Cement Masons Local 518

National Labor Relations Board - Board Decisions

Sep 25, 1981

258 N.L.R.B. 277 (N.L.R.B. 1981)

CEMENT MASONS LOCAL 518
Cement Masons Local Union 518 of the Operative
Plasterers' and Cement Masons International
Association, AFL-CIO and Desco Coatings of
Kansas Inc. and Resilient Floor & Decorative
Covering Workers Union, Local No. 1179.
Case 17-CD-271
September 25, 1981
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Desco Coatings of Kansas
Inc., herein called the Employer, alleging that
Cement Masons Local Union 518 of the Operative
Plasterers' and Cement Masons International Asso-
ciation, AFL-CIO, herein called Respondent or
Local 518, had 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 it
rather than to employees represented by Resilient
Floor & Decorative Covering Workers Union,
Local No. 1179, herein called Local 1179.
Pursuant to notice a hearing was held before
Hearing Officer Pamela J. Rose on March 26, 1981.
The Employer and Respondent appeared and were
afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to adduce evi-
dence bearing on the issues.
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
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer, a Kansas corporation with its principal
place of business in Olathe, Kansas, is engaged in
the business of installing epoxy floor covering and
protective wall finishes. During the past year, the
Employer purchased goods and services from out-
side the State of Kansas having a value in excess of
$50,000. The parties also stipulated, and we find,
that the Employer is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and
258 NLRB No. 25
it will effectuate the purposes of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Local
518 and Local 1179 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 has a subcontract with Darin and
Armstrong to install certain flooring at the General
Motors Leeds Assembly Plant in Kansas City, Mis-
souri. It uses eight employees to install the floors
and all are members of either Local 1179 or the In-
ternational Brotherhood of Painters and Allied
Trades (hereinafter Painters), with which Local
1179 is affiliated. Through its membership in the
Builders Association of Missouri (hereinafter the
Association), the Employer is bound to the collec-
tive-bargaining agreements between the Associ-
ation and Locals 1179 and 518 respectively. In ad-
dition, through its membership in Desco Interna-
tional Association (hereinafter DIA), the Employer
is bound to the collective-bargaining agreement be-
tween the Painters and the DIA. None of these
contracts expressly provides for submission of juris-
dictional disputes to the Impartial Jurisdictional
Disputes Board (hereinafter IJDB).
The Employer was awarded the General Motors
subcontract in November 1980. In early December,
Local 1179 Business Representative Rogers in-
formed Local 518 Assistant Business Representa-
tive Lubben that Local 1179 intended to perform
the disputed work. On December 8, 1980, Lubben
referred the matter to his International, which
thereafter submitted a claim to the IJDB. On Janu-
ary 19, 1981, the Employer notified the IJDB that
it did not intend to be bound by any decision ren-
dered by it. On January 23, 1981, the IJDB award-
ed the disputed work to Local 518.
The Employer began work on the subcontract
on February 17, 1981, utilizing its employees.
Shortly before this date Richard Crouch, the Em-
ployer's president, told Lubben that the Employer
did not consider itself bound by the IJDB award
and was not going to honor it. On February 19,
1981, Local 518 picketed the jobsite to protest the
Employer's assignment of the disputed work to em-
ployees represented by Local 1179. Other crafts at
the jobsite honored the picket line, but the Em-
ployer's employees crossed the line and worked
that day. The picketing ended that day.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Work in Dispute
The work in dispute involves the installation of
acid resistant and ceramic granular flooring at the
General Motors Leeds Assembly Plant in Kansas
City, Missouri.
C. The Contentions of the Parties
The Employer contends that there is no mutually
agreed-upon method for voluntary adjustment of
the dispute and that the disputed work should be
assigned to its employees represented by Local
1179 based on employer and area practice, employ-
er preference, relative skills, and economy and effi-
ciency of operation. Local 1179 did not appear at
the hearing. However, its business manager testi-
fied that he did not consider the IJDB decision
binding on it.
Respondent contends there is an agreed-upon
method for voluntary adjustment of the dispute
based upon its contract with the Association, the
affiliation of both Unions with the Building and
Construction Trades Department, AFL-CIO (here-
inafter BCTD), and the IJDB award. In this
regard, Respondent contends that the jurisdictional
dispute clause in its contract with the Association'
should be interpreted as binding the Employer to
the IJDB. Respondent further contends that Local
1179, as a member of the BCTD, should be es-
topped from ignoring its contractual obligation to
abide by IJDB decisions. Alternatively, Respond-
ent contends that the work should be assigned to it
based on area practice, relative skills, and the IJDB
award.
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 (1) that there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated and (2) that the parties have not agreed
upon a method for the voluntary adjustment of the
dispute.
It is also clear that Respondent engaged in pick-
eting at the jobsite and that such picketing was to
protest the Employer's assignment of the disputed
work to its employees represented by Local 1179
or the Painters. Accordingly, we find that reason-
I This clause states, in relevant part:
. if a jurisdictional dispute should occur involving the Union and
another Union affiliated with the Building and Construction Trades
Department, AFL-CIO. there shall be no stoppage of work because
of such dispute. If the Unions involved and the Association are
unable to settle the dispute within five (5) working days, the disput-
ed work shall proceed as assigned by the Employer ad the problem
shall be referred to the International Presidents of the Unions in-
volved to seek a settlement by them or their assigned representatives.
Their decision will he binding on all parties.
able cause exists to believe that Respondent violat-
ed Section 8(b)(4)(D) of the Act.
Before the Board will defer to an agreed-upon
method for settlement of a dispute, the agreement
must bind all the parties, including the Employer. 2
Although both Unions are bound to the IJDB by
virtue of their membership in the BCTD, it is un-
disputed that the Employer has not expressly
agreed to be bound by the IJDB. Rather, although
the Association used to include IJDB clauses in its
collective-bargaining agreements, it has negotiated
them out of all current agreements and has consist-
ently maintained that it does not intend to be
bound by the IJDB.
It is clear that Local 1179 is not a party to, and
has not expressly agreed to be bound by, the juris-
dictional dispute resolution clause of the Associ-
ation-Local 518 contract. The fact that the Painters
participated in the IJDB proceedings-as it is
bound to do-does not, without more, establish
that the Painters adopted the clause in the Associ-
ation-Local 518 contract and agreed to be bound
by it.3
In these circumstances, we find that the Associ-
ation never intended that the jurisdictional dispute
clause of its contract with Local 518 envisioned
final resolution by the IJDB. In fact, in light of the
Association's stated intent not to be bound by the
IJDB, and its policy of negotiating IJDB clauses
out if its collective-bargaining agreements, it seems
clear that the clause in question envisions the Inter-
national presidents of the respective Unions work-
ing out a settlement outside the parameters of the
IJDB. We also find that Local 1179 is not bound
by the jurisdictional dispute clause of the Associ-
ation Local 518 contract. Accordingly, we con-
clude that there is no agreed-upon method for set-
tlement of the dispute that is binding on all parties 4
and that this dispute is properly 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 the disputed work
.L.R.B. v. Plasterers' Local Union .io. 79. Operative Plasterers' and
Cement Masons' Inrernational Association. AFL-CIO [Texas State Tile and
Terrazzo Co.. et al.], 404 U.S. 116 (1971).
' In any event, the evidence fails to establish that the case was submit-
ted to the IJDB pursuant to the procedures outlined in the Association
Local 518 contract. A representative of the Association denies that Local
518 ever contacted him to try to settle the dispute prior to submitting the
case to the IJDB. and there is no evidence that Local 1179 ever referred
the dispute to its International for resolution as outlined in the contract.
4 We find no merit in Respondent's alternative argument that we
should collaterally estop Local 1179 from disregarding the IJDB award.
To do so would be tantamount to deferring to such award, something we
cannot do because the Employer has not agreed to be ound to the
IJDB.
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CEMENT MASONS LOCAL. 518
after giving due consideration to various relevant
factors.
Both Unions have collective-bargaining agree-
ments with the Employer which arguably cover
the work in dispute.5 The award of the work to
employees represented by either Union will not
result in any loss of jobs to employees. Employees
represented by both Unions possess the necessary
skills to perform the disputed work. In addition, al-
though the Employer contends that it would be
more economical and efficient to use its own em-
ployees because they perform work on walls as
well as floors, the disputed work entails no wall
work. Finally, area industry practice is mixed; area
employers have used employees represented by
either Union to perform work similar to the disput-
ed work. We therefore find that the factors of col-
lective-bargaining agreements, relative skills, econ-
omy and efficiency of operation, and area practice
do not favor an award to employees represented by
either Union.
Respondent introduced into evidence five deci-
sions dating from 1972 of the IJDB and its prede-
cessor, the National Joint Board for Settlement of
Jurisdictional Disputes, covering work similar to
that in dispute which award the work to employees
represented by the Cement Masons rather than em-
ployees represented by the Painters. 6 In addition,
the IJDB awarded the disputed work in the instant
case to employees represented by the Cement
Masons.
Although the factor of arbitration awards would
thus seem to favor an award to employees repre-
sented by the Cement Masons, we cannot agree
with Respondent's contention that conclusive
weight should be given to these awards. Thus,
three of the five awards involved jobs performed
outside the work jurisdiction of the Association-
Local 518 contract. As to the other two, one deci-
sion split the work betwen the two Unions. We are
thus left with one decision, rendered in 1972 by the
National Joint Board, plus the IJDB award here,
which clearly award work within the geographical
area of the contract to employees represented by
the Cement Masons. These awards, however, pale
in significance considering that, as more fully set
forth below, the Employer, since 1962, has per-
formed numerous jobs similar or identical to the
type involved here with apparently no objection
from Respondent to the Employer's assignment of
the work to employees represented by Local 1179.
' The Association-Local 518 contract covers work "which has histori-
cally and traditionally been performed heretofore h members of the
Cement Masons.. "The Cement Masons have performed work similar
to that in dispute in the geographical area covered by the contract
6 One decision split the work, awarding grinding to Ihe Cement
Masons and application to the Painters
Thus, despite Respondent's contention that it has
had a "longstanding dispute" with the Employer
over the work in dispute, it seems clear that Re-
spondent has for the most part acquiesced in the
Employer's assignment of the disputed work to
members of Local 1179 or the Painters.
In contrast to Respondent's evidence regarding
arbitration awards, the Employer presented unre-
futed evidence that, since 1962, it has applied ap-
proximately 2 million square feet of floors similar
or identical to the type involved in the instant dis-
pute, including numerous jobs in the Kansas City
area. In fact, since 1972, the Employer has com-
pleted at least 10 jobs for General Motors alone, in-
volving work similar to that in dispute. Its uniform
practice has been to assign the disputed work to its
employees represented by Local 1179 or the Paint-
ers. As noted above, there is no evidence that Re-
spondent ever expressed any opposition to the Em-
ployer's assignment of work on these jobs. More-
over, the Employer has assigned the disputed work
here to its employees and has expressed its prefer-
ence that these employees perform the work. We
thus find that the factors of employer past practice
and employer preference favor an award of the dis-
puted work to employees represented by Local
1179 or the Painters.
Conclusion
Upon the record as a whole, and after full con-
sideration of all the relevant factors involved, we
conclude that employees represented by Local
1179 are entitled to perform the work in dispute.
We reach this conclusion relying upon the fol-
lowing factors: the Employer's present assignment
is consistent with its past practice and its prefer-
ence; the assignment is not inconsistent with the
Employer's collective-bargaining agreements and
area practice; and the employees represented by
Local 1179 possess the requisite skills to perform
the work in dispute.
In making this determination, we are awarding
the work in question to employees who are repre-
sented by Local 1179, but not to that Union or its
members. The present determination is limited to
the particular controversy which gave rise to this
proceeding.
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
make the following Determination of Dispute:
1. Employees of Desco Coatings of Kansas Inc.,
who are represented by Resilient Floor & Decora-
279
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive Covering Workers Union, Local No. 1179, are
entitled to perform the work of installing acid resis-
tant and ceramic granular flooring at the General
Motors Leeds Assembly Plant in Kansas City, Mis-
souri.
2. Cement Masons Local Union 518 of the Oper-
ative Plasterers' and Cement Masons International
Association, AFL-CIO, is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to
force or require Desco Coatings of Kansas Inc. to
assign the disputed work to employees represented
by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Cement Masons
Local Union 518 of the Operative Plasterers' and
Cement Masons International Association, AFL-
CIO, shall notify the Regional Director for Region
17, in writing, whether or not it will refrain from
forcing or requiring the Employer, by means pro-
scribed by Section 8(b)(4)(D) of the Act, to assign
the disputed work in a manner inconsistent with
the above determination.
280