Operative Plasterers', Etc., Local No. 394

National Labor Relations Board - Board Decisions

Oct 3, 1975

220 N.L.R.B. 1074 (N.L.R.B. 1975)

1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Operative Plasterers ' and Cement Masons' Interna-
tional Association, Local No. 394, AFL-CIO and
Warner Masonry, Inc. and Bricklayers ', Masons'
and Plasterers ' International Union, Local No. 3,
AFL-CIO. Case 28-CD-162
October 3, 1975
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, based on
a charge filed by Warner Masonry, Inc., herein
called the Employer. The charge alleges that Opera-
tive Plasterers' and Cement Masons' International
Association, Local No. 394, AFL-CIO, herein called
Plasterers, violated Section 8(b)(4)(D) of the Act by
engaging in certain activity with an object of forcing
the Employer to assign certain work to individuals
represented by Plasterers rather than to employees of
the Employer represented by Bricklayers', Masons'
and Plasterers ' International Union, Local No. 3,
AFL-CIO, herein called Bricklayers.
A duly scheduled hearing was held on June 5 and
23, 1975, before Hearing Officer Edward N. Gross-
man. 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 Employer and
Bricklayers filed a joint brief and Plasterers 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 au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, giving due con-
sideration to the briefs, the Board makes the follow-
ing findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer is an Arizona corporation engaged in masonry
subcontracting. It annually purchases rebar steel,
fireplace dampers, flue liners, and firebrick valued in
excess of $50,000 and shipped directly from suppliers
located outside the State of Arizona to its business
locations within Arizona. Accordingly, we find that
the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will
effectuate the purposes of the Act to assert jurisdic-
tion herein.
11. 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. The Work in Dispute
The work in dispute is the application of the finish
coat of mortar on the patio walls of homes at the
Village construction project located at 44th Street at
Camelback Road, Phoenix, Arizona.
B. Background and Facts of the Dispute
The Employer was subcontracted the job of build-
ing a perimeter wall and performing the structural
masonry in the Village, a large townhouse condomin-
ium project, including the construction of patio
walls for each townhouse. Some of the masonry con-
struction was to be performed by the conventional
block and mortar method. The plastering of the out-
side, or finish coat of, mortar covering the masonry
blocks was not contracted to the Employer, but to a
plastering contractor. For the perimeter wall and the
patio walls, however, a different method was used.
The Employer's contract included the construction
and finishing of these walls. Using a recently devel-
oped type of mortar with fiberglass reinforcing called
BlocBond, the blocks were stacked dry up to the de-
sired height, and the BlocBond applied immediately
thereafter to both sides of the wall and troweled over
the blocks and joints to give the wall its structural
integrity.
First, the Employer built the perimeter wall, using
its employees represented by Bricklayers, to prepare
and stack up the wall and subcontracting to a plas-
tering contractor, whose employees were represented
by Plasterers, the application of both the fiberglass-
reinforced mortar and the finish coat, which matched
the finish coat on all the walls in the project. For the
patio walls the Employer decided instead to use its
employees, represented by Bricklayers, to apply both
mortar coats. Plasterers informed the Employer that
it claimed the work of applying the second coat.
When the Employer refused to accede to this claim,
Plasterers obtained an award of the work from the
Impartial Jurisdictional Disputes Board for the Con-
struction Industry, and, on April 3, 1975, placed a
220 NLRB No. 163
OPERATIVE PLASTERERS ', ETC., LOCAL NO. 394 1075
single picket at the entrance to the jobsite with a sign
saying : "Picktt against Warner Masonry, Inc., for
Violation of the Jurisdictional Dispute Board of
Construction Industry by Plasterers' Union Local
394."
C. Contentions of the Parties
The Employer and Bricklayers contend that the
disputed work should be awarded to employees rep-
resented by Bricklayers on the basis of their collec-
tive-bargaining agreement, the Employer's assign-
ment of the work, economy and efficiency, and
safety. It claims there is no area practice to the con-
trary and no difference between the contending
groups with respect to skills.
Plasterers contends that the work is historically
that of individuals it represents, both in the industry
at large and in the area, that its claim is supported by
agreements between the international unions in-
volved and by the award of the Impartial Jurisdic-
tional Disputes Board, and that even the past prac-
tice of the Employer, on the perimeter wall, was to
use workers it represents. It further contends that no
showing has been made that assignment to Bricklay-
ers employees is more economical and that the supe-
rior skills of Plasterers journeymen would make as-
signment to them more efficient.
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-on method for the voluntary
settlement of the dispute.
The parties stipulated that Plasterers picketed the
Employer in order to get the Employer to reassign
the work in question to it rather than the Bricklayers.
Although Plasterers claims that interunion agree-
ments and the award of the Impartial Board should
control the merits of the dispute, there is no conten-
tion that an agreed-upon method exists for its volun-
tary adjustment. Accordingly, we find that there is
reasonable cause to believe that Section 8(b)(4)(D)
has been violated and that the dispute is properly
before the Board for determination under Section
10(k).
E. Merits of the Dispute
Section 10(k) requires the Board to make an affir-
mative award of the disputed work after giving due
consideration to all relevant factors involved. Our
determination is an act of judgment based on cam-
monsense and experience in the weighing of these
factors.' The following factors are relevant in making
a determination of the dispute before us:
1. Collective-bargaining agreement
At all times pertinent to this dispute the Employer
has had a collective-bargaining agreement with
Bricklayers. The current agreement runs from July 1,
1973 to June 30, 1976. Although the agreement does
not specifically describe the type of work in dispute,
the contracting parties have treated the work as
being covered by the agreement and have abided by
it with regard to the wages and other terms and con-
ditions of employment of those employees perform-
ing that work. The Employer has no collective-bar-
gaining agreement with Plasterers. The existence of
the agreement with Bricklayers thus favors the
Employer's assignment of the work to its Bricklayers
employees.
2. Interunion agreement and Impartial Board award
There is evidence in the record sufficient to sup-
port a finding that the International unions with
which Bricklayers and Plasterers are affiliated have
agreed between themselves that within the State of
Arizona, and elsewhere, the work of a plasterer shall
be within the jursidiction of the Operative Plasterers'
and Cement Masons' International Association,
while in other sections of the country such work shall
be within the jurisdiction of the Bricklayers', Ma-
sons' and Plasterers' International Union? It is un-
disputed that the work in question here is the work of
a plasterer. When the International Association for
the Plasterers' local involved here brought the dis-
pute to the Impartial Jurisdictional Disputes Board,
the Bricklayers' International participated, but the
Employer, which is not bound to the processes of the
Impartial Board, did not. The entire dispositive por-
tion of that board's award memorandum is as fol-
lows:
The Board found that the first coat applied is
mortar adhesive to bond the block together and
that the second coat is a finishing coat and voted
that the first coat (the mortar adhesive coat)
shall be assigned to bricklayers and that the sec-
ond coat (finishing coat) shall be assigned to
plasterers.
'International Association of Machinists, Lodge No 1 743, AFL-CIO (J. A
Jones Construction Company), 135 NRLB 1402 , 1411 (1962).
2 Cf Brick Layers, Masons, and Plasterers, Local No 15 (J. A . Jones Con-
struction Company), 181 NLRB 1092 (1970).
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Despite the putative interunion agreement and the
Impartial Board's award, however, the Bricklayers'
International informed Bricklayers that it supported
the assignment made by the Employer, as the Em-
ployer "is not stipulated to the AFL-CIO Disputes
Bd. decision process and will not abide by its deci-
sions."
The award itself hardly explicated the factors re-
lied on and did not explicate at all the crucial issue of
whether the factors supporting an award to Plasterers
outweigh those supporting the assignment to Brick-
layers employees. Therefore we do not accord to the
award the significant weight that otherwise might at-
tach to it.' Likewise, we do not attach significant
weight to the putative interunion agreement. Not
only have the parties to the instant dispute failed to
agree to abide by it, but the Bricklayers' Internation-
al has sanctioned Bricklayers continued claim to the
work.4
3. Employer, area, and industry practice
Plasterers satisfactorily proved that the type of
work in dispute here, with reference to the materials,
tools, and techniques, is work of plasterers such as
are represented by it and its sister locals of the Inter-
national Association. On an industrywide basis, lo-
cals of both Internationals represent plasterers, and
the employee assigned this work by the Employer,
for instance, is a journeyman plasterer, among other
trades represented by Bricklayers. The area practice
supports Plasterers claim to plastering work in gener-
al, however. Even this Employer subcontracted the
work to a plastering contractor for the perimeter wall
of the project.
But none of this historical assignment is necessari-
ly applicable to the particular work in dispute here,
application of the finish coat on the patio walls. Ap-
plication of the first coat, which for purpose of this
proceeding is undisputably the work of Bricklayers
employees, involves the use of a swimming pool
trowel, which is similar, though not identical, to the
trowel used on the finish coat. Both are plastering
trowels. And when the Employer subcontracted out
the application of both coats on the perimeter wall,
both coats were applied by Plasterers employees.
There is, in effect, no prior area practice of assigning
the application of one mortar coat with plastering
tools to employees represented by one union and the
3 United Association of Journeymen and Apprentices of the Plumbing and
Pipefittmg Industry of the United States and Canada, Plumbers Local No. 219,
AFL-CIO (Price Brothers Company), 174 NLRB 547, 550 ( 1969).
4 See Local 361, International Association of Bridge, Structural and Orna-
mental Iron Workers, AFL-CIO (Concrete Casting Corp.), 209 NLRB 112,
115 (1974).
application of the second coat to employees repre-
sented by a different union. This lack of area practice
seriously undercuts, in our view, Plasterers claims
based on historical practice.
4. Economy, efficiency, and skills
The Employer testified that it decided to use its
own employees to construct and plaster the patio
walls after contracting out the plastering on the per-
imeter wall because of difficulties experienced in
connection with the perimeter wall. Notably, once
the walls were stacked up by the Employer's employ-
ees represented by Bricklayers, it was not always pos-
sible to get the plastering contractor's crew on the job
right away to apply the bonding (fiberglass) coat.
Consequently, some blocks were knocked out of
alignment and had to be realigned before the plas-
tering began. On the patio walls, the Employer's crew
would complete the construction and plastering.
As to the advantage of having one crew responsi-
ble for both the BlocBond and finish coats, the
Employer's contention is essentially that unless the
second coat is applied shortly after the first coat, it is
difficult and more expensive to get the second coat to
bond to the first, but that unless the second-coat
work is allowed to accumulate, there is not enough of
it alone to keep an employee busy. Plasterers dis-
putes the necessity of immediate application of the
second coat, but does not strongly contest the neces-
sity of wetting down the first coat, if it is permitted to
thoroughly dry, before applying the second.
We find it unnecessary to resolve the dispute in the
evidence as to how long the first coat can be permit-
ted to stand before an expensive bonding agent
would have to be mixed into the finish coat. We are
satisfied that completing the entire job with a crew
represented by Bricklayers is more efficient in the
circumstances of this case than hiring an irregular,
casual, or part-time employee represented by Plas-
terers to do the limited work in dispute. We dismiss
as irrelevant Plasterers testimony that a plasterer rep-
resented by it can turn out three times the work of a
bricklayer on this type of work. The employee as-
signed by the Employer to do this work, while repre-
sented by Bricklayers, was a plasterer as well as a
bricklayer by trade.
Conclusion
Upon the record as a whole, and after full consid-
eration of all relevant factors involved, we conclude
that employees of the Employer who are represented
by Bricklayers are entitled to perform the work in
dispute. We find that such assignment of the work by
OPERATIVE PLASTERERS ', ETC., LOCAL NO. 394
the Employer is supported by its collective-bargain-
ing relationship with Bricklayers , by the superior
economy and efficiency of such an assignment, and
by the absence of persuasive factors outweighing
those cited . In making this determination , we are as-
signing the disputed work to the employees of the
Employer who are currently represented by Bricklay-
ers, but not to that union or its members.
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 makes
the following Determination of Dispute:
1. Employees employed by Warner Masonry,
Inc., who are represented by Bricklayers', Masons'
and Plasterers ' International Union, Local No. 3,
AFL-CIO, are entitled to perform the work in dis-
pute which consists of application of the finish coat
1077
of mortar on the patio walls of homes at the Village
construction project located at 44th- Street at Cam-
elback Road, Phoenix, Arizona.
2. Operative Plasterers' and Cement Masons' In-
ternational Association, Local No. 394, 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, Warner Masonry, Inc., to assign the
above work to its members or employees it repre-
sents.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Operative Plasterers'
and Cement Masons' International Association, Lo-
cal No. 394, AFL-CIO, shall notify the Regional Di-
rector for Region 28, in writing, whether or not it will
refrain from forcing or requiring Warner Masonry,
Inc., by means proscribed by Section 8(b)(4)(D), to
assign the work in dispute to individuals represented
by it rather than to employees represented by Brick-
layers', Masons' and Plasterers' International Union,
Local No. 3, AFL-CIO.