Laborers (E&B Paving)

National Labor Relations Board - Board Decisions

Dec 15, 2003

340 N.L.R.B. 1256 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1256
Laborers International Union of North America,
State of Indiana District Council and E & B Pav-
ing, Inc. and Operative Plasterers and Cement
Masons International Association, Local Union
No. 692 of the Operative Plasterers and Cement
Masons International Association and Superior
Construction Co., Inc. Case 13–CD–688–1
December 15, 2003
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN BATTISTA AND MEMBERS
SCHAUMBER AND WALSH
The charge in this Section 10(k) proceeding was filed
on June 26, 2003, by E & B Paving, Inc. (E & B or the
Employer). It alleges that the Respondent, Laborers In-
ternational Union of North America, State of Indiana
District Council (the Laborers) violated Section
8(b)(4)(D) of the National Labor Relations Act by engag-
ing in proscribed activity with an object of forcing E & B
to assign certain work to employees represented by the
Laborers rather than to employees represented by the
Operative Plasterers and Cement Masons International
Association and Local Union No. 692 of the Operative
Plasterers and Cement Masons International Association
(collectively the Plasterers). A hearing was held on Au-
gust 21, 22, and 26, 2003, before Hearing Officer Nee-
lam Kundra. Thereafter, E & B, the Laborers, and the
Plasterers filed briefs in support of their positions. The
Plasterers also filed a motion to quash the Section 10(k)
notice of hearing and a motion to reopen the record. E &
B filed an opposition to the motion to reopen the record,
and the Plasterers filed a response.
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, find-
ing them free from prejudicial error. On the entire record,
the Board makes the following findings.
I. JURISDICTION
The parties stipulated that the Employer is an Indiana
corporation engaged in the business of paving and that it
annually ships goods valued in excess of $50,000 from
its facility in Rochester, Indiana, to customers located
outside the State of Indiana. The parties also stipulated
that Party-In-Interest Superior Construction Co., Inc.
(Superior), is an Indiana corporation engaged in the busi-
ness of construction and that it annually ships goods val-
ued in excess of $50,000 from its facility in Gary, Indi-
ana, to customers located outside the State of Indiana.
Accordingly, on the basis of the parties’ stipulations, we
find that E & B and Superior are engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
The parties also stipulated, and we find, that the Laborers
and the Plasterers are labor organizations within the
meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts
The current dispute involves cement finishing work on
a highway construction project on I-65 in Lake County,
Indiana. E & B and Superior entered into a joint venture
to perform work on this project. The Joint Venture
Agreement provides that the parties will use their own
expertise and resources in performing their portions of
the contract and that any liability or obligation assumed
by the E & B and Superior (Joint Venture) must be done
with the approval of both parties. Under the Joint Ven-
ture Agreement, E & B is responsible for the concrete
paving, while Superior is responsible for bridge work
and pavement removal.
E & B, an asphalt and concrete paving contractor, is a
member of Indiana Constructors, Inc. (ICI), a construc-
tion trade association. ICI has a statewide collective-
bargaining agreement with the Laborers that encom-
passes highway construction work. Pursuant to the ICI
agreement, E & B has a longstanding practice throughout
Indiana of employing Laborers-represented employees to
perform its concrete finishing and form setting work. E
& B did not have a collective-bargaining agreement with
the Plasterers. It did, however, sign an “Assent of Par-
ticipation Agreement” with the Plasterers in 1992 in
which it agreed to contribute into the Plasterers’ health,
welfare, and pension funds on behalf of a limited number
of employees who had come into E & B’s work force
when E & B bought the assets of McMahon O’Connor,
another concrete paving company.1
Superior, a construction contractor, was a party to the
Plasterers’ collective-bargaining agreement for roads,
bridges, and airports, which, provided that Plasterers-
represented employees were to perform concrete paving
work. Consistent with this agreement, Superior histori-
cally has employed workers represented by the Plasterers
to perform its concrete finishing and form setting work.

1 These employees included five or six workers who were repre-
sented by the Plasterers. As these employees retired or quit, E & B
replaced them with Laborers-represented employees. Three of the for-
mer McMahon O’Connor employees ultimately switched their affilia-
tion to the Laborers.
The only other instance when E & B used Plasterers-represented
workers, instead of Laborers-represented workers, to perform concrete
finishing work, occurred in 2002 when E & B obtained workers from
the Plasterers’ hiring hall to perform the final day of 3 days of concrete
finishing work at a Chrysler plant in Kokomo, Indiana, after Chrysler
informed E & B that it had to use workers represented by the Plasterers.
E & B did not sign a collective-bargaining agreement with the Plaster-
ers, but simply called the Plasterers’ hiring hall to obtain the workers.
340 NLRB No. 150
LABORERS INDIANA DISTRICT COUNCIL (E & B PAVING, INC.) 1257
Superior conducted a prejob conference for the I-65
project with the Plasterers on February 11, 2003.2 Al-
though Superior stated that E & B might do the cement
finishing work on the I-65 project, Superior’s prejob con-
ference report provided that all work under the jurisdic-
tion of the Plasterers’ agreement and all work tradition-
ally performed by Plasterers-represented employees
would be assigned to those employees. The report erro-
neously listed Superior as the general contractor, and E
& B as a subcontractor. It made no mention of the Joint
Venture.
E & B had its own prejob conference with the Labor-
ers on April 4. It assigned the concrete finishing and
form setting work to employees represented by the La-
borers. When the cement finishing work began on the
project, E & B’s employees represented by the Laborers
were doing the work.
The Plasterers took the position that the cement finish-
ing work had been assigned to Plasterers-represented
employees pursuant to Superior’s prejob conference re-
port. As a member of the AFL–CIO’s building trades
department, the Plasterers filed a complaint with the Plan
for the settlement of jurisdictional disputes in the con-
struction industry (the Plan) on April 25 to challenge the
change of the original work assignment on the I-65 pro-
ject. On May 5, the Plan administrator concluded that
Superior was acting on behalf of the Joint Venture when
it assigned the work to the Plasterers-represented em-
ployees in the prejob conference report. He concluded
that the use of employees represented by the Laborers
constituted a change in the original assignment.
On May 9, E & B filed its notice of appeal to arbitra-
tion of the administrator’s determination of original as-
signment. On May 12, the administrator advised E & B
that he could not process its appeal until he received evi-
dence that E & B was complying with the administrator’s
determination. E & B thereafter reached an agreement
with Superior to have Superior’s employees represented
by the Plasterers perform the concrete finishing and form
setting work. Superior’s Plasterers-represented employ-
ees performed the work for approximately 2 weeks.
On May 21, the Plan arbitrator determined that the
Joint Venture and E & B were not stipulated to the Plan,
and, therefore, he could not reach the merits of the work
assignment. E & B then resumed having its Laborers-
represented employees perform the work.
Meanwhile, sometime in late April or early May, La-
borers’ Business Manager Jerry Lee contacted E & B’s
President Gary Stebbins by phone and told him that the
Laborers would strike or picket the jobsite if E & B were

2 All dates hereinafter refer to 2003 unless otherwise indicated.
to assign the work to employees represented by the Plas-
terers. Stebbins said that he wanted Lee’s position in
writing, and shortly thereafter Stebbins received a letter
dated May 8 stating: “[I]f there is any attempt by you to
give some of our work to the Cement Finishers, we will
take all action we can to stop your breach of the Letter
Of Assignment up to and including striking and picketing
your job.”
The Plasterers also commenced litigation in Federal
court on June 23, seeking to enjoin the Laborers, E & B,
and Superior from taking any action inconsistent with the
Plan administrator’s May 5 decision. The Plasterers filed
a first amended complaint on July 24, requesting that the
court order E & B and/or the JOINT VENTURE to again
go before a Plan arbitrator. On August 8, the Laborers
filed a motion to dismiss and supporting memorandum.
On August 11, the Joint Venture and E & B each filed a
motion to dismiss and supporting memorandum. The
Laborers filed a reply brief on August 22, and the Joint
Venture and E & B filed a reply brief on August 25. To
date, the court has not ruled.
B. Work in Dispute
The work in dispute is the concrete pavement work
and related preliminary functions performed on behalf of
E & B at the I-65 highway construction project in Lake
County, Indiana.
C. Contentions of the Parties
The Plasterers moves to quash the notice of hearing,
arguing that there is no reasonable cause to believe that
Section 8(b)(4)(D) of the Act has been violated and that
there is a voluntary method of resolving this dispute to
which all parties are bound. It claims that the threat made
by the Laborers was a sham intended only as a maneuver
to bring this dispute to a Section 10(k) hearing before the
Board and that the Laborers never intended to strike. It
also asserts that all parties are bound to the Plan3 and that
the employer in this case is the Joint Venture, not E & B.
On the merits, the Plasterers argues that the work should
be awarded to employees it represents on the basis of
employer preference and area and industry practice.
E & B asserts that this dispute is properly before the
Board inasmuch as the conversation between Lee and
Stebbins as well as Lee’s May 8 letter to Stebbins pro-
vide reasonable cause to believe that the Laborers vio-
3 The Plasterers makes several arguments in support of its contention
that all parties are bound to the Plan. It asserts that the Laborers is
bound via its membership in the building and construction trades de-
partment. It contends that Superior and E & B are bound by the current
Plasterers’ collective bargaining agreement for roads, bridges, and
airports. Finally, the Plasterers contends that E & B is stipulated to the
Plan through its agreement with the Laborers and by virtue of its par-
ticipation in Plan proceedings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1258
lated Section 8(b)(4)(D) of the Act. E & B also contends
that there is no agreed-upon method of resolving this
dispute because neither it nor the Joint Venture is stipu-
lated to the Plan. E & B argues that the assent of partici-
pation agreement it signed in 1992 did not bind it to a
collective-bargaining agreement with the Plasterers.
Instead, it contends, the assent of participation agreement
required it only to contribute to the Plasterers’ health,
welfare, and benefit funds. E & B asserts that the work
should be awarded to employees represented by the La-
borers on the basis of E & B’s collective-bargaining rela-
tionship with the Laborers, employer preference, exper-
tise of the Laborers, economy and efficiency of opera-
tion, skill, and industry and area practice.
The Laborers contends that there is no method for vol-
untary settlement of the dispute inasmuch as neither E &
B nor the Joint Venture is stipulated to the Plan, as the
Plan arbitrator has already determined. The Laborers also
argues that the work should be assigned to employees
represented by the Laborers on the basis of collective-
bargaining agreements, employer preference, past prac-
tice, area and industry practice, relative skills and train-
ing, and economy and efficiency of operations.
D. Applicability of the Statute
Before the Board may proceed with a determination 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) of the Act has been violated and that
the parties have not agreed on a method for the voluntary
adjustment of the dispute.
As discussed above, in late April or early May, Labor-
ers’ Business Manager Lee contacted E & B’s President
Stebbins and reminded Stebbins that E & B had assigned
the concrete finishing work to employees represented by
the Laborers. Lee told Stebbins that the Laborers would
strike and/or picket if E & B were to assign the work to
employees represented by the Plasterers. In a letter to
Stebbins dated May 8, Lee repeated this intention when
he wrote: “[W]e will take all action we can to stop your
breach of the Letter Of Assignment up to and including
striking and picketing your job.” Lee’s oral statement and
the May 8 letter constitute a threat to take proscribed ac-
tion. Although the Plasterers urges the Board to find that
such a threat was a sham, there is insufficient evidence to
conclude that these threats were not made seriously or
that the Laborers colluded with the Employer in this mat-
ter.4

4 Lancaster Typographical Union No. 70 (C.J.S. Lancaster), 325
NLRB 449, 450–451 (1998) (“It is well established that as long as a
Union’s statement, on its face, constitutes a threat to take proscribed
action, the Board will find reasonable cause to believe that the statute
The Plasterers also urges the Board to find that the
Plan is an agreed-upon method for voluntary adjustment
of the dispute. Again, we disagree. Although the Plaster-
ers are bound by the Plan, neither E & B nor the Joint
Venture has stipulated to the Plan. The Joint Venture did
not sign a formal stipulation, was not a member of an
employer association that had stipulated to the Plan, and
was not a party to any collective-bargaining agreement
providing for the settlement of jurisdictional disputes
pursuant to the Plan. Additionally, E & B has not stipu-
lated to the Plan. The plain language of the Plasterers’
assent of participation agreement signed by E & B in
1992 demonstrates that E & B’s only obligation was to
contribute to the Plasterers’ health, welfare, and benefit
funds.5 Moreover, the Plan arbitrator determined that
neither the Joint Venture nor E & B had stipulated to the
Plan.6 Nor does E & B’s collective-bargaining agreement
with the Laborers incorporate the Plan. It is well settled
that all parties to the dispute must be bound if an agree-
ment is to constitute “an agreed method of voluntary
adjustment.” Plumbers Local 393 (Therma Corp.), 303
NLRB 678 (1991). Thus, we find that no such agreement
exists here.
We therefore find reasonable cause to believe that a
violation of Section 8(b)(4)(D) has occurred and that
there exists no agreed-upon method for voluntary ad-
justment of the dispute within the meaning of Section

has been violated, in the absence of affirmative evidence that the threat
was a sham or was the product of collusion.”).
5 The assent of participation agreement provides:
The undersigned Employer, employing members of Local
692/Area 438 and other eligible employees, hereby agrees to ac-
cept, to be bound by, and to comply with the terms and provi-
sions of the Collective Bargaining Agreement of this Local, re-
quiring contributions to the Indiana State Council of Plasterers
and Cement Masons Pension Fund . . . and/or to the Indiana
State Council of Plasterers and Cement Masons Health and Wel-
fare Fund. . . .
The obligation hereby undertaken to make Pension and/or
Health and Welfare contributions as required by the Collective
Bargaining Agreements is not subject to the grievance and arbi-
tration procedure, if any, provided in the Collective Bargaining
Agreements.
6 The Plasterers seeks to reopen the record to admit form letters ad-
dressed to “To Whom It May Concern,” which were sent to a list of
“signatory contractors” that included E & B and which contained noti-
fication of new master agreements and wage rates. At the hearing,
Ronald Bowser, vice president of the Plasterers, testified that he could
produce no master agreement or collective-bargaining agreement (not
an assent of participation agreement), containing E & B’s signature.
Bowser also testified that he could produce no letter specifically ad-
dressed to E & B announcing new master agreements or wage rates.
The documents the Plasterers would have us reopen the record to re-
ceive would not affect this testimony. Accordingly, we deny the motion
to reopen the record on the ground that the additional evidence sought
to be adduced would not require a different result. See Sec. 102.48(d)
of the Board’s Rules.
LABORERS INDIANA DISTRICT COUNCIL (E & B PAVING, INC.) 1259
10(k) of the Act. Accordingly, we find that the dispute is
properly before the Board for determination, and we
deny the Plasterers’ motion to quash the notice of hear-
ing.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive award of disputed work after considering various
factors. NLRB v. Electrical Workers Local 1212 (Co-
lumbia 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 ex-
perience, 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 de-
termination of this dispute.
1. Certifications and collective-bargaining agreements
There is no evidence of any Board certifications con-
cerning the employees involved in this dispute.
As noted above, the Employer, E & B,7 as a member
of ICI, has a statewide collective-bargaining agreement
with the Laborers that encompasses highway construc-
tion work. The agreement provides that “HIGHWAY
CONSTRUCTION shall include construction, modifica-
tions, additions or repairs of roads and streets (including
roads and streets in housing projects) and construction
incidental thereto.” The Employer is not, and has never
been, a signatory to a Plasterers’ collective-bargaining
agreement. Accordingly, we find that the factor of collec-
tive-bargaining agreements favors an award of the work
in dispute to employees represented by the Laborers.
2. Employer preference and past practice
The Employer prefers to assign the work in dispute to
employees represented by the Laborers. The Employer
has a 25-year practice of assigning similar work to La-
borers-represented employees. Therefore, we find that
these factors favor awarding the disputed work to em-
ployees represented by the Laborers.

7 There is no merit in the Plasterers’ contention that the Joint Ven-
ture is the proper employer, not E & B. Under Board precedent, it is the
“company that ultimately controls and makes the job assignment . . .
[that] is deemed to be the employer for purpose of a 10(k) proceeding.”
Glass Workers (Olympian Precast), 333 NLRB 92, 94 fn. 8 (2001). In
this case, that company is E & B because, under the terms of the Joint
Venture agreement, E & B is solely responsible for the performance of
the concrete paving work on the I-65 project.
3. Area and industry practice
Both the Laborers and the Plasterers testified about
sites within northwest Indiana where employees repre-
sented by their respective unions performed the disputed
work. Thus, we find that this factor does not favor
awarding the disputed work to employees represented by
either union.
4. Relative skill and experience
The Employer’s president testified that the work of
both Laborers-represented and Plasterers-represented
employees on the project was good and that both groups
of employees were qualified to do the work. Accord-
ingly, we find that this factor does not favor awarding the
disputed work to either group of employees.
5. Economy and efficiency of operations
The Employer presented testimony that it operates
more efficiently and economically if the work in dispute
is performed by employees represented by the Laborers.
Specifically, it is the Employer’s practice to use “key”
employees represented by the Laborers who are familiar
with the Employer’s practices, procedures, and policies.
There was also testimony that employees represented by
the Laborers perform a wide variety of tasks on the job-
site and that this flexibility helps to maintain work crews.
Accordingly, we find that this factor favors awarding the
disputed work to employees represented by the Laborers.
Conclusion
After considering all of the relevant factors, we con-
clude that employees represented by Laborers Interna-
tional Union of North America, State of Indiana District
Council are entitled to perform the work in dispute. We
reach this conclusion relying on the factors of collective-
bargaining agreements, employer preference, employer
past practice, and economy and efficiency of operations.
In making this determination, we are awarding the work
to employees represented by the Laborers, not to that
Union or its members.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of E & B Paving, Inc., represented by La-
borers International Union of North America, State of
Indiana District Council are entitled to perform the con-
crete pavement work and related preliminary functions
on behalf of E & B Paving, Inc., at the I-65 highway
construction project in Lake County, Indiana.