Locals 138, 138A, 138B, 138C, and 138D, IUOE

National Labor Relations Board - Board Decisions

Oct 26, 1964

149 N.L.R.B. 156 (N.L.R.B. 1964)

156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Locals 138, 138A , 138B , 138C, and 138D, International Union
of Operating Engineers , AFL-CIO and Cafasso Lathing &
Plastering , Inc. and Stewart M. Muller Construction Co.,
Inc., and Building Trades Employers Association of Long
Island , Inc. and Contracting Plasterers Association of Queens,
Nassau and Suffolk Counties , Inc. [Cafasso Lathing & Plaster-
ing, Inc.] and Contracting Plasterers Association of Queens,
Nassau and Suffolk Counties , Inc. [Cuddihy & Heubner, Inc.].
Cases Nos. 2-CD-293, 2-CD-293-2, 2-CD-293-3, and 2-CD-302.
October 26, 1964
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10(k) of the Act, follow-
ing charges filed by Cafasso Lathing & Plastering, Inc., herein called
Cafasso; Stewart M. Muller Construction Co., Inc., and Building
Trades Employers Association of Long Island, Inc., herein respec-
tively called Muller and BTEA; and by Contracting Plasterers As-
sociation of Queens, Nassau and Suffolk Counties, Inc., herein called
Long Island Plasterers, in behalf of Cafasso and Cuddihy & Hueb-
ner, Inc., herein called Cuddihy. All the charges allege that Locals
138, 138A, 138B, 138C, and 138D, International Union of Operating
Engineers, AFL-CIO, herein called Local 138, violated Section
8(b) (4) (D) of the Act by action taken because of certain work
which had been assigned to employees who are members of Plasterers'
Helpers Local 759, International Hod Carriers, Building 'k- Common
Laborers Union of America, AFL-CIO, herein called Local 759. A
consolidated hearing was held before Hearing Officer Irwin M. Port-
noy, between June 2 and 17, 1964. All parties appeared at the hear-
ing and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence bearing on the issues.
The rulings of the Hearing Officer made at the hearing are free from
prejudicial error and are hereby affirmed. The Charging Parties and
Local 138 filed briefs which have been duly considered.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Leedom, Fanning, and Brown].
Upon the entire record in this proceeding, the Board makes the
following findings :
1. The business of the employers
Cafasso and Cuddihy are contractors engaged in performing lath-
ing and plastering services in the building and construction industry
in the Long Island, New York, area. These employers are members
149 NLRB No. 15.
LOCALS 138, 138A , 138B , 138C , AND 138D , IUOE 157
of the Long Island Plasterers, an association of employers which
bargains for, and executes labor agreements on behalf of, its mem-
bers. During 1963, the combined purchases of goods and materials
made by members of the Long Island Plasterers and shipped to them
from points outside the State of New York exceeded $100,000 in
value. We find that Cafasso and Cuddihy are 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.
2. The labor organizations involved
We find that Local 1381 and Local 759 are labor organizations
within the meaning of Section 2 (5) of the Act.
3. The dispute
The Work in Dispute; Background Facts
The disputed work which gave rise to this proceeding concerns the
operation of a plaster-mixing machine and a plaster pump used for
the piping and propelling of the wet plaster prepared in the mixing
machine.2 Cafasso and Cuddihy assigned this work to laborers, also
known as plasterer helpers, who are represented by Local 759. Local
138 maintains that operating engineers , whom it represents , are en-
titled to the work.
The plaster mixer and the pump are two separate pieces of ma-
chinery, each having a gasoline motor. They are connected and used
simultaneously to propel wet plaster from outside a building to the
interior of upper stories where the plaster is applied to walls by em-
ployees whose work is not in dispute. One laborer operates both
machines. He shovels sand and gypsum into the mixer which is then
mixed with water and the desired mix is dumped by a hand lever
attached to the mixer into a hopper which is attached to the pump.
The plaster pump motor drives a ram which pushes the plaster from
the hopper through a hose or pipe which runs along the ground, up
the outside of the building, and into the interior for application.
The laborer assigned to the operation of the mixer and pump spends
most of his time feeding materials into the mixer. His work also in-
cludes the starting of the gasoline engines , adding gasoline to the
engines, the greasing of fittings, and the cleaning of the machines
and hoses. Minor repairs are made by the laborer at the jobsite;
major repairs are performed by the manufacturer of the machines or
by outside machine shops.
1 The record shows that Locals 138C and 138D are no longer in existence.
2 At the hearing, Local 138 claimed the work of operating the pump alone and of operat-
ing both the mixer and the pump. In its brief, it claims both machines . We shall con-
sider both operations as comprising the work in dispute.
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cafasso is the plastering subcontractor who was awarded the work
in dispute by Muller, the general contractor, in connection with the
construction of a school building in Amityville, Suffolk County, New
York. Cafasso started to work on this project in February 1964.
There is testimony that in March 1964, James S. Duffy, a business
representative of Local 138, threatened Cafasso and Muller with a
work stoppage by a hoist operator-member of Local 138, who was em-
ployed by Muller on the project, unless an operating engineer was
assigned to Cafasso's plaster pump. To avoid the threatened work
stoppage, Muller suggested to Cafasso that he hire an operating en-
gineer, which Cafasso refused to do. Local 138 admittedly picketed
the Amityville job for about 2 weeks with a sign proclaiming that
Cafasso does not employ members of or have a contract with Local
138. During this period, various union members employed at the
site ceased works
Cuddiliy is the plastering subcontractor who was awarded the work
in dispute by Rosoff Brothers and Foster-Neuman Contracting Com-
pany, herein jointly called Foster, the general contractors connected
with the construction of college dormitories in Stony Brook, Suffolk
County, New York. There is testimony that on or about May 18,
1964, John Gunning, a business representative of Local 138, advised
Howard Huebner, an official of Cuddiliy, and a representative of
Foster that the Stony Brook job would be picketed unless an oper-
ating engineer was assigned to Cuddihy's plaster pump. On May 19,
Foster's representative told Huebner, in Gunning's presence, that, if
Local 138 picketed the project, Cuddihy would be ordered off the job
and Cuddihy "was not to use the pump until a decision was made in
this matter." To avoid picketing by Local 138, Cuddiliy did not use
the plaster pump for about 10 to 12 days and the laborers used hand
equipment to deliver wet plaster to the plasterers.4
Applicability of the Statute
The charges, which were duly investigated by the Regional Di-
rector, allege a violation of Section 8(b) (4) (D) of the Act. In dis-
posing of this case, we are not required to find that Local 138 in fact
engaged in unlawful conduct as alleged. All we need determine in
this proceeding is that there is reasonable cause to believe that Local
' A work stoppage by a crane operator -member of Local 138 also occurred during this
period on a jobsite in Rockville Center, located about 20 miles from Amityville, where
Muller was the general contractor for the construction of an addition to a hospital.
' Cuddihy resumed using the plaster pump after a charge was filed in Case No. 2-CD-302,
which resulted in the issuance of an injunction by the U.S. District Court for the Eastern
District of New York. The parties stipulated that the testimony adduced in the court
proceeding , Case No. 64-C-SOS, be made a part of the record herein.
LOCALS 138, 138A, 138B , 138C, AND 138D, IUOE 159
138 engaged in such conduct.' We are satisfied that the record in
its entirety warrants such a conclusion . Accordingly, we find that
the disputes are properly before the Board for determination under
Section 10 (k) of the Act.6
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, and the Board has held that its determination in
jurisdictional dispute cases is an act of judgment based upon com-
monsense and experience in balancing such factors.7
Certain of the usual factors considered by the Board in these cases,
such as certifications and skills, provide little, if any, basis for de-
termining the instant dispute. Neither Local 759 nor Local 138 has
been certified by the Board as the exclusive bargaining representative
for any of Cafasso's or Cuddihy's employees; and the requisite skills
to operate the plaster mixer and pump, which involves the starting
of engines of less than 20 horsepower, the feeding of materials to
make wet plaster, the adding of gasoline and oil, the cleaning of the
machines and hoses, and the minor repairs that may be required at
the jobsite, are possessed by laborers and operating engineers. The
superior skills exercised by operating engineers on other equipment,
such as cranes and high-powered compressors, are not required for the
disputed work herein. Other factors urged for consideration are :
Collective-bargaining contracts: The existing contract between
Local 759 and the members of the Long Island Plasterers, including
Cafasso and Cuddihy, provides for the operation of the plaster equip-
ment by the plasterers' helpers or laborers represented by Local 759.
Cafasso and Cuddihy have no bargaining contracts with Local 138.
Local 138 contends that its contracts with Muller and Foster, the
general contractors, cover the disputed work. But Cafasso and Cud-
dilly are not parties to these contracts. In any event, while Local
138's agreements with the general contractors cover the operation of
certain pumps and power-driven machines, there is no specific refer-
ence to the plaster equipment involved herein.
Joint Board award: On April 2, 1964, the National Joint Board
for Settlement of Jurisdictional Disputes, Building and Construction
Industry issued an award with regard to the Amityville dispute by
5 Duffy and Gunning denied making any "threats," but we need not resolve any conflicts
in testimony in this Section 10(h) proceeding . International Union of Operatina En-
gineers, Local 66, AFL-CIO ( Frank P. Badolato & Son), 135 NLRB 1392; Local Union
No. 3, International Brotherhood of Electrical Workers, AFL-CIO (Western Electric
Company, Incorporated ), 141 NLRB 988, 893.
6 The parties have not submitted satisfactory evidence that they have adjusted or agreed
upon methods for the voluntary adjustment of the disputes.
7Internatsonal Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Con-
stritotion Company ), 185 NLRB 1402.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assigning the operation of the plaster mixer and pump to operating
engineers . In pertinent part, the award states, "The Joint Board
voted to make the following job decision: The work in dispute is
governed by the decision of record of November 11-23, 1907, and
shall be assigned to operating engineers ." Local 138 contends that
this award, which was confined to the Cafasso-Amityville dispute
and issued prior to the Cuddihy-Stony Brook dispute, should control
our determination in the instant proceeding. However, neither Ca-
fasso nor Cuddihy was a party to any agreement which provided for
the submission of its dispute to the Joint Board; in fact, Cafasso
expressly refused to submit its dispute to the Joint Board. Under
these circumstances, we are unable to attach controlling weight to the
award of the Joint Board."
Custom and practice: It appears that operating engineers per-
form a significant amount of the pump work in the New York City
area, but a preponderance of evidence shows that in the Long Island
area where Cafasso and Cuddihy are engaged in plastering work,
laborers operate the plaster mixers and pumps. Cafasso and Cud-
dihy have always employed laborers, and never operating engineers,
for the work in dispute.
Efficiency and economy of operations : The record is clear that the
laborers assigned to the disputed work by Cafasso and Cuddihy are
efficiently performing their required tasks, to the satisfaction of their
employers, and, as previously noted, no greater skills than possessed
by them are required for the efficient performance of this work.
Local 138 has indicated that if an operating engineer is assigned to
the job, laborers would still continue to do the bulk of the work re-
quired in the operation of the mixer and pump. The rate of pay of
the laborer is less than that of the operating engineer.
CONCLUSION
Upon consideration of all pertinent factors in the entire record, we
shall not disturb the assignment of the disputed work made by Ca-
fasso and Cuddihy to their laborers. Both employers are satisfied
with the results achieved by these assignments and desire no change
in their practice. Their assignments to the laborers are consistent
with contractual obligations, follow custom and practice in the area,
and promote efficiency and economy of operation. Accordingly, we
shall determine the existing jurisdictional disputes by deciding that
laborers, represented by Local 759, rather than operating engineers,
represented by Local 138, are entitled to the operation of plaster-
mixing machines and the plaster pumps used for the piping and pro-
8 International Union of Operating Engineers , Local 66, AFL-CIO (Frank P. Badolato A
Son), supra; Local 825, International Union of Operating Engineers , AFL-CIO ( Nichols
Electric Company ), 137 NLRB 1425, 1431-1432, and 140 NLRB 458, enfd . 326 F 2d 213
(C.A. 3).
JAS. H. MATTHEWS & CO. 161
palling of the wet plaster.9 In making this determination, we are
awarding the work in question to employees represented by Local
759, but not to Local 759 or its members.
Because there is evidence that the work in dispute has been a con-
tinuous source of controversy in the Long Island area and that other
similar disputes may occur in the future, we shall not restrict the
scope of our determination herein to the specific jobs giving rise to
this proceeding. Therefore, our determination in this case applies to
all similar disputed work performed in the Long Island area by
Cafasso and Cuddihy.10
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings, and the entire record in
this proceeding, the Board makes the following determination of dis-
pute, pursuant to Section 10 (k) of the Act :
1. Laborers who are employed by Cafasso Lathing & Plastering,
Inc. and by Cuddihy & Huebner, Inc., represented by Plasterers'
Helpers Local 759, International Hod Carriers, Building & Common
Laborers Union of America, AFL-CIO, are entitled to perform the
operation of plaster-mixing machines and the plaster pumps used for
the piping and propelling of wet plaster.
2. Locals 138, 138A, and 138B, International Union of Operating
Engineers, AFL-CIO, are not entitled, by means proscribed by Sec-
tion 8 (b) (4) (D) of the Act, to force or require Cafasso or Cuddihy
to assign the above work to their members.
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Local 138 shall notify the Regional Director for
Region 2, in writing, whether or not it will refrain from forcing or
requiring Cafasso and Cuddihy, by means proscribed by Section
8(b) (4) (D) of the Act, to assign the work in dispute to its members
rather than to employees represented by Local 759.
9International Union of Operating Engineers, Local 66, AFL-CIO (Frank P. Badolato &
Son), supra.
10 See Bricklayers, Masons and Plasterers ' International Union of America , Local No. 26
(Foot Valley General Contractors Association ), 147 NLRB 1615; Teamsters Local Union
No. 5, at at. (Hart-McGowan Foundation Co., Inc. ), 147 NLRB 1216.
Jas. H . Matthews & Co. and International Association of Ma-
chinists, AFL-CIO . Case No. 26-CA-1736. October 27, 1964
DECISION AND ORDER
On July 9,1964, Trial Examiner Arthur E". Reyman issued his De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
149 NLRB No. 18.
770-076--65-vol . 149-12