Local 41, Plasterers

National Labor Relations Board - Board Decisions

Apr 12, 1972

196 N.L.R.B. 291 (N.L.R.B. 1972)

LOCAL 41, PLASTERERS
Local 41 , Operative Plasterers & Cement Masons and
Sioux City Mosaic Company , Inc. and Local Union
5, Bricklayers , Masons and Plasterers International
Union. Case 18-CD-137
April 12, 1972
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS , KENNEDY , AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
charges filed by Sioux City Mosaic Company, Inc.,
hereinafter called Employer, alleging that Local 41,
Operative Plasterers & Cement Masons, hereinafter
called Plasterers, 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 Plasterers
rather than to employees represented by Local Union
5, Bricklayers, Masons and Plasterers International
Union, hereinafter called Bricklayers.
Pursuant to notice, a hearing was held before Hear-
ing Officer William Allen Erickson on March 1, 1972.
All parties appeared at the hearing and were afforded
full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing
on the issues . Thereafter, a brief was filed by the
Employer.'
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:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated that Sioux City Mosaic
Company, Inc., is an Iowa corporation engaged in the
installation of certain types of floor coverings from its
principal location in Sioux City, Iowa. During the past
year the Employer has purchased materials from
points outside the State of Iowa, the value of which
exceeded $50,000. The parties stipulated that the Em-
ployer is engaged in commerce within the meaning of
1 The Employer 's request that the transcript be corrected by substituting
the word "area" for the word "early" in its closing request at p. 119 is hereby
granted. It is clear from the context of that statement and of the response
by the counsel for Plasterers that the Employer was requesting a determina-
tion applicable to the entire area
291
the National Labor Relations Act. Accordingly, 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 Plasterers
and Bricklayers are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Facts
Chris Hansen Construction Company, Inc., is the
general contractor for the construction of the North-
side High School in Sioux City, Iowa. H. S. Holtze
Construction Company is the general contractor for
the construction of the Westside High School in Sioux
City, Iowa. Both of the aforementioned general con-
tractors have subcontracted to the Employer the in-
stallation and finishing at their respective school
projects of certain floor toppings consisting of ce-
ramic coated quartz granule that is embedded in a
polyester matrix. Hansen and Holtze are members of
Master Builders of Iowa, a multiemployer associa-
tion, which has a collective-bargaining agreement
with Plasterers. The Employer has had a continuous
collective-bargaining relationship with Bricklayers
during the entire time it has been in business, approxi-
mately 25 years. The Employer does not have a collec-
tive-bargaining agreement with Plasterers.
Prior to the Employer's beginning work on either of
the school projects, Plasterers claimed the work of
installing and finishing the floor toppings. The Em-
ployer had assigned this work to its regular full-time
employees represented by the Bricklayers. Plasterers
referred these disputes to the National Joint Board,
which awarded the work to Plasterers. Neither the
Employer nor Bricklayers participated in the Joint
Board proceedings and both have refused to recog-
nize or abide by the Joint Board's decisions, which are
both dated November 19, 1971. In addition, the agree-
ment between the Employer and Bricklayers does not
provide for a voluntary method of settling jurisdic-
tional disputes.
On or about November 30, 1971, a meeting was
held between representatives of the Employer, Plas-
terers, Bricklayers, Hansen, and Holtze to discuss the
assignment of the work in dispute. The Employer stat-
ed it had assigned this work to its employees repre-
sented by Bricklayers. The representatives of both
general contractors expressed the opinion that this
assignment was proper because of the employees' ex-
196 NLRB No. 47
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
perience in this type of work . Plasterers continued to
claim the work in dispute , referring to the aforemen-
tioned Joint Board decisions , and said that unless
employees represented by Plasterers were assigned
the work there would be "problems " or "pickets."
Although Plasterers representative at the November
30, 1971 , meeting testified at the hearing that he did
not "recall saying anything that would constitute an
outright threat to put up a picket ," he did not deny the
remarks attributed to him by other participants.
It appears that the participants in the November 30,
1971, meeting agreed to postpone commencement of
the disputed work pending further efforts to resolve
this matter . Plasterers filed a grievance concerning the
work assignment with Master Builders , the multiem-
ployer association referred to above . A meeting on
this grievance was held on December 10, 1971, at
which the association was represented by a represent-
ative of Hansen and a representative of Holtze. Min-
utes of this meeting , prepared by the association's
executive secretary , were admitted into evidence with-
out objection . These minutes attribute to Plasterers
representative the statement that Plasterers intended
to picket both school sites because of the assignment
of the work in dispute.
Although there had been no actual picketing, the
Employer's work was not begun until the day of the
hearing in this matter . While testifying Plasterers rep-
resentative was told by counsel for the Employer that
the work in dispute had been started that day and now
they would find out if Plasterers was going to picket.
Plasterers representative responded , "I don't know."
B. The Work in Dispute
The work in dispute here is the installation and
finishing of floor toppings consisting of ceramic coat-
ed quartz granule that is embedded in a polyester
matrix.
C. Contentions of the Parties
The Employer and Bricklayers take the position
that the Employer 's assignment of the disputed work
was justified by the Employer's collective-bargaining
relationship with Bricklayers , the Employer's past
practice , the area practice respecting similar work, the
training and skills of those employees , and the fact
that the work would be performed more economically
and efficiently when done by employees of the Em-
ployer represented by Bricklayers . The Employer and
Bricklayers further contend that neither is bound by
the awards of the National Joint Board.
Plasterers , on the other hand, contends that the
disputed work should properly be assigned to employ-
ees represented by it because the work falls within the
definition of its craft jurisdiction contained in the
constitution of its International . It also argues that,
when considered in its entirety , the collective-bargain-
ing agreement between it and the Master Builders
dictates that it perform this work . The Plasterers re-
lies, in addition , on the awards of the Joint Board.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion 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.
Plasterers representative is alleged to have threat-
ened to picket both school sites because of the assign-
ment of the work in dispute to employees of the
Employer represented by Bricklayers on or about No-
vember 30 , 1971, and again on or about December 10,
1971. This representative of Plasterers testified at the
hearing and did not deny the threats attributed to him
on either occasion . Based on the foregoing and the
record as a whole , we find that an object of Plasterers
threats was to force or require the Employer to assign
the disputed work to employees represented by Plas-
terers . Accordingly, we find that reasonable cause ex-
ists to believe that Plasterers violated Section
8(b)(4)(D) of the Act.
It is undisputed that neither the Employer nor
Bricklayers participated in the proceedings before the
National Joint Board ; indeed , neither was required to
do so by their collective-bargaining agreement. It ap-
pears that neither of these parties was advised before-
hand that Plasterers was submitting this matter to that
board and the Employer, prior to the awards, advised
the Joint Board that it was refusing to submit this
dispute to that body and would not be bound by its
awards . It is clear from the foregoing , and we find,
that at all times material herein there did not exist any
agreed-upon or approved method for the voluntary
adjustment of the dispute to which all parties to the
dispute were bound. Accordingly, the matter is prop-
erly before the Board for determination.
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 fol-
lowing factors are relevant in making a determination
of the dispute before us.
LOCAL 41, PLASTERERS 293
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
employees.
As indicated above, the Employer has no employ-
ees represented by Plasterers and has no collective-
bargaining agreement with that labor organization.
On the other hand, the Employer has had a contin-
uous collective-bargaining relationship with Bricklay-
ers for approximately 25 years and there is a current
collective-bargaining agreement in effect between
them.
mony adduced on behalf of the Employer is that five
of its employees have regularly done the disputed and
similar work and each of the five has been employed
by the Employer for 10 or more years. They have
received special training from various manufacturers
and from the Employer's president. These same em-
ployees are skilled in various other types of floor cov-
ering installation work and are utilized on tasks other
than those involved in the disputed work. Fur-
thermore, there are occasions during the performance
of the disputed work when it must lay dormant for a
period of hours for curing purposes. During these
occasions these employees are assigned to other tasks
not claimed by Plasterers.
2. Employer's assignment and past practice
As stated, the Employer assigned the work in dis-
pute to its employees who are represented by Brick-
layers. This assignment was consistent with its
established practice of assigning all such work to
those employees. Plasterers has not previously
claimed this work although on a number of occasions
employees represented by it were employed on pro-
jects where the same or similar work was being per-
formed by employees of the Employer represented by
Bricklayers. The uncontroverted testimony adduced
on behalf of the Employer is that its employees repre-
sented by Bricklayers have been performing the dis-
puted and other floor covering work similar to it for
many years in the Sioux City, Iowa, area.
3. Area practice
Although the Employer contends that area practice
supports its assignment of the work, it appears that
the Employer is the only subcontractor performing
this type of work in the immediate area of Sioux City,
Iowa. On the other hand, Plasterers adduced no testi-
mony that its members had ever performed the dis-
puted work in this area.
4. Relative skills, safety, availability of workers,
and efficiency and economy of operations
Plasterers representative testified that he was not
too familiar with the product involved in the disputed
work and he could not affirmatively say that any
member of his labor organization had ever worked
with this specific material. However, he did testify
that 2 of its approximately 60 members had had some
experience with an apparently similar product and
type of work. He further testified it could call upon
sister locals to furnish members experienced in this
type of product and work. The uncontroverted testi-
CONCLUSION
Upon the entire record as a whole, and after full
consideration of all relevant factors involved, we con-
clude that the Employer's employees represented by
Bricklayers are entitled to perform the work in dis-
pute. We reach this conclusion upon the facts that the
assignment is consistent with the Employer's past
practice, there is no inconsistent area practice, the
employees represented by Bricklayers possess the re-
quisite skills to perform the work, and such assign-
ment will result in greater efficiency, economy, and
continuity of operations. Accordingly, we shall de-
termine the dispute before us by awarding the work
in dispute at the Northside High School and Westside
High School projects in Sioux City, Iowa, to the
Employer's employees represented by Bricklayers,
and not to that Union or its members. In conse-
quence, we also find that Plasterers is not entitled by
means proscribed by Section 8(b)(4)(D) of the Act to
force or require the Employer to assign the disputed
work to employees represented by it?
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this pro-
ceeding, the National Labor Relations Board hereby
makes the following Determination of Dispute:
1. Employees of Sioux City Mosaic Company, Inc.,
of Sioux City, Iowa, who are represented by Local
Union 5, Bricklayers, Masons and Plasterers Interna-
tional Union, are entitled to perform the work of in-
stalling and finishing certain floor toppings consisting
of ceramic coated quartz granule that is embedded in
2 We find no merit in the Employer's request for a broad work award by
the Board on behalf of the employees represented by Bricklayers , as it is clear
that Plasterers has not previously claimed assignment of this work on any
other of Employer 's jobs and there is no evidence warranting the conclusion
that such a claim will be made by Plasterers at Employer's future operations.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a polyester matrix at the Northside High School and
Westside High School projects in Sioux City, Iowa.
2. Local 41, Operative Plasterers & Cement Ma-
sons , is not entitled , by means proscribed by Section
8(b)(4)(D) of the Act , to force or require Sioux City
Mosaic Company , Inc., 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 41, Operative Plas-
terers & Cement Masons , shall notify the Regional
Director for Region 18, 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 Plasterers , rather than to employees represented by
Bricklayers.