Plasterers Local 502 (Elliot Construction)

National Labor Relations Board - Board Decisions

Apr 4, 2001

333 N.L.R.B. 815 (N.L.R.B. 2001)

PLASTERERS LOCAL 502 (ELLIOT CONSTRUCTION) 815
Cement Masons’ Local Union No. 502 Operative Plas-
terers’ and Cement Masons’ International Asso-
ciation of the United States and Canada and El-
liot Construction Corporation and Chicago and
Northeast Illinois District Council of Carpen-
ters, United Brotherhood of Carpenters and
Joiners of America, AFL–CIO. Case 13–CD–
599
April 4, 2001
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND WALSH
The charge in this Section 10(k) proceeding was filed
on December 29, 2000, by the Employer, Elliot Con-
struction Corporation (Elliot Construction or Employer),
alleging that the Respondent, Cement Masons’ Local
Union No. 502 Operative Plasterers’ and Cement Ma-
sons’ International Association of the United States and
Canada (Cement Masons), violated Section 8(b)(4)(D) of
the National Labor Relations Act by engaging in pro-
scribed activity with an object of forcing the Employer to
assign certain work to employees it represents rather than
to employees represented by Chicago and Northeast Illi-
nois District Council of Carpenters, United Brotherhood
of Carpenters and Joiners of America, AFL–CIO (Car-
penters). The hearing was held on January 17, 2001,
before Hearing Officer Cathy Brodsky.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire re-
cord, the Board makes the following findings.
I. JURISDICTION
The Employer, an Illinois corporation with its princi-
pal place of business located in Glen Ellyn, Illinois, is
engaged in the business of concrete construction. It an-
nually has gross revenues in excess of $50,000 from its
performance of services to public utilities, transit sys-
tems, newspapers, healthcare institutions, broadcasting
stations, commercial buildings, educational institutions,
and/or retail concerns. The parties stipulate, and we find,
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. We further
find, based on the stipulation of the parties, that the Ce-
ment Masons and the Carpenters are labor organizations
within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Elliot Construction has been engaged in the business
of concrete construction for residential, commercial, and
industrial construction projects for the past 47 years.
Elliot Construction has collective-bargaining agreements
with both Unions.
Elliot Construction was hired as a cement subcontrac-
tor to perform several concrete construction projects on a
jobsite at Harper College in Palatine, Illinois, and began
work on the project in July 2000.1 Elliot Construction
began performing the disputed work, forming concrete
stairs and risers, in October.2 Elliot Construction as-
signed the disputed work to employees represented by
the Cement Masons as it had done for the past 47 years.
In a telephone call in early November, the Carpenters
advised the Employer that the Harper College form work
should be reassigned to employees the Carpenters repre-
sented. This demand was reiterated in a December 14
letter that further stated that if the Employer failed to
reassign the work, then the Carpenters’ members should
be paid in lieu of the form work not reassigned. On De-
cember 21, the Cement Masons informed the Employer
by letter that if Elliot Construction reassigned the work
as the Carpenters demanded, the Cement Masons would
strike and picket in order to maintain the work originally
assigned to it.
This charge followed and a 10(k) hearing was con-
ducted. Neither Union has disclaimed interest in the
work.
B. The Work in Dispute
The work in dispute is forming concrete stairs and ris-
ers on a jobsite located at Harper College, 1200 W. Al-
gonquin Road, Palatine, Illinois.3
C. Contentions of the Parties
The Employer and Cement Masons contend that there
is reasonable cause to believe that Section 8(b)(4)(D) has
been violated and that the work in dispute should be
awarded to employees represented by the Cement Ma-
sons based on the Employer’s collective-bargaining
agreement with the Cement Masons, the Employer’s
preference, past practice, area practice, relative skills,
and the economy and efficiency of operations. The Car-
penters contend that there is no jurisdictional dispute
here because the Carpenters did not make a demand for
the work and consequently there are not competing
claims for the disputed work. The Carpenters contend

1 All dates hereafter are in 2000, unless otherwise noted.
2 Forming stairs and risers involves setting a piece of wood, known
as a board, riser, or screed, to the desired shape. After this is com-
pleted, concrete is poured. The wood is removed as the concrete hard-
ens. The disputed work concerns only forming.
3 The Employer and the Cement Masons stipulated to this descrip-
tion of the work in dispute. Although the Carpenters did not join this
stipulation, it is clear from the record that the work in dispute is the
forming of concrete stairs and risers.
333 NLRB No. 96
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 816
that it is requesting that wages be paid to its members if
the Employer utilizes noncarpenters to perform carpenter
jurisdictional “form work.” The Carpenters also assert
that there is an agreed-upon method for the voluntary
resolution of this dispute. The Carpenters accordingly
have moved that the Board quash the notice of hearing.
D. Applicability of the Statute
Before the Board may proceed with determining a dis-
pute pursuant to Section 10(k) of the Act, two jurisdic-
tional prerequisites must be met. First, the Board must
find reasonable cause to believe that Section 8(b)(4)(D)
of the Act has been violated. This requires a finding that
there are competing claims to the disputed work between
rival groups of employees and that there is reasonable
cause to believe that a party has used proscribed means
to enforce its claim. Second, the Board must find that no
method for the voluntary adjustment of the dispute has
been agreed on.
In November, and again in December, the Carpenters
demanded that the Harper College form work, which the
Employer had assigned to employees the Cement Ma-
sons represent, be reassigned to employees it represents.
The record further establishes that the Cement Masons
threatened the Employer with a strike and picketing if the
form work was assigned to employees represented by the
Carpenters. Clearly, there are competing claims for the
disputed work between rival groups of employees4 and
there is reasonable cause to believe the Cement Masons
threatened to use proscribed means to enforce its claim if
the work was reassigned.
The Employer and the Cement Masons stipulated that
there is no agreed-upon method to adjust the dispute vol-
untarily. Although the Carpenters claimed that such a
method exists, the Carpenters pointed to no evidence that
all parties are bound by a single mechanism for adjusting
the dispute.
We find reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred and that there exists no
agreed-upon method for voluntary adjustment of the dis-
pute to which all parties are bound within the meaning of
Section 10(k) of the Act. Accordingly, we deny the Car-
penters’ motion to quash the notice of hearing and find
that the dispute is properly before the Board for determi-
nation.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive award of disputed work after considering various
factors. See NLRB v. Electrical Workers IBEW Local

4 We find no merit to the Carpenters’ contention that its December
14 letter was not a demand for the disputed work to be reassigned to
employees it represents.
1212 (Columbia Broadcasting), 364 U.S. 573 (1961).
The Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on common
sense and experience, reached by balancing the factors
involved in a particular case. See Machinists Lodge
1743 (J.A. Jones Construction), 135 NLRB 1402, 1410–
1411 (1962).
The following factors are relevant in making the de-
termination of this dispute.5
1. Certifications and collective-bargaining agreements
The parties stipulated there are no Board certifications
concerning the employees involved in this dispute.
The Employer is bound by collective-bargaining
agreements with both the Cement Masons and with the
Carpenters. Section 6A, paragraph 1 of the agreement
between the Employer and the Cement Masons provides
that “the setting of all strips, screeds, and bulkheads
when set to grade and used as a screed” shall be per-
formed by cement masons under this agreement. Patrick
Rizio, a Cement Masons’ business agent, testified that a
screed is another term for the form boards that are at is-
sue in this dispute. Although the Carpenters claimed its
contract with the Employer covered the disputed work,
the Carpenters did not specify the language on which it
relied. Article 1 of its contract states that the Carpenters’
occupational jurisdiction is “the milling, fashioning, join-
ing, assembling, erection, fastening or dismantling of all
material of wood, plastic, metal, fiber, cork, and compo-
sition, and all other substitute materials.”
We find that section 6A of the agreement between the
Employer and the Cement Masons, particularly in light
of Rizio’s uncontradicted testimony, more specifically
pertains to the work in dispute. See Steelworkers Local
392 (BP Minerals), 293 NLRB 913, 914–915 (1989).
The factor of collective-bargaining agreements accord-
ingly favors an award of the disputed work to employees
represented by the Cement Masons.
2. Employer preference and past practice
The Employer assigned the disputed work to employ-
ees represented by the Cement Masons and prefers that
the work in dispute continue to be performed by employ-
ees represented by the Cement Masons.
Robert Elliot, president and owner of the Employer,
testified that for the past 47 years Elliot Construction has
consistently assigned the type of work in dispute to the
employees represented by the Cement Masons. He fur-
ther testified that Elliot Construction has never assigned
this type of work to employees represented by the Car-
penters. We accordingly find that this factor favors an
5 The Carpenters called no witnesses during the hearing.
PLASTERERS LOCAL 502 (ELLIOT CONSTRUCTION) 817
award of the disputed work to employees represented by
the Cement Masons.
3. Area and industry practice
Elliot testified that in his more than 40 years of experi-
ence the forming of concrete risers and stairs has always
been performed by cement masons. Further, Elliot testi-
fied that on the Harper College job and on the hundreds
of other similar jobs completed by Elliot Construction in
the area he has assigned such work to cement masons.
Rizio similarly testified that based on his 30 years of
experience the forming of concrete risers and stairs has
traditionally been the work of cement masons. He fur-
ther stated that other employers in the area likewise as-
sign such work to cement masons. The Carpenters did
not submit any evidence to the contrary. We accordingly
find that the factor of area practice6 favors awarding the
work in dispute to the employees represented by the Ce-
ment Masons.
4. Relative skills
Elliot testified that employees represented by the Ce-
ment Masons possess the requisite skill and ability to
perform the disputed work. Rizio testified that cement
masons undergo apprenticeship programs designed to
train them to recognize the appropriate time to remove
the screeds after the concrete has been poured, so as not
to spoil the concrete, and to be familiar with the steps
and layout involved in the forming and pouring process.
The Carpenters did not submit any evidence concerning
the skills of Carpenters-represented employees. Based
on the evidence submitted by the Employer and Cement
Masons, we find that this factor favors awarding the dis-
puted work to employees represented by the Cement Ma-
sons.

6 The parties did not present any evidence regarding industry prac-
tice.
5. Economy and efficiency of operations
Elliot testified that it is more economical to assign the
disputed work to cement masons, who perform pouring
work as well as the disputed forming work. To assign
employees represented by the Carpenters to perform the
disputed work would require operating with two crews,
and carpenters would be idle when cement masons were
pouring. Clearly, it is more efficient to assign the dis-
puted work to employees who can perform both forming
and pouring. Accordingly, we find that this factor favors
awarding the work in dispute to employees represented
by the Cement Masons.
CONCLUSIONS
After considering all the relevant factors, we conclude
that the Employer’s employees represented by the Ce-
ment Masons are entitled to perform the work in dispute.
We reach this conclusion relying on the factors of collec-
tive-bargaining agreement, employer preference and past
practice, area practice, relative skills, and economy and
efficiency of operations. In making this determination,
we are awarding the disputed work to employees repre-
sented by Cement Masons’ Local Union No. 502 Opera-
tive Plasterers’ and Cement Masons’ International Asso-
ciation of the United States and Canada, not to that Un-
ion or to its members. This determination is limited to
the controversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of Elliot Construction Corporation, repre-
sented by Cement Masons’ Local Union No. 502 Opera-
tive Plasterers’ and Cement Masons’ International Asso-
ciation of the United States and Canada are entitled to
perform the work of forming concrete stairs and risers on
a jobsite located at Harper College, 1200 W. Algonquin
Road, Palatine, Illinois.