St. Paul Building Trades Council

National Labor Relations Board - Board Decisions

Feb 3, 1970

180 N.L.R.B. 1045 (N.L.R.B. 1970)

ST PAUL BUILDING TRADES COUNCIL
St. Paul Building Trades Council and Plasterers
Local No. 20 and Associated General Contractors
of Minnesota and Curran V. Nielsen Painting and
Decorating Co., Inc ., and Terrazzo Workers Local
No. 5 and Terrazzo Workers Helpers Local No.
107. Case 18-CD-91
February 3, 1970
DECISION AND DETERMINATION OF
DISPUTE
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended,
following a charge filed by Associated General
Contractors of Minnesota, herein called A.G.C.,
alleging that St. Paul Building Trades Council,
herein called Council, and Plasterers Local No. 20,'
herein called Plasterers, had violated Section
8(b)(4)(D) by engaging in certain proscribed activity
with an object of forcing or requiring Curran V.
Nielsen Painting and Decorating Co., Inc., herein
called the Employer, to assign work in dispute to
the Plasterers rather than to employees of the
Employer represented by Terrazzo Workers Local
No. 5,2 herein called Terrazzo Workers, and by
Terrazzo Workers Helpers Local No 107,' herein
called Terrazzo Helpers. Pursuant to notice, a
hearing was held before Patrick W. Jordan, Hearing
Officer, in Minneapolis, Minnesota, on November
20, 1969. All parties, except Council, appeared at
the hearing' and were given full opportunity to be
heard, to examine and cross-examine witnesses, and
to adduce evidence bearing on the issues. Thereafter,
the Employer and the Plasterers filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the
Hearing Officer made at the hearing and finds that
no prejudicial error was committed The rulings are
hereby affirmed Upon the entire record in this case,
including the Employer's and the Plasterers' briefs,
the Board makes the following findings
An affiliate of Operative Plasterers and Cement Masons International
Association of the United States and Canada, AFL-CIO
'An affiliate of Bricklayers, Masons and Plasterers' International Union,
AFL-CIO
'An affiliate of international Association of Marble, Slate and Stone
PoLshers, Rubbers and Sawyers, Tile and Marble Mosaic and Terrazzo
Workers Helpers, AFL-CIO
'Respondent Council was served with Notice but did not attend the
hearing or enter an appearance Appearing at the hearing, but not a party
to the proceedings, were Kranz-Ganley and the Terrazzo Contractors of
Minnesota, also known as the Terrazzo Contractors of St Paul,
Minnesota, Foley and Mankato
1. THE BUSINESS OF THE EMPLOYER
1045
Curran V Nielsen Painting and Decorating Co.,
Inc., is a Minnesota corporation engaged in terrazzo
work in the construction industry. During the past
year the Employer purchased goods and materials
valued in excess of $50,000 which were shipped
directly from points outside the State of Minnesota.
We find that the Employer is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act, and 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
Plasterers, the Terrazzo Workers and the Terrazzo
Helpers are labor organizations within the meaning
of Section 2(5) of the Act.
Ill. THE DISPUTE
A. Background and Facts of the Dispute
The Employer entered into a subcontract with
Kranz-Ganley, a general contractor, to perform
work on exterior wail finishes, including the
application of aggregate in an epoxy binder to all
exterior vertical surfaces, on an office and
manufacturing building being constructed for the
Control Data Corporation in Arden Hills,
Minnesota The Employer assigned the work to his
own terrazzo mechanics and terrazzo helpers, who
are represented by the Terrazzo Workers and the
Terrazzo Helpers, respectively. The Employer has
no collective-bargaining agreement with the
Plasterers and does not employ any individuals in
the capacity of plasterers
On April 16, 1969, before the work actually
began, Plasterers submitted information to the
National Joint Board for a decision on the disputed
work at the Control Data project. No other party
participated in the Joint Board proceeding On May
8, 1969, the Joint Board, on the particular facts
before it, decided that the work in dispute should be
assigned to the Plasterers, on the basis of trade and
historical practices.
The Employer began work on the job on May 26,
1969 Curran V. Nielsen, the Employer's president,
testified without contradiction that on or about May
27, 1969, he was told by Paul Severin, business
representative for the Plasterers, that the application
of the epoxy binder and the placing of the aggregate
should be assigned to members of the Plasterers
Union. Nielsen continued to assign the disputed
work to his terrazzo employees, and a second
meeting was held at the jobsite on July 29, 1969.
Severin and Richard Radman, a representative of
Council, told Nielsen that unless the work in dispute
was assigned to members of the Plasterers, the job
would be picketed Work was suspended at that
180 NLRB No. 166
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time and did not resume until September 2.
Picketing by Council began on or about September
15, 1969, at the main entrance to the Control Data
project. The picket sign made no mention of the
Employer, but stated that Kranz-Ganley was in
violation of agreement and unfair.
B. The Work in Dispute
The work in dispute is the application of
aggregate in an epoxy binder to exterior vertical
wall surfaces and placing stones into the aggregate
at the Control Data Corporation project in Arden
Hills, Minnesota.
C. Contentions of the Parties
The Employer contends that Respondents engaged
in unlawful threats and coercion. The Employer
asserts that it is not bound by the Joint Board
award because, in the contract between the
Employer and Kranz-Ganley, the section which
specifically provides for adhering to Joint Board
procedure had been crossed out, a practice which
the Employer claims that it follows in all of its
contractual arrangements. Furthermore, the
Employer points out that it was not and is not a
member of any association which binds it to Joint
Board procedures. The Employer also points out
that it did not participate in any proceeding before
the Joint Board. Finally, the Employer argues that
the work in dispute should be awarded to employees
represented by the Terrazzo Workers and by the
Terrazzo Helpers in view of: (a) the coverage
thereof accorded by the current written agreement
between the National Terrazzo and Mosaic
Association, Inc., in which the Employer holds
membership, and the International Unions with
which the Terrazzo Workers and Terrazzo Helpers
are associated; (b) considerations of efficiency and
economy; and (c) area practice.
The Plasterers contends that it has neither
threatened nor coerced the Employer within the
meaning of Section 8(b)(4)(D) of the Act. It further
contends that the picketing was designed to protest
an alleged contract violation by Kranz-Ganley,
arguing that since Kranz-Ganley was bound by the
Joint Board's determination of the dispute, the
Employer was equally bound to abide by the award
of the Joint Board. The Plasterers contends that the
Joint Board determination of May 8, 1969, is
controlling, and that the Plasterers was awarded
work in dispute on the basis of trade and historical
practice. The Plasterers also contends that in 16
instances where work similar to the work in dispute
herein was submitted to the Joint Board, the
Plasterers was awarded the disputed work in every
case.' It also refers specifically to a dispute between
the instant parties in September 1965. The Terrazzo
Workers there filed the charges with the Joint
Board, whereupon the Joint Board awarded the
work to the Plasterers . After an unsuccessful appeal,
the Terrazzo Workers thereafter refused to
recognize the decision of the Joint Board.
Furthermore , the Plasterers argues that the Terrazzo
Workers and the Terrazzo Helpers are bound by
decisions of the Joint Board , since they are members
of International Unions affiliated with the Building
and Construction Trades Department of the
AFL-CIO. The Plasterers also contends that the
application of an aggregate in an epoxy binder is
essentially a hawk and trowel process , not unlike the
application of Kellastone and Marblecrete, which
have been applied by individuals represented by the
Plasterers for many years . It also argues that there
are several contractors in the area performing
similar work using individuals represented by the
Plasterers.
The Terrazzo Workers and Terrazzo Helpers were
represented at the hearing but declined to offer any
evidence concerning their position in the dispute.
D. Applicability of the Statute
Before the Board may proceed with a
Determination 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. As set forth previously, the
undisputed testimony shows that on July 29, 1969,
Respondents' representatives Severin and Radman
threatened to picket the job if the Employer failed
to assign the disputed work to individuals
represented by the Plasterers, and thereafter such
threatened action occurred, thus clearly establishing
a prima facie case supporting the alleged violation
of Section 8(b)(4)(D).
In the circumstances of this case, we are not
satisfied that the parties have agreed upon methods
for the voluntary resolution of the dispute, as it does
not appear that all parties have agreed to be bound
by the determinations of work jurisdiction made by
the Joint Board. Neither the National Terrazzo and
Mosaic Association, Inc. contract nor the
Employer's individual collective-bargaining
agreements with the Terrazzo Workers and the
Terrazzo Helpers requires the Employer to accept
decisions of the Joint Board. The Employer has also
deleted the provision of its subcontract with
Kranz-Ganley that would have required the
Employer to abide by the decisions of the Joint
Board. Thus, at no time has the Employer, a
necessary party to the adjustment of the dispute,'
undertaken a binding commitment to abide by
determinations of the Joint Board. Furthermore, the
Employer has not participated in any Joint Board
proceeding. Under all the above circumstances, we
conclude that there was no agreed upon method of
voluntary adjustment of the dispute within the
'The Joint Board awards are in the form of letters dated between 1965
and 1969 and concerned locations throughout the United States.
'See United Association of Journeymen and Apprentices of the
ST. PAUL BUILDING TRADES COUNCIL 1047
meaning of Section 10(k) of the Act.
On the basis of the entire record , we find that
there is a reasonable cause to believe that a
violation of Section 8 (b)(4)(D) of the Act has
occurred and that the dispute is properly before the
Board for determination under Section 10(k) of the
Act.
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work
after giving due consideration to all relevant factors.
In International Association of Machinists, Lodge
No. 1743 (J A. Jones Construction Co. ),7 the Board
set forth the following criteria to be considered in
the making of an affirmative award in a 10(k)
proceeding:
The Board will consider all relevant factors in
determining who is entitled to the work in dispute,
e.g., the skills and work involved, certification by
the Board, company and industry practice,
agreements between unions and between
employers and unions, awards of arbitrators, joint
boards, and the AFL-CIO in the same or related
cases, the assignment made by the employer, and
the efficient operation of the employer's business.8
1. Certification and bargaining agreements
None of the labor organizations herein has been
certified by the Board. The Employer has no
collective-bargaining agreement with the Plasterers.
The Employer is a member of the National
Terrazzo and Mosaic Association, Inc., which has
current collective- bargaining agreements with the
International Unions with which the Terrazzo
Workers and the Terrazzo Helpers are affiliated.
These National Agreements define "terrazzo" as
"any kind of aggregates . . . mixed with cement or
other binding material . . . to form a finish for any
exposed surface . . . ." The Employer is also a
member of the Terrazzo Contractors of Minnesota
and is thus bound by the Local Agreement with the
Terrazzo Workers which includes in Article I
(Description of work), Section I, "Epoxy terrazzo .
and all other similar meterials , for the interior or
the exterior of buildings ." The Local
Agreement with the Terrazzo Helpers includes a
provision securing a wage premium when engaged in
epoxy work. By these agreements , the Employer has
assigned the epoxy aggregate work to employees
represented by the Terrazzo Workers and by the
Terrazzo Helpers.
Plumbing and Pipefitting Industry of the United States and Canada,
Plumbers Local No. 219. AFL-CIO (Price Brothers Company). 174
NLRB No. 93
'135 NLRB 1402.
'Id at 1410.11
2. Company, industry, and area practice
Nielsen testified that the Employer has assigned
the epoxy-aggregate work to employees represented
by the Terrazzo Workers and the Terrazzo Helpers
since the Employer's first job of this nature, in May
1965. The record indicates that this is in accord with
the practice of other terrazzo contractors in the
area, notably Grazzini Brothers Company, who,
along with the Employer, handle approximately 85
percent of the epoxy-aggregate work in the Twin
Cities area. Grazzini Brothers, one of the first to
utilize this technique, has always assigned this work
to its employees represented by the Terrazzo
Workers and the Terrazzo Helpers.
3. Skills and efficiency
The epoxy is commonly applied with a serrated
trowel, a tool that both plasterers and terrazzo
mechanics use in the regular course of their
traditional work. In the years that the Employer has
used its employees to perform the disputed work,
they have demonstrated to the satisfaction of the
Employer that they possess the knowledge and skill
necessary to perform the epoxy-aggregate work.'
The Employer testified that it performs traditional
terrazzo work as well as the epoxy-aggregate work
and, by employing only terrazzo mechanics and
helpers, has the present ability to shift crews from
one type of work to the other. This ability to
transfer men and have continuous control over the
flow of work, the Employer claimed, is both
efficient and economical. The Employer further
stated that it presently employs no plasterers, and
that separate crews of terrazzo mechanics and
helpers, and plasterers, would make its method of
operation impossible, resulting in idleness and
increased costs.
4. Joint board awards
Although the Joint Board award of May 8, 1969,
cannot be regarded as determinative in this dispute,
since the Employer had not agreed to be bound by
the Joint Board's decision,1° it is not to be ignored,"
but is a factor to be considered in making our
determination.
Here, as in Price Brothers,' 2 the award took the
form of a letter setting forth its ultimate terms,
'The Plasterers attempted to prove, through the testimony of Ben
Gardner , secretary- treasurer of the Master Plasterers Association, that the
epoxy-aggregate wall finish was analogous to wall finishes traditionally
applied by members of the plasterers craft, specifically "Kellastone" and
"Marblecrete " However, Gardner's testimony also revealed that
"Kellastone" has not been in common usage since 1930 and that
"Marblecrete" requires a different ability to apply from that required by
epoxy-aggregate.
"International Union of Operating Engineers , Local Union No 158,
AFL-CIO (E C. Ernest, Inc), 172 NLRB No. 192.
"Millwrights Local Union No. 1102 (Don Cartage Company), 160
NLRB 1061.
"Supra. in. 5.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
neither explicating the factors relied upon nor
providing any supporting data that might enable us
to determine the significance that should be
accorded this award. We therefore do not find the
Joint Board's determination of the instant dispute to
be controlling For the same reasons, we do not
consider the other Joint Board awards in similar
disputes a significant factor in our examination of
the instant dispute.
Conclusions
Upon the record as a whole, and after full
consideration of all relevant factors involved, we
believe that the employees of the Employer who are
currently represented by the Terrazzo Workers and
the Terrazzo Helpers, rather than individuals
represented by the Plasterers, are entitled to the
work in dispute. We reach this conclusion relying
upon the Employer's assignment of the disputed
work to its own employees, the fact that the
assignment is consistent with the Employer's past
practice, the current bargaining contract, and the
practice of the area, the fact that the employees
represented by the Terrazzo Workers and the
TerrazzoHelpers possess the requisite skills to perform
the work, and that such an assignment will promote
etticiency and economy of operations. Accordingly,
we shall determine the dispute before us by
awarding the application of aggregate in an epoxy
binder to exterior vertical wall surfaces and placing
stones into the aggregate to employees represented
by the Terrazzo Workers and the Terrazzo Helpers,
but not to those Unions or their members.
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
proceeding, the National Labor Relations Board
hereby makes the following Determination of
Dispute
1. Employees of Curran V. Nielsen Painting and
Decorating Co., Inc., who are currently represented
by Terrazzo Workers Local No 5 and by Terrazzo
Workers Helpers Local No. 107, are entitled to
perform the work of applying the aggregate in an
epoxy binder to exterior vertical wall surfaces and
placing stones into the aggregate at the Control
Datajobsite in Arden Hills, Minnesota
2 St. Paul Building Trades Council and
Plasterers Local No 20 are not entitled, by means
proscribed by Section 8(b)(4)(D) of the Act, to force
or require Curran V Nielsen Painting and
Decorating Co., Inc., to assign such work to
individuals represented by Plasterers Local No. 20
3. Within 10 days from the date of this Decision
and Determination of Dispute, St. Paul Building
Trades Council and Plasterers Local No. 20 shall
notify the Regional Director for Region 18, in
writing, whether or not they • 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 individuals represented
by Plasterers Local No. 20, rather than to
employees represented by Terrazzo Workers Local
No. 5 and by Terrazzo Workers Helpers Local No.
107.