Plasterers Local 502 (Advance Terrazzo)

National Labor Relations Board - Board Decisions

Oct 15, 1984

272 N.L.R.B. 810 (N.L.R.B. 1984)

810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cement Masons' Union Local No 502, Operative
Plasterers' and Cement Masons' International
Association of the United States and Canada
and Advance Terrazzo and Tile Co, Inc
Construction and General Laborers' Local 118, La
borers' International Union of North America,
AFL-CIO and Advance Terrazzo and Tile Co,
Inc Cases 13-CD-342 and 13-CD-343
15 October 1984
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
The charges in this Section 10(k) proceeding
were filed 12 and 13 June 1984 1 by the Employer
alleging respectively that the Respondents Cement
Masons Union Local No 502 Operative Plaster
ers and Cement Masons International Association
of the United States and Canada (Cement Masons)
and Construction and General Laborers Local 118
Laborers International Union of North America
AFL-CIO (Laborers) violated Section 8(b)(4)(D)
of the National Labor Relations Act by engaging
in proscribed activity with an object of forcing the
Employer to assign certain work to employees they
represent rather than to employees represented by
Ceramic Tile Layers and Terrazzo Workers Union
Local No 67 International Union of Bricklayers
and Allied Craftsmen AFL-CIO (Terrazzo Me
chanics) and Local 98 Tile Marble Terrazzo Fin
ishers & Shopmen International Union AFL-CIO
(Terrazzo Helpers) The hearing was held 28 June
before Hearing Officer Gloria DiLorenzo
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board affirms the hearing officer s rulings
finding them free from prejudicial error On the
entire record the Board makes the following find
ings
I JURISDICTION
The Employer a Minnesota corporation is en
gaged in the construction business as a terrazzo
contractor in Minnesota Illinois and other States
During the 12 months preceding the hearing the
Employer purchased and received at its construc
lion sites in Illinois goods and materials valued in
excess of $50 000 directly from points located out
side the State of Illinois The parties stipulate and
we find, that the Employer is engaged in corn-
merce within the meaning of Section 2(6) and (7)
' All dates are in 1984 unless otherwise indicated
272 NLRB No 121
of the Act and Cement Masons Laborers Terraz
zo Mechanics and Terrazzo Helpers are labor or
gamzations within the meaning of Section 2(5) of
the Act
II THE DISPUTE
A Background and Facts of Dispute
In early 1984 the Employer subcontracted with
Osman Construction Corporation (Osman) to install
55 000 feet of structural terrazzo flooring at a Cub
Food Store site in Arlington Heights Illinois On 7
June the Employer s foreman Steve Torok the
Terrazzo Mechanics business manager Ken
Bieschke the Terrazzo Helpers business agent
Emil Quaglia the Cement Masons business repre
sentative David Laube a Laborers agent Richard
Augustine and several representatives of Osman
met concerning the assignment of the hauling
pouring and screeding 2 of the structural terrazzo
concrete underbed Cement Masons and Laborers
claimed the work and told the Employer they
wanted a composite crew to perform the work 3 In
response to Torok s statement that the Employer
had collective bargaining agreements with the Ter
razzo Mechanics and Terrazzo Helpers covering
the work and that operating a composite crew
would be inefficient because workers would be idle
at times Laube stated he would have a sign out
there 11 June Picketing commenced at the jobsite
11 June at 9 a m with picket signs stating the Em
ployer had assigned work in violation of a Joint
Conference Board decision Both Cement Masons
and Laborers representatives were observed on the
picket line The picketing lasted until 1 p m 11
June and caused operating engineers cement
masons electricians and perhaps plumbers em
ployed at the site to cease work
B Work in Dispute
The disputed work involves the hauling pour
mg and screeding of a structural terrazzo concrete
underbed at the Cub Food Store jobsite in Arling
ton Heights Illinois
C Contentions of the Parties
The Employer contends that reasonable cause
exists to believe that Cement Masons and Laborers
violated Section 8(b)(4)(D) of the Act It contends
that the work in dispute should be awarded to em
'Witnesses used the word screed at the hearing as both a noun i e
any device used to gauge the grade of concrete and as a verb i e the
leveling of concrete to a required height
' Laborers and Terrazzo Helpers claim the hauling and pouring of the
concrete Cement Masons and Terrazzo Mechanics claim the screeding
All Unions agree applying the terrazzo topping is solely the work of em
ployees represented by the terrazzo unions
PLASTERERS LOCAL 502 (ADVANCE TERRAllO) 811
ployees represented by Terrazzo Mechanics and
Terrazzo Helpers based on its collective bargaining
agreements with both unions employer preference
and past practice area and industry practice and
economy and efficiency of operations The Em
ployer further argues that any award of the disput
ed work by the Board should be extended to the
Employer s future Cub Food Store jobsite 4
At the hearing Cement Masons and Laborers
argued employees they represented should be
awarded the disputed work because of a Joint Con
ference Board decision rendered 14 June purport
ing to award the disputed work to Cement Masons
and Laborers 5 The Respondents further argued
the Unions interested in the disputed work had
made a verbal agreement that a composite crew
was appropriate and the meeting 7 June was to fi
nalize the details of the agreement The Respond
ents filed a disclaimer of the disputed work 20
July and in their motion to strike filed 1 August
with the Board (see fn 4) argued they had aban
doned their claim and the issue was therefore
moot The Respondents admitted the disputed
work had been completed and argued issuance of a
broad order would 'be inappropriate because
Cement Masons and Laborers have made no work
assignment claims on other Cub Food Store job
sites
D Applicability of the Statute
It is undisputed Cement Masons representative
L,...ube threatened to place a sign on the jobsite 7
June and Cement Masons and Laborers picketed 11
June to obtain assignment of the disputed work
In a document filed with the Board 20 July
Cement Masons and Laborers purported to dis
-'4 In its brief to the Board the Employer appended a private letter la
beled Exhibit A from Alfiero Fanucci the Employer s corporate sec
retary to Lawrence M Cohen the Employer s attorney purporting to
show that the disputed work had been completed and that the Employer
planned to bid on future work and assign it to employees represented by
Terrazzo Mechanics and Terrazzo Helpers The Employer also moved to
reopen the record for receipt of Exhibit A The Respondents filed a
motion to strike the Employer s Exhibit A as untimely and argued the
record was silent as to any work assignment claims on future Cub Food
Store jobsites The Employer filed an objection to the Respondents
motion to strike alleging the additional evidence was previously unavail
able because the Respondents disclaimed the disputed work nearly a
month after the hearing closed and only several days prior to the submis
sion date for briefs The Respondents do not dispute the Employer s con
tentions that work on the Arlington jobsite has been completed or that it
plans to bid on future Cub Food Store work The record establishes there
are 30 Cub Food Stores planned and 14 in the works right now Thus
because either the record shows or the parties do not dispute the facts
recited in the Fanucci letter we find it unnecessary to pass on the Em
ployer s motion to admit the letter Itself in evidence or the Respondents
motion to strike
5 All Unions party to this proceeding are members of the Joint Confer
ence Board of the Construction Employers Association and the Chicago
and Cook County Building and Construction Trades Council The Em
ployer is not signatory to contracts negotiated by or a member of the
association
claim interest in the disputed work Although the
Board has stated that an effective renunciation of
disputed work resolved the jurisdictional dispute it
has also found that a hollow disclaimer given for
the purposes of avoiding an authoritative decision
on the merits cannot be given effect Carpenters
Local 102 (Meiswinkel Interiors) 260 NLRB 972
975 (1982) In Meiswinkel the Board refused to
honor a disclaimer where the unions did not dis
claim the work until after the hearing had closed
and at a time when no work of any kind was being
performed at the site Id Similarly in this case
the Respondents did not disclaim until the work
was completed and the hearing concluded
Regarding the alleged Joint Conference Board
decision awarding the disputed work to employees
represented by Cement Masons and Laborers [i]t
is well settled that the Board will defer to a [pn
vate tribunal] only when all parties in the work dis
pute are bound Painters Local 1075 (Trencor) 244
NLRB 80 81 (1979) Here deferral is mappropri
ate while the Unions may be bound the Employer
has not agreed to abide by the Joint Conference
Board decision Id Accord NLRB v Plasterers
Local 79 (Texas State Tile) 404 U S 116 (1971)
We find reasonable cause to believe that a viola
tion of Section 8(b)(4)(D) has occurred and that
there exists no agreed method for voluntary adjust
ment of the disp Ite within the meaning of Section
10(k)' of the Act Accordingly we find the dispute
is properly before the Board for determination
E Merles' of the Dispute
Section 10(k) requires the Board to make an af
firmative award of disputed work after considering
various factors NLRB v Electrical Workers IBEW
Local 1212 (Columbia Broadcasting) 364 U S 573
(1961) The Board has held its determination in a
jurisdictional dispute is an act of judgment based
on common sense and experience reached by bal
ancing the factors involved in a particular case
Machinists Lodge' 1 743 (J A Jones Construction)
135 NLRB 1402 (1962)
The following factors are relevant in making the
determination of this dispute
1 Certifications and collective bargaining
agreements- ■
The Board has not certified any of the Unions
involved in this dispute as the collective bargaining
representative for a unit of the Employier s employ
ees
The Employer however is a merither of the
Chicago Terrazzo and Mosaic Contractors Asso
elation (Chicago Association) which has a collec
tive bargaining agreement with Terrazzo Helpers
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
covering all worker/finisher employees who per
form
all the handling of sand cement marble chips
and all other materials after being deliv
ered to the building and mixing rubbing
grouting and cleaning all marble mosaic and
terrazzo work floors base stairs and wain
scoting when run on the building by hand or
machine and they shall also help the mechan
ics in any and all phases in the performance of
this work This Agreement pertains to
the setting or installation of all classes of ter
razzo mosaic and similar architectural fin
ishes
The Chicago Association also has a collective
bargaining agreement with the Terrazzo Mechanics
covering all Mechanic employees performing the
laying of all terrazzo and mosaic work all straight
edge work all laying of concrete subfloors co
perta scratch coats for base wainscoting stair
work the setting of temporary wood grounds and
all dividing strips We find the collective bargain
ing agreements cover the work in dispute
The Employer has no collective bargaining
agreements with either the Cement Masons or La
borers
We therefore find the factor of collective bar
gaining agreements favors an award of the disputed
work to the Employer s employees represented by
Terrazzo Mechanics and Terrazzo Helpers
2 Company preference and past practice
The Employer has consistently assigned the dis
puted work over 25 years solely to employees rep
resented by Terrazzo Mechanics and Terrazzo
Helpers or to different local unions of terrazzo
workers and concededly prefers to maintain such
assignments Employer Foreman Torok specifically
testified in all of its 18 jobs across the country in
the past 2 years involving structural terrazzo the
Employer used terrazzo mechanics and terrazzo
helpers to perform the disputed work This factor
therefore favors an award to employees represent
ed by Terrazzo Mechanics and Terrazzo Helpers
3 Area and industry practice
Edward Grazzini executive director of the Na
tional Terrazzo and Mosaic Association (National
Association) testified he was unaware of any work
involving the laying of structural terrazzo locally
or nationally that had not been performed by ter
razzo mechanics and terrazzo helpers based on his
informal poll of 20 contractors involving 106 struc
tural terrazzo installations over the past 20 years
No evidence of a contrary practice by the Employ
er by Chicago area contractors or in the industry
generally was presented on structural terrazzo in
stallation 6 We therefore find this factor favors an
award to employees represented by Terrazzo Me
chanics and Terrazzo Helpers
4 Relative skills
Torok and Grazzini testified employees repre
sented by Terrazzo Mechanics and Terrazzo Help
ers possess the requisite skills to perform the dis
puted work The record indicates cement masons
and laborers have performed conventional terrazzo
work for other areas employers and it appears
they would be qualified to perform the disputed
work 7 We therefore find this factor does not favor
an award to employees represented by any one of
the labor organizations
5 Economy and efficiency of operation
The Employer presented evidence from Torok
and Grazzim that assigning the disputed work to
employees represented by Terrazzo Mechanics and
Terrazzo Helpers would be more economical effi
cient and easier to coordinate with its work sched
ule than assigning work to a composite crew of all
four Unions
Torok testified the work is installed in layers
First terrazzo mechanics and terrazzo helpers
would grade the gravel base to the required height
and dnve stakes into the bed to ensure the concrete
lays uniformly After an ironworker installs a wire
mesh terrazzo helpers haul the concrete in power
buggies to the site After pouring the concrete ter
razzo helpers assist terrazzo mechanics in screeding
the concrete to the proper level Terrazzo mechan
ics insert zinc divider strips into the concrete after
it becomes semi plastic several hours later
Twenty four to forty eight hours later after the
concrete underbed has fully hardened terrazzo me
chanics and terrazzo helpers spend 2 to 3 days
pouring screedmg, grinding and polishing the ter
razzo topping Torok testified the concrete un
derbed is poured and screeded in the morning until
approximately 2 p m and the afternoon work con
sists of installing the zinc divider strips As the
afternoon work is indisputably the work of the ter
razzo employees there would be no work available
6 Grazzini testified he had heard rumors one job in the Chicago area
had been performed by a composite crew of employees represented by
Cement Masons Laborers Terrazzo Mechanics and Terrazzo Helpers
Cement Mason President Gerald Horejs however testified the composite
crew assignment was awarded by the Joint Conference Board and in
volved conventional rather than structural terrazzo
7 Torok distinguished conventional terrazzo from structural terrazzo
on the type of fill used Conventional terrazzo uses a concrete base
fill while structural terrazzo uses a sand/gravel fill which is sturdier
and does not tend to move under a heavy load
PLASTERERS LOCAL 502 (ADVANCE TERRAllO) 813
for cement masons and laborers in the afternoon
should the morning work be assigned to them and
no work in the morning for the terrazzo mechanics
and terrazzo helpers The same situation would
exist during the 2 or 3 days the terrazzo employees
install grind and polish the terrazzo topping
Although Cement Masons and Laborers claim
employees they represent could pour concrete in
other locations while the divider strips or the ter
razzo topping is installed Torok testified the prac
tice would cause scheduling problems because all
work is staggered into priorities throughout the
entire building and must be coordinated with the
other unions on the site Torok also testified it is
difficult to know in advance when a given portion
of concrete will harden allowing for the installa
tion of the divider strips Consequently employees
scheduled to perform this work on a composite
crew could either arrive too early or too late and
be idle until conditions were proper to perform
their work
Torok also stated because such arrangements
might provide only part time employment for em
ployees represented by the four Unions it would
be difficult to recruit and hire the required terrazzo
mechanics and terrazzo helpers Of the 11 terrazzo
workers employed by the Employer at the Illinois
jobsite 3 are from Minnesota and 2 are from Wis
consin Torok testified he would have been unable
to recruit such employees absent a guarantee of 40
hours of work per week and such a guarantee to
the terrazzo workers would be difficult with a
composite crew Finally Torok stated the terrazzo
unions work well together and anticipate each
other s moves and that with a composite crew it
would be difficult to determine fault in the event of
a mistake In contrast Terrazzo Mechanics and
Terrazzo Helpers guarantee the work of employees
they represent and make restitution for any faults
of workmanship
We therefore find the factor of economy and ef
ficiency of operation favors an award to employees
represented by Terrazzo Mechanics and Terrazzo
Helpers
6 Interunion agreement
Cement Masons witnesses Horejs and Taube tes
tified Terrazzo Mechanics and Terrazzo Helpers
verbally agreed to use a composite crew on the dis
puted work No contrary evidence was presented
This factor therefore favors an award to employees
represented by Cement Masons and Laborers
Conclusions
After considering all the relevant factors we
conclude employees represented by Terrazzo Me
chanics and Terrazzo Helpers are entitled to per
form the work in dispute We reach this conclusion
relying on the Employer s collective bargaining
agreements with both unions company preference
and past practice area and industry practice and
economy and efficiency of operation In making
this determination we are awarding the work to
employees represented by Terrazzo Mechanics and
Terrazzo Helpers not to those Unions or their
members
Scope of the Determination
The Employer requests the Board issue a broad
work order award on behalf of the employees rep
resented by Terrazzo Mechanics and Terrazzo
Helpers applicable to all Cub Food Store projects
in the Chicago Illinois area The Employer con
tends such an order is necessary in order to avert
further jurisdictional work interruptions in the area
In this respect the Employer claims it is likely the
dispute will continue at future sites because it has
occurred in this case and at a similar Cub Food
Store site in 1983 There has been no continuing
demand for future similar work by Cement Masons
and Laborers however and we are not satisfied
the record is sufficient to demonstrate the likeli
hood Cement Masons and Laborers will again
resort to unlawful means to obtain assignment of
such work 8 Therefore we find the issuance of the
broad order the Employer seeks is not warranted
and limit our present determination to the particu
lar controversy which gave rise to this proceeding
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute
1 Employees of Advance Terrazzo and Tile Co
Inc represented by Ceramic Tile Layers and Ter
razzo Workers Union Local No 67 International
Union of Bricklayers and Allied Craftsmen AFL-
CIO and Local 98 Tile Marble Terrazzo Finish
ers and Shopmen International Union AFL-CIO
are entitled to haul pour and screed the structural
terrazzo concrete underbed at the Cub Food Store
jobsite in Arlington Heights Illinois
2 Cement Masons Union Local No 502 Opera
tive Plasterers and Cement Masons International
Association of the United States and Canada and
Construction and General Laborers Local 118 La
borers International Union of North America
AFL-CIO are not entitled by means proscribed by
Section 8(b)(4)(D) of the Act to force Advance
8 There is no indication for example the Employer s bids for future
Cub Food Store work will be successful
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Terrazzo and Tile Co Inc to assign the disputed
work to employees represented by them
3 Within 10 days from this date Cement
Masons Union Local No 502 Operative Plaster
ers and Cement Masons International Association
of the United States and Canada and Construction
and General Laborers Local 118 Laborers Inter
national Union of North America AFL-CIO shall
notify the Regional Director for Region 13 in writ
mg whether it will refrain from forcing the Em
ployer by means proscribed by Section 8(b)(4)(D)
to assign the disputed work in a manner inconsist
ent with this determination