Local 265, Laborers

National Labor Relations Board - Board Decisions

Mar 27, 1972

195 N.L.R.B. 1034 (N.L.R.B. 1972)

1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 265 , Laborers' International Union of
North America, AFL-CIO andThe Robert R. Plas
Construction Co. and Cement Masons Local Union
No. 524, Operative Plasterers' and Cement Masons'
International Association of the United States and
Canada, AFL-CIO. Case 9-CD-245
March 27, 1972
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following
charges filed by The Robert R. Plas Construction Co.,
hereinafter called Employer, alleging that Local Union
No. 265, Laborers' International Union of North
America, AFL-CIO, hereinafter called Laborers or
Laborers' Local 265, violated Section 8(b)(4)(D) of the
Act by engaging in certain proscribed activity with an
object of forcing or requiring the Employer to assign
certain work to employees represented by the Laborers
rather than to employees represented by Cement Ma-
sons Local Union No. 524, Operative Plasterers' and
Cement Masons' International Association of the
United States and Canada, AFL-CIO, hereinafter
called Cement Masons.
Pursuant to notice, a hearing was held before Hear-
ing Officer William C. Mittendorf on December 22,
1971. All parties appeared at the hearing' and were
afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence bear-
ing upon the issues. Thereafter, the Employer and the
Laborers filed briefs, and the Employer filed a motion
to amend charge and notice of hearing and a memoran-
dum in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the Board
makes the following findings:
' The Cement Masons entered its appearance at the heanng and re-
mained for a short time
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated that the Employer, The Rob-
ert R. Plas Construction Co., is an Ohio corporation
engaged in the building and construction industry in
the ,operation of a concrete constructing company. Dur-
ing the past year, a representative period, the Employer
performed services valued in excess of $50,000 for cus-
tomers located outside the State of Ohio. The parties
stipulated, and we find, that the Employer is 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.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the Laborers
and the Cement Masons are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
In October 1971, the Dues Contracting Company,
the general contractor, subcontracted to the Employer
the concerte work on a construction project at the Ad-
here Printing Company , located on Redna Terrace in
Woodlawn, Hamilton County, Ohio . The work in dis-
pute consists of the application of a liquid chemical
compound to cement floors for the purpose of curing
the concrete after it has been finished by the cement
finishers . The curing compound is delivered to the job-
site and unloaded by the supplier . It is then placed in
a portable motor -driven tank and applied to the con-
crete with a spray attachment . One man can cure a
day's pour of concrete , which is 10,000 to 14,000
square feet , in 1 hour.
The Employer 's operating practice has been to pour
and rough -grade the cement in the morning using the
services of laborers for approximately half a workday.
After the pour is completed, the laborers do general
cleanup work and fine grading for the remainder of the
workday . When the concrete starts to harden the ce-
ment finishers begin the finishing and continue until the
work, including the curing , is completed, sometimes on
overtime.
The record shows that since its inception in 1953, the
Employer has assigned the disputed work to the mem-
bers of Cement Masons , and that some of the other
concrete subcontractors in the area also have assigned
this work to cement finishers . However, if the subcon-
tract is a "place and pour" contract only, the general
contractor retains the curing work and it is done by the
general contractor's employees who are laborers.
195 NLRB No. 193
LOCAL 265, LABORERS 1035
On October 13 or 14, 1971, while the Employer was
engaged in pouring concrete at the Adhere Printing
Company jobsite at Redna Terrace, Woodlawn, Ohio,
two representatives of the Laborers Union arrived at
the jobsite. J.B. Cunningham, business representative
of the Laborers, told the Employer, "If we don't cure,
we don't pour." Work continued, however, until the
following day when the Laborers Agents Cunningham
and Brooks returned to the jobsite and informed the
laborers working there that they could not continue to
work for the Employer until the dispute was settled.
About the same time, three truckloads of concrete ar-
rived at the site and Robert R. Plas began to pour the
concrete himself. Cunningham then told the Employer
in the laborers presence that nobody was going to do
their work. The unpoured concrete had to be returned
to the supplier and the pour was stopped. Although not
entirely clear, the record indicates that the Laborers
thereafter called a meeting of its members and in-
structed them not to work for the Employer until the
dispute was settled.
As a result, the Employer worked on jobs located in
Butler County, Ohio, which is outside the jurisdiction
of Laborers' Local 265. There is no showing that the
Laborers performed any work for the Employer within
Local 265's jurisdiction until they were enjoined on
November 15, 1971, from refusing to work.'
B. The Work in Dispute
As stated above, the work in dispute consists of the
application of a liquid chemical compound to poured
concrete floors for the purpose of curing the concrete.
C. Contentions of the Parties
The Laborers asserts that its motion to quash the
hearing, which was denied by the Hearing Officer,
should have been sustained because Laborers' Local
265, in its letter of December 13, 1971, to the Regional
Director , National Labor Relations Board, Region 9,
disclaimed the work in dispute at the Adhere Printing
Company jobsite; that jobsite was the only subject of
the charge and notice of hearing; there in fact was no
jurisdictional dispute at any other project ; and, in any
event , a broad order should not issue.
The Employer contends that the disputed work has
consistently been assigned by it to cement masons since
the beginning of its operations ; other subcontractors
within the Laborers jurisdictional area also have con-
sistently assigned this work to cement masons ; the skill
' On November 15, 1971, the United States District Court for the South-
ern District of Ohio, Western Division , granted the Board 's petition for a
temporary injunction , pursuant to Section 10(1) of the National Labor Rela-
tions Act, as amended , pending final disposition of the matters involved
herein.
and efficiency of operation of the Employer's business
necessitates application of the curing compound by ce-
ment masons; the dispute covered all of the Employer's
work within the area jurisdiction of Laborers' Local
265; and nothing has occurred that would indicate the
matter has been finally settled.
D. Applicability of the Statute
Before the Board may proceed with a determination
of dispute pursuant to Section 10(k) of the Act, it must
be satisfied that there is reasonable cause to believe that
Section 8(b)(4)(D) has been violated, and that there is
no agreed-upon method for the voluntary adjustment
of the dispute.
The charge alleges a violation of Section 8(b)(4)(D)
of the Act. As stated above, the United States District
Court granted a temporary injunction pursuant to Sec-
tion 10(1) of the Act, upon a finding that there was
reasonable cause to believe the Laborers' Local 265 had
engaged in unfair labor practices within the meaning of
Section 8(b)(4)(D) of the Act. The record shows that
the Laborers threatened to cease work and did in fact
cease work because the Employer refused to assign the
curing work to its members and instructed them not to
perform any work for the Employer until the matter
was settled.
Based on the foregoing and the record as a whole, we
find that an object of the Laborers conduct was to force
or require the Employer to assign the disputed work to
employees represented by the Laborers rather than to
members of Cement Masons. Accordingly, we find that
reasonable cause exists to believe that the Laborers
violated Section 8(b)(4)(D) of the Act, and that the
dispute is properly before the Board for determination
under Section 10(k) of the Act.
With respect to the Laborers purported disclaimer,
the Board has held that such disclaimers are not effec-
tive to vitiate an otherwise viable jurisdictional dispute.
We hold that the Laborers disclaimer is not valid here
in view of its entire course of conduct.'
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work after giving due
consideration to various relevant factors . The following
factors are relevant in making a determination of the
dispute before us.
' Local 294, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen, and Helpers of America (Bethlehem Steel Corporation), 174
NLRB 30, 32.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Certification and collective-bargaining agreements
Neither of the labor organizations involved herein
has been certified by the Board as the collective-bar-
gaining representative for a unit of the Employer's em-
ployees.
The Employer is a signatory to contracts negotiated
by Cincinnati Division, Associated Contractors of
Ohio, Inc., with both the Laborers and the Cement
Masons. Neither of these contracts contains any work
coverage provision which includes the application of
the liquid chemical curing compound to finished con-
crete.
As there is no certification or collective-bargaining
agreement covering the disputed work, neither union is
favored by these factors.
2. Company and industry practices
As stated above, the Employer has consistently, as-
signed the disputed work to employees represented by
the Cement Masons during the entire period ofits oper-
ations. The Employer presented evidence that some of
its competitors in the area also have assigned this work
to cement, finishers. The record shows, however, that in
some instances, the general contractor may retain the
curing work and assign it to his own employees who are
laborers. We find that the factor of the Employer's
practice tends to favor an award to employees repre-
sented by the Cement Masons. As indicated, area prac-
tice is mixed.
3. Skills and efficiency
There is nothing in the record to indicate that the
employees represented by the competing unions cannot
perform the disputed work with equal skill to the satis-
faction of their employers. The Employer, however,
contends that it would be impractical and costly to
utilize a laborer to perform the curing work. The Em-
ployer testified that the laborers' work is usually com-
pleted and they have departed from the jobsite before
the curing work can be done, whereas the cement
finishers are still on the job performing finishing work.
Also, if adverse conditions exist, the curing compound
is applied the morning following the pour when most
of the cement finishers are not fully employed but when
the laborers' work is at its high point. The Employer
further testified that the poured concrete may have
"hot spots" and, "wet spots" which necessitate the ap-
plication of the curing compound to different areas of
the concrete at different times, and that cement masons
have the knowledge and the skill to determine when the
concrete is sufficiently hardened in a given area to apply
the curing compound. In any event, the finisher would
have to remain on the job to refinish any imprints left
in the concrete after application of the curing com-
pound.
In these circumstances , we find the factors of skill
and efficiency favor award of the disputed work to
employees ,represented by the Cement Masons.
CONCLUSIONS
Upon the record as a whole, and after full considera-
tion of all relevant factors involved, we- conclude that
the Employer's employees who are represented by Ce-
ment Masons are entitled to perform the work in dis-
pute. We reach this conclusion upon the Employer's
assignment of the disputed work to its employees who
are represented by the Cement Masons; the fact'that
this assignment is consistent with its own past practice
and that of many of its competitors; the further fact
that cement masons employed by the Company have
the requisite skill and are familiar with all facets of the
work; and the attendant efficiency and economy of the
established operations. We shall therefore determine
the dispute before us by awarding the work in dispute
at the Employer's Adhere Printing Company project
located on Redna Terrace in Woodlawn, Hamilton
County, Ohio, to those employees represented by Ce-
ment Masons , but not to that Union or its members.
Accordingly, we find that, Laborers is not entitled by
means proscribed by Section 8(b)(4)(D) of the Act to
force or require the Employer to assign disputed work
to employees represented by it.
The Employer requests that the Board's award be
extended to cover all of the Employer's work within the
area jurisdiction of Laborers' Local 265.1 The Em-
ployer argues that the jurisdictional question has arisen
in the past; that the instant dispute covered all of the
Employer's jobs within the'' area jurisdiction of Local
265; and that nothing has occurred to indicate the mat-
ter has finally been settled. Although the Board need
not restrict its award to a single job if there is evidence
that similar disputes will occur in the future,' we con-
clude that a broad award is not clearly justified by the
evidence herein.' Thus, the record does not indicate
We have considered the Employer 's motion to amend charge and notice
of hearing to include the disputed work at all jobs of the Employer within
the area jurisdiction of Laborers ' Local 265, its memorandum in support
thereof, and Local 265's memorandum in opposition thereto Since the
10(k) hearing has already closed, we find the Employer 's, motion untimely
In any event , in view of our findings herein, the Employer's motion would
appear to be moot
Bricklayers, Masons and Plasterers ' International Union of America,
Local No. 1, AFL-CIO (Lembke Construction Company of Colorado. Inc),
194 NLRB No. 98
6 Chairman Miller is of the opinion that the facts demonstrate a strong
possibility that similar disputes will occur in the future and therefore a broad
order should issue. There is evidence that the Laborers instructed its mem-
bers not to perform any work for the Employer within the Local's area
jurisdiction, and that they did not perform any such work until enjoined
from refusing to do so , It also should $e noted that the Laborers, alleged
disclaimer was carfully limited to the job on which the present dispute arose,
and there is nothing in the record to indicate that the Laborers will hence-
LOCAL 265, LABORERS 1037
that there had been any dispute cognizable under Sec-
tions 8(b)(4)(D) and 10(k) of the Act between the Ce-
ment Masons and the Laborers involving the work in
question prior to the present dispute; that any such
dispute existed during the period in question at any
other jobsite; or that similar disputes will occur in the
future. Therefore, we will limit our award to the project
presently under consideration.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Re-
lations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this proceed-
ing, the National Labor Relations Board hereby makes
the following determination of the dispute:
1. Employees of The Robert R. Plas Construction
Co., who are represented by Cement Masons Local
forth refrain from taking unlawful action to obtain the disputed work on
other projects.
Union No. 524, Operative Plasterers' and Cement Ma-
sons' International Association of the United States
and Canada, AFL-CIO, are entitled to perform the
work of applying a liquid chemical compound to
poured concrete floors for the purpose of curing the
concrete at the Employer's Adhere Printing Company
project at Redna Terrace, Woodlawn, Ohio.
2. Local Union No. 265, Laborers' International
Union of North America, AFL-CIO, is not entitled, by
means proscribed by Section 8(b)(4)(D) of the Act, to
force or require The Robert R. Plas Construction Co.
to assign the above work to employees represented by
it.
3. Within 10 days from the date of this Decision and
Determination of Dispute, Local Union No. 265, La-
borers' International Union of North America, AFL-
CIO, shall notify the Regional Director for Region 9,
in writing, whether or not it will refrain from forcing
or requiring the Employer, by means proscribed by
Section 8(b)(4)(D) of the Act, to assign the work in
dispute to employees represented by Laborers, rather
than to employees represented by Cement Masons.