Plasters Local 80

National Labor Relations Board - Board Decisions

Oct 5, 1976

226 N.L.R.B. 242 (N.L.R.B. 1976)

242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Operative Plasterers ' and Cement Masons ' Interna- I. THE BUSINESS OF THE EMPLOYER
tional Association of the United States and Canada,
Local 80,,AFL-CIO and Jack Ebert and Company
and International Brotherhood of Painters and Al-
lied Trades, District Council No. 6, AFL-CIO. 8-
CD-328
October 5, 1976
DECISION AND DETERMINATION OF
DISPUTE
By CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
The Employer is an Ohio corporation engaged in
the business of painting commercial and industrial
establishments. The record shows that the Employer
annually furnishes goods and services valued in ex-
cess of $50,000 to enterprises which satisfy the
Board's direct jurisdictional standards. 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 purposes of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Jack Ebert and Company, here-
in called the Employer, alleging that Operative Plas-
terers' and Cement Masons' International
Association of the United States and Canada, Local
80, AFL-CIO, herein called Plasterers, violated Sec-
tion 8(b)(4)(D) of the Act by engaging in certain pro-
scribed activity with an object of forcing or requiring
the Employer to assign certain work to employees
represented by it rather than to employees repre-
sented by International Brotherhood of Painters and
Allied Trades, District Council No. 6, AFL-CIO,
herein called Painters.
A duly scheduled hearing was held on June 14, 24,
25, 28, and 30, 1976, and on July 1 and 2, 1976, be-
fore Hearing Officer Cornelius J. Baasten. All parties
appeared at the hearing and were afforded full op-
portunity to be heard, to examine and cross-examine
witnesses, and to adduce evidence bearing on the is-
sues.
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 Hearing Officer's rul-
ings 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:
i At the hearing , the Employer moved to amend the description of the
work in dispute to read as follows "The application of fireproofing and
decorative material onto the iron work "
The Plasterers moved to dismiss the subject charge on the grounds that
the work dispute has been resolved by an Impartial Jurisdictional Disputes
Board award and that the Board is not following the mandate of the Su-
preme Court in N L R B v Radio and Television Broadcast Engineers Union,
Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Co-
lumbia Broadcasting System], 364 U S. 573 (1961)
The motions were referred by the Hearing Officer to the Board The
motions are hereby denied Substantive discussion of their merits is set forth
herein
The parties stipulated, and we find, that the Plas-
terers and the Painters are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is a painting contractor whose prin-
cipal place of business is at Cleveland Heights, Ohio.
In July 1975, the Employer was awarded a subcon-
tract for fireproofing work at Lincoln Junior High
School in Cleveland, Ohio, by the general contractor,
Panzica Construction Company. Panzica informed
the Employer that there was the possibility of a juris-
dictional dispute and instructed the Employer to get
it resolved. The Employer responded by soliciting
advice from the International Brotherhood of Paint-
ers jurisdictional department and from the local joint
trade board of the Painters Union.2
In accordance with the advice received, the Em-
ployer assigned the fireproofing work to two employ-
ees represented by the Painters in April 1976. On
May 5, 1976, Tom McHale, business representative
for the Plasterers, met with the Employer, asserted
that the fireproofing work belonged to employees
represented by the Plasterers, and threatened to pick-
et the site unless two employees represented by the
Plasterers were assigned the work.
The Employer refused to change his assignment of
the work and on May 6 and 7, 1976, the Plasterers
picketed the jobsite, virtually shutting down the job.
A few days after the picketing ended, Panzica called
a halt to the fireproofing work until such time as the
jurisdictional dispute was resolved.
2 The Employer did not solicit advice from the International Plasterers
jurisdictional department or from the Plasterers local joint trade board.
226 NLRB No. 42
PLASTERERS LOCAL 80 243
B. The Work in Dispute
The work in dispute consists of the application of
spray-on fireproofing material onto the steel beams
and decks of Lincoln Junior High School in Cleve-
land, Ohio.
The Employer and the Painters sought at the hear-
ing to establish that the work in dispute involved the
application of decorative material onto the iron work
as well as the application of fireproofing material.
Their position was based on the belief that some of
the fireproofing was exposed to public view and was
therefore decorative in nature. Considerable testimo-
ny by Carl Long, business manager for the Cleveland
Board of Education; Vito Arsena, a plastering con-
tractor; and Jack Ebert, the Employer's president,
conclusively showed, however, that none of the fire-
proofing work was to be exposed to public view. In
recognition of this fact the Employer entered into a
stipulation that the work in dispute did not involve
the application of decorative material.'
Based on the testimony taken at the hearing, we
find that the work in dispute has no decorative value
and consists solely of the application of fireproofing
material onto iron work.
C. Contentions of the Parties
The Employer contends that a jurisdictional dis-
pute exists and that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) of the Act has been vio-
lated. The Employer further contends that the
disputed work should be awarded to employees rep-
resented by the Painters on the basis of past practice,
economy and efficiency of operations, and the
Employer's assignment of the work.
The Painters contends that should the work be
found to be decorative in nature, the work should be
assigned to employees represented by it.
The Plasterers contends that no jurisdictional dis-
pute exists for the reason that the Painters has dis-
claimed the work in dispute and for the additional
reason that the Employer, together with the Painters
and the Plasterers, has participated in and agreed to
be bound by the proceedings of the Impartial Juris-
dictional Disputes Board, an agreed-upon method of
voluntary adjustment.
The Plasterers further contends that should a stat-
utory dispute be found to exist, employees repre-
sented by it should be assigned the disputed work on
the basis of collective-bargaining agreements, the
skills and training involved, the economy and effi-
3 The Painters representative was absent from the hearing at this time and
did not join in the stipulation
ciency of operations, safety, area and industry prac-
tice, and joint board awards.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the 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 the parties have not agreed upon a method
for the voluntary adjustment of the dispute.
Addressing itself to this issue, the Plasterers claims
that there is no dispute because the Painters has dis-
claimed the work.
The record shows that Mr. Anthony DeMarco, ex-
ecutive secretary of the Painters, stated at the hearing
that the Painters Union contends that the work be-
longs to employees represented by it only if there is
decorative value to the work. The record also estab-
lishes, as found above, that there is no decorative
value to the work in dispute. However, Frank Soreo,
one of the two painters assigned the fireproofing
work by the Employer, testified that he claimed the
disputed work. Soreo also testified that he performed
spraying work at the jobsite for a period of approxi-
mately 2 days `sometime after the picketing ended. In
these circumstances, we find the purported disclaim-
er to be insufficient to support a finding by us that
no dispute exists.4
The Plasterers also contends that no dispute exists
because all the relevant parties, i.e., the Employer,
the Painters, and the Plasterers have agreed upon a
voluntary method of settling the dispute. The Plas-
terers argues that the Employer is bound by a May
20, 1976, decision of the Impartial Jurisdictional Dis-
putes Board which awarded the work involved herein
to employees represented by the Plasterers.
We find no merit to this contention. Although the
Painters and the Plasterers are concededly bound by
the joint board award, it is manifestly clear that the
Employer is not so bound. The Employer is not obli-
gated by contract with either union to participate in
the disputes board's proceedings, has not stipulated
to be bound by the disputes board's procedures, was
not present nor represented at the hearings, and did
not inform anyone that it would consider itself
bound by any decision rendered by that body. The
Employer's only affirmative act was to provide the
Impartial Jurisdictional Disputes Board with some
requested information. Moreover, the Employer
4 See Local No. 2 of Detroit, Bricklayers, Masons, and Plasterers Interna-
tional Union of America, AFL-CIO (Decora, Inc), 152 NLRB 278 (1965);
International Union of Operating Engineers, AFL-CIO, Local 520 (Biebel
Bros, Inc), 170 NLRB 285 (1968), International Brotherhood of Electrical
Workers, and its Local No 46 (Sanford Productions, Inc), 209 NLRB 741
(1974)
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stamped an information form submitted to James
Shay of the Painters Union, who represented the
Painters in the dispute board's proceedings, with an
express denial that it considered itself bound by
those proceedings.5
Accordingly, since it is uncontroverted that the
Plasterers picketed the Lincoln High School jobsite
with the intent of forcing a reassignment of the dis-
puted work, we find that there is reasonable cause to
believe that Section ' 8(b)(4)(D) of the Act has been
violated and that the, dispute is properly before the
Board for determination under Section 10(k).
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 all relevant factors in-
volved. The following factors are relevant in making
the determination of the dispute before us.
1. Collective-bargaining agreements
The Employer's contract with the Painters, which
was negotiated by the Cleveland Chapter, Painting
and Decorating Contractors of America, Inc., makes
no specific reference to fireproofing work.
The Plasterers agreement with the Cleveland Lath-
ing and Plastering Contractors' Association and Em-
ployers signatory thereto expressly provides:
Plasterers claim all Spray-on, or hand applied
fire-proofing materials, regardless of the type of
materials used.
Thomas McHale, business representative for the
Plasterers, testified that ° the word "claim" in the
above clause means "shall do the work."
The Employer, however, is not signatory to a con-
tract with the Plasterers.
This factor, therefore, favors neither employees
represented by the Plasterers nor employees repre-
sented by the Painters.
2. Company and industry practice
Thomas McHale, business representative for the
Plasterers, and Joseph Paratore and Vito Arsena,
plastering contractors, testified that the area and in-
dustry practice is to assign fireproofing work to em-
ployees represented by the Plasterers.
The Employer and three painting contractors, in
rebuttal, testified that they had performed various
5 Glaziers, Glassworkers and Glass Warehouse Workers Union, Local No.
636, Affiliated with the International Brotherhood of Painters and Allied
Trades, AFL-CIO (Plaza Glass Company), 214 NLRB 912 (1974).
fireproofing jobs both within and outside the Plas-
terers jurisdiction and had assigned the fireproofing
work to,employees represented by the Painters.
However, this testimony established that the fire-
proofing work performed by painters was infrequent
and relatively minor when compared with the fire-
proofing work performed by employees represented
by, the Plasterers.
It was further shown that the Plasterers 'and other
Plasterers locals had never acquiesced in an assign-
ment of the-disputed work to Painters.
This factor, consequently, favors the employees
represented by the Plasterers.
3. Relative skills
Employees represented by the Plasterers are given
6 to 9 months of on-the-job training in fireproofing
work in order to develop the requisite technical ex-
pertise. Employees represented by the Painters have
no such program for training.'
This factor, therefore, favors employees repre-
sented by the Plasterers.
4. Economy and efficiency of operations
Employees represented by the Plasterers were
shown to be much more efficient than employees
represented by the Painters. Employees represented
by the Plasterers can spray on approximately 80 to
100 bags of fireproofing material a day, whereas the
Painters employed by the Employer sprayed only ap-
proximately 20 to 25 bags a day.
This factor favors employees represented by the
Plasterers.
5. Joint board awards
The Plasterers submitted into evidence numerous
joint board awards, including the May 20, 1976,
award concerning the work in dispute herein. All
these awards awarded the application of fireproofing
material to employees represented by the Plasterers.
No joint board awards were submitted which
awarded fireproofing work to employees represented
by the Painters.
This factor favors employees represented by the
Plasterers.
6. Safety
Evidence was introduced which showed that the
6 The Employer testified that he has only one painter doing fireproofing
work who has received instruction. This consisted of 2 days of training at
the fireproofing material factory.
PLASTERERS LOCAL 80 245
safety precautions taken by the Plasterers exceeded
the precautions taken by the Painters.
Consequently, this factor favors assignment of the
work to employees represented by the Plasterers.
7. Employer' s assignment of the work
employer's assignment of disputed work will proba-
bly be based on the aforementioned factors and is
ordinarily given considerable weight, it "cannot be
made the touchstone in determining a jurisdictional
dispute."' We shall therefore determine the dispute
before us by awarding the work involved herein to
employees represented by the Plasterers, but not to
that Union or its members.
The Employer's practice in the past has been to
assign fireproofing work to employees represented by
the Painters. Additionally, the Employer's assign-
ment of the work in dispute herein was to employees
represented by the Painters.
This factor therefore favors employees represented
by the Painters.
Conclusions
Upon the record as a whole, and after full consid-
eration of all relevant factors involved, we conclude
that the employees who are represented by the Plas-
terers are entitled to perform the work in dispute. In
reaching this conclusion, we have particularly relied
on industry practice, the relative skills involved, the
economy and efficiency of operations, outstanding
joint board awards, and safety factors. Although an
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 makes
the following Determination of Dispute:
Employees represented by Operative Plasterers'
and Cement Masons' International Association of
the United States and Canada, Local 80 , AFL-CIO,
are entitled to perform the work in dispute which
consists of the application of spray-on fireproofing
onto the steel beams and decks of Lincoln Junior
High School in Cleveland, Ohio.
7 Millwrights Local Union No. 1102, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO (Don Cartage Company), 160 NLRB 1061,
1078 (1966)