Local 10, Plasterers

National Labor Relations Board - Board Decisions

Jun 28, 1971

191 N.L.R.B. 638 (N.L.R.B. 1971)

638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 10, Bricklayers , Masons and Plasterers Interna-
tional Union of America, AFL-CIO and Spancrete
Northeast, Inc. and Local 452, Laborers Interna-
tional Union of North America , AFL-CIO and Con-
struction and General Laborers Union Local 190,
Laborers International Union of North America,
AFL-CIO. Case 3-CD-358
June 28, 1971
DECISION AND DETERMINATION OF
DISPUTE
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Local 10,
Bricklayers, Masons and Plasterers International
Union of America, AFL-CIO, herein called Bricklay-
ers; and Local 452, Laborers International Union of
North America, AFL-CIO, herein=called Local 452;
and Construction and General Laborers Union Local
190, Laborers International Union of North America,
AFL-CIO, herein called Local 190, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
BY MEMBERS FANNING, JENKINS, AND KENNEDY
This is a proceeding under section 10(k) of the Na-
tional Labor Relations Act, as amended, following, a
charge filed by Spancrete Northeast, Inc., alleging in
substance that Local 10, Bricklayers, Masons and Plas-
terers International Union of America, AFL-CIO, has
violated Section 8(b)(4)(D) of the Act.
A hearing was held before Hearing Officer Thomas
J. Sheridan on March 31, 1971. All parties 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,
Spancrete Northeast, Inc., herein called the Employer
or Spancrete, filed a brief.
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 powers
in connection with this case to a three-member panel.
The Board has reviewed the Hearing Officer's rulings
made at the hearing and finds that they are free from
prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board makes
the following findings:
I. THE BUSINESS OF THE EMPLOYER
All parties stipulated that Spancrete Northeast, Inc.,
the Employer, is a New York state corporation engaged
in the manufacture and installation of precast, pre-
stressed concrete beams and planks. Its principal place
of business is located in South Bethlehem, New York.
Annually it makes purchases of goods and materials
directly from outside New York State valued in excess
of $50,000.'
We find that Spancrete is engaged in commerce
within the meaning of the Act and that it will effectuate
the policies of the Act to assert jurisdiction herein.
Local 10 stipulated to all of the above except that portion which states
that part of the Employer's business involves installation.
191 NLRB No. 106
A. Background and Facts of the Dispute
The Employer is engaged in the manufacture and
installation of precast, prestressed concrete products. It
has its main facility at South Bethlehem, New York,
and has other facilities in Rochester, New York, and
Aurora, Ohio, out of which it carries on its business in
various States.
The work in question is being done at a site known
as the Troy Residences in Troy, New York, pursuant
to a contract with Redalco Construction Corporation,
the general contractor at the site. In accordance with
the contract, the Employer is to "fabricate, deliver,
erect and grout all the required 8" and 16" Spancrete
pre-stressed hollow core flaps for all floor and roof
systems.... " The installation of the Spancrete was
assigned by the Employer to a crew consisting of its
permanent employees, who are members of Local 190,
and employees hired locally, who are members of Local
452.
The Bricklayers picketed the Troy Residences jobsite
I day on February 16, 1971, and one-half day on Febru-
ary 17, 1971, in an attempt to secure a portion of the
work for its members.
B. The Work in Dispute
The dispute arises from the assignment of work to
employees represented by Local 190 and Local 452
which is described by the Employer as "installing and
grouting pre-cast, pre-stressed hollow core concrete
plank manufactured and sold by Spancrete Northeast,
Inc." Bricklayers describes the disputed work as "set-
ting, plumbing, leveling, pointing, caulking, grouting,
anchoring by any and all means and aligning" of the
above-mentioned product.
C. The Contentions of the Parties
The Employer, Local 190, and Local 452 contend
that the work, as described by the Employer, should be
assigned to employees represented by Local 190 and
Local 452 based on certain collective-bargaining agree-
ments between the Employer and Laborers Interna-
LOCAL 10, PLASTERERS 639
tional Union, as well as Local 190, and certain other
locals of the Laborers; a National Labor Relations
Board certification issued to Local 190;,company prac-
tice in thisand.other areas; and economy and efficiency
of the operation..
Bricklayers contends that the work ,fitting the Brick-
layers description should be assigned to its members
based on its contract with a local employer association,
past practice in the area, and certain Joint Board deci-
sions awarding the work to its members.
D. Applicability of the Statute
The charge alleges violations of Section 8(b)(4)(D) of
the Act. At the hearing held in the instant proceeding,
all parties stipulated that Bricklayers picketed at the
Troy Residences jobsite on Burdett Avenue , Troy, New
York, L day on February 16, 1971 , and one-half day on
February 17, 1971 , in order to force and require Span-
crete Northeast , Inc., to assign to bricklayers rather
than to Local 190 work fitting the Bricklayers descrip-
tion as shown above.
Accordingly , we find that there is reasonable cause
to believe that violations of Section 8(b)(4)(D) have
occurred and that the dispute is properly before the
Board for determination under Section 10(k) of the
Act.
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 all relevant factors . The following fac-
tors are asserted in support of the claims of the parties
herein.
1. Certification and collective-bargaining agreements
Local 190 was certified by the Board as the collec-
tive-bargaining representative of all of Employer's em-
ployees at its South Bethlehem facility following a con-
sent election in 1962. Local Union 435, Laborers
International Union of North America, AFL-CIO,
was certified as the collective-bargaining representative
of Employer's employees at its Rochester facility fol-
lowing an election in 1965.
Since 1963, the Employer has had a national agree-
ment with the Laborers International Union which
covers all field construction work and which incorpo-
rates by reference to the Laborers manual of jurisdic-
tion the installation, including grouting, of prestressed
or precast concrete slabs. This agreement also provides
that the Employer has the right to bring its keymen into
any area without opposition by any local union of the
Laborers or the International Union.
The Employer also has collective-bargaining agree-
ments with Local 190 which covers employees of and
out of its South Bethlehem facility; Local 435, covering
its Rochester facility; and Local 894, covering its
Aurora facility. All of the agreemtscover the manu-
facture and installation of its concrete-;products.
The record also shows that 4 or 5 of approximately
35 permanent employees of the Employer who are
members of the Laborers Union also have cards in the
Bricklayers Union and the Employer has an agreement
with a Bricklayers local covering Westchester and Put-
nam Counties in New York. The Employer' s witness
testified that this arrangement was made between the
Employer and that local in order to buy industrial
peace.
2. Company and industry practices
Since the Employer has been in business, it has
manufactured about- 14 million square feet of its
product at all of its locations, and it has installed about
12 million square feet within New York state. All of
this installation in New York was done with laborers.
When it is installing the Spancrete, the Employer's
usual practice is to use two or three of its permanent
employees, including the foreman, and two employees
hired locally who are members of the Laborers local in
that area. This is in accordance with its agreement with
the International . In the instant dispute , the permanent
employees are out of the South Bethlehem facility, and
are members of Local 190, and those hired locally are
members of Local 452.
Before working for the Employer, its witness,
Blosser, worked for Spancrete Industries in Wisconsin,
and he testified that that company also performed all
field erection of 'Spancrete with laborers.
Bricklayers bases its claim to the disputed work
partly on its contract with a local employer association.
However, the Employer is not a member of this associa-
tion.
Bricklayers further bases its claim on two decisions
of the National Joint Board for Settlement of Jurisdic-
tional Disputes, wherein that Board awarded the type
of work claimed by Bricklayers herein to the Bricklay-
ers. However, all parties agree that the Employer
herein is not required by any contract to recognize the
National Joint Board.
3. Relative skills
The record shows that Spancrete is a custom manu-
factured material which must be handled in a special-
ized way. Although Bricklayers claims that its masons
are more qualified to handle the "setting, plumbing,
leveling, pointing, caulking, grouting, anchoring by any
and all means and aligning" of the Spancrete, it pre-
sented no evidence to show that the masons are more
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
qualified to do this work than the laborers working for
the Employer.
On the other hand, the Employer presented evidence
that the "installation and grouting" of Spancrete in-
cludes not only the work specified by Bricklayers, but
numerous other operations also. Its employees receive
the from 3 to 6 months of training required to handle
this product properly.
Accordingly, we find that the laborers are as skilled
or more skilled than bricklayers in the installation of
Spancrete in the instant case.
4. Efficiency of operation
The installation of the Spancrete requires much plan-
ning. Arrangements must be made beforehand to have
cranes on hand to receive the Spancrete from the deliv-
ery trucks at a predetermined destination. Also, a crew
must be on hand to install it at that time. The evidence
shows that speed in the erection of the Spancrete is one
of its strong selling points, and it would not be feasible
for the Company to hire all its crew locally since they
would lack the experience to install the product. Under
the Employer's present system of employment, its per-
manent crew does the actual installation while the la-
borers hired locally do menial tasks such as carrying
supplies which do not require special training or experi-
ence.
This uncontradicted evidence shows that the method
now used by the Employer with the use of laborers is
the most efficient way for it to install the Spancrete.
Conclusions
Based on the entire record and after full considera-
tion of all relevant factors, we shall assign the work in
dispute, which we find is properly described as "install-
ing and grouting, pre-cast, pre-stressed hollow core con-
crete plank manufactured and sold by Spancrete
Northeast, Inc.," to the laborers. The Employer's as-
signment of this work conforms to Board certifications
of two locals of the Laborers; is in accordance with its
collective-bargaining agreements with the Laborers;
conforms to its past practice; best utilizes the skills
involved; and is conducive to efficient operation of its
business . In making this determination, we are assign-
ing the disputed work to the employees of the Em-
ployer who are currently represented by Local 190 and
Local 452, but not to these Unions or their members.
Scope of Award
Spancrete is here requesting a broad work award by
the Board on behalf of the members of Laborers
Unions, contending that such an award is necessary in
order to avoid future interruptions of other of its con-
struction jobs. We are disposed to refuse this request.
Although the Employer has had other locals and other
unions interfere with its jobs, there is no evidence that
Local 10 of the Bricklayers has claimed work assign-
ments on any other of Employer's jobs, and the possi-
bility of such a claim involving Spancrete's future oper-
ations by this Local at other jobsites is not based on any
substantial evidence and is speculative.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Re-
lations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this proceed-
ing, the National Labor Relations Board hereby makes
the following determination of the dispute.
1. Employees employed by Spancrete Northeast,
Inc., who are currently represented by Local 452, La-
borers International Union of North America,
AFL&CIO, and Construction and General Laborers
Union Local 190, Laborers International Union of
North America, AFL&CIO, are entitled to the installa-
tion and grouting of precast, prestressed hollow core
concrete planks manufactured and sold by Spancrete
Northeast, Inc., at the Troy Residences, Troy, New
York.
2. Local 10, Bricklayers, Masons and Plasterers In-
ternational Union of America, AFL-CIO, is not,, and
has not been, entitled by means proscribed by Section
8(b)(4)(D) of the Act to force or require the Employer
to award the above work to its members or employees
it represents.
3. Within 10 days from the date of this Decision and
Determination of Dispute, Local 10, Bricklayers, Ma-
sons and Plasterers International Union of America,
AFL&CIO, shall notify the Regional Director for Re-
gion 3, in writing, whether it will or will not refrain
from forcing or requiring the Employer, by means pro-
scribed by Section 8(b)(4)(D), to award the work in
dispute to its members rather than to employees repre-
sented by Local 190 and Local 452 of the Laborers.