Plasterers Local 528 (General/Rainier)

National Labor Relations Board - Board Decisions

Jan 19, 1993

310 N.L.R.B. 153 (N.L.R.B. 1993)

153
310 NLRB No. 27
PLASTERERS LOCAL 528 (GENERAL/RAINIER)
1 Local 528 limited its participation in the hearing to certain stipu-
lations and moving to quash the notice of hearing. It did not offer
any testimony.
Cement Masons Local 528, affiliated with the Oper-
ative Plasterers and Cement Masons Inter-
national Association, AFL–CIO and
General/Rainier, a Joint Venture and Wash-
ington and Northern Idaho District Council of
Laborers, AFL–CIO, Party in Interest and As-
sociated General Contractors of Washington,
Party in Interest. Case 19–CD–464
January 19, 1993
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed on July 30, 1992, and amended on August 11,
1992, by the Employer, General/Rainier, a Joint Ven-
ture, alleging that the Respondent, Cement Masons
Local 528 (Local 528), 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 employes represented by the Washington and
Northern Idaho District Council of Laborers (Labor-
ers). The hearing was held September 2 and 3, 1992,
before Hearing Officer James R. Kobe. Thereafter,
Local 528, the Laborers, and the Employer filed briefs.
The National Relations Board has delegated its au-
thority 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
record, the Board makes the following findings.
I. JURISDICTION
The Employer is a joint venture composed of
Rainier Steel, Inc. and General Construction, both of
which are Washington corporations. As such, it has
been engaged in the construction of bridge pontoons at
sites in Seattle and Tacoma, Washington, where it an-
nually realizes gross revenues of more than $500,000
and purchases goods valued in excess of $50,000 from
directly outside the State of Washington. 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 and that Local 528 and the Laborers are
labor organizations within the meaning of Section 2(5)
of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
On or about July 29, 1992, Local 528 suggested that
certain work then being performed by employees rep-
resented by the Laborers should be assigned to em-
ployees it represented. On the following two days,
Local 528, by and through its authorized agents, pick-
eted the Employer’s jobsites in Seattle and Tacoma,
Washington, in furtherance of its claims.
B. Work in Dispute
The disputed work involves repairing concrete sur-
faces and includes the tasks of curing, placing, grind-
ing, chipping, patching, and sawing cement and con-
crete on concrete pontoons at the jobsites named
above.
C. Contentions of the Parties
The Employer contends that all the relevant factors
support award of the disputed work to its employees
represented by the Laborers. It especially relies on the
longstanding practice of both participants in the joint
venture of performing similar work with employees
represented by the Laborers. The Employer further as-
serts that there is no agreed-on jurisdictional dispute
mechanism to which all parties are bound.
Local 528 contends that its motion to quash, which
it offered at the hearing on the instant dispute, should
be granted because all parties to that dispute have
agreed to a voluntary method for resolving jurisdic-
tional disputes. Accordingly, it contends that the Board
should now quash the notice of hearing and stay fur-
ther processing of the charge.
The Laborers’ contentions are essentially the same
as the Employer’s.
D. Applicability of the Statute
According to undisputed testimony,1 on February 1,
1992, the Employer awarded the work in question to
employees represented by the Laborers. On approxi-
mately July 29, an agent of Local 528, Joe Harrington,
met with the Employer’s vice president responsible for
labor relations, Thomas R. Anderson, and advised him
that he saw employees represented by the Laborers
performing work that should be performed by Local
528. On the next 2 days, authorized representatives of
Local 528 picketed the Employer’s jobsites in Seattle
and Tacoma to force the Employer to assign certain
work being performed by the Laborers to Local 528.
There is no evidence that Local 528 has subsequently
relinquished its claim to the work.
Local 528 contends that all parties have agreed to a
method for the voluntary adjustment of jurisdictional
disputes. Local 528 principally relies on the Employ-
er’s execution of a project agreement with the Laborers
binding it to an agreement with the Associated General
Contractors. That agreement, in article 13, provides
that jurisdictional disputes shall be adjusted ‘‘in ac-
cordance with the current Plan for the Settlement of
Jurisdictional Disputes,’’ except where the union or the
154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Local 528 has no collective-bargaining agreement with the Em-
ployer.
3 Unless all necessary parties are bound to a particular method for
voluntary dispute resolution, that method does not bar a Board deter-
mination. Electrical Workers IBEW Local 103 (Sylvania Lighting),
301 NLRB 213, 214 fn. 6 (1991).
employer is not a party to the procedures established
by the Impartial Jurisdictional Disputes Board. In such
cases the dispute is to be resolved by the affiliated
International unions.
The Employer contends that it is not a signatory to
the Plan for the Settlement of Jurisdictional Disputes
and that neither it nor the two Unions involved in the
instant dispute are obligated to the plan.
Notwithstanding the conflicting claims by the par-
ties, we find it determinative that since 1989, the
agreement between Local 528 and the Associated Gen-
eral Contractors of Washington2 has not contained the
article 13 provision that Local 528 asserts provides an
agreed-on method for resolution of the instant 1992
dispute. Thus, Local 528 is not obligated to the settle-
ment procedure specified in that article even if it were
otherwise applicable.3
Under the foregoing circumstances, we find reason-
able cause to believe that a violation of Section
8(b)(4)(D) has occurred and that there is no agreed-on
method for voluntary adjustment of the dispute within
the meaning of Section 10(k) of the Act. Accordingly,
we find that the dispute is properly before the Board
for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative 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 that its determination in a jurisdictional
dispute is an act of judgment based on common sense
and experience, reached by balancing the factors in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of the dispute.
1. Collective-bargaining agreements
The Employer has a labor agreement with the La-
borers and has no agreement, either present or past,
with Local 528. Further, General Construction Com-
pany, one of the joint venture participants, has had no
agreement with Local 528 for many years and Rainier
Steel, Inc., the other participant, has never had a con-
tractual relationship with Local 528. Pursuant to article
20 of the Laborers’ agreement, laborers repair defects
in concrete bridge surfaces. This factor favors award of
the work to employees represented by the Laborers.
2. Employer preference and past practice
The joint venture, by its current assignment of the
disputed work to employees represented by the Labor-
ers, has indicated that it prefers to assign the work in
question to those employees. Consequently, this factor
favors award of the disputed work to employees rep-
resented by the Laborers.
3. Area and industry practice
Similar companies in the area engaged in similar
work use individuals represented by the Laborers to
perform the disputed work. Thus the record in this cat-
egory weighs toward award of the disputed work to
employees represented by the Laborers.
4. Relative skills
The Employer presented testimony that employees
represented by the Laborers have been satisfactory and
receive training in all aspects of the disputed work.
Thus it appears that these employees have skills equal
to those of employees represented by Local 528 and
that this factor does not favor awarding the work to ei-
ther group of employees.
5. Economy and efficiency of operations
The Employer presented testimony that employees
represented by the Laborers can perform the work at
issue more economically and with greater efficiency
than employees represented by Local 528. The testi-
mony proffered by the Employer indicated that em-
ployees represented by the Laborers perform tasks
other than those in dispute while employees rep-
resented by Local 528 would not do so. That testimony
further suggested that the speed and efficiency of the
employees represented by the Laborers would be re-
duced if the Employer were required to add additional
crafts to a confined area. It asserted that the use of
members of both crafts would result in more idle time
and a less stable work force, and would require addi-
tional layers of supervision. In the absence of informa-
tion to the contrary, this factor favors award of the dis-
puted work to employees represented by the Laborers.
6. Similar awards
The Laborers produced a decision made under the
Plan for the Settlement of Jurisdictional Disputes in
the Construction Industry in which similar work was
awarded to employees represented by the Laborers.
The evidence presented is not sufficient to be of value.
7. Other factors
The Employer suggests that because employees rep-
resented by Local 528 would receive a higher wage for
performing the same work as had already been per-
formed by the employees represented by the Laborers,
155PLASTERERS LOCAL 528 (GENERAL/RAINIER)
the latter group’s attitude and resultant productivity
would be adversely affected. The Board does not rely
on wage differentials in jurisdictional disputes and this
assertion otherwise is too speculative to weigh in favor
of employees represented by either Union.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by the Laborers are
entitled to perform the work in the dispute. We reach
this conclusion relying on the factors of collective-bar-
gaining agreements, employer preference and past
practice, area and industry practice, and economy and
efficiency.
In making this determination, we are awarding the
work to employees represented by Washington and
Northern Idaho District Council of Laborers, AFL–
CIO, not to that Union or its members. The determina-
tion is limited to the controversy that gave rise to this
proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of General/Rainier, a Joint Venture,
represented by Washington and Northern Idaho District
Council of Laborers, AFL–CIO are entitled to perform
the disputed work of repairing concrete surfaces at the
Employer’s sites in Seattle and Tacoma, Washington,
including the tasks of curing, placing, grinding, chip-
ping, patching, and sawing cement and concrete on
concrete pontoons.
2. Cement Masons Local 528, affiliated with the Op-
erative Plasterers and Cement Masons International
Association, AFL–CIO is not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force
General/Rainier, a Joint Venture, to assign the disputed
work to employees represented by it.
3. Within 10 days from this date, Local 528 shall
notify the Regional Director for Region 19 in writing
whether it will refrain from forcing the Employer, by
means proscribed by Section 8(b)(4)(D), assign the dis-
puted work in a manner inconsistent with the deter-
mination.