Local 42, Bricklayers

National Labor Relations Board - Board Decisions

Jul 13, 1971

192 N.L.R.B. 64 (N.L.R.B. 1971)

DECISIONS OF NATIQNAI, LABOR, RELATIONS BOARD
Local -42, Bricklayers , Masons and Plasterers Interna-
tional Union of, America, AFL-CIO and Spancrete
Northeast, Inc. and Local 7, Laborers International
Union of North America, AFL-CIO
Local ' 158, International-Association of Bridge , Struc-
;al and Ornamental Iron Workers ,AFL-CIO.and,z x
ncrete Northeast, Inc. and , Local 7,Laborers
eruational l Union of North America , AFL,-, CIO.
Cases 3-CD-347-land 3-CD-347-2
July, 13, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
This is a proceeding under Section , 10(k) of the
National Labor Relations Act, as amended, following
charges filed by Spancrete Northeast , Inc.,' alleging in
substance that Local 42, Bricklayers, Masons and-,-
Plasterers - International Union , of America,
AFL-CIO, hereinafter called Bricklayers ,, and Local
158, International Association of Bridge , Structural
and Ornamental Iron Workers , AFL-CIO, hereinaft-
er called Iron Workers, have violated Section
8(b)(4)(D) of the Act.
A hearing was held before Hearing Officer Alexan-
der T . Graham on February 16 and 17, 1971. 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, Spancrete Northeast, Inc.,
hereinafter called the Employer or Spancrete , filed a
brief.
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 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 proceeding , the Board
makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated that Spancrete Northeast,
Inc., a New York corporation, is engaged in the
building construction industry; that it annually
purchases and receives goods in excess of $50,000
directly from points outside the State of New York;
and that its gross volume of business exceeds $500,000
per year. We find that Spancrete is engaged in
commerce,within the meaning of the Act,.and that it
will effectuate policies of the Act to; assert juri sdiction
herein,
II. ,'THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the Iron
Workers, the Bricklayers, and ` Local 7, ^ Laborers
International Union of North -America, AFL-CIO,
hereinafter, called Local 7 or Laborers, ' are labor
organizations' within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
At all times, meterial hereto, Avella Construction
Company,' Inc., a general - contractor in the building
and construction industry, has been '- engaged in the
construction of a dining hall and , five dormitory
buildings at the State , University of New -York at
Binghamton , New York . Pursuant thereto, Avella
awarded a contract to Spancrete` calling for the
delivery and installation of prestressed , precast
concrete floor and roof planks on the crane as it lifts
said planks off the trucks to the point of installation,
to its employees who are represented by Local? and
Laborers Local 435 of Rochester, New York. Span-
crete also assigned to these employees the work of
installing the aforementioned concrete floor and roof
planks.
On November 19, 1970 , the Iron Workers demand-
ed that Spancrete assign the work of rigging the
concrete floor and roof planks to employees who are
represented by it rather than by the Laborers. On the
same date, the Bricklayers made a similar demand of
Spancrete for the installation work.
Spancrete refused to depart from its original work
assignments , and, accordingly, on January 5, 1971,
the Iron Workers and the Bricklayers engaged in a
work stoppage at the University jobsite. The work
stoppage ended with the issuance of a temporary
injunction pursuant to Section 10(11) of the Act by the
United States District Court for the Northeastern
District of New York, on February 9,1971.1
B. The Work in Dispute
The parties are in general agreement that the work
in dispute involves the rigging and installation of
prestressed , precast concrete hollow core floor and
roof planks at the University jobsite.
C. Contentions of the Parties
The Employer contends that since 1963 it has
1 Civil No. 71-Cv-45.
192 NLRB No. 6
LOCAL 42, BRICKLAYERS
always assigned the erection of its prestressed con-
crete materials to crews composed of its regular
employees who are represented by the Laborers, or by
other affiliated locals within its franchise area. This
assignment, - Spancrete avers, is justified by Board
certifications, `contracts between it and the Laborers
International and affiliated locals, and the-fact that
the disputed' work can be more economically and-
efficiently performed when undertaken by its crews
whose members are employed on a recurring basis by
Spancrete.
The Laborers supports the position taken by Span-
crete.
The Bricklayers and the Iron Workers claimed at
the hearing that local and area practice support
assignment of the disputed work to employees whom
they represent. They also contended that the matter
herein was decided by the National Joint Board for
the Settlement of Jurisdictional Disputes on February
10, .1970; -and that that ,award assigned the rigging of
precast -materials to • 'the Iron Workers and ° the
installation thereof tothe Bricklayers.
pplicability of the StatuteD. 7A _
Before ,theBoard may proceed with a determination
of dispute pursuant to' Section 10(k) of the Act, it must
be satisfied that there''is reasonable cause to believe
that Section Xb)(4)(D)' has been violated, -and: that,
there is' no agreed-upon method ` for voluntary
adjustment of the dispute.
All parties stipulated- that the Iron Workers and the
Bricklayers engaged-in picketing on`January 5, 1969,
for the purpose of forcing or requiring Spancrete to
make a 'work assignment to employees represented by
those Unions. Tie record establishes that the rigging
and installation work at the University jobsite sought
by the IronWorkersand the Bricklayers, respectively,
was claimed and is,being, performed by employees
represented by the Laborers. - _.
The record also shows that Spancrete'is neither a
party to, nor is bound by, any labor agreement'
committing it to the National Joint Board for the
purpose - of adjusting this dispute.2 Indeed, during
negotiations between Spancrete and the prime con-
tractor on the project here 'involved; Spancrete
successfully caused all reference to the Joint Board to
be' deleted from the ensuing agreement. It is well'
2 The Respondents' contention that Spancrete is so committed by
reason of the "national agreement" between Spancrete and the Laborers
International is without- merit . Article Iv, section 1, of that agreement,
upon which , the, Respondents rely, merely requires that when Spancrete
"enters an area where wages , hours and working conditions have, been
negotiated through" bona fide collective bargaining ," Spancrete will
"conform his operations accordingly."-Neither that agreement nor those
negotiated with the Laborers - locals • which are here in evidence bind
Spancrete to Joint Board procedure for the settlement of jurisdictional
disputes.
3 Lathers Union Local 104, The Woo4 Wire, and Metal Lathers
65
established that, regardless whether the unions in-
volved are bound to arbitration procedures such as
the Joint Board, if the employer has not agreed to be
found, this Board is empowered and directed under
Section 10(k) of the Act to make a binding determina-
tion of the ,dispute that will be controlling on all the
parties, including the employer.3
In these circumstances, we find there is reasonable
cause to believe that the Iron Workers and the
Bricklayers have violated Section 8(b)(4)(D) o'f the
Act, and that^there is no agreement binding all the
parties to Voluntary adjustment of the dispute here
involved.
E. The 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 various relevant factors.4
As the Board has stated , its determination in a
jurisdictional dispute case isan act of judgment based
upon common sense and experience in the weighing
of these factors.5, We deem the following factors
relevant in the case now before us.
1. Collective-bargaining agreements
Spancrete has, since it commenced'business, em-
ploye,d_ permanent crews, stationed at its various
production plants, to perform the rigging and installa-
tion work necessary inathe pursuit of its business. The
members' of these'-crews are 'represented -by the
Laborers, 'or by affiliated' Laborer's locals "'having
territorial jurisdiction over the area in 'which the
particular plant is located. These permanent crews are
supplemented at the various installation sites' by one
or two individuals who are recruited by the Laborers
local situated in that p`articular' area. The-c6 nditions
governing the' employment of all individuals`-are set
forth in the agreement 'between Spancre'te- and the
International 'Laborers - Union of North America,
AFL-C'IO: The scope of this agreement encompasses
"all field construction work' performed by the Em-
ployer." Article II, section 1, thereof, provides that the-'
covered work jurisdiction 19'-that- specified in the
International Laborers' - Union, Manual of Jurisdic.
tion. That manual claims jurisdiction over concrete,-
work:
International Utuo, AFL-CIO (Associated General Contractors), 186 NLRB
No. 70. Cf. Plasterers Local Union No. 79 (Southwestern Construction Co.) v.
N.L.R.'B., 440 l.2d 174 (C.A.b.C., 1970), cent, granted 91' S. Ct. 1195
(1971). In this -latterconnection it is noted that'Qte ,Boardlhas expressed its-
respectful disagreement with the court's view in Plasterers, Local, 79. See
Lathers Local 104, supra at sec. III, 0. - '
4 ML.R.B. V. Radio & Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO (Columbia
Broadcasting Systems), 364 U.S. 573.
5 International Association of Machinists, Lodge No. 1743, AFL-CIO (J.
A, Jones Construction Company), 135, NLRB 1402. -
66 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
Where pre-stressed -or pre-cast concrete slabs, wall
or , sections , are used, all loading, unloading,
stockpiling, hooking - on,- signalling , unhooking,
setting and barring into place of such slabs, walls
or sections.
In' addition , as previously stated , Spancrete has
negotiated supplementary agreements `with the sever-
al Laborers locals situated in the locality of the
Spancrete plants.
On, the other hand, Spancrete has, negotiated no
agreement with , either the Iron orkers or the,
Bricklayers and employs no individuals represented
by either of those Unions. In sum , we find that the
contracts in'^question favor the assignment of the
disputed work to those individuals who are employed
by, SpancreteGild are represented by theLaborers or
by its affiliates.
. Other factors
Evidence was introduced as to industry and area
practice and also as to Joint Board Awards with
respect to this type of work. While there is some
evidence to support a claim of an industry practice to
grant jurisdiction to the Bricklayers and the Iron
Workers, it also appears that the laborers-have been
assigned this work, and particularly 'that it has been
the consistent' practice of `Spancrete for "nearly a
decade to,assign such work to laborers in, the area in
which; this dispute arose, as well-as in other parts of
the country.`Thus; area and industry practice appear
to be inconclusive.
As to skill and safety, Spancrete employs permanent,
basic crews, whose,menibers have-under -gone from'3
to 6 months of training to attain the desired state -of
proficiency iii perforing the required work. It seems
:,ei, her of the competing groups of employ-likely that
ees could, after, a reasonable period of, time, be trained'
adequately ii the, use `of the tools and equipment
necessary foa the aperformance of the work herein
question, .such 'as slings, rigging, cutting tools, and
saws. However, 'the, recoil shows, that those individu-
als presently employed,, by, Spancrete now possess
sufficient skills to perform satisfactorily all phases of
the work in dispute. The efficiency and economy to be
derived from the continued use of Spancrete's trained
crews' are apparent. In sum, 'we find that, whereas
considerations of skilf'`and, safety' do not favor any of
the .,competing groups, Spancrete's practice and the
efficiency and, economy of operations are factors
favoring the, continued. performance, of the disputed
work by Spancrete's present employees.
6 Cf. Iron Workers 'Local No. 563, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO (Spanerete Midwest
3, Conclusions as to the ,merits of. the
dispute
Upon the entire record in' this proceeding and the
foregoing consideration of all,.relevant , factors, in
particular the contractual, relationships- between
Spancrete and,the Laborers International, Union and
its affiliated locals, employer practice, and efficiency.
and economy of operations, we - conclude that
employees, of Spancrete who ; are represented by. the
Laborers or its affiliated locals are entitled to the work
in question and we shall determine the dispute in their
favor. In making this determination, we award, the
work to the employees of Spancrete who are currently
represented by the Laborers or its,affiliated locals but
not to. those 'Unions or-their members.
4. Scope of the award
Spancrete is here requesting Ghat the, Board- issue a
broad, work award on behalf of the Laborers,
contending that such-an award is necessary in order to
avoid repetition of similar jurisdictional claims and
attendant work stoppages at its other construction
sites . In support of its request, Spancrete,avers that,
since the hearing held -herein, it has' filed, similar
charges against another affiliate of the -Bricklayers
and another affiliate, of the Iron Workers in Troy and
New York City, . respectively, alleging similar viola-
tions by those unions. We are not disposed to find that
the filing of such charges , against these diifferent
affiliates, even if' deemed'teritorious,:demonstrates a
proclivity on _t a part of the Responde_nt,,Unionsrhere
involved to , en age in further unlawful,c,onduct._The
likelihood of further, work interruptions by these,
speculative. Nor- is 'thereRespondent -Unions'
evidence in the record 'that: the instant,dispute ,is a
continuous source of controversy 'in the. geographic
area here` involved.6 Accordingly, we hold, that the
issuance of a broad award is not appropriate in, this
case.
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 thefollowing determination of dispute.
1., Employees employed as crewinenibers by-Span-
crete Northeast, Inc.,,currently _ represented by the
Laborers or by an'-affiliated local,, ar`e entitled to
perform the work. o'f rigging and installing prestressed
concrete units in connection-with' the` construction of
Co.), 183 NLRB No. 112.
LOCAL 42, BRICKLAYERS 67
buildings at the State University of New York at
Binghamton, heretofore performed by them.
2. The Iron Workers and the Bricklayers are not
and have not been entitled, by means proscribed by
Section 8(b)(4)(D) of" the Act, to force or require
Spancrete Northeast, Inc., to assign the above work to
individuals who are currently represented- by such
labor organisations. '
3. Within 10 `days- from the date of this Decision
and Determination of Dispute , the Iron Workers and
the Bricklayers shall notify- the Regional Director for
Region 3, in writing, whether they will or will not
refrain from forcing or requiring Spancrete , by means
proscribed by Section 8(b)(4)(D) of the Act, to assign
the work in dispute to individuals represented by
them rather, than to employees represented by the
Laborers or by an affiliated local.