Plasters Local Union No. 79

National Labor Relations Board - Board Decisions

Jun 27, 1968

172 N.L.R.B. 565 (N.L.R.B. 1968)

PLASTERS LOCAL UNION NO. 79 565
Plasterers Local Union No. 79, Operative Plasterers
and Cement Masons International Association of
Houston , Texas and Southwestern Construction
Company
Plasterers Local Union No. 79, Operative Plasterers
and Cement Masons International Association of
Houston , Texas and Martini Tile and Terrazzo
Company ' Cases 23-CD-133 and 23-CD-137
JUNE 27, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
Upon charges filed on January 30, 1967, and
February 7, 1967, by Southwestern Construction
Company, herein called Southwestern, and on
March 17, 1967, by Martini Tile and Terrazzo
Company, herein called Martini, the General Coun-
sel of the National Labor Relations Board, by the
Regional Director for Region 23, issued a com-
plaint on September 14, 1967, against Plasterers
Local Union No. 79, Operative Plasterers and Ce-
ment Masons International Association of Houston,
Texas, herein called the Respondent , alleging that
the Respondent had engaged in and was engaging in
unfair labor practices within the meaning of Section
8(b)(4)(i) and (ii )(D) of the National Labor Rela-
tions Act, as amended . In substance , the complaint
alleges that the Respondent violated the Act by en-
gaging in picketing and other activities at the M. D.
Anderson Library project, Houston , Texas, and at
the Rainbo Baking Company , Houston , Texas, with
an object of forcing or requiring Southwestern
and/or its subcontractor, Texas State Tile and Ter-
razzo, Inc., herein called Texas Tile, and Martini, to
assign the work of applying to walls a coat of Port-
land cement mortar upon which tile was to be in-
stalled to employees represented by the Respon-
dent, rather than to employees represented by Tile,
Terrazzo and Marble Setters Local Union No. 20,
Bricklayers , Masons and Plasterers International
Union of America, AFL-CIO, herein called the Tile
Setters . The Respondent filed an answer admitting
certain allegations of the complaint and denying
certain other allegations.
On October 30, 1967, at a hearing held pursuant
to the complaint and notice of hearing, the parties
agreed to submit this proceeding directly to the
Board for the issuance of findings of fact, conclu-
sions of law, and a Decision and Order. It was
agreed that the entire record in this case shall con-
sist of. the Decision and Determination of Disputes,
the transcript of testimony, exhibits, and formal
papers in the prior 10(k) proceeding,' and the
transcript, exhibits, and formal papers in the present
proceeding. The parties waived a hearing before a
Trial Examiner, the making of findings of fact and
conclusions of law by a Trial Examiner, and the is-
suance of a Trial Examiner's Decision. On April 22,
1968, the General Counsel filed a motion to
transfer case to the Board. On April 24, 1968, the
Board granted the motion.3
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. Briefs were filed by the Respon-
dents and jointly by Texas Tile, Martini, the Tile
Setters and the Intervenors, which have been duly
considered.
Upon the entire record in these cases, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS
The parties stipulated that:
A. Texas Tile, a Texas corporation with its prin-
cipal office and place of business located in
Houston, Texas, is engaged in the business of in-
stalling tile and terrazzo. During the 12-month
period prior to the hearing Texas Tile purchased
and received goods, materials, and supplies valued
in excess of $50,000, which materials were shipped
from points outside the State of Texas directly to
Texas Tile at points within the State of Texas.
B. Martini , a Texas corporation with its principal
office and place of business located in Houston,
Texas, is engaged in the business of installing tile
and terrazzo . During the , 12-month period prior to
the hearing Martini purchased and received goods,
materials, and supplies valued in excess of $50,000,
' On October 10, 1967, Associate Chief Trial Examiner Charles W
Schneider granted a motion for intervention to the following organizations:
Bricklayers , Masons and Plasterers International Union of America ; Inter-
national Association of Marble , Slate , and Stone Polishers , Rubbers and
Sawyers , Tile and Marble Setters ' Helpers , and Marble Mosaic and Terraz-
zo Workers ' Helpers ; and Tile Contractors ' Association of America , Incor-
porated.
r On August 22, 1967 , in a proceeding pursuant to Section 10 ( k), the
Board issued its Decision and Determination of Disputes ( 167 NLRB 185),
in which the Board concluded that employees of Texas Tile and Martini
represented by the Tile Setters were entitled to perform the work in
dispute . At no time since the issuance of the Board 's Decision and Deter-
mination of Disputes has the Respondent given written notification to the
Regional Director for Region 23 that it would refrain from forcing or
requiring Texas Tile and/or Martini , by means proscribed in Section
8(b)(4)(D ), to assign the work in dispute to plasterers rather than tileset-
ters.
8 Pursuant to the provisions of Section 3(b) of the National Labor Rela-
tions Act , as amended , the National Labor Relations Board has delegated
its powers in connection with these cases to a three -member panel.
172 NLRB No. 77
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which materials were shipped from points outside
the State of Texas directly to Martini at points
within the State of Texas.
We find that Texas Tile and Martini are engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act, and that it will effectuate the
policies of the Act to assert jurisdiction herein.
requiring Texas Tile to change the assignment of
the disputed work from its own employees, who
were members of or represented by the Tile Setters,
to employees who were members of or represented
by the Respondent.
B. The Rainbo Job
11. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find, that the
Plasterers and the Tile Setters are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The M. D. Anderson Library Job
In 1965 , Southwestern , a general contractor, en-
tered a contract with the University of Houston to
construct an addition to the M. D. Anderson Libra-
ry. Southwestern let a subcontract for the tile and
terrazzo work to Texas Tile, which commenced
work in August 1966. Texas Tile has a collective-
bargaining agreement with the Tile Setters and as-
signed the work to employees represented by the
Tile Setters. At the outset of work in August 1966,
the Tile Setters began to apply a coat of Portland
cement mortar to receive tile. The Respondent
claimed the work. The matter was sent to the Na-
tional Joint Board for the Settlement of Jurisdic-
tional Disputes . On November 10, 1966, the Joint
Board rendered a decision awarding the disputed
work to the Respondent. Texas Tile was not bound
by the Joint Board decision. The record shows, and
we find, that thereafter, the Respondent, through
its representative, George Longshore, made several
attempts to obtain the work in question but Texas
Tile and the Tile Setters refused to accede to its de-
mands. On January 24, 1967, the Respondent
established a picket at the jobsite. The picket sign
read as follows:
Plasterers Local 79 protest the refusal of
Texas State Tile and Terrazzo to comply with
the National Joint Board. Local Union 79 does
not intend by this picket line to induce or en-
courage the employees of any other employer
to engage in a strike or concerted refusal to
work.
In fact, all crafts working on the job honored the
picket, causing a complete work stoppage. The
picket was removed after an injunction was granted
by the United States District Court for the Southern
District of Texas, Houston Division, on February
20, 1967. We further find that the Respondent en-
gaged in such picketing with an object of forcing or
Martini has a contract with the Rainbo Baking
Company in Houston, Texas, to furnish labor and
materials for the installation of ceramic tile. Martini
delivered its materials to the jobsite on or about
March 14, 1967, and began work the next day.
Martini has a collective-bargaining agreement with
the Tile Setters and assigned the work in dispute to
employees represented by the Tile Setters.
On the morning of March 17, 1967, the Respon-
dent established a picket line at the jobsite. The
picket sign read as follows:
Plasterers Local No. 79, protests substan-
dard conditions Martini Tile Co., Inc., Local
Union 79 does not intend by this picket line to
induce or encourage the employees of any
other employer to engage in a strike or a con-
certed refusal to work.
Shortly after the establishment of the picket, offi-
cials of Rainbo requested Martini to remove its em-
ployees from the premises. Martini complied and a
work stoppage ensued. Thereafter, the Respondent
removed the picket and picketing was not resumed
although Martini returned and continued work on
the job. Respondent has stipulated, and we find,
that the Respondent engaged in such picketing with
an object of forcing or requiring Martini to change
the assignment of the disputed work from its own
employees, who were members of or represented
by the Tile Setters, to employees who were mem-
bers of or represented by the Respondent.
C. Respondent's Contentions
The Respondent's defense herein, as argued in its
brief, is in the nature of a request for reconsidera-
tion of the Board's Decision and Determination of
Disputes issued in the 10(k) proceeding. It argues,
inter alia, that the word "parties" as used in Sec-
tion 10(k) does not mean the Employer and the
two Unions or groups of employees claiming the
work in dispute need agree upon a method for the
voluntary adjustment of the dispute for the Board
to quash the notice of hearing , but only that the
two Unions or groups of employees need agree
upon such a method of adjustment, and that since
Respondent and the Tile Setters are both subject to
the Joint Board's jurisdiction, the notice of hearing
should have been quashed. We reiterate, however,
PLASTERS LOCAL UNION NO. 79 567
our consistent interpretation of Section 10(k) that
the employer controlling the work assignment as
well as the rival unions involved comprise the
"parties to such dispute," and all must approve and
enter into a voluntary adjustment procedure in
order to preclude a hearing and determination pur-
suant to that section .4 Moreover, we note that the
Board 's longstanding interpretation of this aspect of
Section 10 ( k) was neither questioned nor disturbed
when the National Labor Relations Act was most
recently amended by Congress in 1959. Ac-
cordingly , we find no merit in this contention of the
Respondent . We have examined the remaining ar-
guments in support of the Respondent 's position,
and also find nothing therein which was not previ-
ously considered by the Board . We perceive no
reason for distrubing the prior Decision and Deter-
mination of Disputes.5
On the basis of the foregoing facts, and the entire
record in these cases, we find that the Respondent's
picketing of the M. D. Anderson and Rainbo pro-
jects as described above was for a proscribed object
and in violation of Section 8(b)(4)(i) and ( ii)(D).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
2. The Respondent and the Tile Setters are labor
organizations within the meaning of Section 2(5) of
the Act.
3. By its picketing at the M. D. Anderson Libra-
ry job, Houston, Texas, with an object of forcing or
requiring Texas Tile to assign certain work (apply-
ing a coat of Portland cement mortar to walls on
which tile was to be installed) to employees
represented by the Respondent rather than to em-
ployees represented by the Tile Setters, the
Respondent has engaged in unfair labor practices
within the meaning of Section 8(b)(4)(i) and
(ii)(D) of the Act.
4. By its picketing of the Rainbo Baking Com-
pany job, Houston, Texas, with an object of forcing
or requiring Martini to assign certain work (apply-
ing a coat of Portland cement mortar to walls on
which tile was to be installed) to employees
represented by the Respondent rather than to em-
ployees represented by the Tile Setters, the
Respondent has engaged in unfair labor practices
within the meaning of Section 8(b)(4)(i) and
(ii)(D) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
The activities of the Respondent set forth in sec-
tion 3, above, occurring in connection with the
operations described in section 1, above, have a
close, intimate, and substantial relationship to
trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that the Respondent violated Sec-
tion 8(b)(4)(i) and (ii)(D) of the Act, we shall
order it to cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the
policies of the Act.
CONCLUSIONS OF LAW
1. Texas Tile and Martini are engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
I United Association of Journeymen and Apprentices of the Plumbing and
Pipefttting bidustry of the United States and Canada. Local 428, AFL
(Philadelphia Association), 108 NLRB 186, 195-198 ; United Brotherhood
of Carpenters and Joiners of America, Local 1622 (O R. Karst), 139 NLRB
591. See also our Decision in the prior 10(k) proceeding , 167 NLRB 185,
and the cases cited in fn 4 therein
' By motions made on February 21, 1968 , to correct record on material
omissions , and on May 22, 1968, to correct 10 (k) record on material mis-
statement , Texas Tile, Martini , and the Tile setters seek to supplement the
ORDER
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respon-
dent, Plasterers Local Union No. 79, Operative
Plasterers and Cement Masons International As-
sociation of Houston, Texas, its officers, agents,
and representatives, shall:
1. Cease and desist from engaging in, or induc-
ing or encouraging individuals employed by Texas
State Tile and Terrazzo, Inc., or Martini Tile and
Terrazzo Company, or any other person engaged in
commerce or in an industry affecting commerce to
engage in, a strike or refusal in the course of their
employment to use, manufacture, process, trans-
port, or otherwise handle or work on any materials
or to perform any services; and from threatening,
coercing, or restraining the aforesaid persons,
where an object in either case is to force or require
Texas State Tile and Terrazzo, Inc., or Martini Tile
and Terrazzo Company, to assign the work of ap-
I0(k) record with various evidentiary matter that is in the nature of new
evidence, which is not shown to be newly discovered and previously
unavailable It is clearly not a "correction" of the 10(k) record, or a sup-
plying of evidence to fill an obvious omission in the record The motions
are hereby denied . Previously , on January 17, 1968, the Board denied a
motion to reopen 10(k) record on issuance of nationwide order filed by the
Tile Setters and the two employers , on the ground , utter alta , that the asser-
tion that the evidence offerred therein was newly discovered and previ-
ously unavailable was unsupported
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plying a coat of Portland cement mortar to walls
upon which tile is to be installed at the M. D. An-
derson Library and Rainbo jobs , to employees
represented by the Respondent rather than to em-
ployees represented by Tile, Terrazzo and Marble
Setters Local Union No. 20, Bricklayers , Masons
and Plasterers International Union of America,
AFL-CIO.
2. Take the following affirmative action the
Board finds will effectuate the policies of the Act:
(a) Post at its business offices, meeting halls, and
all other places where notices to employees are
customarily posted , in Houston , Texas, copies of
the attached notice marked "Appendix . 116 Copies of
said notice , on forms provided by the Regional
Director for Region 23, after being duly signed by
the Union's representative , shall be posted by the
Union immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to members are customarily posted.
Reasonable steps shall be taken by the Union to in-
sure that said notices are not altered, defaced, or
covered by any other material.
(b) Sign and mail copies of said notice to the
Regional Director for Region 23 for posting by
Texas State Tile and Terrazzo, Inc., and Martini
Tile and Terrazzo Company, the Companies
willing , at locations where notices to its employees
are customarily posted.
(c) Notify the Regional Director for Region 23,
in writing , within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
WE WILL NOT engage in, or induce or en-
courage individuals employed by Texas State
Tile and Terrazzo , Inc., or Martini Tile and
Terrazzo Company, or any other person en-
gaged in commerce , or in an industry affecting
commerce , to engage in a strike or refusal in
the course of their employment to use, manu-
facture , process, transport , or otherwise handle
or work on any materials, or to perform any
services; or threaten , coerce, or restrain the
aforesaid persons , where an object in either
case is to force or require Texas State Tile and
Terrazzo , Inc., or Martini Tile and Terrazzo
Company, to assign the work of applying a
coat of Portland cement mortar to walls on
which tile is to be installed, at the M. D. An-
derson Library job or at the Rainbo Baking
Company, Houston , Texas, to employees
represented by this Union , rather than to em-
ployees represented by Tile, Terrazzo and
Marble Setters Local Union No. 20,
Bricklayers , Masons and Plasterers Interna-
tional Union of America , AFL-CIO.
PLASTERERS LOCAL
UNION No. 79,
OPERATIVE PLASTERERS
AND CEMENT MASONS
INTERNATIONAL
ASSOCIATION OF
HOUSTON, TEXAS
(Labor Organization)
Dated By
" In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals Enforc-
ing an Order -
APPENDIX
NOTICE TO ALL OUR MEMBERS
Pursuant to a Decision and Order of the Na-
tional Labor Relations Board and in order to effec-
tuate the policies of the National Labor Relations
Act, as amended , we hereby notify you that:
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the
Board's Rgional Office, 6617 Federal Office Build-
ing, 515 Rusk Avenue, Houston, Texas 77002,
Telephone 226-4296, if they have any questions
concerning this notice or compliance with its provi-
sions.