Derrickmen & Riggers Local No. 197

DERRICKMEN & RIGGERS LOCAL NO. 197 United Derrickmen & Riggers Association local No. 197 of New York, all Long Island and Vicinity, In- ternational Association of Bridge, Strnctural and Ornamental Iron Workers, AFL-CIO' and Milne Construction Co., Inc. and Cemetery Stone Han- dlers, Erectors and Granite Yard Helpers Union. Local No. 106, Tile, Marble, Terrazzo Finishers and Shopmen's International Union, AFL-CIO.' Case 2 CD--559 November 17. 1978 DECISION AND DETERMINATION OF DISPUTE BY MEMlEI RS JENKINS. MI:RPIHY. \N) TRi I SI) 1 1. This is a proceeding under Section 0()k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Milne Construction Co.. Inc.. herein called the Employer. alleging that United Der- rickmen & Riggers Association Local No. 197 of New York, all Long Island and Vicinity, Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, herein called Local 197, had 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 its members rather than to employees represented by Cemetery Stone Handlers, Erectors and Granite Yard Helpers Union, Local No. 106. Tile, Marble. Terrazzo F:inish- ers and Shopmen's International Union. AFL (IO. herein called Local 106. Pursuant to notice, a hearing was held before Hearing Officer Clifford P. Chalet on June 21. 1978.2 All parties appeared and were afforded full opportu- nity to be heard, to examine and cross-examine wit- nesses, and to adduce evidence bearing on the issues. Thereafter, briefs were filed by the Employer and the Respondent Union. 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: Name as corrected at the hearing 2 All dates hereinafter are in 1978. unless cthervise specified . IHE BL SINESS OF TIlE EMPION I R TIhe parties stipulated, and we find, that the Em- ployer. a Louisiana corporation with its principal place of business in Portland, Oregon, is engaged in the general construction contracting business includ- ing the construction of community mausoleums in cemeteries. The Employer has gross annual revenues in excess of $500,000 and it annually purchases goods and materials valued in excess of $50,000 di- rectly from firms located outside the State of New York which goods and materials are used within the State of New York. We find that the Employer is enegaged ill commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the pur- poses of the Act t.) assert jurisdiction herein. 11 IFit I \B()R ()R(i;NV7AIO()NS INVOIVED We find that Local 197 and Local 106 are labor organizations within the meaning of Section 2(5) of the Act. I1 1iE DISPL TE A. Ihe h 'ork in Dispute The work in dispute consists of the work per- formed by granite-setter helpers employed by Milne Construction Co.. Inc., including such work as was being performed at the time of the notice of hearing herein. June 7. at Trinity Church Cemetery, 155th Street and Riverside Drive. New York. New York. B. Background and Facts of the Dispute For approximately the last 20 years the Employer has been engaged in the construction of community mausoleums in cemeteries in New York City and its vicinity. Within the last 10 years alone the Employer has constructed eight such mausoleums at various cemeteries in the area. The construction of garden-type (unenclosed) community mausoleums, which are involved in the dispute in this case, basically entails the building of crypts. set in rows. on top of each other, to a height of approximately 14 feet, so that an empty, unshut- tered mausoleum looks like a honeycomb. The shut- ters or doors of the crypts. which weigh approximate- ly 85 pounds and measure approximately 3 feet by' 2-1/2 feet, are made of polished granite. These shut- ters are placed or hung on the crypt fronts by a stone setter assisted by a helper. The helper is responsible for unloading and delivering the shutters to the stone setter, drilling and setting the threaded pipes which 319 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are a part of the fastening process, and the mixing of mortar. It is the work of the helper which is the sub- ject of the dispute in this case. Prior to mid-1976, the Employer utilized members of Local 10 of the Tile, Marble, Terrazzo Finishers and Shopmen's International Union to perform the disputed work. In mid-1976, in a proceeding to which the Employer was not a party, the New York Build- ing and Construction Trades Council (hereinafter Council) awarded the work of assisting stone setters to members of Local 197. As a result, Local 10. which is a member of the Council, informed the Em- ployer that employees represented by it could no longer perform such work. Shortly after the award was rendered by the Coun- cil, Local 106, which belongs to the same Interna- tional union as Local 10, requested that employees it represents be given the work previously performed by employees represented by Local 10. The Em- ployer subsequently hired employees represented by Local 106 to perform the work and they have contin- ued to perform such work since that time. On Janu- ary 17, 1977, the Employer executed a rider agree- ment to the Local 106 collective-bargaining agreement, the term of which is from March 31, 1976, to March 31, 1979. Since the award by the Council, Local 197 has at- tempted, by letter and by visits to various jobsites, to contact James Milne, the Employer's president, to discuss the assignment of the work to Local 197 members. Local 197 was unsuccessful in this regard and on May 25 placed pickets at the entrance to one of the Employer's jobsites. Consequently, other tradesmen employed by Milne left the jobsite and refused to return. The picketing continued until June 6, when Local 197 withdrew the picketers, once it was determined that the issue would be resolved by the Board. C. Contentions of the Parties The Employer contends that there is no agreed- upon method for resolving the dispute and that Local 197 threatened to and did picket the Employer's Trinity Church jobsite with the object of forcing the Employer to assign the work in dispute to members of Local 197 rather than to employees represented by Local 106 and, therefore, there is reasonable cause to believe that Local 197 has violated Section 8(b)(4)(D) of the Act. With respect to the merits, the Employer contends that the work should be awarded to em- ployees represented by Local 106 on the basis of its collective-bargaining agreement with that labor orga- nization, the Employer's past practice and prefer- ence, area and industry practice, economy and effi- ciency of assigning the work to employees repre- sented by Local 106, the skills and training possessed by members of Local 106, and because the work of setting headstones traditionally performed by mem- bers of Local 106 is decreasing due to the increased use of community-style mausoleums instead of tradi- tional cemeteries. Although Local 106 did not file a brief, its position as expressed at the hearing is in accord with that of the Employer. Local 197 also did not file a brief with the Board but at the hearing took the position that the disputed work should be awarded to employees represented by it because of the award by the Council, past and area practice, and, impliedly, because Local 10, Lo- cal 106, and the Employer engaged in subterfuge to defeat the award of the work by the Council to Local 197. 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 (I) there is reasonable cause to believe that Section 8(b)(4)(d) of the Act has been violated. and (2) the parties have not agreed upon a method for the voluntary adjustment of the dispute. As to (1 . above, the record establishes that, be- tween May' 25 and June 6, Respondent picketed the jobsite of the Employer when unable to contact or meet with the Employer and that the stated object of the picketing was to force assignment of the work in dispute to members of Local 197. In these circum- stances, we find that there is reasonable cause to be- lieve that Section 8(b)(4)(D) of the Act has been vio- lated. As to (2), above, there is no evidence that an agreed-upon method exists for the voluntary adjust- ment of this dispute. Accordingly, we find the dis- pute is properly before the Board for determination under Section 10(k) of the Act. On the basis of the entire record, we conclude that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed-upon method for the voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find 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 disputed work after 320 DERRICKMEN & RIGGERS, LOCAL NO. 197 giving due consideration to various factors.' The Board has held that its determination in a jurisdic- tional dispute is an act of judgment based on com- monsense and experience reached by balancing those factors involved in a particular case.4 The following factors are relevant in making the determination of the dispute before us: 1. Collective-bargaining agreement The record contains no evidence with regard to Board certification of either Local 106 or Local 197 to represent employees in the dispute herein. As noted above, the Employer has executed a rider agreement to the most recent Local 106 contract; this rider is effective from March 31, 1976, to March 31, 1979. The bargaining unit definition in this contract includes the following language: . . . shall govern all stone handling and erecting in the shop and in the cemetery.... This in- cludes crane and derrick operators, hook-up men drillers, yard and shop helpers, bed setters, sawyers helpers, erector-drivers, erectors, help- ers who handle stone in the granite cutting yards, cemeteries, stores and showrooms. The record indicates that this rider was first execu- ted by the Employer on January 17, 1977, and fol- lowed the award of such work by the Council to Lo- cal 197 and, as reflected by the record, unsuccessful attempts by Local. 197 representatives to contact the Employer for the purpose of discussing the disputed work. As noted above, the Employer has not execu- ted a collective-bargaining agreement with Local 197. Accordingly, we find that the Employer's collec- tive-bargaining agreement with Local 106 tends to favor an award of the disputed work to employees represented by that labor organization. 2. Employer practice The record shows that since mid-1976, all the jobs of the Employer, the work in dispute has been per- formed by members of Local 106. The record estab- lishes that the Employer has never employed mem- bers of Local 197 to perform the disputed work. Accordingly, we find that this factor tends to favor award of the work in dispute to employees repre- sented by Local 106.5 }N.LR.B. Radio, & 'lerlltioon Brida du tnlneererl s I nli. 1i a i 1i'1. InternaionalBroiherhbad of E'ctr i ai uIl i,{erArs .4f. I ( 1() ( ,linhlai. Hroad casting Sil,em/., 364 U S 573 (1961h Internatrional Asso( tation ' ,-ar hilnrii. l. drge %'. ] 743. 4 f. ( () . 4 Jones C(ontnruction ( omprani), 135 NLRB 1402 (1962) 5On the basis of a revier of the entire record In this, cae. s e [rild nlo evidence to support Local 197's contennhoin that L ,ocal 10, lIocal 106( and the Employer engaged in subterfuge to h a aid l ,srlennlerlt ofi the disputed 3. Area practice As noted above, the Council has awarded work of the type in dispute herein to Local 197, and the testi- mony of John Humphrey, business agent for Local 197, indicates that members of Local 197 have per- formed such work since at least 1949 for other em- ployers. The record does not indicate to what extent Local 106 has performed work such as that in dispute for area employers other than the Employer. Accord- ingly, we conclude that the factor of area practice, while not dispositive of the issues before us, tends to favor an award of the work in dispute to employees represented by Local 197. 4. Skills, efficiency, and economy The record indicates that members of both unions possess the skills and training required to perform the disputed work. James Milne, president of the Employer, testified without contradiction, however, that the Employer uses its own patented process to perform the work in dispute and that members of Local 106 have been trained in the procedures associ- ated with that process. The testimony of Milne and Humphrey indicates that only one member of Local 106 is required per stone setter while two members of Local 197 are re- quired per stone setter. Humphrey testified, however, that Local 197 believes that the work is done faster and more efficiently by using two helpers per stone setter. Nevertheless, it is clear that the work in dis- pute is done more economically if it is performed by employees represented by Local 106 rather than em- ployees represented by Local 197, since in the case of the former one less employee is needed. Accordingly, we conclude that the record does not establish which group of employees is capable of performing the work in dispute more efficiently but that the factors of skills and economy favor awarding the work to employees represented by Local 106. 5. Employer preference For the reasons stated above, the Employer finds it preferable to assign the work in dispute to employees represented by Local 106 and the record establishes that the Employer is satisfied with the results of that assignment. Accordingly, we find that this factor, while not determinative, favors awarding the work to employees represented by that labor organization. mork to I voc 1197 follomwing the arsard bhs he ('ouncil. Accordngl. we find that Ihis factor ha, ni releance In the making of our determination 321 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. Substitution and loss of work Employer President Milne testified without contra- diction that the traditional work of l.ocal 106 mem- bers, which is the setting of grave headstones and markers, is gradually being displaced by the increas- ing popularity of community mausoleums. There- fore, the Employer feels an obligation to employ members of Local 106 whose work is being so dis- placed. We find this factor, although not determina- tive, favors assignment of the disputed work to l.ocal 106. C'onclusion Upon the record as a whole, and after full consid- eration of all relevant factors involved, we conclude that employees who are represented by local 106 are entitled to perform the work in dispute. We reach this conclusion relying on the skills possessed by these employees, greater economy of operation, the collective-bargaining agreement between Local 106 and the Employer, Employer practice and prefer- ence, and the displacement of work traditionally per- formed by these employees. In making this determi- nation, we are awarding the work in dispute to employees who are represented by l.ocal 106, but not to that Union or its members. The present determi- nation 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 pro- ceeding, the National Labor Relations Board makes the following Determination of Dispute: I. Employees of Milne Construction Co., Inc., who are represented by Cemetery Stone Handlers, Erectors, and Granite Yard Helpers Union, Local No. 106. Tile, Marble, Terrazzo Finishers and Shopmen's International Union, AFL CIO, are enti- tled to perform the work of granite-setter helpers em- ployed by Milne Construction Co., Inc., including such work as was being performed as of June 7, 1978, at Trinity Church C('emetery, 155th Street and River- side Drive, New York, New York. 2. United Derrickmen & Riggers Association Lo- cal No. 197 of New York, all Long Island and Vicini- ty. International Association of Bridge, Structural and Ornamental Iron Workers, AFL CIO, is not en- titled by means proscribed by Section 8(bl(4)(D) of the Act to force or require Milne Construction Co., Inc., to assign the disputed work to employees repre- sented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute. United Derrickmen & Riggers Association Local No. 197 of New York, all l.ong Island and Vicinity, International Associa- tion of Bridge, Structural and Ornamental Iron Workers, AFL C'IO. shall notify the Regional Direc- tor for Region 2, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work in a manner inconsistent with the above determination. 322