Cement Workers Local 577 (Rocky Mountain Prestress)

National Labor Relations Board - Board Decisions

Dec 5, 1977

233 N.L.R.B. 923 (N.L.R.B. 1977)

CEMENT MASONS LOCAL UNION NO. 577
Cement Masons Local Union No. 577 and Rocky
Mountain Prestress, Inc.1 and Local 720, Laborers
International Union of North America. Case 27-
CD-194
December 5, 1977
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, PENELLO, AND MURPHY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, based on
a charge filed by Rocky Mountain Prestress, Inc.,
herein called the Employer. The charge alleges that
Cement Masons Local Union No. 577, herein called
Cement Masons, violated Section 8(b)(4)(D) of the
Act by engaging in certain activity with an object of
forcing the Employer to assign certain work to
individuals represented by the Cement Masons
rather than to employees of the Employer represent-
ed by Local 720, Laborers International Union of
North America, herein called Laborers or Local 720.
A duly scheduled hearing was held on August 19,
1977, before Hearing Officer Marvin T. Harmatz, at
which the Employer and Cement Masons appeared.
The hearing was reopened on September 9, 1977, at
which time the Laborers appeared along with the
other parties. All parties were afforded full opportu-
nity to be heard, to examine and cross-examine the
witnesses, and to adduce evidence bearing on the
issues. Thereafter, the Cement Masons and the
Laborers filed briefs with the Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 affirmed.
Upon the entire record in this case, the Board
makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The Employer is a Colorado corporation engaged
in the manufacture and erection of precast and
prestressed concrete construction components. On
an annual basis, the Employer furnishes goods and
services valued in excess of $500,000 and both
purchases and sells goods and materials in excess of
$50,000 from and to points outside the State of
Colorado. Accordingly, we find that the Employer is
engaged in commerce within the meaning of Section
I The charge is this case incorrectly named Petry C. M. as the Employer.
However, the charge should have named Rocky Mountain Prestress, Inc., as
233 NLRB No. 131
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
Cement Masons and the Laborers are labor organi-
zations within the meaning of Section 2(5) of the Act.
II1. THE DISPUTE
A. The Work in Dispute
The work in dispute consists of the patching or
cosmetic repair of prestressed concrete building
components at the site of construction of the Cherry
Creek High School, located near Denver, Colorado.
B. Background and Facts of the Dispute
The Employer manufactures prestressed concrete
construction components at its plant in Sheridan,
Colorado. After initial fabrication, the Employer's
employees finish the product by patching or cosmeti-
cally repairing the components. Thereafter, the
building components are loaded onto trucks which
haul the concrete to construction sites where the
components are erected into place. Occasionally
during the hauling and erection of these large
building materials, chips and spalls are created in the
concrete. In addition, at times a component needs to
be modified at the jobsite because of specification
changes. The employees of the Employer repair and
patch the chips and spalls and make any necessary
modifications at the jobsite. It is the assignment of
this cosmetic repair work which is in dispute.
The Employer was awarded a contract by the
Cherry Creek School District for the manufacture
and erection of prestressed concrete building compo-
nents for the construction of a high school. The
Employer assigned the cosmetic repair work at the
site of that construction to its employees represented
by the Laborers. According to testimony at the
hearing by its vice president of operations, the
Employer based its work assignment both on its
current collective-bargaining agreement with the
Laborers and on its past practice of assigning such
work to the employees represented by that Union.
However, for reasons set forth below, the Cement
Masons claims that individuals represented by it are
entitled to perform the work which is the subject of
the instant dispute.
the Employer, and, accordingly, we have changed the Employer's name in
this case.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Cement Masons first pursued its claim in
February or March 1977,2 at which time a vice
president of the Cement Masons International union
discussed the matter with a field superintendent of
the Employer. About the same time, the Internation-
al unions of the Cement Masons and the Laborers
submitted the dispute to the Impartial Jurisdictional
Disputes Board for the Construction Industry, which
ultimately awarded the work to individuals repre-
sented by the Cement Masons. The Employer,
however, did not participate in that Impartial Board
proceeding. The Cement Masons again met with the
Employer in late May or early June regarding the
dispute, but the Employer refused to reassign the
disputed work to employees whom the Cement
Masons represents. Subsequently, representatives of
the two International unions drafted an agreement
tentatively settling the dispute. However, at a
meeting in mid-July, Local 720 and another local
union of Laborers rejected that proposed settlement,
and thereafter its International also repudiated the
agreement.
On July 26, the Employer called a meeting between
the competing unions after it had received informa-
tion that the Laborers might not be interested in
continuing to claim the disputed work for employees
that it represents. However, Local 720's business
representative contacted the Employer before the
meeting, reasserted the Laborers claim regarding the
work in dispute, and canceled the meeting. Accord-
ing to testimony by a witness for the Employer, a
representative of the Cement Masons International
union shortly thereafter reported that the local union
planned to picket the Employer's operations at the
Cherry Creek High School the following day. On the
next day, the Cement Masons did in fact picket the
Employer's operations at the high school construc-
tion site. The picket signs stated:
Cement Masons' Local 577. Rocky Mountain
Prestress, Inc. paying substandard wages. We
have no dispute with any other contractor.
AFL-CIO.
The picketing lasted I day. On the first day of the
hearing, the Employer estimated that the work in
dispute would be completed in I to 2 weeks.
C. The Contentions of the Parties
The Employer and the Laborers contend that a
jurisdictional dispute exists and that there is reason-
able cause to believe that Section 8(b)(4)(D) of the
Act has been violated. They further contend that the
disputed work should be awarded to employees
2 All dates hereafter are in 1977 unless otherwise indicated.
3 See Painters and Drywall Finishers, Local No. 79 affiliated with
represented by the Laborers on the basis of the
parties' collective-bargaining agreement, area prac-
tice, efficiency and economy, and the Employer's
past practice and current assignment of the work.
The Cement Masons initially asserts that there is
no reasonable cause to believe that it violated
Section 8(b)(4)(D) of the Act. It argues that the
picketing was lawful since its object was not to force
the Employer to assign the work in dispute to
individuals whom its represents; rather, it contends
that the object of the picketing was merely to inform
the public that the Employer was paying substandard
wages to its employees who were performing the
disputed work. However, the Cement Masons argues
in the alternative that, if the Board concludes that
there is reasonable cause to believe that Section
8(b)(4)(D) has been violated, individuals it represents
should be assigned the work in dispute on the basis
of the agreement between the International unions,
the Impartial Board award, area practice, and the
relative skills of the employees involved.
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.
The Cement Masons contends that the object of its
picketing was to protest the Employer's substandard
wages for the work in dispute. In support of that
position, the Cement Masons notes that (1) the picket
signs state: "Rocky Mountain Prestress, Inc. paying
substandard wages," and (2) the Employer does in
fact pay its employees represented by the Laborers
lower wages for the work in dispute than those which
employees represented by the Cement Masons
receive from other employers for the same type of
work. However, while these factors tend to support a
finding that one object of the picketing may have
been to protest the Employer's wage scale, the Board
must still determine whether there is reasonable
cause to believe that an object of the picketing was
also to force or require the Employer to assign the
work to individuals represented by the Cement
Masons. One proscribed object is sufficient to bring a
union's conduct within the ambit of Section
8(b)(4)(D).3
The evidence discloses that the Cement Masons
has continuously asserted its claim regarding the
work in dispute since February or March 1977. At
each meeting with the Employer, the Cement
International Brotherhood of Painters and Allied Trades, AFL-CIO (Richard
O'Brien Plastering Co.), 213 NLRB 788, 790 (1974).
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CEMENT MASONS LOCAL UNION NO. 577
Masons object was to obtain the Employer's reas-
signment of the work in dispute to individuals that it
represents. The Cement Masons also submitted the
dispute to the Impartial Board; however, the Em-
ployer failed to honor that board's award. The
International union of the Cement Masons thereafter
sought to obtain a voluntary agreement with the
Laborers International, but Local 720 withheld its
approval of the settlement. Finally, after Local 720's
business agent canceled the July 26 meeting, which
was designed to reach an agreement regarding the
work in dispute, the Cement Masons picketed the
Employer on the following day. Thus, the picketing
closely followed a series of abortive attempts by the
Cement Masons and its International to persuade
either the Employer to reassign the work in dispute
or the Laborers to release its claim regarding such
work. Moreover, the Cement Masons has at no time
disclaimed the disputed work for employees it
represents and has in fact continued throughout to
assert its claim regarding the work in dispute. In
these circumstances, we conclude that there is
reasonable cause to believe that an object of the
Cement Masons picketing was to force the Employer
to assign the work in dispute to individuals it
represents. 4
No party contends and no evidence was presented
at the hearing that there exists an agreed-upon
method for the voluntary resolution of the dispute
which is binding on all of the parties. Accordingly,
we conclude 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) requires the Board to make an
affirmative award of disputed work after giving due
consideration to and balancing all relevant factors
involved.5 Our determination is an act of judgment
based on commonsense and experience in weighing
these factors.6 The following factors are relevant in
making a determination of the dispute before us:
4 See Sheet Metal Workers International Association, Local Union No. 420,
AFL-CIO (Rusco Building Systems, a Division of Ruseo Industries, Inc.), 198
NLRB 1207, 1209 (1972); Local 10, Bricklayers. Masons, Plasterers, Marble.
Tile and Terrazo Workers International Union of America, AFL-CIO
(Unistress Corp.), 198 NLRB 443, 444 (1972); Bricklayers, Masons and
Plasterers' International Union of America, Local No. 1, AFL-CIO (Rocky
Mountain Prestress. Inc.). 195 NLRB 555., 557 (1972). Cf. Local 25,
International Brotherhood of Electrical Workers, AFL-CIO (Charlane Electric
Co., Inc., d/b/a Unity Electric Co.), 211 NLRB 256, 257-258 (1974).
5 N.L.R.B. v. Radio & Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 U.S. 573 (1961).
1. Collective-bargaining agreement
The Employer and Local 720 are parties to a
collective-bargaining agreement, effective from July
1, 1976, through June 30, 1979, whereby the
Employer recognizes Local 720 as the representative
of its production employees located at its plant. The
recognitional clause of the contract does not explicit-
ly include employees who work at the site of building
construction. However, two articles in the agreement
specifically refer to work on a construction site, and
both the Employer and the Laborers have mutually
understood for over a dozen years that employees
represented by the Laborers are entitled to perform
the cosmetic repair work at the site of construction.
The Employer does not have a collective-bargaining
agreement with the Cement Masons. Thus, the
existence of the collective-bargaining agreement
between the Employer and Laborers favors assign-
ment of the work in dispute to employees represented
by Local 720.
2. Employer's assignment and past practice
As mentioned above, the Employer currently
assigns the disputed work to its employees represent-
ed by the Laborers. This assignment has been the
practice of the Employer for over 14 years. However,
on occasion the Employer subcontracts all or part of
work similar to that in dispute to firms employing
cement masons.7 Nevertheless, the Employer gener-
ally assigns the work to its employees represented by
the Laborers. Thus, the Employer's current assign-
ment and past practice favor assignment of the work
in dispute to employees represented by Local 720.
3. Economy and efficiency of operations
As mentioned above, after manufacture of the
concrete building components, the Employer finishes
the product at its plant by patching the concrete
where necessary. The employees who perform this
work at the plant are the same individuals represent-
ed by the Laborers who perform the cosmetic repair
work at the construction site.8 As stated by the
Employer's vice president at the hearing, the employ-
ees who do the patch work at the plant and at the
construction site are basically "interchangeable."
6 International Association of Machinists, Lodge Na 1743, AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402, 1411 (1962).
1 The Employer in fact subcontracted a portion of the work in dispute at
Cherry Creek High School to Colorado Commercial Concrete, Inc., which
employed a member of the Cement Masons to perform its part of the
disputed work. The Employer usually subcontracts the type of work in
dispute to firms employing individuals represented by the Cement Masons
when its contract with a general contractor requires it to use employees
represented by that Union.
The Cement Masons, however, does not claim the patch work at the
Employer's plant for the individuals it represents.
925
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover, that witness stated that onsite patching
only amounts to 5 percent of the total work at the
jobsites. In these circumstances, we are satisfied that
it is more efficient and economical for the Employer
to complete all phases of the patching work with a
crew represented by the Laborers than to hire an
irregular, casual, or part-time employee represented
by the Cement Masons to do the limited work in
dispute. Thus, efficiency and economy of operations
favor assignment of the work in dispute to employees
represented by the Laborers.9
4. Relative skills
The record evidence establishes that, in general,
cement masons are more highly skilled than laborers
in performing the type of work in dispute, especially
if cement masons' tools are used. Nevertheless, the
Employer's vice president testified that employees
represented by the Laborers have generally per-
formed the work in dispute satisfactorily. In fact, the
cement mason utilized by the Employer on part of
the work in dispute (see fn. 7, supra) was a member of
the Laborers before he become a cement mason, and,
according to his testimony, learned his trade as a
laborer. Thus, while cement masons may be more
highly skilled at patching concrete building compo-
nents, it appears that employees represented by the
Laborers have the necessary skills to satisfactorily
perform the work in dispute. Thus, the difference in
skills does not necessarily favor assignment of the
disputed work to individuals whom the Cement
Masons represents.
5. Area practice
Each competing union claims that area practice
favors assignment of the disputed work to individuals
represented by it. The Cement Masons introduced
evidence that employees it represents perform the
type of work in dispute for two of the Employer's
competitors in the prestressed concrete business,
Stanley Structures and Mack Precast. Moreover, it
submitted five Impartial Board awards regarding the
type of work in dispute at different jobs of the
Employer. Each award assigned the work to indivi-
duals represented by the Cement Masons on the
basis of trade practice. ° On the other hand, record
9 Operative Plasterers' and Cement Masons' International Association,
Local No. 394, AFL-CIO (Warner Masonry, Inc.), 220 NLRB 1074, 1076
(1975).
10 The Cement Masons also introduced in support of its claim an
agreement between local Cement Masons unions in Colorado and certain
members of the Associated General Contractors of Colorado (not including
the Employer), in which the Cement Masons claims jurisdiction over the
work in dispute. However, that agreement provides that the union's claim is
not binding on an employer and that, if two or more unions with whom an
employer has a collective-bargaining agreement claim the work for
individuals represented by their unions, the employer may assign the work
evidence also demonstrates that both Stanley Struc-
tures and Mack Precast also utilize employees
represented by the Laborers in performing the type
of work in dispute. Additionally, the presidents of
two of the Employer's other competitors stated at the
hearing that each company has only employed
individuals represented by the Laborers to do the
onsite patching work of prestressed concrete con-
struction components on their jobs. Thus, in the
circumstances presented here, area practice does not
favor either competing union's claim with regard to
the assignment of the disputed work.
6. Interunion agreement
The Cement Masons also contends that the
agreement, discussed earlier, between representatives
of the International unions of the Cement Masons
and the Laborers regarding the work in dispute
favors assignment of the work to employees it
represents. While this agreement does in fact favor
the Cement Masons claim, we do not attach
significant weight to it, since, as mentioned above, it
was neither agreed to nor complied with by Local
720, it was eventually repudiated by the Laborers
International union, and, in addition, the Employer
was not bound by any such interunion agreement."
7. Impartial Board award
Lastly, the Cement Masons asserts that the award
of the Impartial Jurisdictional Disputes Board,
mentioned above, favors assignment of the disputed
work to individuals whom it represents. Although we
do consider Impartial Board awards as a factor in
determining proper assignment of work in dispute,
we do not accord it significant weight in these
circumstances, since the Employer did not partici-
pate in the proceeding and is not bound by its
determination,' 2 and since the award did not set
forth and discuss the crucial issue of whether the
factors supporting an award to the Cement Masons
outweigh those supporting the assignment to employ-
ees represented by the Laborers. 13
Conclusion
Upon the record as a whole, and after full
consideration of all relevant factors involved, we
in whole or part to employees represented by either of the competing unions.
Thus, this agreement is not demonstrative of an area practice favoring the
Cement Masons claim.
i' See Warner Masonry, supra at 1076; Southern California Pipe Trades
District Council No. 16 (Kistrock Division, Tridair Industries, Inc.), 198
NLRB 1240, 1243 (1972).
12 See Richard O'Brien Plastering Co., supra at 792; Bricklayers Local
Union No. I of Missouri, Bricklayers, Masons and Plasterers International
Union, AFL-CIO (St. Louis Home Insulators, Inc.), 209 NLRB 1072, 1077
(1974).
i3 Warner Masonry, supra at 1076.
926
CEMENT MASONS LOCAL UNION NO. 577
conclude that the employees of the Employer who
are represented by the Laborers are entitled to
perform the work in dispute. In reaching this
conclusion, we have relied particularly on the
Employer's assignment of the disputed work to its
employees represented by the Laborers, the fact that
this assignment is consistent with the Employer's
past practice and current collective-bargaining agree-
ment with the Laborers, and the efficiency and
economy of operations which result from such
assignment. We shall, therefore, determine the
dispute before us by awarding the work involved
herein to those employees represented by the
Laborers, 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
makes the following Determination of Dispute:
1. Employees of Rocky Mountain Prestress, Inc.,
currently represented by Local 720, Laborers Inter-
national Union of North America, are entitled to
perform the work of patching or cosmetically
repairing prestressed concrete building components
at the Cherry Creek High School construction site
outside Denver, Colorado.
2. Cement Masons Local Union No. 577 is not
entitled, by means proscribed by Section 8(b)(4)(D)
of the Act, to force or require Rocky Mountain
Prestress, Inc., to assign the above 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 No. 577 shall notify the Regional
Director for Region 27, in writing, whether or not it
will refrain from forcing or requiring Rocky Moun-
tain Prestress, Inc., by means proscribed by Section
8(b)(4)(D) of the Act, to assign the disputed work to
employees represented by it rather than to employees
represented by Local 720, Laborers International
Union of North America.
927