Laborers Local 242 (Johnson Gunite)

National Labor Relations Board - Board Decisions

May 10, 1993

310 N.L.R.B. 1335 (N.L.R.B. 1993)

1335
310 NLRB No. 223
LABORERS LOCAL 242 (JOHNSON GUNITE)
1 On February 8, 1993, the Cement Masons filed a motion to re-
open the record for introduction of the 1992–1995 Agreement Be-
tween Associated General Contractors Washington and Washington
and Northern Idaho District Council of Laborers (E. Exh. 3). We
find it unnecessary to rule on the motion because it is moot. E. Exh.
3 was included with the official exhibits. Subsequent to the Cement
Masons’ motion, the court reporter (as well as the Employer) sub-
mitted to the Board pp. 38A–38Q which had been erroneously omit-
ted from the transcript and which, inter alia, reflected the admission
of E. Exh. 3 into the record. In order to eliminate any confusion on
this matter, we rule that E. Exh. 3 and Tr. 38A–38Q are part of the
official record of this proceeding and, therefore, the record need not
be reopened to receive them.
2 All dates are in 1992 unless otherwise specified.
3 At the hearing the parties stipulated that on at least two occa-
sions, including October 15 and November 15, representatives of Ce-
ment Masons demanded the float finishing work. The parties further
stipulated that pursuant to its agreement with Johnson Western Gun-
Continued
Hod Carriers and General Laborers Union, Local
242, affiliated with Laborers International
Union of North America, AFL–CIO and John-
son Western Gunite Company and Cement
Masons, Local 528, affiliated with the Opera-
tive Plasterers’ and Cement Masons’ Inter-
national Association, AFL–CIO. Case 19–CD–
465
May 10, 1993
DECISION AND DETERMINATION OF
DISPUTE
BY CHARIMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The charge in this Section 10(k) proceeding was
filed December 14, 1992, and amended December 16,
1992, by Johnson Western Gunite Company (the Em-
ployer) alleging that the Respondent, Hod Carriers and
General Laborers Union 242, affiliated with Laborers
International Union of North America, AFL–CIO (La-
borers), 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 assign cer-
tain work to employees it represents rather than to em-
ployees represented by Cement Masons, Local 528, af-
filiated with the Operative Plasterers’ and Cement Ma-
sons’ International Association, AFL–CIO (Cement
Masons). The hearing was held on January 6 and 7,
1993, before Hearing Officer S. Nia Renei Cottrell.
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.1
I. JURISDICTION
The Employer, a California corporation, is engaged
in applying shotcrete (a cement-like product blown
through a hose and often referred to as air-placed mor-
tar) in construction projects throughout the United
States. During the 12 months preceding the hearing,
the Employer received gross revenues in excess of $1
million. During the same period, the Employer pur-
chased goods and materials valued in excess of
$50,000 directly from suppliers located outside the
State of Washington, and performed services valued at
$50,000 or more for customers who are directly en-
gaged in interstate commerce. The parties stipulate,
and we find, that the Employer is engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act and that the Laborers and the Cement Masons
are labor organizations within the meaning of Section
2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
This dispute arose on a construction project at the
University of Washington Health Science Center in Se-
attle, Washington. SDL corporation, a general con-
tractor, subcontracted to the Employer a project at the
Health Science Center for construction of basement
walls.
The walls were to be done by the shotcrete method
and were to have a wood float finish. A typical crew
used in applying shotcrete consists of a foreman, pump
operator, nozzleman, blowpipe person, hose puller,
rodman, and two or three laborers to clean up. The
shotcrete (a mixture of sand, cement, pea gravel, and
water) is delivered in a Red-I-Mix truck. It is then
pumped through a small concrete pump, hydraulically
pushed through a hose, mixed with compressed air at
the nozzle, and pneumatically propelled at high veloc-
ity against dirt, footings, and rebar to form a wall. The
blowpipe person cleans ahead of the nozzle and also
removes excess material with an airhose. The rodman,
using a long knife-like rod, cleans the joints, removes
the excess shotcrete, and grades the walls to the con-
tract specifications. The surface is then very rough but
can be left that way. Sometimes, as here, a smoother
finish is desired, and an employee with a wood float
fills in small holes in the rodded wall and smooths the
surface. The float is frequently handled by the rodman.
The wood float finish is for aesthetic purposes only,
and the work is intermittent.
On or about October 15, 1992,2 Joe Harrington,
business agent for the Cement Masons, went to the of-
fice of Ronald Coleman, regional manager at Johnson
Western Gunite, to see if Coleman was going to use
cement masons to do the wood float finish work. Cole-
man told him that he had not made up his mind but
that most likely he would assign the work to laborers.
Coleman testified that he had similar conversations
with Harrington on at least two subsequent occasions.3
1336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ite Company, the Cement Masons filed a grievance over the disputed
work. Edward Lutz, business manager for Cement Masons, testified
at the hearing that the position of his Union is that the wood float
finishing on shotcrete is their work, and that he claims it and will
continue to claim it.
4 At the hearing the parties stipulated that on November 23 or 24,
Hix asserted that if the assignment were changed, Laborers would
strike or cause to be struck the jobsite at the University of Wash-
ington Health Sciences Complex, H-Wing Addition.
5 Although gunite is not being used in the work in dispute, the par-
ties included it in their stipulation defining the work in dispute.
6 Chairman Stephens notes that Cement Masons did not raise any
argument which would trigger for him the application of the prin-
ciples stated in his dissent in Laborers Local 731 (Slattery Associ-
ates), 298 NLRB 787, 790 (1990).
The Employer assigned the shotcrete process, in-
cluding the wood float finishing, to employees rep-
resented by the Laborers. Coleman received a letter
from M. Lee Price, attorney for the Cement Masons,
requesting arbitration. Coleman called Gary Hix, busi-
ness manager for Laborers, on November 23 or 24,
and told him about the letter. Hix told Coleman that
the Laborers would have real problems with a change
of assignment to Cement Masons, and the Laborers
would ‘‘shut him down or whatever it took to take
care of the problem, take care of our work.’’4 Hix sub-
sequently sent a letter dated December 1, confirming
that if the Employer changed the work assignment, the
Laborers would ‘‘pursue the appropriate action to re-
solve this matter, including legal and/or economic ac-
tion.’’
B. Work in Dispute
The work in dispute, as stipulated by the parties at
the hearing, involves the assignment of wood float fin-
ishing of the shotcrete and/or gunite process assigned
to and claimed by employees represented by Hod Car-
riers and General Laborers Union Local 242, affiliated
with Laborers International Union of North America,
AFL–CIO, which work is located at the University of
Washington Health Sciences Complex, H-Wing Addi-
tion. The parties further stipulated that they do not
agree that shotcrete and gunite are synonymous.5
C. Contentions of the Parties
The Employer contends that there is reasonable
cause to believe that Laborers violated Section
8(b)(4)(D) of the Act. The Employer further contends
that the work in dispute should be awarded to employ-
ees represented by Laborers on the basis of the collec-
tive-bargaining agreement, economy and efficiency,
relative skills, area and industry practice, and employer
preference and practice. The Employer seeks an award
coextensive with the geographical jurisdiction of Ce-
ment Masons because both Laborers and Cement Ma-
sons continue to and will continue to claim this work,
and Laborers has demonstrated a proclivity to engage
in unlawful conduct in order to ensure that the dis-
puted work is assigned to employees it represents.
Laborers contends that its collective-bargaining
agreement covers the disputed work, and that the Em-
ployer properly assigned the work to employees rep-
resented by the Laborers. Laborers also contends that
the Board should award the work to employees it rep-
resents based on area and industry practice, skills and
training, employer preference and practice, and econ-
omy and efficiency.
At the hearing, the parties stipulated that there was
no agreed-upon method for voluntary resolution of the
dispute. However, in its brief Cement Masons argues
that the Board should remand this matter to the parties
because the Employer’s agreements with the Cement
Masons and with the Laborers establish a voluntary
method for resolving jurisdictional disputes by refer-
ring them to the International Unions. Should the
Board reach the merits of the dispute, Cement Masons
contends that the employees it represents have the nec-
essary skills to do the work, and that the work should
be awarded to them on the basis of the collective-bar-
gaining agreement, an AFL–CIO award, and an arbitra-
tion award.
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 reasonable cause exists to believe
that Section 8(b)(4)(D) has been violated and that there
is no agreed-upon method for the voluntary adjustment
of the dispute.
At the hearing the parties stipulated that on at least
two occasions, including October 15 and November
15, authorized representatives of Cement Masons de-
manded the float finishing work. The parties also stip-
ulated that on November 23 or 24, Laborers’ agent
Gary Hix demanded that the entire shotcrete process,
including the float finishing work, continue to be as-
signed to employees represented by Laborers. Testi-
mony adduced at the hearing supports these stipula-
tions. Therefore, we find that there are competing
claims to the work.6
The parties further stipulated at the hearing that on
November 23 or 24, Hix asserted that if the assign-
ment were changed, Laborers would strike or cause to
be struck the jobsite at the University of Washington
Health Sciences Complex, H-Wing Addition. This stip-
ulation is corroborated by undisputed testimony that
the Laborers’ business manager told the Employer’s re-
gional manager that if the Employer changed the work
assignment, the Laborers would shut the job down. As
indicated above, the Laborers reaffirmed this assertion
by letter of December 1. Therefore, we find that there
is reasonable cause to believe that a violation of Sec-
tion 8(b)(4)(D) has occurred.
1337LABORERS LOCAL 242 (JOHNSON GUNITE)
7 The Laborers’ agreement also provides for adjudication of juris-
dictional disputes in accordance with the current Plan for the Settle-
ment of Jurisdictional Disputes in the Construction Industry (The
Plan) except where, as here, the dispute involves an employer or a
union not subject to the procedures established by the Impartial Ju-
risdictional Disputes Board. The parties have stipulated that the Em-
ployer is not subject to ‘‘The Plan.’’
8 Local 345 is a specialty local, chartered in 1934, that has 300
members who perform gunite and shotcrete work throughout the
United States.
The parties stipulated at the hearing that there is no
agreed-upon method for voluntary resolution of this
dispute. In its brief, however, Cement Masons argues
that all parties through their respective collective-bar-
gaining agreements contracted to submit jurisdictional
disputes to the International Unions. The Cement Ma-
sons urges the Board to remand the matter to the par-
ties.
We find, however, that the contracts do not mandate
the same method of resolution. The Cement Masons’
contract with the Employer specifies that if the Union
and the Employer are unable to reach agreement on a
jurisdictional dispute after 48 hours, the matter shall be
referred to the two International representatives, who
shall confer with the Employer for settlement. The Ce-
ment Masons’ contract further provides that unresolved
disputes will be submitted to arbitration. The Laborers’
agreement provides only generally that jurisdictional
disputes not resolved by the Unions shall be referred
to the International representatives. Unlike the Cement
Masons’ agreement, the Laborers’ agreement contains
neither the 48-hour provision nor the arbitration provi-
sion.7 These differences are significant enough to pre-
clude a finding that all parties have agreed to be bound
by a single mutually agreed-upon procedure. Iron
Workers Local 86 (Kulama Erectors), 264 NLRB 166,
168 (1982). Therefore, we find that there is no agreed
method for voluntary adjustment of the dispute within
the meaning of Section 10(k) of the Act. Accordingly,
we 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 affirm-
ative award of disputed work after considering various
factors. NLRB v. Electrical Workers IBEW 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 in-
volved 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 the dispute.
1. Certification and collective-bargaining
agreements
There is no evidence that either Union was ever cer-
tified by the Board to represent the employees of the
Employer, and at the hearing the parties stipulated that
there is no outstanding Board certification. Laborers
and Cement Masons both have collective-bargaining
agreements with the Employer that arguably cover the
work. This factor does not favor awarding the work in
dispute to either group of employees.
2. Company preference and past practice
The Employer has had a contract with the Laborers
for many years, has historically used employees rep-
resented by the Laborers to do shotcrete work, and
prefers to continue to assign the entire shotcrete proc-
ess including the wood float finish to employees rep-
resented by the Laborers. This factor favors awarding
the work in dispute to employees represented by La-
borers.
3. Area and industry practice
The Cement Masons’ business manager testified that
over the last 20 years the Cement Masons has had con-
tracts with three area contractors performing exclu-
sively shotcrete or gunite work. He stated that Cement
Masons currently has a contract with one such con-
tractor in addition to the Employer, but he was unable
to estimate the percentage of area shotcrete work that
that contractor performs. The Employer, which is re-
sponsible for approximately 60 percent of the total
shotcrete work in the area, uses laborers to do its
shotcrete work, including wood float finishing. A La-
borers’ business manager named five other companies
in the area using laborers to perform shotcrete work,
including the wood float finishing. The factor of area
practice favors awarding the work in dispute to em-
ployees represented by the Laborers.
The business manager of Allied Workers Local
Union 345, affiliated with Laborers International Union
of North America, AFL–CIO,8 testified that, based on
his 22 years of personal experience and his contact
with members working throughout the country, the in-
dustry practice is for laborers to do the shotcrete proc-
ess, including the wood float finish. Anthony Federico,
president of Superior Granite Company of which John-
son Western Gunite is a subsidiary, testified that the
laborers have the necessary experience and training to
do the wood float finish, have always done it, and that
it is definitely not industry practice to use cement ma-
sons. The Cement Masons offered testimony that em-
ployees it represents have done finishing of shotcrete,
but it presented no specific evidence concerning indus-
try practice. The factor of industry practice favors
awarding the work in dispute to employees represented
by the Laborers.
1338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4. Relative skills and training
The Laborers regard shotcrete work as a specialty.
Northwest Laborers Employers Training Trust Fund, a
joint labor management trust fund for training con-
struction laborers, has three training sites in the State
of Washington, including a 16-acre site at Kingston
which provides classroom and hands-on training for la-
borer skills. Included are training courses specifically
in concrete work and the basics of finishing and use
of various types of floats and trowels. Thereafter, the
workers receive further on-the-job training in the appli-
cation of these skills to the shotcrete process. When
the Employer calls the Laborers’ hiring hall, he can re-
quest someone with this specialty and obtain a laborer
with this skill rather than the top man on the list. The
Cement Masons do not regard wood float finishing as
a specialty, just a general classification for cement ma-
sons. There is no evidence of a Cement Masons train-
ing program similar to that of the Laborers. This factor
favors awarding the work in dispute to employees rep-
resented by the Laborers.
5. Economy and efficiency of operations
The Employer’s wood float finish work is intermit-
tent, generally 1-1/2 to 2 hours a day on those projects
where it is required. As indicated above, the Employer
usually uses laborers crews consisting of eight people
who are capable of performing several different tasks,
including the wood float finish. These crews work as
a team and also travel as needed. If the Employer were
to use an employee represented by the Cement Masons
to do the wood float finish, which is the only portion
of the process that the Cement Masons claims, that
employee would be idle while the rest of the crew did
the shotcrete work to the point of finishing. It would
also not be economical to have one person travel with
the crew to do only the intermittent wood float finish.
This factor favors awarding the work in dispute to em-
ployees represented by the Laborers.
6. Awards of joint boards
Cement Masons offered into evidence ‘‘The Plan’’
for Settlement of Jurisdictional Disputes in the Con-
struction Industry which contained, inter alia, a 1924
decision holding that employees represented by the La-
borers International were entitled to perform certain
gunite or cement gun work but not to do the finishing
if finishing tools were required. At the hearing, the
parties stipulated that the Employer is not a party to
‘‘The Plan.’’ The decision is not, therefore, binding on
the Employer. We also note that, according to testi-
mony at the hearing, the decision was rendered before
the advent of shotcrete.
Cement Masons also offered an arbitration decision
holding that Howard S. Wright Construction violated
its contract with the Cement Masons by subcontracting
shotcrete work to Johnson Western Company. The ar-
bitrator in that case specifically found that the issue
was breach of contract and that it was not a jurisdic-
tional dispute. Further, neither the Laborers nor John-
son Western Company was a party to that arbitration
proceeding.
This factor does not favor awarding the work in dis-
pute to either group of employees.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by the Laborers are
entitled to perform the work in dispute. We reach this
conclusion relying on employer preference and past
practice, area and industry practice, relative skills and
training, and economy and efficiency of operation.
In making this determination, we are awarding the
work to employees represented by Laborers, not to that
Union or its members.
Scope of the Award
The Employer requests an award of the disputed
work that is coextensive with the geographical jurisdic-
tion of Cement Masons Local 528. Generally, in order
to support a broad award, there must be evidence that
the disputed work has been a continuing source of con-
troversy in the relevant geographic area, that similar
disputes are likely to recur, and that the charged party
has a proclivity to engage in unlawful conduct to ob-
tain work similar to the disputed work. Electrical
Workers IBEW Local 104 (Standard Sign), 248 NLRB
1144, 1148 (1980). We do not find that the record sup-
ports a broad award. The Board will not impose a
broad award in the absence of evidence demonstrating
that the union against which the broad award will lie
has resorted to unlawful means to obtain work and that
such unlawful conduct will recur. Id. There is no evi-
dence of unlawful conduct on the part of Cement Ma-
sons, the Union against which the award will lie. Ac-
cordingly, our determination is limited to the con-
troversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees represented by Hod Carriers and General
Laborers Union, Local 242, affiliated with Laborers
International Union of North America, AFL–CIO are
entitled to perform the wood float finishing of the
shotcrete and/or gunite process assigned to and
claimed by Laborers at the University of Washington
Health Sciences Complex, H-Wing Addition.