General Building Laborers Local 66

National Labor Relations Board - Board Decisions

Jun 11, 1969

176 N.L.R.B. 552 (N.L.R.B. 1969)

552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Building Laborers ' Local 66, Laborers'
International Union of North America, AFL-CIO
and D . Fortunato , Inc. and Mosaic & Terrazzo
Helpers & Terrazzo Polishers & Finishers
Association , Local 35, I.A . of M.S . & S.P.R. &
S.T. & M.S.H. & T.W.H . and Seaboard Tile &
Terrazzo Corp . Case 29-CD-73
June 11, 1969
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, BROWN, AND JENKINS
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended,
following the filing of charges by Seaboard Tile &
Terrazzo Corp., hereinafter called Seaboard,
alleging that General Building Laborers' Local 66,
Laborers ' International Union of North America,
AFL-CIO, hereinafter called Laborers' or Local 66,
violated Section 8(b)(4)(D) of the Act. Pursuant to
notice , a hearing was held before Bernard Wray,
Hearing Officer, on February 25 and March 5,
1969. All parties appearing were afforded full
opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence
bearing on the issues.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings made by the
Hearing Officer at the hearing and finds that they
are free from prejudicial error. They are hereby
affirmed. Briefs filed by the Laborers' and Local 35,
Mosaic & Terrazzo Polishers and Finishers
Association, have been duly considered.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESSES OF THE EMPLOYERS
D. Fortunato, Inc., hereinafter called Fortunato,
is a general contractor and New York corporation
engaged in the building and construction industry,
which annually purchases goods valued in excess of
$50,000 from firms located outside the State of New
York . Seaboard , a subcontractor and New York
corporation engaged in the installation of terrazzo
tile, ceramic tile and related products , annually
purchases goods valued in excess of $50,000 from
firms located outside the State of New York. The
parties stipulated that the above are engaged in
commerce within the meaning of Section 2(5) and
(6) of the Act, and we find that it will effectuate the
purposes of the Act to assert jurisdiction herein.
176 NLRB No. 75
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the
Laborers' and the Mosaic & Terrazzo Helpers &
Terrazzo Polishers & Finishers Association, Local
35, I.A. of M.S. & S.P.R. & S.T. & M.S.H. &
T.W.H., herein called Local 35, are labor
organizations within the meaning of Section 2(5) of
the Act.
The parties further stipulated, and we find, that
Local 3, Mosaic and Terrazzo Workers Union, a/w
the Bricklayers, Masons and Plasterers International
Union of America, AFL-CIO, herein called Local 3,
and Local 780, Operative Plasterers and Cement
Masons International Union, AFL-CIO, are labor
organizations within the meaning of the Act.
Ill. THE DISPUTE
A. Facts
The work in dispute consists of transporting
concrete mix from transit mix delivery trucks to the
point of pouring and the pouring of concrete
bedding in conjunction with the installation of
structural, or Agra-Traz, terrazzo floors at the
construction site of the Peconic Street School in
Ronkonkoma, Long Island, New York.
Fortunato contracted with the Board of
Education, Suffolk County, New York, for the
construction of the Oakdale School and the Peconic
School. Thereafter, Fortunato contracted with
Seaboard for the installation by Seaboard of
terrazzo floors in the corridors, lobby, and cafeteria
of the two schools.
The parties stipulated that at all times material
hereto Fortunato has been a member of the Building
Trades Employers Association of Long Island, Inc.,
herein BTEA, which, on behalf of its member
employers including Fortunato, has been a party to
a collective-bargaining agreement with Local 66
covering building laborers performing specified work
tasks.' At all times material, Seaboard has been a
member of the Terrazzo and Mosaic Contractors
Association of Greater New York, herein called the
Association, which Association has collective
bargaining agreements with Local 35 and Local 3.2
On or about September 25, 1968, the terrazzo
installations at the Oakdale School were
substantially complete. On September 29, 1968, a
meeting was held at the Oakdale School relating to
'Article Four of that agreement states that laborers shall exclusively
perform the following work: ". . unloading from trucks . when done by
hand at the job site and . . wheeling, carrying , handling and distribution
of all dry and mixed materials used in all types of concrete and cement
work , cinder or gravel fill under concrete slabs, and reinforcing and form
material."
'Article IV(b) of the contract between the Association and Local 35
includes work within the jurisdiction of Local 35 as "preparing, mixing
by hand, or by mixing machine and distributing , with shovel, rake, hoe or
pail, all kinds of concrete foundations necessary for mosaic and terrazzo
work; also the helping with the same bed, tar paper and wire lath ..."
GENERAL BUILDING LABORERS ' LOCAL 66
the dispute as to who would perform the work of
transporting the underbed material for the
installation of structural terrazzo, or Agra-Traz, to
the point of pouring' and pouring at the Peconic
School. Present at this meeting were the following
persons: Domonick Fortunato; Robert Flanagan,
field coordinator for Fortunato; Louis Lovisa,
President of Seaboard; John Ippolito, President of
Local 66; Fay Fecci, business agent of Local 35;
Louis Pasciviti, business agent of Local 3; and
Frank Magdaleone, business agent of Local 780. At
that meeting, Ippolito stated that he would cause a
work stoppage by Local 66's members employed by
Fortunato as laborers at the Peconic School if
Seaboard failed or refused to assign the laborers
work which Seaboard had assigned to its employees,
members of Local 35, the work previously noted
ato in spute here.
On October 8 and 9, and thereafter until the
Board secured a restraining order and injunction in
the United States District Court, Local 66 by its
president, Ippolito, and its shop steward, Carmine
Ventura, directed employees of Fortunato employed
as laborers to refuse to perform work they were
directed to perform by supervisors because Seaboard
had assigned the work in dispute to its employees
represented by Local 35 rather than to laborers; and
they would not permit laborers represented by Local
66 to do the work they were directed to perform,
such as the grading of grounds necessary to receive
Agra-Traz, until employees represented by Local 66
were assured of being assigned the work in dispute.
All parties stipulated that the object of the above
actions by Local 66 was to force or require the
assignment of the work in dispute to employees
under the jurisdiction of Local 66 rather than to
employees of Seaboard, under the jurisdiction of
Local 35, to whom Seaboard has assigned the work.
B. The Work in Dispute
The work in dispute concerns the hauling and
pouring of a cement mix used as a bed for
Agra-Traz terrazzo topping. It appears that the use
of Agra-Traz, or structural terrazzo as it is
sometimes called in the record, has been increasing
over the years. Seaboard, which does 95 to 98
percent of the Agra-Traz work in the area, has been
using Agra-Traz for about 5 years.
Conventional terrazzo, as distinguishable from
Agra-Traz, is installed over a concrete base laid by
the laborers. The necessity of this concrete base in
which metal lath is laid, arises from the fact that
conventional terrazzo is installed over airspace,
while Agra-Traz terrazzo is usually set up on the
ground or a dirt grade with no airspace beneath.3
Anytime after the concrete base, placed by the
laborers, hardens, the terrazzo workers put down a
sand cushion, cover the sand cushion with tar paper,
and install a 1 1/2- to 3 1/2-inch concrete bed, with
wire lath placed by the lathers, for the terrazzo.
553
While this concrete bed is still in semi-liquid form,
terrazzo mechanics, represented by Local 3, insert
metal strips in it which are allowed to stay
overnight. The next day, when the strips are held
firm by the concrete bed, the terrazzo topping is
applied. None of the conventional terrazzo
installation work is in dispute.
In an Agra-Traz installation, a 3 1/2- to 4-inch
concrete bed, in which wire lath is laid, is placed on
grade or on dirt; while that is still in semi-liquid
form, metal strips are installed. The following day,
the terrazzo topping is placed over the concrete bed.
It is the hauling and pouring of the mix for the
concrete bed in the Agra-Traz installation process
that is in dispute.
C. Contentions of the Parties
Local 35 contends that the Employer's assignment
of the work to the terrazzo workers was correct
because it was supported by past practice, area
practice, economy, by experience possessed by
members of Local 35, and the fact that the
Employer is satisfied with the performance of the
work by them.
Respondent, Local 66, argues that traditional
jurisdictional considerations support the claim of the
laborers. In this regard, Respondent argues that the
concrete underbedding or slab is the same, whether
it is conventional or Agra-Traz, and therefore the
skills and duties of the laborers are the same.
Additionally, the laborers claim that an Appeals
Board award from the Appeals Board of the
National Joint Board for Settlement of
Jurisdictional Disputes supports their claim.
D. Applicability of the Statute
Before the Board may proceed with a
determination of a 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.
The parties stipulated that Local 66, by its
officers and agents, threatened Fortunato and
Seaboard that it would cause a work stoppage by
Local 66 members employed by Fortunato, and
later did cause a work stoppage at the Peconic
School, since Seaboard failed to assign to employees
who are under the jurisdiction of Local 66 work
which Seaboard has assigned to its employees
represented by Local 35. The parties further
stipulated that the object of the above actions by
Local 66 was to force or require the assignment of
the work in dispute to employees under the
jurisdiction of Local 66 rather than to employees of
Seaboard, under the jurisdiction of Local 35, to
'Agra-Traz was installed in Brooklyn , New York , in a joint beam
construction and corruform situation, so that all Agra -Traz is not installed
on grade
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whom Seaboard has assigned the work.
Accordingly , we find , on the basis of the record,
that there is reasonable cause to believe that a
violation of Section 8(bx4)(D ) has occurred.
the second floor of the Peconic School is not
claimed by the Laborers. Under these
circumstances , the contract between Local 66 and
BTEA is not a determinative factor in this dispute.
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 relevant factors,
and the Board has held that its determination in a
jurisdictional dispute case is an act of judgment
based upon common sense and experience in
balancing such factors.
Certain factors usually considered by the Board in
making jurisdictional awards are not present in this
proceeding . Thus, the record does not disclose a
certification relating to the disputed work , nor has
any clear jurisdictional award issued regarding the
dispute. Local 66 claims that an award by the
Appeals Board under the Plan for Settlement of
Jurisdictional Disputes, Building and Construction
Industry, of August 1968, of a dispute in Arizona as
to the "handling and pouring of concrete
sub-floor ," favors an award to the laborers. The
Appeals Board found that "the handling and placing
of concrete sub-floor is the work of the laborers. In
other respects there is no basis to change the
contractor ' s assignment ." However , specifications
for the project indicated that the work involved
conventional terrazzo . The award does not establish
any clear precedent for determining this dispute in
that we are unable to determine whether the term
"concrete sub-floor" in the award applies to the
hardened structural slab which is not the work in
dispute here or the minimum slump bed on which
terrazzo topping is placed . Nor are we able to
determine what other assignments the contractor
made in that dispute . In view of this ambiguity, we
cannot rely on the Appeals Board award as a
determinative factor for our consideration. There
are, however , other relevant factors to be
considered.
1. Contracts between the parties
As has been noted above , Seaboard , as a member
of the Association , is a party to the contract
between that Association and Local 35, representing
terrazzo workers . Under the terms of this
agreement , the contested work is to be performed by
terrazzo workers . The specific language in this
agreement is one factor favoring an award to the
terrazzo workers.
Local 66 submitted into evidence an agreement
between it and BTEA, of which Fortunato is a
member . However , this contract does not mention
terrazzo tile or the minimum slump concrete bed
which serves as an immediate base for the terrazzo
topping . Moreover , concrete similar to the minimum
slump concrete bed installed by terrazzo workers on
2. Employer and area practice
The record clearly establishes that, since Seaboard
instituted the use of Agra-Traz terrazzo about 5
years ago, employees of Seaboard have performed
the work in dispute , and that at all times material
they have been represented by Local 35. Since
Seaboard performs 95 to 98 percent of the
Agra-Traz work in the area, the area practice would
naturally conform to Seaboard's practices. However,
uncontradicted evidence in the record also
establishes that three other mentioned companies
who have performed some Agra-Traz work in the
area assign the disputed work to terrazzo workers
represented by Local 35. Under the circumstances,
we find that the area and Employer practice favor
the claim of the terrazzo workers.
3. Skill and efficiency
It does not appear that any special skill is needed
or involved in hauling the concrete material,
although the record indicates that it may be handled
differently. Seaboard's president testified that when
pouring , the worker pouring must anticipate the
wishes of, and work in conjunction with, the
terrazzo mechanic. Nevertheless, we would not find
that any skill is needed and it would appear that
either laborers or terrazzo helpers could perform the
work.
Seaboard 's president explained that in the
installation of terrazzo , the concrete bed is poured
in the morning , the pouring usually ending about I
p.m. Thereafter, the terrazzo workers, who have
hauled and poured the concrete, assist the terrazzo
mechanics in installation of the metal strips and
assemble the topping and mix for work the next
day. As this afternoon work is indisputably the work
of terrazzo workers, there would be no work
available for laborers of the Employer in the
afternoon should the morning work be assigned
laborers, and no work in the morning for the
terrazzo workers . Additionally, when the terrazzo
topping is installed the following day, Seaboard
would have no available work for laborers, except,
possibly, the removal of slop after the topping is
finished. Although the laborers claim that
Agra-Traz terrazzo and conventional terrazzo could
be applied at the same time , thereby keeping both
laborers and terrazzo workers busy, uncontradicted
testimony indicated that would not be practicable as
it would tie up too much floor space at one time
and interfere with other work . We find that, on the
basis of the record, the factor of efficiency and
economy favors an award of the disputed work to
the terrazzo workers.
GENERAL BUILDING LABORERS ' LOCAL 66 555
Upon consideration of all pertinent factors in the
entire record , we shall not disturb Seaboard's
assignment of the disputed work to employees
represented by Local 35. Terrazzo workers have
efficiently performed the work for Seaboard, who
desires to continue them on the job. The present
assignment of the work in dispute is consistent with
area practice , Seaboard ' s past practice, the
bargaining agreement between Seaboard and Local
35, and efficiency of the Employer ' s operations.
Accordingly , we shall determine the existing
jurisdictional dispute by deciding that terrazzo
workers, represented by Local 35, rather than
laborers, represented by Respondent , Local 66, are
entitled to the disputed work . In making this
determination , we are assigning this work to
employees who are represented by Local 35, but not
to that Union or its members.
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
hereby makes the following determination of
dispute.
1. Terrazzo workers who are represented by
Mosaic & Terrazzo Helpers & Terrazzo Polishers &
Finishers Association, Local 35, I.A. of M.S. &
S.P.R. & S.T. & M.S.H. & T.W.H., are entitled to
perform the work of transporting from transit mix
delivery trucks to the point of pouring and pouring
of concrete bedding in conjunction with the
installation of Agra-Traz terrazzo floors at the
Peconic Street School, Ronkonkoma , New York.
2. General Building Laborers' Local 66, Laborers'
International Union of North America, AFL-CIO,
is not entitled by means proscribed by Section
8(bX4)(D) of the Act to force or require Seaboard
Tile & Terrazzo Corp. to assign the above work to
laborers represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local 66 shall notify
the Regional Director for Region 29, in writing,
whether or not it will refrain from forcing or
requiring Seaboard Tile & Terrazzo Corp . by means
proscribed by Section 8(b)(4)(D ) to assign the work
in dispute to laborers represented by it rather than
to employees represented by Local 35 of the Mosaic
& Terrazzo Helpers & Polishers & Finishers
Association.