Local 44, Bricklayers

National Labor Relations Board - Board Decisions

Nov 15, 1973

207 N.L.R.B. 354 (N.L.R.B. 1973)

354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 44, Bricklayers , Masons and Plasterers Interna-
tional Union, AFL-CIO and Raymond Interna-
tional, Inc. and Local 509, Laborers International
Union of North America , AFL-CIO.' Case
22-CD-220
November 15, 1973
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Raymond International, Inc.,
herein called the Employer, alleging that Local 44,
Bricklayers, Masons and Plasterers International
Union, AFL-CIO, herein called Bricklayers, has
violated Section 8(b)(4)(D) of the Act. Pursuant to
notice, a hearing was held in Newark, New Jersey, on
various dates from February 8, 1973, to March 2,
1973, before Hearing Officer Bruce W. Taylor. 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, the proceeding was trans-
ferred to and continued before the Board, and the
Employer and the Bricklayers filed briefs in support
of their respective positions.
On June 20, 1973, the Board issued an order
reopening record and remanding proceeding for
further hearing for the purpose of receiving evidence
describing and identifying the precise nature and
extent of work in dispute; the identity of the
individual or individuals performing the disputed
work and his or their actual duties in carrying out
that work; the supervisory or independent contractor
status of any individual performing the work in
dispute; and the status of John Pinnisi as an
employee or supervisor. Further hearings were held
on July 30 and 31, 1973, before the same Hearing
Officer.2 Thereafter, the Employer and the Respon-
dent filed supplemental briefs with the Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding 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. The rulings are hereby
affirmed.
Upon the entire record in this case, including the
briefs, the Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer, a New Jersey corporation, is
engaged in the business of heavy construction
contracting. During the past 12-month period, the
Employer has derived gross revenue in excess of
$500,000 from its construction contracting. During
the same period, the Employer has purchased goods
valued in excess of $50,000 from employers located
outside of the State of New Jersey.
The parties stipulated, and 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 Bricklay-
ers and Laborers Locals 509 and 6A are labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
In the fall of 1972,3 the Employer entered into a
contract with Diesel Construction Company, the
general contractor, to perform the pile-driving work,
including the work of handling and pouring the
concrete, at the Paramus Park Shopping Center in
Paramus, New Jersey. On October 18, the Employer
moved its equipment to the building site. In
November or December, it began to pour its first test
piles at the jobsite. The Employer assigned such work
to individuals represented by Laborers Local 509 and
assigned the laborer foreman's job to its employee,
John Pinnisi, a member of Laborers Local 6A.
Thereupon, Henry Massaro, business representative
of the Bricklayers, contacted the Employer's officials
at the jobsite and claimed that a cement mason
should be on the job to direct the handling and
pouring of the concrete pilings. The Employer's
official at the jobsite replied that it had always used a
laborer to perform such work. On a number of
occasions in December, Massaro called Malcolm
King, the Employer's construction manager for the
Eastern Region, and informed him that the area
practice in Bergen County was to use cement masons
to supervise pile jobs. King repeated to Massaro
what the latter had been told previously; namely,
1 Hereinafter with Laborers International Union of North America, 2 Laborers did not appear at the reopened hearing.
Local 6A , collectively referred to as Laborers. Local 6A was notified of the 3 All dates refer to 1972, unless otherwise indicated.
hearing, but did not appear.
207 NLRB No. 25
LOCAL 44,- BRICKLAYERS 355
that the Employer used laborers to perform that
work . On or about December 29 , Thomas Urzalino,
chairman of the Bergen County Conference, a group
of cement masons locals in Bergen County, to which
Respondent belonged, telephoned King and in-
formed him that he was going to put a picket line on
the Employer's Paramus job until such time as a
cement mason was placed on the job.
On January 2, 1973, the Bricklayers commenced
picketing at the jobsite with signs that read "Ray-
mond International and Diesel are being unfair to
Local 44." The laborers at first refused to cross the
picket line, - but, later , were informed ^ by their
representatives to do so. On January 3, 1973, the
Employer filed the instant charge . Bricklayers con-
tinued to picket at the ,jobsite until January 12, 1973.
B. The Work in Dispute
The work in dispute pertains to the process of
pouring concrete into steel shells (caissons) from
ready-mix concrete trucks. More specifically, the
work in dispute includes: (I) Responsibility for
inspection of driven piles for water and/or foreign
objects in preparation for pouring ; (2) ordering the
concrete ; (3) starting up of the concrete flow from
the ready-mix concrete trucks; (4) cutting off of the
flow of concrete from the truck after concrete has
reached a proper elevation ; (5) determination to pour
concrete with respect to the adequacy of its consist-
ency; (6) removal of excess concrete from the poured
pile; (7) direction of the movement of concrete
chutes and trucks to the next pile to be poured; and
(8) direction during cold weather that poured
concrete be protected by covering piles with various
materials.
the work in dispute involves the supervision of
laborers, and not competing claims for the same
work by two employee groups . Further, Respondent
urged at the close of the reopened hearing that, even
if a jurisdictional dispute is found to exist , the Board
should nevertheless quash the 10(k) notice of hearing
since all parties are bound to a voluntary procedure
for resolution of the dispute. Finally , Respondent
contends that, if the Board proceeds to determine the
merits of this dispute , consideration of the relevant
factors favors an award to employees represented by
Bricklayers.
The Employer contends that it has been enmeshed
in a jurisdictional dispute ; that there is no agreed-
upon method for its resolution ; ' and, that the Board
should confirm its assignment of the work in dispute
to its laborer foreman , represented by Laborers.
Specifically, the Employer argues that Pinnisi per-
formed the work in dispute ; that Reiman, although a
supervisor, did not perform the work in dispute; that
Pinnisi is not , a supervisor ; and that the Employer is
not bound to ^ the procedures of the National Joint
Board . As to the merits of the dispute, the Employer
contends that the Board should uphold the Employ-
er's assignment of the disputed work, relying on such
relevant factors as its long-established practice of
assigning it to a laborer foreman, represented by the
Laborers ; the fact that the laborer foreman has the
skill, experience , and competence to do the work to
the Employer's satisfaction ; and the fact that it is
more economical and efficient to give the work to a
laborer. Laborers have not taken a position regarding
the assignment of the work in dispute.
D. Applicability of the Statute
C. Contentions of the Parties
Respondent contends that its conduct, described in
section III , A, above, was intended solely to compel
the assignment of the work in dispute to employees
rather than to the supervisors being used by the
Employer in performing the disputed work ; that no
dispute exists between competing groups of employ-
ees and, therefore , the Board should quash the 10(k)
notice of hearing. More particularly, Respondent
urges that the' work in dispute was performed by
either Fred Reiman, the Employer's job superintend-
ent, or John Pinnisi, the laborer foreman ; that both
Reiman and Pinnisi are supervisors ; and, that thus
-Before the Board proceeds with a determination of
dispute, pursuant to Section 10(k) of the Act, it must
be satisfied that ( 1) there is reasonable cause to
believe that Section 8(b)(4)(D) of -the Act has been
violated, and (2) the parties have not agreed upon
methods for the voluntary adjustment of the dispute.
As to (1) above, the record shows that in Novem-
ber and December 1972 Bricklayers protested the
Employer's failure to.assign the disputed work to one
of its members. In late December 1972, after- the
Employer advised Bricklayers that it planned on
continuing the work assignment to laborers, Brick-
layers threatened to picket . Subsequently, from
January 3, 1973, to January 12, 1973, Bricklayers
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picketed the jobsites and precipitated a work
stoppage. On these facts, we are satisfied that there is
reasonable cause to believe that Bricklayers threat-
ened to, and did, picket the Employer's jobsite at the
Paramus Park Shopping Center, with an object of
forcing assignment of the disputed work to members
they represented.
As to Respondent's contention that it sought to
compel the assignment of work to employees rather
than to supervisors, the record shows that the work in
dispute was performed by John Pinnisi, a member of
Laborers Local 6A.4 Pinnisi has worked for the
Employer for approximately 20 years, the last 12
years of which he has been employed as a laborer
foreman. While both the Employer and Pinnisi deny
that he is a supervisor within the meaning of the Act,
we believe an examination of his status is warranted.
Between 60 and 75 percent of Pinnisi's workday is
spent in manual labor alongside the other laborers.
Part of his time is spent removing excess concrete
from poured piles. The balance of his time is spent in
performing such tasks as inspection of piles and
visually checking the consistency of the concrete. As
an experienced employee, Pinnisi starts and stops the
pouring of concrete into the steel shells. He tells the
other laborers when to rod the concrete and when to
move the pouring chutes to the next caisson . Late in
the season, he instructs the other laborers when a
poured piling must be protected from the cold
weather. In performing these duties, Pinnisi works
alongside the other laborers and assists them in the
performance of their duties as the need arises.
Pinnisi testified that he was responsible for the
training of laborers. He also testified that he did not
order materials, with the exception of concrete. As to
the ordering of concrete, Pinnisi merely calls the
supplier and tells him how many truckloads will be
needed on the next day. The specifications and price
are predetermined by the supplier's contract with the
Employer. Pinnisi does not order repairs to company
property, nor does he attend policy meetings.
Although Pinnisi contacts the Laborers hiring hall to
obtain laborers for the Employer's job, he does so
only after consulting with Superintendent Reiman
regarding the number of men needed on the job.
Pinnisi also has laid off employees after being
instructed by Reiman to do so. However, there is no
evidence that Pinnisi ever made such decisions on his
4 The record shows that Reiman, as the job superintendent , was on the
jobsite usually on a daily basis. Since his office was in a construction trailer
stationed 200 feet from the laborers work area , he regularly walked the
jobsite several times a day . He had daily meetings with Pinmsi and other
foremen concerning the scheduling of work. He authorized the ordering of
concrete, the hiring of employees, and any necessary layoffs. Accordingly,
as it is undisputed , we find that Reiman is a supervisor within the meaning
of the Act . However, despite Massaro's testimony that he saw Reiman
performing the work in dispute, the record only shows that Massaro saw
own. Pinnisi also informed Reiman when an individ-
ual laborer was absent, but employees were not
instructed to advise Pinnisi of their absence or to
seek his permission for such absence. Pinnisi also
assigned one of the three laborers to nonpouring
work, but he was not responsible for any personnel
records kept by the Employer and did not have
access to them.
Significantly, Pinnisi was not given the authority
to, nor did he, adjust the grievances of employees. He
did not independently assign overtime, nor did he
report employees' misconduct to the supervisor.
Pinnisi has not disciplined employees on the job and
was never informed that he had the authority to do
so.
Pinnisi receives the wages and fringe benefits of the
Local 6A contract and the other laborers on the job
received the terms of the Local 509 contract. The
Local 6A contract contains a classification for
laborer .foremen. Pinnisi is paid at the same time
other employees are paid and does not receive any
type of bonus on the job.
As the record clearly shows that the laborer
foreman only performs work covered by the Local
6A Laborers agreement; that he does not exercise
independent judgment in carrying out his duties; and
that most of his work is of a routine nature, we find
that the work in dispute does not involve supervision
within the meaning of Section 2(11) of the Act.
Although the record shows that John Pinmsi in the
routine performance of his duties calls the union hall
when additional men are needed on the jobsite, we
find that the weight of the evidence establishes that
he is not a supervisor within the meaning of the Act
since such authority is exercised only on higher
approval or in routine situations. Having found that
the work in dispute does not involve the work of a
statutory supervisor, that it was performed by John
Pinnisi, and that Pinnisi is not a supervisor within the
meaning of the Act, we are satisfied that there is
reasonable cause to believe that Section 8(b)(4)(D) of
the Act has been violated.5
As to (2) above, although Respondent contended at
the close of the hearing that all parties were bound
by the procedures of the National Joint Board for the
Settlement of Jurisdictional Disputes, we find no
evidence in the record that the Employer herein is so
bound. Therefore, we find that the parties do not
Reiman talking to Pmnisi on several occasions Even accepting Massaro's
surmise that Reiman was giving instructions to Pinmsi and the other
laborers, there is no evidence that Reiman actually performed any of the
work in dispute. Accordingly, we find that the work in dispute was
performed by Pinmsi and not Reiman
5 Compare Local 236, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America (Mason
Construction Company), 194 NLRB 594.
LOCAL 44, BRICKLAYERS 357
have an established procedure for the amicable
resolution of this dispute.
Accordingly, as we have found that there is
reasonable cause to believe that a violation of
Section 8(b)(4)(D) -has occurred, and that the dispute
is properly before the Board for determination
pursuant to Section 10(k) of the Act, we shall
proceed to make a determination of the dispute.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after
giving due consideration to all factors. As the Board
has stated, its determination in a jurisdictional
dispute case is an act of judgment based upon
common sense and experience in the weighing of
these factors .6 The following factors are relevant in
making a determination of the dispute before us.
1. Certification and collective-bargaining -
agreements
None of the labor organizations herein has been
certified by the Board as the collective-bargaining
representative for a unit of the Employer's employ-
ees.
The Employer is not a signatory to any collective-
bargaining agreement with either Laborers Local 509
or Bricklayers. Although the Employer's building
contract with Diesel Construction Company states,
in part, that "It is further mutually agreed by the
parties hereto that all labor employed under this
contract shall be that recognized by the Building
Contractors Association of New Jersey," the record
fails to show that the Employer is a member of the
Building Contractors Association (BCA). However,
even if the Employer were a member of the BCA,
neither the BCA agreement with Respondent nor
with Laborers clearly supports Respondent 's claim
for the disputed work assignment.
Under the foregoing circumstances, we are satisfied
that the Employer's assignment of the disputed work
to its own employees represented by Laborers is not
in derogation of any existing contract.
2. The Employer's assignment and past
practice
The record shows that the Employer has tradition-
ally used the laborers to perform the disputed work
not only in Bergen County, where the instant project
is located, but throughout its operation. Under these
circumstances, we find that the Employer's long and
continuous custom of assigning the disputed work to
employees represented by Laborers is a factor
favoring continuation of this practice.
3. Area practice
Bricklayers presented testimony to the effect that it
is the prevailing area practice to have cement masons
supervise all concrete pouring in Bergen County,
including the piling jobs. However, John Vermeulen,
director of industrial relations for the Building
Contractors Association of New Jersey, testified that
the precedent in the area established no need for a
cement mason on a job where, as in, the instant case,
there was no "cement finishing" work required, and
that, consequently, in accord with past practice, the
job would likely be handled by laborers.' The record,
viewed as a whole, therefore supports the view that
contractors in the area, engaged in piling work of a
type and nature involved in the work in dispute,
utilize laborers to perform such work.
4. Relative skills and efficiency of operation
Bricklayers stated that they had an apprenticeship
program covering the work in dispute. However, the
Employer introduced evidence to the effect that its
laborer foremen, represented by Laborers, had
worked on similar jobs for the Employer for about 20
years. Moreover, the Employer indicated that the
laborers, including the laborer foreman, in this case
Pinnisi, spend only about 30 percent of their time in
work pertaining to concrete, the rest of the time
being spent in miscellaneous duties, such as unload-
ing the piles, denesting and stacking the piles,
preparing the shells for the concrete pour, and
performing cleanup tasks. Hence, the laborer fore-
man performs the work in dispute for substantially
less than 50 percent of his time.
The Employer has indicated that its well-estab-
lished practice of assigning the disputed work to its
own employees, represented by Laborers, has been
totally satisfactory. Moreover, from an economic
standpoint, it has proved to be beneficial to the
Employer to employ a regular crew of laborers to
perform the disputed work along with their other
related and necessary work at the jobsite.
Under the foregoing circumstances, it appears that
the assignment of the disputed work to the Employ-
er's own employees, represented by Laborers, is
clearly the most efficient and economical manner of
operation.
B International Association of Machinists , Lodge No. 1743, AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402.
7 Vermeulen testified that he obtained this information from the various
members of the association who do work regularly in the Bergen County
area, and he passed it on to the Employer.
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusion
Upon the entire record in this case, and after full
consideration of all relevant factors , involved, we
conclude that the Employer's employees, who are
represented by Laborers, are entitled to perform the
work in dispute. We reach this conclusion based on
the Employer's past practice of assigning the disput-
ed work to its own employees and' the facts that the
assignment is not in derogation of any existing
contract; the assignment is 'consistent with the
practice. of area contractors; the Employer's employ-
ees possess the necessary skills and experience to
perform the work and their work has been totally
satisfactory; and such assignment will result in
greater -efficiency and economy. We shall, therefore,
determine the dispute before us by awarding the
work in dispute at the Employer's Paramus Park,
New Jersey, jobsite to its own- employees represented
by the Laborers, but not to that Union or its
members. Our present determination is limited to the
particular controversy which gave rise to this
proceeding.
Accordingly, we find that Bricklayers are not
entitled, by means proscribed by Section 8(b)(4XD)
of the Act, to force or require the Employer to assign
the disputed work to members represented by that
labor organization.8
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 case,
the National Labor Relations Board makes the
following Determination of Dispute:
1. Employees of Raymond International, Inc.,
who are represented by either Local 6A or Local 509,
8 See, e g., Pile Drivers, Millwrights & Window Erectors, Local No. 1966,
affiliated with United Brotherhood of Carpenters and Joiners of America,
Laborers International Union of North America,
AFL-CIO are entitled to perform the work in
dispute, specifically: (1) Responsibility for inspection
of driven piles for water and/or foreign objects in
preparation for pouring; (2) ordering the concrete;
(3) starting up of the concrete flow from the ready-
mix concrete trucks; (4) cutting off of the flow of
concrete flow from the truck after concrete has
reached a proper elevation; (5) determination to pour
concrete with respect to the adequacy of its consist-
ency; (6) removal of excess concrete from the poured
pile; (7) direction of the movement of concrete
chutes and trucks to the next pile to be poured; and
(8) direction during cold, weather that poured
concrete be protected by covering piles with various
materials, in connection with Raymond Internation-
al's - Paramus Park Shopping Center project at
Paramus, New Jersey.
2. Local 44, Bricklayers, Masons and Plasterers
International Union, AFL-CIO, is not entitled, by
means proscribed by Section 8(b)(4)(D) of the Act, to
force or require Raymond International, Inc., to
assign the above-described work to members repre-
sented by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local 44, Bricklayers,
Masons ' and Plasterers International Union,
AFL-CIO, shall notify the Regional Director for
Region 22, in writing, whether or not it will refrain
from forcing or requiring Raymond International,
Inc., ' by means proscribed by Section 8(b)(4)(D) of
the Act, to assign the disputed, work to its members,
rather than to employees of Raymond International,
Inc., represented by either Local 6A or Local 509,
Laborers International Union of North America,
AFL-CIO.
AFL-CIO (Raymond International, Inc), 184 NLRB 7260.