Operative Plasterers', Local 179

National Labor Relations Board - Board Decisions

Dec 1, 1971

194 N.L.R.B. 403 (N.L.R.B. 1971)

OPERATIVE PLASTERERS', LOCAL 179
Operative Plasterers ' and Cement Masons Internation-
al Association of, the United, States and Canada,
Local 179, AFL-CIO and The Bertolini Bros. Co.
Case 8-CD 218
December 1, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by The Bertolini Bros. Co., hereinafter
called the Employer, alleging that Operative Plaster-
ers' and Cement Masons International Association of
the United States and Canada, Local 179, AFL-CIO,
hereinafter called the Plasterers, had violated Section
8(b)(4)(D) of the Act. A hearing was held pursuant to
notice at Youngstown, Ohio, on September 8, 1971,
before Hearing Officer Lester B. Slate. The Employer,
the Plasterers, and Bricklayers, Masons, Terrazzo and
Tile Setters International Union, Local No. 8 Ohio,
hereinafter called the Bricklayers, 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. No briefs
were filed.
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 rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, the Board makes
the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer, The Bertolini Bros. Co., is an Ohio
corporation with its main office in Youngstown, Ohio,
where it is engaged in the application of marble, tile,
terrazzo, and decorative finishes. The Employer
annually receives in excess of $700,000 for such work
in the Youngstown area. Since the beginning of the
work involved in the instant dispute, the Employer
has received goods valued in excess of $50,000
directly from points located outside the State of Ohio.
We find, in agreement with the parties, 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 assertjurisdiction
herein.
II. THE LABOR ORGANIZATIONS INVOLVED
403
The parties agree, and we find, that the Plasterers
and the 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 involves the application of
epoxy to the walls of the Youngstown University
Physical Education Building, currently under con-
struction, at Youngstown, Ohio, and the seeding
therein of marble chips, also known as aggregate.
Employees of the Employer represented by the
Bricklayers currently perform this work, which the
Plasterers now claims. In performing this work, the
Employer's employees represented by the Bricklayers
work hand in hand with its employees represented by
International Association of Marble, Slate, Stone
Polishers, Rubbers, Sawyers, Tile, Marble and Terraz-
zo Helpers, Local Union No. 44, not a party to this
proceeding. In so doing, the employees represented by
the Bricklayers also known as mechanics, work
together with employees represented by the Stone
Polishers on a one-to-one basis. The helper prepares
the mix, known as epoxy, and the mechanic applies it
with a trowel and performs any required seeding,
which entails the manual insertion of marble chips in
the epoxy.
B. Background of the Dispute
The Employer is affiliated with The Mahoning
Valley Tile Contractors, herein called Mahoning
Valley, which in turn is affiliated with Builders
Association of Eastern Ohio and Western Pennsylva-
nia, herein called Builders Association. For the past 5
years, the Employer has been engaged in epoxy
application, a relatively new field in the area of
decorative finishes. At the instant jobsite, the Em-
ployer operates as a subcontractor for J. J. Coffey,
herein called Coffey, which in turn is a plastering
subcontractor for Joseph J. Bucheit Company, herein
called Bucheit, the general contractor. The Employ-
er's assignment of the disputed work to employees
represented by the Bricklayers is pursuant to a
collective-bargaining contract, effective from May 1,
1970, to April 30, 1973, between the Bricklayers, on
the one hand, and Mahoning Valley in behalf of
Builders Association and its members, on the other.
The Employer assisted in negotiating the contract and
separately signed it. The pertinent language of the
contract relative to the work assignment is set forth
below.
194 NLRB No. 61
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Work Stoppage
On October 23, 1970, the National Joint Board for
the Settlement of Jurisdictional Disputes awarded the
stuccoing of the exterior of the Youngstown Universi-
ty Physical Education Building, which it alleged to be
in dispute, to the Plasterers. On June 21, 1-971, at a
meeting attended by the Bricklayers, the Plasterers,
Bucheit, and Coffey, but not by the Employer, the
Plasterers, on the basis 'of the National Joint Board
award, asked the Bricklayers for the assignment of the
work in dispute, but was refused. On June 22 and 23,
the Plasterers picketed the jobsite with the following
sign:
THE BERTOLINI BROS. CO. DOES NOT
ABIDE BY NATIONAL JOINT BOARD'S
JURISDICTIONAL JOB DECISION
During the picketing, several workers other than
Bricklayers, including cement finishers, laborers, and
sheet metal workers, refused to cross the picket line.
D. Contentions of the Parties
The Plasterers contends that its members are
entitled to the work in dispute on the basis of the
National Joint Board award. The Bricklayers and the
Employer, relying on past practice and their current
contract, contend that the work in dispute belongs to
employees represented by the Bricklayers. The Em-
ployer additionally contends that it is not subject to
the jurisdiction of the National Joint Board, and that
the National Joint Board's award of the work in
dispute to the Plasterers is therefore of no effect.
E. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is a reasonable cause to
believe that Section 8(b)(4)(D) has been violated. It is
undisputed that on June 22 and 23, 1971, the
Plasterers caused a work stoppage at the Employer's
jobsite because the work in dispute had not been
assigned to employees represented by the Plasterers.
The Plasterers contends that the National Joint
Board award operates as a bar to a determination of
the dispute under Section 10(k) of the Act. We find
the contention without merit, absent evidence that the
Employer or Builders Association or Mahoning
Valley, with which' the Employer is affiliated, are
subject to the National Joint Board's jurisdiction.'
Accordingly, we conclude that there is 'reasonable
1 In so holding, we respectfully disagree with the majority opinion of the
District of Columbia Court of Appeals, as announced in Plasterers Local
Union No 79 v N LR B. (Southwestern Construction Co), 440 F.2d 174
(1970) setting aside 172 NLRB No 171, cert granted 401 U S. 973 (1971)
Lathers Union Local 104, The Wood Wire and Metal Lathers International
Union, AFL-CIO (The Elaine Petty Company), 186 NLRB No 70.
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 under Section 10(k) of
the Act.2
F. 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
following are the factors relied on by the parties to the
dispute in support of their respective claims:
1. Collective-bargaining contracts
The current contract between the Bricklayers and
the Employer, as an affiliate of Mahoning Valley and
Builders Association, assigns the following work to
employees represented by the Bricklayers:
All bedding for preparation, laying or setting of
the metal or wooden strips and grounds where
mosaic and terrazzo is to be applied, or any
substitute that is applied under the same method
as mosaic or terrazzo, shall be the work of the
mosaic and terrazzo workers. All terrazzo finished
(rustic) or rough washed for interior or exterior of
building, or any substitute that is applied under
the same method as mosaic or terrazzo, shall be set
by mosaic and terrazzo workers. All formulated
resinous decorative architectural finishes shall also
come under this section . [Emphasis supplied.]
2. Company, area, and industry practice
The Employer has engaged in epoxy application for
the past 5 years, employing employees represented by
the Bricklayers for this work. Within the Youngstown
area; the Employer has made several work assign-
ments to the Bricklayers involving work essentially
similar to the work in dispute. According to evidence
submitted by the Plasterers, Ostrum Corp., a subcon-
tractor for Coffey, has assigned epoxy-type work in
Ohio and Pennsylvania, to the Plasterers, and the
Plasterers are performing epoxy work in other parts of
the United States.
3. Employee training and skills and
efficiency of operations
The Employer's epoxy work is performed under the
general supervision of H. B. Fuller, with whom the
Employer has an exclusive franchise for its use, and
who occasionally sends one of its representatives to a
2 In view of our determination herein, we find it unnecessary to resolve
conflicting evidence as to whether the term "stucco " properly embraces the
term "epoxy," or whether, as the Employer contends the National Joint
Board award was a nullity because it allegedly issued before the
Employer's assignment of the work in dispute.
OPERATIVE PLASTERERS', LOCAL 179
given jobsite on which the Employer is working in
order to ensure the proper application of the epoxy.
Evidence submitted by the Employer indicates that
the epoxy application work at the instant jobsite can
be performed more efficiently by utilizing employees
represented by the Bricklayers, in view of their greater
familiarity and experience with its application. It
takes approximately 2 to 3 weeks for a mechanic to
learn to apply epoxy under expert supervision, and it
may take up to 6 months of training before a
mechanic can complete a job independent of any
supervision. The Bricklayers has several training
programs covering the disputed work. The Plasterers
introduced evidence that it is operating a job corps
training program in seven centers throughout the
United States, that the training is of approximately 1
year's duration, and that one phase of the training is
the application of epoxy.
Conclusions
Upon the record as a whole, and after full
consideration of all relevant factors involved, includ-
ing the current contract which in effect assigns the
work in dispute-to the Employer's employees repre-
sented by the Bricklayers, the absence of a counter-
vailing contract or assignment thereof to members of
the Plasterers, and evidence indicating that the
employees represented by the Bricklayers are well
trained to perform this work and do so in an efficient,
economical, and satisfactory manner, we conclude
that the Employer's assignment of the work in dispute
to employees represented by the Bricklayers should
not be disturbed. We shall therefore determine the
dispute before us by awarding the work of applying
epoxy and marble chips to the Youngstown Universi-
405
ty Physical Education Building to the employees
represented by the Bricklayers, but not to that Union
or its members. This determination is limited to the
particular controversy giving rise to this dispute.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings, the National Labor Relations
Board hereby makes the following determination of
dispute:
1. Employees represented by Bricklayers, Masons,
Terrazzo and Tile Setters International Union, Local
No. 8 Ohio, are entitled to perform the work of
applying epoxy and marble chips to the Youngstown
University Physical Education Building, at Youngs-
town, Ohio.
2. Operative Plasterers' and Cement Masons
International Association of the United States and
Canada, Local 179, 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 Bertolini
Bros. Co. to assign the above work to employees that
it represents.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Operative Plasterers'
and Cement Masons International Association of the
United States and Canada, Local 179, AFL-CIO,
shall notify the Regional Director for Region 8, in
writing, whether they will or will not refrain from
forcing or requiring The Bertolini Bros. Co., by means
proscribed by Section 8(b)(4)(D), to assign the work
in dispute to employees represented by the Plasterers
rather than to employees represented by the Bricklay-
ers.