Plasterers Local 262 (JJC Stucco)

National Labor Relations Board - Board Decisions

Jul 15, 2009

354 N.L.R.B. 349 (N.L.R.B. 2009)

354 NLRB No. 47
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Operative Plasterers’ & Cement Masons’ Interna-
tional Association, Local 262 and JJC Stucco
and Carpentry Corp./Sessa Plastering Corp. and
International Union of Bricklayers & Allied
Craftworkers, Local 1. Case 29–CD–630
July 15, 2009
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act. JJC
Stucco and Carpentry Corp./Sessa Plastering Corp. (Em-
ployer) filed charges on December 23, 2008,1 alleging
that the Respondent, Operative Plasterers’ & Cement
Masons’ International Association, Local 262 (Plaster-
ers), violated Section 8(b)(4)(D) of the Act by engaging
in proscribed activity with an object of forcing the Em-
ployer to assign certain work to employees represented
by Plasterers rather than to employees represented by
International Union of Bricklayers & Allied Craftwork-
ers, Local 1 (Bricklayers). The hearing was held on
March 4, 2009, before Hearing Officer Nancy Reibstein.
Thereafter, Plasterers filed a motion to quash notice of
hearing and a brief in support thereof, and Bricklayers
filed a posthearing brief.
The National Labor Relations Board2 affirms the hear-
ing officer’s rulings, finding them free from prejudicial
error.3 On the entire record, the Board makes the follow-
ing findings.

1 The hearing officer inadvertently found that the charge was filed on
December 28, 2008.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See Snell Island SNF LLC v. NLRB, __ F.3d
__, 2009 WL 1676116 (2d Cir. June 17, 2009); New Process Steel v.
NLRB, 564 F.3d 840 (7th Cir. 2009), petition for cert. filed __
U.S.L.W. __ (U.S. May 27, 2009) (No. 08-1457); Northeastern Land
Services v. NLRB, 560 F.3d 36 (1st Cir. 2009), rehearing denied No.
08-1878 (May 20, 2009). But see Laurel Baye Healthcare of Lake
Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009), petitions for re-
hearing denied Nos. 08-1162, 08-1214 (July 1, 2009).
3 The hearing officer inadvertently stated that the December 29,
2008 Notice of Charge Filed was dated May 29, 2008.
I. JURISDICTION
The parties stipulated at the hearing that JJC Stucco
and Sessa Plastering are domestic corporations with
principal offices and places of business located at 139
Toledo Street, Farmingdale, New York (the Farmingdale
facility), and have been and are engaged in providing
construction services at various sites in the New York
City metropolitan area. During the past year, JJC Stucco
and Sessa Plastering, respectively, in the course and con-
duct of their business operations, purchased and received
at the Farmingdale facility goods, products, and materials
valued in excess of $50,000 directly from points outside
the State of New York.
The parties further stipulated, and we find, that JJC
Stucco and Sessa Plastering are employers engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act and are subject to the jurisdiction of the Board,
and that Plasterers and Bricklayers are labor organiza-
tions within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts
The Employer and Bricklayers are parties to a collec-
tive-bargaining agreement initially for the period Febru-
ary 1, 2006, through January 31, 2009, and then extended
through January 31, 2012. The agreement states that the
Employer recognizes Bricklayers pursuant to Section
9(a) of the Act as the exclusive collective-bargaining
agent for all employees within Bricklayers’ jurisdiction.
The Employer and Plasterers are not parties to a col-
lective-bargaining agreement.
1. Jamaica Hospital
Jamaica Hospital was building a nursing home. Barr
& Barr, Inc. was the general contractor. It subcontracted
the exterior insulation and finish systems (EIFS) work to
the Employer. The Employer began work on the project
in March 2008,4 using employees represented by Brick-
layers. Article VII of the collective-bargaining agree-
ment, entitled, WORK INCLUDED, expressly includes
“any and all EIFS” and “preparation, installation, and
repair of all interior and exterior insulation systems.”
On April 3, Plasterers notified Bricklayers by letter
that Plasterers had learned that members of Bricklayers
employed by the Employer were performing “the juris-
dictional work (EIFS)” of Plasterers on the Jamaica Hos-
pital project. Plasterers requested that Bricklayers ar-
range with Plasterers for a jobsite meeting to be held
under step 1 of the New York Plan for the Settlement of
Jurisdictional Disputes (the New York Plan) not later

4 All dates are 2008, unless stated otherwise.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
than April 8. On April 8, Bricklayers notified Plasterers
by reply letter that neither Bricklayers nor the Employer
had “stipulated to, or [were] bound by” the New York
Plan, that the New York Plan accordingly had no author-
ity over the matter, and that there was consequently no
basis for scheduling any meeting pursuant to the proce-
dures of the New York Plan. On April 9, by reply letter
to Bricklayers, Plasterers reasserted its claim that the
New York Plan had authority over the matter.
According to the uncontradicted testimony of Barr &
Barr Project Manager Michael Burns, Plasterers Repre-
sentative Mario Perez visited the Jamaica Hospital job-
site in late May or early June.5 Perez demanded that
Burns shut down the Employer’s work on the project
because Barr & Barr was “a union company” and the
Employer’s employees were “not union members.”
Burns refused. Perez told Burns that “they would have
to shut down the Company and set up a picket line.”6
Again according to Burns’ uncontradicted testimony,
Perez visited the jobsite again in early July, accompanied
by Plasterers International Representative Wayne Ebet-
son.7 Referring to the Employer’s employees, Ebetson
told Burns:
[A]ll of those guys working out there on the EIFS Sys-
tem were non-union and . . . that we [i.e., Barr & Barr]
had to shut the job down—Barr and Barr [had] to go
out there and physically stop them from working.
Burns told Ebetson that after Perez’ earlier visit to the
jobsite, Bricklayers Business Agent Wynall Longdon8
visited the jobsite at Burns’ request and certified that all
of the Employer’s employees on the project were active
members of Bricklayers. Either Ebetson or Perez (Burns
could not recall which) replied that it was Plasterers’
work. Burns told them to take the matter up with Brick-
layers. Ebetson and Perez then departed.
2. Bronx Terminal Market
Bronx Terminal Market was building a garage and two
retail buildings (retail A and B). Plaza Construction
Corporation was the general contractor. It subcontracted
certain stucco and plastering work to Donaldson Acous-
tic. Donaldson in turn initially subcontracted the stucco
work on retail A and B to Cooper Plastering. Cooper
performed plastering work on retail A with employees

5 Perez did not testify.
6 The hearing officer inadvertently stated that Burns testified that
Perez told him that Bricklayers would put up a picket line. As shown,
however, Perez threatened that Plasterers would put up a picket line.
7 Ebetson did not testify.
8 Longdon’s first name is spelled “Wynall” in the transcript, but it is
shown on Bricklayers’ printed letterhead as “Winall.” Plasterers Exh.
LCL 262-1(H).
represented by Plasterers, but was unable to complete its
work on retail B in a timely manner.
According to the uncontradicted testimony of Plaza’s
Field Superintendent James Lumbe, an individual who
identified himself to Lumbe on the jobsite as a Plasterers
representative (but whose name Lumbe could not recall
at the hearing) visited the jobsite in June. He told Lumbe
that Plaza should not recommend the Employer for work
on the project “and that [Plaza] should give it to Cooper
or another Representative of 262 [i.e., Plasterers].” Nev-
ertheless, Plaza subcontractor Donaldson subcontracted
the remaining EIFS and certain plastering work on retail
B and the garage to the Employer.
The Employer began work on the project on July 2, us-
ing its employees represented by Bricklayers. Again
according to Lumbe’s uncontradicted testimony, Plaster-
ers representatives (whose names Lumbe could not recall
at the hearing) visited the jobsite on July 2. They told
Lumbe that the Employer’s employees who were doing
EIFS work on the jobsite were not members of Plaster-
ers, did not have “union cards,” and were illegal aliens.
They told Lumbe that they were going back to their un-
ion hall and discuss with their president the possibility of
putting up a picket line on the jobsite.
On November 6, Plasterers notified Bricklayers by let-
ter that Plasterers had learned that the Employer, “a sig-
natory contractor of” Bricklayers, had been awarded “the
jurisdictional work (EIFS)” of Plasterers on the Bronx
Terminal Market project. Plasterers requested that
Bricklayers arrange with Plasterers for a jobsite meeting
to be held under step 1 of the New York Plan not later
than November 11. Bricklayers did not respond to this
letter, but subsequently notified Plasterers by a Novem-
ber 20 letter that Bricklayers was not subject to the New
York Plan; that it was not prepared voluntarily to submit
to the New York Plan, “particularly in any disputes we
may have with any [Plasterers] local”; and that the New
York Plan accordingly had no authority over Bricklayers.
B. Work in Dispute
The parties stipulated that the work in dispute is the
Exterior Insulation and Finish System (EIFS) work being
performed at the Jamaica Hospital and the Bronx Termi-
nal Market.
C. Contentions of the Parties
Bricklayers contended in its opening statement at the
hearing, and the Employer expressly agreed on the re-
cord,9 that there is reasonable cause to believe that Plas-

9 The Employer was represented at the hearing by its president and
owner, Anthony Sessa. He did not make an opening or closing state-
ment. Although he testified as a witness on behalf of Bricklayers, he
PLASTERERS’ LOCAL 262 (JJC STUCCO) 3
terers has violated Section 8(b)(4)(D) of the Act and that
the work in dispute should be assigned to employees
represented by Bricklayers. Bricklayers also contended
at the hearing, on behalf of itself and the Employer, that
there is no agreed-upon method for voluntary adjustment
of the dispute to which all parties are bound.
In its posthearing brief, Bricklayers contends that there
are competing claims, from it and Plasterers, for the
work in dispute, and it reasserts its contentions as to
8(b)(4)(D) reasonable cause and no method for voluntary
adjustment. It further contends that the work in dispute
should be assigned to employees it represents on the ba-
sis of: (1) its collective-bargaining agreement with the
Employer, which states that “any and all EIFS” work
shall be performed by employees represented by Brick-
layers, and the absence of any collective-bargaining
agreement between the Employer and Plasterers; (2) the
Employer’s preference for and past practice of assigning
the work in dispute to employees represented by Brick-
layers; (3) the relative skills of employees represented by
Bricklayers over employees represented by Plasterers for
performing the work in dispute; and (4) economy and
efficiency of operations resulting from assigning the
work in dispute to employees represented by Bricklayers
rather than to employees represented by Plasterers.
Plasterers did not introduce any evidence to rebut the
testimony of Burns and Lumbe on the issue of whether
there is reasonable cause to believe that Plasterers has
violated Section 8(b)(4)(D) of the Act, or any evidence to
rebut Bricklayers’ evidence that the work in dispute
should be assigned to employees represented by that la-
bor organization. Plasterers has instead moved to quash
the notice of hearing on the asserted grounds that there is
an agreed-upon method for voluntary adjustment of the
dispute to which all parties are bound, and that the Board
should therefore defer to that method rather than decide
the jurisdictional dispute. More specifically, Plasterers
continues to maintain that it, Bricklayers, and the Em-
ployer are all bound by and subject to the New York
Plan. Plasterers also asserts that there is no reasonable
cause to believe that Section 8(b)(4)(D) has been violated
because the evidence fails to demonstrate that it threat-
ened jurisdictional picketing.
D. Applicability of the Statute
Before the Board may proceed with determining a dis-
pute pursuant to Section 10(k) of the Act, there must be
reasonable cause to believe that Section 8(b)(4)(D) has
been violated. This standard requires finding that there is
reasonable cause to believe that there are competing

did not participate in the examination of other witnesses. The Em-
ployer has not filed a brief.
claims for the disputed work among rival groups of em-
ployees,10 and that a party has used proscribed means to
enforce its claim to the work in dispute.11 In addition,
the Board must find that there is no agreed on method for
the voluntary adjustment of the dispute.12 On the record,
we find that this standard has been met.
1. Competing claims for work
We find that there are competing claims for the work.
Bricklayers has at all times claimed the work in dispute
for the employees it represents, and these employees
have been performing this work. Plasterers has claimed
the work by the statements of Perez and Ebetson to Barr
& Barr Project Manager Burns at the Jamaica Hospital
jobsite, the statements of Plasterers representatives to
Plaza Field Superintendent Lumbe at the Bronx Terminal
Market jobsite, and by its correspondence with Bricklay-
ers about the asserted applicability of the New York Plan
to the jurisdictional disputes at both locations.13
2. Use of proscribed means
We find that there is reasonable cause to believe that
Plasterers has violated Section 8(b)(4)(D) of the Act. It
is well established that a picketing threat constitutes pro-
scribed means.14 Here, there is reasonable cause to be-
lieve that Plasterers threatened to picket the Employer.
At the Jamaica Hospital project, as set forth more fully
above, Plasterers Representative Perez demanded that
Barr & Barr Project Manager Burns shut down the Em-
ployer’s work on the project because Barr & Barr was “a
union company” and the Employer’s employees were
“not union members.” When Burns refused, Perez told
Burns that “they would have to shut down the Company
and set up a picket line.” Perez and Plasterers Interna-
tional Representative Ebetson subsequently told Burns
that the work in dispute was Plasterers work, that the
Employer was using employees represented by the
Bricklayers to do it, and that Barr & Barr had to shut the
job down.
At the Bronx Terminal Market project, Plasterers rep-
resentatives told Plaza Field Superintendent Lumbe that
the Employer’s employees doing EIFS work on the job-
site were not members of Plasterers, did not have “union
cards,” and were illegal aliens, and that they [the Plaster-

10 Carpenters Local 275 (Lymo Construction Co.), 334 NLRB 422,
423 (2001).
11 See, e.g., Electrical Workers Local 3 (Slattery Skanska, Inc.), 342
NLRB 173, 174 (2004).
12 Operating Engineers Local 150 (R & D Thiel), 345 NLRB 1137,
1138–1139 (2005).
13 See Bakery Workers Local 205 (Metz Baking Co.), 339 NLRB
1095, 1097 (2003).
14 See Bricklayers (Cretex Construction Services), 343 NLRB 1030,
1032 (2004).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
ers’ representatives] were going back to their union hall
and discuss with their president the possibility of putting
up a picket line on the jobsite.
Again, Plasterers did not introduce any evidence to re-
but the above evidence. In its posthearing brief, Plaster-
ers broadly asserts that “the evidence regarding the al-
leged Section 8(b)(4)(D) violation is inherently unbeliev-
able”; that it must be inferred from the record evidence
that “the [Employer] itself did not in reality consider
itself . . . to be threatened with jurisdictional picketing”;
and that the Bricklayers’ allegation of threats by the Plas-
terers was “concocted as a sham to invoke the Board’s
jurisdiction.” We reject these contentions.
First, as to the alleged “inherent unbelievability” of the
evidence of Plasterers’ threats, the testimony in support
of a showing that Plasterers has violated Section
8(b)(4)(D) is uncontradicted. But even a conflict in tes-
timony on this general issue in a proceeding under Sec-
tion 10(k) does not prevent the Board from finding evi-
dence of reasonable cause to believe that Section
8(b)(4)(D) has been violated, and from proceeding with a
determination of the dispute. In a 10(k) proceeding, the
Board is not required to find that the unfair labor practice
alleged has actually occurred, but need only find that
reasonable cause exists to believe that there has been a
violation of Section 8(b)(4)(D). The Board may consider
contradicted testimony—and thus, a fortiori, uncontra-
dicted testimony—in finding such reasonable cause.15
Second, as to the validity of the evidence in support of a
finding of such reasonable cause here, Burns and Lumbe
were both called as witnesses by the General Counsel,
and there is nothing that even arguably tends to show that
their testimony was concocted. Third, in determining
whether there has been an unlawful threat, the Board
does not inquire into whether the recipient actually felt
threatened. Rather, the Board applies an objective stan-
dard, not attempting to assess the actual success or fail-
ure of the alleged coercion, but rather assessing only
whether the recipient of the remark would reasonably be
coerced by it.16
3. No voluntary method for adjustment of dispute
Plasterers asserts that it, Bricklayers, and the Employer
are all bound and subject to the New York Plan for the
Settlement of Jurisdictional Disputes. In its opening
statement at the hearing, Bricklayers asserted (and the
Employer did not disagree), that “[t]he Bricklayers have
not stipulated to the New York Plan and probably never

15 Longshoremen ILA (Reserve Marine Terminals), 317 NLRB 848,
850 fn. 2 (1995), and cases cited therein.
16 See, e.g., Dorsey Trailers, Inc., 327 NLRB 835, 851 (1999), enfd.
in pertinent part 233 F.3d 831 (4th Cir. 2000), and cases cited therein.
will. [The Employer] has not stipulated to the Plan.”
Subsequently, Employer President and Owner Sessa tes-
tified that the Employer is not “part of” the New York
Plan, and Bricklayers President Santo Lanzafame testi-
fied that Bricklayers had not “stipulated to” the New
York Plan. There was no testimony that the Employer or
Bricklayers had stipulated to, were bound by, or were in
any way subject to the New York Plan.17
The New York Plan states that it is “entered into by
and among the Building & Construction Trades Council
of Greater New York [BCTC] . . . and on behalf of its
constituent local unions, and the Building Trades Em-
ployers’ Association [BTEA] and on behalf of its mem-
bers.” It does not name any individual participating un-
ions or employers. Sessa was asked at the hearing if the
Employer was a member of any employer association,
and he replied that the Employer was a member of the
“Walls and Ceiling Association.”18 Lanzafame testified
that Bricklayers is not a member of “any of the Building
and Construction Trades of New York.”
Plasterers argues that the record establishes that the
Employer is bound by and subject to the New York Plan
on the basis of the following: (1) the Employer is a
member of the WC&C;19 (2) the “Who We Are” page of
the WC&C website states that “WC&C members are
automatically members of the BTEA;” (3) correspond-
ingly, the February 24, 2009 “Useful Links” page of the
BTEA website lists WC&C as a member Association.
Therefore, argues Plasterers, the Employer, as a member
of the WC&C, is automatically a member of the BTEA,
and because BTEA is a party to the New York Plan, the
Employer is bound by and subject to the New York Plan.
We are not persuaded by that argument. First, section
1(b) of article II, APPLICABILITY, of the New York
Plan states in pertinent part that “[t]he procedures and
decisions emanating from this Plan shall apply to . . .
[a]ny employer that has executed an agreement to be
bound by the procedures and decisions of this Plan.”
There is no evidence that the Employer has executed any
such agreement; indeed, as shown above, the evidence is
directly to the contrary. Second, the WC&C and BETA
website pages introduced into evidence by Plasterers
were not accompanied by any authenticating or explana-

17 The only witness that Plasterers called at the hearing was its attor-
ney, Steven Kern, to authenticate certain documentary evidence intro-
duced by Plasterers.
18 Sessa was referring to the Association of the Wall-Ceiling and
Carpentry Industries (WC&C), which is identified as such in the record.
19 In addition to Sessa’s testimony, the February 23, 2009 “Our
Members” page of the WC&C website, introduced into evidence by
Plasterers together with the other website pages discussed infra, lists
Sessa Plastering Corp., one of the Employer entities in this proceeding,
as a member.
PLASTERERS’ LOCAL 262 (JJC STUCCO) 5
tory testimony. Indeed, Plasterers Attorney Kern, who
was sworn in as a witness to introduce these documents
into evidence, testified only that he downloaded the
documents from the websites, did not know when the
information in the website had last been updated, and did
not know whether the information contained in the
documents was true.20
We find that the record fails to establish that the Em-
ployer is bound by or subject to the New York Plan.21
Consequently, we find that the record fails to establish
that there exists an agreed-upon method for voluntary
adjustment of the dispute to which all parties are bound.
Accordingly, we find that the dispute is properly before
the Board for determination and we deny Plasterers’ mo-
tion to quash notice of hearing.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive award of disputed work after considering various
factors. NLRB v. Electrical Workers Local 1212 (Co-
lumbia Broadcasting), 364 U.S. 573 (1961). The Board
has held that its determination in a jurisdictional dispute
is an act of judgment based on common sense and ex-
perience, reached by balancing the factors involved in a
particular case. Machinists Lodge 1743 (J. A. Jones
Construction), 135 NLRB 1402 (1962).
Plasterers did not call any witnesses or otherwise in-
troduce any evidence on the merits of the dispute. In-
deed, it repeatedly expressly declined on the record to do
so.
The following factors are relevant in making the de-
termination in this dispute.
1. Certifications and collective-bargaining agreements
There is no evidence of Board certifications concern-
ing the employees involved in this dispute. However, the
Employer is subject to a Section 9(a) collective-
bargaining agreement with Bricklayers that expressly
covers the type of work in dispute, i.e., in the terms of
the agreement, “any and all EIFS” and “preparation, in-
stallation, and repair of all interior and exterior insulation
systems.” The Employer does not have a collective-
bargaining agreement with Plasterers. Accordingly, we
find that this factor favors an award of the work in dis-
pute to employees represented by Bricklayers.

20 The Bricklayers’ attorney immediately objected to the introduction
of these documents on the grounds that they were being offered for the
truth of the matters asserted therein. The hearing officer reserved her
ruling on the objection but subsequently admitted the documents into
evidence without explanation or comment.
21 Consequently, we find it unnecessary to address Plasterers’ argu-
ment that Bricklayers is bound by and subject to the New York Plan.
2. Employer preference and past practice
The Employer’s preference and past practice is to as-
sign EIFS work to employees represented by Bricklayers.
Accordingly, we find that this factor favors an award of
the work in dispute to employees represented by Brick-
layers.
3. Area and industry practice
The Employer used employees represented by Brick-
layers to perform the work in dispute on the Jamaica
Hospital and Bronx Terminal Market projects. Cooper
Plastering, on the other hand, used employees repre-
sented by Plasterers to perform the work in dispute on a
different part of the Bronx Terminal Market project.
There is no other evidence of area or industry practice in
this matter. Accordingly, we find that this factor does
not favor award of the work in dispute to employees rep-
resented by either Bricklayers or Plasterers.
4. Relative skills
Bricklayers presented testimony that its members pos-
sess the required skills and training to perform the dis-
puted work and are experienced in doing so. There is no
comparable testimony about employees represented by
Plasterers. Employer President Sessa testified that Ja-
maica Hospital General Contractor Barr & Barr checked
the Employer’s work on the project every day, that it
voiced no complaints about the quality of the work being
done, and that Barr & Barr liked the way the Employer
acted and produced. On the other hand, Sessa testified
that he was told by Donaldson Acoustic Manager Bill
Carlin that one of the reasons Donaldson did not assign
all of the work in dispute on the Bronx Terminal Market
project to Cooper was because “Cooper Plastering was
not producing fast enough in order to complete the
job.”22 Accordingly, we find that this factor favors an
award of the work in dispute to employees represented
by Bricklayers.
5. Economy and efficiency of operations
Sessa testified that Bricklayers could readily provide
more manpower, with relevant experience, than Plaster-
ers. Bricklayers Business Agent Longdon testified that
about one-half of the employees represented by Plaster-
ers who performed the work in dispute for Cooper Plas-
tering on retail building A on the Bronx Terminal Market
project had been brought in from Las Vegas. Accord-
ingly, we find that this factor favors an award of the
work in dispute to employees represented by Bricklayers.

22 There was no objection to the introduction of this testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Conclusions
After considering all the relevant factors, we conclude
that the employees represented by Bricklayers are enti-
tled to perform the work in dispute. We reach this con-
clusion relying on the factors of collective-bargaining
agreements, employer preference and past practice, rela-
tive skills, and economy and efficiency of operations. In
making this determination, we are awarding the work to
employees represented by Bricklayers, not to that Union
or its members. The determination is limited to the con-
troversies that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of JJC Stucco and Carpentry Corp./Sessa
Plastering Corp. represented by International Union of
Bricklayers & Allied Craftworkers, Local 1, are entitled
to perform the Exterior Insulation and Finish System
(EIFS) work at the Jamaica Hospital, 134th Street and
91st Avenue, Jamaica, New York, and the Bronx Termi-
nal Market, 149th Street and River Street, Bronx, New
York.
Operative Plasterers’ & Cement Masons’ International
Association, Local 262, is not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force Barr &
Barr, Inc., Plaza Construction Corp., JJC Stucco or Car-
pentry Corp./Sessa Plastering Corp. to assign the dis-
puted work to workers represented by it.
Within 14 days from this date, Operative Plasterers’ &
Cement Masons’ International Association, Local 262
shall notify the Regional Director for Region 29 in writ-
ing whether it will refrain from forcing the above com-
panies, by means proscribed by Section 8(b)(4)(D), to
assign the disputed work in a manner inconsistent with
this determination.
Dated, Washington, D.C. July 15, 2009
______________________________________
Wilma B. Liebman, Chairman
______________________________________
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD