Local 41, PlasterersDownload PDFNational Labor Relations Board - Board DecisionsApr 12, 1972196 N.L.R.B. 291 (N.L.R.B. 1972) Copy Citation LOCAL 41, PLASTERERS Local 41 , Operative Plasterers & Cement Masons and Sioux City Mosaic Company , Inc. and Local Union 5, Bricklayers , Masons and Plasterers International Union. Case 18-CD-137 April 12, 1972 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS , KENNEDY , AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by Sioux City Mosaic Company, Inc., hereinafter called Employer, alleging that Local 41, Operative Plasterers & Cement Masons, hereinafter called Plasterers, violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to employees represented by Plasterers rather than to employees represented by Local Union 5, Bricklayers, Masons and Plasterers International Union, hereinafter called Bricklayers. Pursuant to notice, a hearing was held before Hear- ing Officer William Allen Erickson on March 1, 1972. 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, a brief was filed by the Employer.' 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 rulings of the Hearing Officer 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: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that Sioux City Mosaic Company, Inc., is an Iowa corporation engaged in the installation of certain types of floor coverings from its principal location in Sioux City, Iowa. During the past year the Employer has purchased materials from points outside the State of Iowa, the value of which exceeded $50,000. The parties stipulated that the Em- ployer is engaged in commerce within the meaning of 1 The Employer 's request that the transcript be corrected by substituting the word "area" for the word "early" in its closing request at p. 119 is hereby granted. It is clear from the context of that statement and of the response by the counsel for Plasterers that the Employer was requesting a determina- tion applicable to the entire area 291 the National Labor Relations Act. Accordingly, we find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Plasterers and Bricklayers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Facts Chris Hansen Construction Company, Inc., is the general contractor for the construction of the North- side High School in Sioux City, Iowa. H. S. Holtze Construction Company is the general contractor for the construction of the Westside High School in Sioux City, Iowa. Both of the aforementioned general con- tractors have subcontracted to the Employer the in- stallation and finishing at their respective school projects of certain floor toppings consisting of ce- ramic coated quartz granule that is embedded in a polyester matrix. Hansen and Holtze are members of Master Builders of Iowa, a multiemployer associa- tion, which has a collective-bargaining agreement with Plasterers. The Employer has had a continuous collective-bargaining relationship with Bricklayers during the entire time it has been in business, approxi- mately 25 years. The Employer does not have a collec- tive-bargaining agreement with Plasterers. Prior to the Employer's beginning work on either of the school projects, Plasterers claimed the work of installing and finishing the floor toppings. The Em- ployer had assigned this work to its regular full-time employees represented by the Bricklayers. Plasterers referred these disputes to the National Joint Board, which awarded the work to Plasterers. Neither the Employer nor Bricklayers participated in the Joint Board proceedings and both have refused to recog- nize or abide by the Joint Board's decisions, which are both dated November 19, 1971. In addition, the agree- ment between the Employer and Bricklayers does not provide for a voluntary method of settling jurisdic- tional disputes. On or about November 30, 1971, a meeting was held between representatives of the Employer, Plas- terers, Bricklayers, Hansen, and Holtze to discuss the assignment of the work in dispute. The Employer stat- ed it had assigned this work to its employees repre- sented by Bricklayers. The representatives of both general contractors expressed the opinion that this assignment was proper because of the employees' ex- 196 NLRB No. 47 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD perience in this type of work . Plasterers continued to claim the work in dispute , referring to the aforemen- tioned Joint Board decisions , and said that unless employees represented by Plasterers were assigned the work there would be "problems " or "pickets." Although Plasterers representative at the November 30, 1971 , meeting testified at the hearing that he did not "recall saying anything that would constitute an outright threat to put up a picket ," he did not deny the remarks attributed to him by other participants. It appears that the participants in the November 30, 1971, meeting agreed to postpone commencement of the disputed work pending further efforts to resolve this matter . Plasterers filed a grievance concerning the work assignment with Master Builders , the multiem- ployer association referred to above . A meeting on this grievance was held on December 10, 1971, at which the association was represented by a represent- ative of Hansen and a representative of Holtze. Min- utes of this meeting , prepared by the association's executive secretary , were admitted into evidence with- out objection . These minutes attribute to Plasterers representative the statement that Plasterers intended to picket both school sites because of the assignment of the work in dispute. Although there had been no actual picketing, the Employer's work was not begun until the day of the hearing in this matter . While testifying Plasterers rep- resentative was told by counsel for the Employer that the work in dispute had been started that day and now they would find out if Plasterers was going to picket. Plasterers representative responded , "I don't know." B. The Work in Dispute The work in dispute here is the installation and finishing of floor toppings consisting of ceramic coat- ed quartz granule that is embedded in a polyester matrix. C. Contentions of the Parties The Employer and Bricklayers take the position that the Employer 's assignment of the disputed work was justified by the Employer's collective-bargaining relationship with Bricklayers , the Employer's past practice , the area practice respecting similar work, the training and skills of those employees , and the fact that the work would be performed more economically and efficiently when done by employees of the Em- ployer represented by Bricklayers . The Employer and Bricklayers further contend that neither is bound by the awards of the National Joint Board. Plasterers , on the other hand, contends that the disputed work should properly be assigned to employ- ees represented by it because the work falls within the definition of its craft jurisdiction contained in the constitution of its International . It also argues that, when considered in its entirety , the collective-bargain- ing agreement between it and the Master Builders dictates that it perform this work . The Plasterers re- lies, in addition , on the awards of the Joint Board. D. Applicability of the Statute Before the Board may proceed with a determina- tion of 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, and that there is no agreed-upon method for the voluntary adjustment of the dispute. Plasterers representative is alleged to have threat- ened to picket both school sites because of the assign- ment of the work in dispute to employees of the Employer represented by Bricklayers on or about No- vember 30 , 1971, and again on or about December 10, 1971. This representative of Plasterers testified at the hearing and did not deny the threats attributed to him on either occasion . Based on the foregoing and the record as a whole , we find that an object of Plasterers threats was to force or require the Employer to assign the disputed work to employees represented by Plas- terers . Accordingly, we find that reasonable cause ex- ists to believe that Plasterers violated Section 8(b)(4)(D) of the Act. It is undisputed that neither the Employer nor Bricklayers participated in the proceedings before the National Joint Board ; indeed , neither was required to do so by their collective-bargaining agreement. It ap- pears that neither of these parties was advised before- hand that Plasterers was submitting this matter to that board and the Employer, prior to the awards, advised the Joint Board that it was refusing to submit this dispute to that body and would not be bound by its awards . It is clear from the foregoing , and we find, that at all times material herein there did not exist any agreed-upon or approved method for the voluntary adjustment of the dispute to which all parties to the dispute were bound. Accordingly, the matter is prop- erly 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 giving due consideration to various relevant factors . The fol- lowing factors are relevant in making a determination of the dispute before us. LOCAL 41, PLASTERERS 293 1. Certification and collective-bargaining agreements Neither of the labor organizations involved herein has been certified by the Board as the collective-bar- gaining representative for a unit of the Employer's employees. As indicated above, the Employer has no employ- ees represented by Plasterers and has no collective- bargaining agreement with that labor organization. On the other hand, the Employer has had a contin- uous collective-bargaining relationship with Bricklay- ers for approximately 25 years and there is a current collective-bargaining agreement in effect between them. mony adduced on behalf of the Employer is that five of its employees have regularly done the disputed and similar work and each of the five has been employed by the Employer for 10 or more years. They have received special training from various manufacturers and from the Employer's president. These same em- ployees are skilled in various other types of floor cov- ering installation work and are utilized on tasks other than those involved in the disputed work. Fur- thermore, there are occasions during the performance of the disputed work when it must lay dormant for a period of hours for curing purposes. During these occasions these employees are assigned to other tasks not claimed by Plasterers. 2. Employer's assignment and past practice As stated, the Employer assigned the work in dis- pute to its employees who are represented by Brick- layers. This assignment was consistent with its established practice of assigning all such work to those employees. Plasterers has not previously claimed this work although on a number of occasions employees represented by it were employed on pro- jects where the same or similar work was being per- formed by employees of the Employer represented by Bricklayers. The uncontroverted testimony adduced on behalf of the Employer is that its employees repre- sented by Bricklayers have been performing the dis- puted and other floor covering work similar to it for many years in the Sioux City, Iowa, area. 3. Area practice Although the Employer contends that area practice supports its assignment of the work, it appears that the Employer is the only subcontractor performing this type of work in the immediate area of Sioux City, Iowa. On the other hand, Plasterers adduced no testi- mony that its members had ever performed the dis- puted work in this area. 4. Relative skills, safety, availability of workers, and efficiency and economy of operations Plasterers representative testified that he was not too familiar with the product involved in the disputed work and he could not affirmatively say that any member of his labor organization had ever worked with this specific material. However, he did testify that 2 of its approximately 60 members had had some experience with an apparently similar product and type of work. He further testified it could call upon sister locals to furnish members experienced in this type of product and work. The uncontroverted testi- CONCLUSION Upon the entire record as a whole, and after full consideration of all relevant factors involved, we con- clude that the Employer's employees represented by Bricklayers are entitled to perform the work in dis- pute. We reach this conclusion upon the facts that the assignment is consistent with the Employer's past practice, there is no inconsistent area practice, the employees represented by Bricklayers possess the re- quisite skills to perform the work, and such assign- ment will result in greater efficiency, economy, and continuity of operations. Accordingly, we shall de- termine the dispute before us by awarding the work in dispute at the Northside High School and Westside High School projects in Sioux City, Iowa, to the Employer's employees represented by Bricklayers, and not to that Union or its members. In conse- quence, we also find that Plasterers is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer to assign the disputed work to employees represented by it? 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 hereby makes the following Determination of Dispute: 1. Employees of Sioux City Mosaic Company, Inc., of Sioux City, Iowa, who are represented by Local Union 5, Bricklayers, Masons and Plasterers Interna- tional Union, are entitled to perform the work of in- stalling and finishing certain floor toppings consisting of ceramic coated quartz granule that is embedded in 2 We find no merit in the Employer's request for a broad work award by the Board on behalf of the employees represented by Bricklayers , as it is clear that Plasterers has not previously claimed assignment of this work on any other of Employer 's jobs and there is no evidence warranting the conclusion that such a claim will be made by Plasterers at Employer's future operations. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a polyester matrix at the Northside High School and Westside High School projects in Sioux City, Iowa. 2. Local 41, Operative Plasterers & Cement Ma- sons , is not entitled , by means proscribed by Section 8(b)(4)(D) of the Act , to force or require Sioux City Mosaic Company , Inc., to assign the above work to employees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 41, Operative Plas- terers & Cement Masons , shall notify the Regional Director for Region 18, 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 work in dispute to employees represented by Plasterers , rather than to employees represented by Bricklayers. Copy with citationCopy as parenthetical citation