Operative Plasterers, Local Union No. 21

National Labor Relations Board - Board Decisions

Jun 16, 1975

218 N.L.R.B. 512 (N.L.R.B. 1975)

512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Operative Plasterers and Cement Masons Internation-
al Association, Local Union No. 21 and Universal
Terrazzo & Tile Co.' and Bricklayers, Masons and
Plasterers Union of America, Local No. 1. Case
18-CD-179
June 16, 1975
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, follow-
ing a charge filed by Universal Terrazzo & Tile Co.,
herein called Employer, alleging that Operative
Plasterers and Cement Masons International Associ-
ation, Local Union No. 21, herein called Cement
Masons, 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 Cement Masons
rather than to employees represented by Bricklayers,
Masons and Plasterers Union of America, Local No.
1, herein called Bricklayers Local 1.
Pursuant to notice, a hearing was held before
Hearing Officer Janies P. Miller on March 12 and 13,
1975. All parties, including the Employer, Cement
Masons, and Bricklayers Local 1,2 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 Cement Masons filed briefs.
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 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 case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we fmd, that the
Employer, a Nebraska corporation with its principal
office in Omaha, Nebraska, is a subcontractor of
terrazzo tile, marble, and specialty floor coverings.
The Employer presently has a subcontract with
Thompson-Klinger in excess of $140,000 for the
1 The name of the Charging Party appears as amended at the hearing.
2 Also appearing at the hearing were the following parties in interest:
James Thompson & Sons, Inc. and W . A. Klinger, Inc., a Joint Venture,
herein called Thompson-Klinger, is the general contractor who subcontract-
ed the work in dispute to the Employer. It was represented at the hearing by
218 NLRB No. 96
installation of terrazzo and seamless floors at the
Veterinary Medicine Facilities, Iowa State Universi-
ty, Ames, Iowa. During the past year, which is a
representative period, the Employer received at its
Ames, Iowa, jobsite goods shipped to it from points
located directly outside the State of Iowa valued in
excess of $50,000. 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 purposes of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find, that Cement
Masons , Bricklayers Local 1, and Bricklayers Local
27 are labor organizations within the meaning of
Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts
The following facts are undisputed. On January 30,
1973, the Employer entered into a subcontract
agreement with general contractor Thompson-Kling-
er for the installation of terrazzo and seamless floors
at the Veterinary Medicine Facilities, Iowa State
University, Ames, Iowa, herein called the Ames
Project. Thereafter, the Employer assigned the work
of installing the conductive and seamless flooring
(the terrazzo flooring work is not involved in this
proceeding) to its own employees represented by
Bricklayers Local 1. Prior to the commencement of
work, the Employer contacted Bricklayers Local 27,
which has jurisdiction over the geographic area in
which the Ames jobsite is located, with respect to the
availability of qualified workmen. Upon being
informed that there were no members of Bricklayers
Local 27 qualified to install conductive and seamless
flooring, an agreement was reached between the two
Bricklayers locals whereby employees represented by
Local 1 could work for the Employer on the project.
The Employer began installing the conductive and
seamless flooring at the Ames Project during the first
week of February 1975. On or about February 10
and 12, 1975, Carl Osterhoudt, business agent for
Cement Masons, made claims for this work during
meetings attended by representatives of the parties
involved in this proceeding. On February 17,
Osterhoudt placed a picket at the main entrance to
the jobsite with a sign which read, "Universal
Terrazzo & Tile subcontractor has no contract with
the attorney representing the Employer . Bricklayers, Masons and Plasterers
Union of America, Local No. 27, herein called Bricklayers Local 27, is the
Bricklayers local which has jurisdiction over the geographic location of the
disputed work . It was represented at the hearing by the individuals
representing Bricklayers Local I.
OPERATIVE PLASTERERS, LOCAL UNION NO. 21 513
Cement Masons Local 21, 1501 East Aurora, Des
Moines." This picket with the above sign remained at
the jobsite during the regular workday on February
17 and 18, 1975. On February 19, Osterhoudt
changed the picket sign to read, "Thompson and
Sons Construction Company, in violation of agree-
ment, Cement Masons Local 21, 1501 East Aurora."
This picket was removed on February 19 at approxi-
mately 9:30 a.m., and Cement Masons has not
engaged in any further picketing at the jobsite.
During the picketing, employees of other Ames
Project subcontractors did not perform their assigned
work.
On February 19, 1975, the charge in the instant
case was filed. The work in dispute had not been
completed at the time of the hearing.
B. The Work in Dispute
The work in dispute consists of the installation of
the conductive and seamless flooring at the Veteri-
nary Medicine Facilities, Iowa State University,
Ames, Iowa, phases I and II.
C. Contentions of the Parties
Cement Masons contends that this proceeding is
not properly before the Board. Specifically, Cement
Masons argues that, in view of the fact that the
Unions involved in this proceeding, through their
respective Internationals, are bound to submit
jurisdictional disputes to the Impartial Jurisdictional
Disputes Board for the Construction Industry, herein
called the Impartial Jurisdictional Disputes Board,
the parties have provided a means for the private
settlement of this dispute. Therefore, it asserts that
this Board should not determine the instant dispute,
but should defer to the procedures established by the
Unions involved for the settlement of such disputes.
Alternatively, Cement Masons claims the work on
the basis of area and industry practice and on certain
decisions by various dispute settlement bodies in the
construction industry, herein collectively referred to
as Impartial Board determinations.
The Employer and Bricklayers Local 1 contend
that there is no agreed-upon method for the
voluntary settlement of the instant dispute to which
all parties are bound. As to the merits of the dispute,
they assert that the Employer's assignment of the
work to employees represented by Bricklayers Local
1 is consistent with their collective-bargaining agree-
ment, the past practice of the Employer, and area
practice, and is further supported by considerations
of skills, efficiency, and economy of operations.
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 settlement of the dispute.
As stated above, it is uncontroverted that Cement
Masons demanded the disputed work and picketed
the jobsite in support of its demand. Based on the
foregoing and the record as a whole, we fmd that an
object of Cement Masons picketing was to force or
require the Employer to assign the disputed work to
employees represented by it rather than to employees
represented by Bricklayers Local 1. Accordingly, we
fmd that reasonable cause exists to believe that
Cement Masons violated Section 8(bx4)(D) of the
Act.
We find no merit in Cement Masons contention
that the parties have provided a means for the
voluntary settlement of this dispute. The parties
stipulated, and we find, that the Employer is not
bound to submit this dispute to the Impartial
Jurisdictional Disputes Board for settlement. There-
fore, the fact that the Unions involved have agreed
upon a method for settlement of the dispute does not
compel the Board to dismiss this proceeding, as it is
now well settled that the employer controlling the
assignment of the work is a necessary "party" to the
dispute and must agree to the method of adjustment
of the dispute to satisfy the requirements of Section
10(k) of the Act .3
It is clear from the foregoing, and we fmd, that at
the time of the instant dispute 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
properly 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 the disputed work after
giving due consideration to various relevant factors.
1. Certification and collective-bargaining
agreements
Neither of the labor organizations herein involved
has been certified as the collective-bargaining repre-
sentative for a unit of the Employer's employees. The
Employer has no collective-bargaining agreement
with Cement Masons. Although the Employer has a
current collective-bargaining agreement with Brick-
layers Local 1, it does not specifically cover the work
3 N.L.RB. v. Plasterers Local Union No. 79, Operative Plasterers' and
Cement Masons' International Association, AFL-CIO, 404 U.S. 116 (1971).
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in dispute. The factors of certification and collective-
bargaining agreements, therefore, are not helpful to a
determination.
2. Employer's assignment and practice
It is undisputed that the Employer, for the past 10
or 15 years, has consistently assigned the work in
dispute to its employees represented by Bricklayers
Local 1. The Employer's practice, therefore, favors
the Employer's assignment.
3. Area and industry practice
The Employer introduced into evidence a list of
construction projects in Iowa, Nebraska, and South
Dakota at which its employees represented by
Bricklayers Local 1 installed special flooring similar
to the conductive and seamless flooring required on
the Ames Project. Similarly, Cement Masons submit-
ted a list of projects covering the States of Minneso-
ta, Wisconsin, North Dakota, South Dakota, and
Iowa at which employees of the cement masons trade
performed various types of special flooring work.
Additionally, Cement Masons presented testimony
that employees represented by it have installed
seamless flooring at several jobsites within its
jurisdiction. The evidence relating to area and
industry practice is, therefore, inconclusive.
4. Relative skills, efficiency, and economy of
operations
Although both groups of employees are generally
skilled in the installation of special flooring, the
record reveals that the process is extremely complex
and there are significant differences in the various
types of products used. The particular flooring
product being utilized by the Employer on the Ames
Project is "Selbatuf ' manufactured by Selby, Batters-
by and Company of Philadelphia, Pennsylvania,
herein called Selby or Selby product. The Employer's
exclusive franchise agreement with Selby, Battersby
and Company requires that employees installing and
applying the Selby product receive specialized
training from the manufacturer. The Employer
presented testimony that the flooring work on the
Ames Project is being performed by three of its
employees represented by Bricklayers Local 1 who
have received this specialized training at an approxi-
mate cost to the Employer of $1,200 per man. It is
undisputed that employees represented by Cement
Masons have not been schooled or trained by the
manufacturer in the application of the Selby product.
4 The decision was so referred to because it is contained on p. 121 of a
green booklet approved by the Building and Construction Trades
Department, AFL--CIO, entitled "Plan for the Settlement of Jurisdictional
The factor of relative skills, therefore, favors the
Employer's assignment.
The Employer urges that factors of economy and
efficiency of operations support its assignment. Thus,
the three specially skilled employees represented by
Bricklayers Local 1 are maintained on the Employ-
er's payroll throughout the year and are readily
available to work at various jobsites of the Employer
in Iowa and Nebraska. Furthermore, the Employer
presented testimony that it would be prohibitively
expensive to train workers in the application of the
Selby product each time it has a project in a new
locality. Since the record does not establish that it
would be at least as economical to utilize employees
represented by Cement Masons, we fmd that the
factors of efficiency and economy of operations
favor the Employer's assignment.
5. Impartial Board determinations
Cement Masons contends that decisions of the
Impartial Jurisdictional Disputes Board and the
former National Joint Board for the Settlement of
Jurisdictional Disputes favor awarding the disputed
work to employees represented by it. Cement
Masons introduced into evidence several such
awards pertaining to the installation of seamless
flooring. In addition, Cement Masons places particu-
lar reliance on a 1926 decision of the National Board
for Jurisdictional Awards in the Building Industry,
generally referred to by the parties as the "green
book decision." 4 The record reveals, however, that
the use of chemical products, such as Selby, in
flooring processes is a development of only the past
20 years and therefore it is unlikely that such
products were contemplated at the time of the 1926
decision. The Employer and Bricklayers Local 1
contend that the several Impartial Board awards
have no bearing upon the issue at hand because they
involve work which is not completely comparable to
the work herein and because they involve parties who
did not participate in the dispute, were not bound by
the decision, and are different from the ones in the
instant case.
Although we have considered such awards a factor
in determining the proper assignment of the disputed
work, we fmd that the awards submitted in, evidence
by Cement Masons are neither binding on the
Employer nor determinative of area or national
practice.
Disputes in the Construction Industry ." The decision involved the
Internationals of the Unions who are here involved and is entitled "Placing
of Trap Rock Floors by Terrazzo Methods."
OPERATIVE PLASTERERS, LOCAL UNION NO. 21 515
Conclusion
Upon the record as a whole, and after full
consideration of all relevant factors involved, we
conclude that the Employer's employees represented
by Bricklayers Local 1 are entitled to perform the
work in dispute. We reach this conclusion upon the
facts that the assignment is consistent with the
Employer's preference and past practice; it is not
clearly inconsistent with area practice or the Employ-
er's collective-bargaining agreement with Bricklayers
Local 1; the employees represented by Bricklayers
Local I possess the requisite skills and specialized
training needed to perform the work; and such
assignment will result in greater efficiency and
economy of operations. Accordingly, we shall deter-
mine the dispute before us by awarding the work in
dispute to the Employer's employees represented by
Bricklayers Local 1, but not to that Union or its
members . In consequence, we also find that Cement
Masons 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
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Employees of Universal Terrazzo & Tile Co.
who are currently represented by Bricklayers, Ma-
sons and Plasterers Union of America, Local No. 1,
are entitled to perform the work of installing the
conductive and seamless flooring at the Veterinary
Medicine Facilities, Iowa State University, Ames,
Iowa, phases I and' II.
2. Operative Plasterers and Cement Masons
International Association, Local Union No. 21, is
not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force or require Universal
Terrazzo & Tile Co. to assign the above work -to
employees represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Operative Plasterers
and Cement Masons International Association,
Local Union No. 21, 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 Cement Masons rather than to
employees represented by Bricklayers Local 1.