Plasterers Local 233 (Strescon Industries)

National Labor Relations Board - Board Decisions

Jan 27, 1984

268 N.L.R.B. 665 (N.L.R.B. 1984)

PLASTERERS LOCAL 233 (STRESCON INDUSTRIES)
Local 233, Operative Plasterers and Cement
Masons, International Association of the United
States and Canada, AFL-CIO-CLC and Stres-
con Industries, Inc. and International Union of
Bricklayers and Allied Craftsmen, AFL-CIO,
and Laborers International Union of North
America, AFL-CIO. Case 4-CD-598
27 January 1984
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, herein
called the Act, following a charge filed by Stres-
con Industries, Inc., herein called the Employer, al-
leging that Local 233, Operative Plasterers and
Cement Masons, International Association of the
United States and Canada, AFL-CIO-CLC, herein
called Cement Masons, had violated Section
8(b)(4)(D) of the Act by engaging in certain pro-
scribed activity with an object of forcing or requir-
ing the Employer to assign certain work to its
members rather than to employees represented by
International Union of Bricklayers and Allied
Craftsmen, AFL-CIO, herein called Bricklayers,
and by Laborers International Union of North
America, AFL-CIO, herein called Laborers.
Pursuant to notice, a hearing was held before
Hearing Officer David Faye on 15 July 1983.1 The
Employer, Cement Masons, Bricklayers, and La-
borers appeared and were afforded full opportunity
to be heard, to examine and cross-examine wit-
nesses, and to adduce evidence bearing on the
issues. At the hearing, the parties stipulated that
the record in Plasterers Local 233 (Strescon Indus-
tries), Cases 4-CD-569 and 4-CD-592,2 be incor-
porated as part of the record in this matter. Indeed,
apart from the record in the foregoing proceeding,
the parties presented no evidence pertaining to the
merits of the instant dispute.
The National Labor Relations Board has delegat-
ed 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. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings.
i All dates hereinafter are in 1983 unless noted otherwise.
2267 NLRB 724 (1983.)
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer, a Maryland corporation with its principal
place of business located in Baltimore, Maryland, is
engaged in the business of manufacturing and
erecting prestressed and precast concrete products.
During the preceding 12 months, a representative
period, the Employer performed services in excess
of $50,000 directly to customers outside the State
of Maryland. We find that the Employer is en-
gaged 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 jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Cement
Masons, Laborers, and Bricklayers are labor orga-
nizations within the meaning of Section 2(5) of the
Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
At all times material herein, the Employer has
been engaged as a subcontractor, under a contract
to Alvin H. Butz, general contractor, to manufac-
ture and install hollow core concrete planks in the
contruction of the Phoebe Terrace Life Care
Center in Allentown, Pennsylvania, herein called
the Phoebe Terrace jobsite. On a date not specified
in the record, the Employer hired seven employees
to perform this work, including three employees in
job classifications as bricklayers, two as laborers,
and two as operating engineers. On or about 31
May, performance of grouting work began. As of
the date of the hearing, 80 percent of the grouting
work had been completed. The parties anticipated
that the grouting work would be completed within
approximately 2 weeks. Patching work had not yet
begun as of the date of the hearing, but the parties
anticipated that the patching work would begin on
or about 15 September. It is unknown when the
patching work will be completed. On either 31
May or 1 June, Cement Masons learned that it did
not receive the assignment of the work in dispute.
The parties stipulated that the work remains in dis-
pute.
The parties stipulated for purposes of the instant
proceeding only that, on or about 26 May and on
or about 2 June, Cement Masons threatened the
Employer with picketing at the Phoebe Terrace
jobsite if the Employer failed and refused to reas-
sign the disputed work to individuals who are
members of, or represented by, Cement Masons,
and that, on or about 27 June, Cement Masons en-
268 NLRB No. 99
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaged in picketing at the Phoebe Terrace jobsite.3
The parties further stipulated for purposes of the
instant proceeding only that an object of Cement
Masons' conduct was and is to force or require the
Employer to assign the disputed grouting and
patching work of hollow core concrete panels at
the Phoebe Terrace jobsite to employees who are
members of, or are represented by, Cement Masons
rather than to employees who are members of, or
are represented by, another labor organization, and
there is reasonable cause to believe that Section
8(b)(4)(D) of the Act has been violated.
B. The Work in Dispute
The work in dispute involves the grouting and
patching of hollow core concrete planks for Stres-
con Industries at the Phoebe Terrace Life Care
Center construction site in Allentown, Pennsylva-
nia.
C. Contentions of the Parties
As contended previously in Cases 4-CD-569 and
4-CD-592, the Employer asserts that its assignment
of the work in dispute to employees represented by
Bricklayers and Laborers is supported by the gov-
erning collective-bargaining agreement and its past
practice of assigning the grouting and patching
work to employees represented by Bricklayers and
Laborers. The Employer asserts further that, by
virtue of their past experience performing the dis-
puted work, bricklayers and laborers have acquired
superior skills. Finally, the Employer argues that
bricklayers and laborers will perform the disputed
work more economically and efficiently.
Cement Masons contends that area practice sup-
ports an award of the disputed work to employees
it represents. Cement Masons also takes the posi-
tion that its members possess the skills necessary to
perform the disputed work. Cement Masons main-
tains that its dispute is with Bricklayers only.
Bricklayers and Laborers take the position that
their collective-bargaining agreement with the Em-
ployer entitles their members to the disputed work,
and that the specific provision of that agreement
treating the disputed work assigns it to members of
their Unions as one unit.
3 On 17 June, as amended on 30 June, the Acting Regional Director
for Region 4 filed a petition under Sec. 10(l) of the Act with the U.S.
District Court for the Eastern District of Pennsylvania seeking an injunc-
tion against certain conduct of Cement Masons pertaining to the grouting
and patching work at the Phoebe Terrace jobsite. On 7 July, the court
granted the injunction ordering Cement Masons to refrain, inter alia,
from picketing or threatening to picket at the Phoebe Terrace jobsite for
an object proscribed under the Act.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the 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 the parties have not agreed upon
a method for the voluntary adjustment of the dis-
pute.
It is clear from the record summarized above
that Cement Masons claimed the work in dispute
and threatened to picket and did in fact picket the
Phoebe Terrace jobsite with the object of forcing
the reassignment of work from employees repre-
sented by another labor organization to employees
represented by Cement Masons. Indeed, the parties
stipulated that there is reasonable cause to believe
that Section 8(b)(4)(D) has been violated.
In addition, the parties stipulated that there is no
agreed-upon method for the voluntary adjustment
of the work in dispute which would bind all par-
ties.
On the basis of the entire record, we conclude
that there is reasonable cause to believe that a vio-
lation of Section 8(b)(4)(D) has occurred and that
there exists no agreed-upon method for the volun-
tary adjustment of the dispute within the meaning
of Section 10(k) of the Act. Accordingly, we find
that this dispute 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 disputed work after
giving due consideration to various factors.4 The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on com-
monsense and experience reached by balancing
those factors involved in a particular case. 5
The following factors are relevant in making the
determination of the dispute before us.
1. Collective-bargaining agreements
The record contains a collective-bargaining
agreement entered into on 10 April 1962 between
the Employer's predecessor, Baltimore Concrete
Plant Corporation, and International Hod Carriers'
Building and Common Laborers' Union of Amer-
ica, AFL-CIO, and Bricklayers, Masons and Plas-
terers International Union of America, the prede-
cessors of Laborers and Bricklayers, respectively.
4 NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcast-
ing), 364 U.S. 573 (1961).
5 Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402
(1962).
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PLASTERERS LOCAL 233 (STRESCON INDUSTRIES)
This agreement specifically discusses the work in
dispute. Article IV provides in relevant part:
It is agreed that Laborers will unload, handle,
and place precast, prestressed masonry prod-
ucts. Setting, plumbing, leveling, aligning,
pointing, caulking, and grouting and anchoring
by any and all means shall be the work of the
bricklayers with laborers tending.
Both Laborers and the Employer assert that article
IV constitutes a joint assignment of the disputed
work to employees represented by Bricklayers and
Laborers. Joe Erickson, the Employer's operations
manager for northern and southern division, testi-
fied in Cases 4-CD-569 and 4-CD-592 that the
Employer has assigned grouting and patching work
in accordance with the terms of this agreement,
that is, to bricklayers and laborers jointly, since he
began working for the Employer in 1973. Erickson
further testified that the Employer has never had a
contract with Cement Masons.
We conclude that the Employer's agreement
with Bricklayers and Laborers favors an award of
the disputed work to employees represented by
those two unions.
2. Employer's preference and past practice
The Employer assigned the work in dispute to
employees working in job classifications as brick-
layers and laborers. The record reveals that the
Employer is satisfied with, and maintains a prefer-
ence for, this assignment.
Erickson testified in Cases 4-CD-569 and 4-
CD-592 that it has been the Employer's consistent
practice to assign grouting and patching work to a
composite crew of bricklayers and laborers hired
out of Baltimore. Erickson testified that most of
the employees who perform such work for the Em-
ployer are long-term employees. He testified that
the bricklayers who are members of this crew have
worked for the Employer on the average of 15
years.
Since the Employer operates a multistate oper-
ation, it frequently assigns grouting and patching
work to its crew of bricklayers and laborers, even
though it is beyond the jurisdiction of the employ-
ees' local hiring hall. When such an assignment is
made, the agreement discussed, supra, provides that
the Employer's employees will receive the same
wages and conditions of employment as those in
effect for members of the union in the locality in
which they are working. In addition, the Employer
will sometimes supplement its standard crew with
employees referred by the local hiring hall.
We conclude that the factors of the Employer's
preference and past practice support an award of
the disputed work to employees represented by
Bricklayers and Laborers.
3. Economy and efficiency of operations
Because the Employer regularly employs a com-
posite crew consisting essentially of laborers and
bricklayers whom it has hired in the past, that
composite crew is able to work in an integrated
and interchangeable fashion on the various phases
of grouting and patching work. The record also
discloses that this composite crew is able to per-
form other tasks in addition to the disputed work,
which prevents the expense of "idle time." Thus,
the composite crew of laborers and bricklayers en-
hances both the efficiency and economy of oper-
ations in the present dispute.
Although cement masons possess the requisite
skills to perform the disputed work, they did not
demonstrate the flexibility, versatility, and experi-
ence with the Employer's operations which the
composite crew affords the Employer.
Accordingly, the factor of economy and efficien-
cy of operations tends to favor an award of the dis-
puted work to employees represented by Bricklay-
ers and Laborers.
4. Area practice
Erickson testified in Cases 4-CD-569 and 4-
CD-592 that the Employer had performed grout-
ing and patching work in the Allentown area in the
past and that on those occasions the Employer had
employed bricklayers and laborers. Erickson, how-
ever, was unable to specify a particular project by
name or date.
Harry Good, business agent for Cement Masons,
testified in that proceeding that employees repre-
sented by Cement Masons historically have per-
formed all grouting and patching work performed
within the Allentown area. He based his testimony
on Cement Masons' constitution and his personal
observations. Jerome Gearhart, president of
Cement Masons Local 233, also testified in Cases
4-CD-569 and 4-CD-592 that the traditional prac-
tice in the Allentown area is to assign grouting and
patching work to employees represented by
Cement Masons. Both Good and Gearhart speci-
fied sites in the Allentown area where cement
masons (including themselves) had performed
grouting and patching work. In addition, Good tes-
tified that he had never seen a bricklayer perform-
ing such work.
Although there is conflicting testimony, we find
that the evidence regarding this factor tends to
667
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
support an award of the disputed work to employ-
ees represented by Cement Masons.6
5. Relative skills
The record establishes that no special skills are
required to perform grouting and patching work
and that either group of employees possesses the
requisite skills to perform such work. We therefore
find that this factor is inconclusive and does not
favor an award to employees represented by any of
the Unions involved.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that consistent with our award in Cases 4-
CD-459 and 4-CD-592, employees who are repre-
sented by Bricklayers and Laborers are entitled to
perform the work in dispute. Members of these
two Unions are skilled in performing the disputed
work and are familiar with the Employer's mode of
operation. The assignment of work to bricklayers
and laborers reflects the Employer's agreement
with Bricklayers and Laborers as well as its past
practice of at least 10 years. Such an assignment
also results in a more efficient operation. Although
area practice, normally accorded great weight in
construction industry cases,7 does tend to favor an
award to employees represented by Cement
Masons, we note that it is the only factor favoring
such an award. Moreover, given the conflict in tes-
timony and lack of documentary evidence, the
record in the instant case does not establish the
well-defined area practice which we ordinarily are
reluctant to disturb. Accordingly, we find that area
practice fails to offset the other relevant factors
considered in this case;8 indeed, those factors, to-
s None of the parties introduced documentary evidence to support its
position.
I See Carpenters Local 171 (Knowlton Construction), 207 NLRB 406
(1973).
8 In Carpenters Local 171, supra, employer preference was the only
factor in conflict with what was determined in that case to be a well-
defined area practice.
gether with the record evidence that the Employ-
er's composite crew routinely moves from jobsite
to jobsite within a multistate area, clearly favor an
award to employees represented by Bricklayers and
Laborers. In making this determination we are
awarding the work in question to employees repre-
sented by Bricklayers and Laborers but not to
those Unions or their members. The present deter-
mination is limited to the particular controversy
which gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. Employees of Strescon Industries, Inc., who
are represented by International Union of Bricklay-
ers and Allied Craftsmen, AFL-CIO, and by La-
borers International Union of North America,
AFL-CIO, are entitled to perform the grouting
and patching of hollow core concrete planks at the
Phoebe Terrace Life Care Center construction site
located in Allentown, Pennsylvania.
2. Local 233, Operative Plasterers and Cement
Masons, International Association of the United
States and Canada, AFL-CIO-CLC, is not entitled
by means proscribed by Section 8(b)(4XD) of the
Act to force or require Strescon Industries, Inc., to
assign the disputed work to employees represented
by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local 233, Opera-
tive Plasterers and Cement Masons, International
Association of the United States and Canada,
AFL-CIO-CLC, shall notify the Regional Direc-
tor for Region 4, 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 disputed work in a manner inconsist-
ent with the above determination.
668