey testified, however,
that Local 197 believes that the work is done faster
and more efficiently by using two helpers per stone
setter. Nevertheless, it is clear that the work in dis-
pute is done more economically if it is performed by
employees represented by Local 106 rather than em-
ployees represented by Local 197, since in the case of
the former one less employee is needed. Accordingly,
we conclude that the record does not establish which
group of employees is capable of performing the
work in dispute more efficiently but that the factors
of skills and economy favor awarding the work to
employees represented by Local 106.
5. Employer preference
For the reasons stated above, the Employer finds it
preferable to assign the work in dispute to employees
represented by Local 106 and the record establishes
that the Employer is satisfied with the results of that
assignment. Accordingly, we find that this factor,
while not determinative, favors awarding the work to
employees represented by that labor organization.
mork to I voc 1197 follomwing the arsard bhs he ('ouncil. Accordngl. we find
that Ihis factor ha, ni releance In the making of our determination
321
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. Substitution and loss of work
Employer President Milne testified without contra-
diction that the traditional work of l.ocal 106 mem-
bers, which is the setting of grave headstones and
markers, is gradually being displaced by the increas-
ing popularity of community mausoleums. There-
fore, the Employer feels an obligation to employ
members of Local 106 whose work is being so dis-
placed. We find this factor, although not determina-
tive, favors assignment of the disputed work to l.ocal
106.
C'onclusion
Upon the record as a whole, and after full consid-
eration of all relevant factors involved, we conclude
that employees who are represented by local 106 are
entitled to perform the work in dispute. We reach
this conclusion relying on the skills possessed by
these employees, greater economy of operation, the
collective-bargaining agreement between Local 106
and the Employer, Employer practice and prefer-
ence, and the displacement of work traditionally per-
formed by these employees. In making this determi-
nation, we are awarding the work in dispute to
employees who are represented by l.ocal 106, but not
to that Union or its members. The 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 upon the basis of the
foregoing findings and the entire record in this pro-
ceeding, the National Labor Relations Board makes
the following Determination of Dispute:
I. Employees of Milne Construction Co., Inc.,
who are represented by Cemetery Stone Handlers,
Erectors, and Granite Yard Helpers Union, Local
No. 106. Tile, Marble, Terrazzo Finishers and
Shopmen's International Union, AFL CIO, are enti-
tled to perform the work of granite-setter helpers em-
ployed by Milne Construction Co., Inc., including
such work as was being performed as of June 7, 1978,
at Trinity Church C('emetery, 155th Street and River-
side Drive, New York, New York.
2. United Derrickmen & Riggers Association Lo-
cal No. 197 of New York, all Long Island and Vicini-
ty. International Association of Bridge, Structural
and Ornamental Iron Workers, AFL CIO, is not en-
titled by means proscribed by Section 8(bl(4)(D) of
the Act to force or require Milne Construction Co.,
Inc., to assign the disputed work to employees repre-
sented by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute. United Derrickmen
& Riggers Association Local No. 197 of New York,
all l.ong Island and Vicinity, International Associa-
tion of Bridge, Structural and Ornamental Iron
Workers, AFL C'IO. shall notify the Regional Direc-
tor for Region 2, 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 disputed work in a manner inconsistent
with the above determination.
322