Local No.2 of Detroit, Bricklayers, Masons, Etc.

278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Employees of Prestress Erectors, Inc., currently represented by the Carpenters' District Council of Miami, Florida and Vicinity, AFL-CIO, are entitled to perform the following work : Erecting and installing all precast concrete items performed by Prestress Erectors, Inc., in its building construction work within Dade and Broward Counties, Florida. 2. Local Union No. 272, International Association of Bridge, Struc- tural and Ornamental Iron Workers, AFL-CIO, is not entitled, by means proscribed by Section 8(b) (4) (D) of the Act, to force or require the Employer to assign the above work to ironworkers who are represented by it. 3. Within 10 days from the date of the Decision and Determination of Dispute, Local Union No. 272, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, shall notify the Regional Director for Region 12, in writing, whether it will refrain from forcing or requiring the Employer, by means proscribed in Sec- tion 8 (b) (4) (D), to assign the work in dispute to ironworkers rather than to carpenters. Local No. 2 of Detroit, Bricklayers, Masons, and Plasterers In- ternational Union of America, AFL-CIO' and Decora, Inc. Case No. 7-CD-116. April 29,1965 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the National Labor Relations Act, following the filing of charges by Decora, Inc. (herein called the Employer) alleging that Local No. 2 of Detroit, Brick- layers, Masons and Plasterers International Union of Amercia, AFL- CIO (herein called Local No. 2), had violated Section 8 (b) (4) (D) of the Act. The charge alleges, in substance, that Local No. 2 threatened, restrained, and coerced the Employer with an object of forcing or requiring the Employer to assign particular work to employees repre- sented by Local No. 2 rather than to employees who were members of, and represented by, Local No. 32, Bricklayers, Masons and Plasterers International Union of America, AFL-CIO (herein called Local No. 32). Thereafter, a duly scheduled hearing was held before Hearing Officer Alfred J. Morad, on November 12 and 13, 1964. All parties 2 appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence i The full name of Local No 2 appears as stipulated by the parties at the hearing. 'Although a timely notice of hearing was issued to Local No . 32, its representatives did not appear at the hearing. However, members of Local No 32 who were employed by Decora, Inc., and to whom the Employer had assigned the work, appeared and were represented by the Employer's counsel. 152 NLRB No. 17. LOCAL NO. 2 OF DETROIT, BRICKLAYERS, MASONS, ETC. 279 bearing on the issues . The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. A brief was submitted by Local No. 2. Upon the entire record in the case, the Board 3 makes the following findings : 1. THE BUSINESS OF THE EMPLOYER Decora, Inc., is a Michigan corporation engaged in the installation and erection of marble and other structural stone. During the past year, Decora, Inc., received supplies of marble shipped directly to its place of business in Detroit, Michigan, from points oustide the conti- nental United States valued in excess of $50,000. We find, therefore, that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdic- tion herein. II. THE LABOR ORGANIZATION INVOLVED Respondent Local No. 2 and Local No. 32 are sister locals of the Bricklayers, Masons, and Plasterers International Union of America, AFL-CIO. We find that Local No. 2 and Local No. 32 are labor organizations within the meaning of Section 2(5) of the Act. M. THE WORK IN DISPUTE A. Background facts Local No. 2 is what is commonly described in the construction indus- try as a "Brick Mason" local and Local No. 32 is a "Marble Mason" local. Although the members of each local appear to utilize similar skills in their work, one of the basic distinctions between the two groups is that marble masonry consists of the installation or erection of marble or structural glass or stone in the interior of buildings and brick ma- sonry involves work on the exterior of buildings.4 However, exterior work is further subdivided into another skill called stone masonry. Stone masonry encompasses the erection or installation of all types of structural stone to the exterior of buildings. In order to qualify as a stonemason, an apprenticeship or certain other requirements of the International Union must be fulfilled. When a brickmason or a marble mason has completed the necessary requirements, the Inter- national certifies him by placing an extra "M" on his union card .5 s Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Jenkins]. 'There is no evidence in the record concerning the limitations on the types of mate- rial a brick mason may handle, but in view of the range of materials involved in stone masonry, infra, we assume that some limitation in this respect does exist. 6 The cards of stonemason members of Local No. 2 contain "BMM" designations, and the stonemason members of Local 32 have "MMM" designations. 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This indicates that the member is a journeyman stonemason in addi- tion to his basic trade. It is the application of this latter skill with which we are here concerned. The Employer is a marble mason contractor, and is signatory to a collective-bargaining contract with Local No. 32. The contract by its terms is supplemental to, and made a part of, a national agreement between the National Association of Marble Dealers and the Brick- layers, Masons and Plasterers International Union of America. The national agreement expressly limits its application to "the erection or installation of interior marble, structural glass, slate or stone work, both natural or artificial ... in any public or private building." The Employer contracted to install interior marble and exterior granite on the new addition to the Detroit Institute of Arts. The con- tract between the Employer and the general contractor, Barton-Malow Company, contains a provision requiring the Employer to abide by the rules, regulations, and procedures of the National Joint Board for the Settlement of Jurisdictional Disputes.6 The Employer assigned the work on the Institute of Arts project to its own employees represented by Local No. 32. However, only those employees who were also qualified stonemasons were assigned to install the exterior granite. During the period material to the dispute the Employer normally used two stonemasons on the project. But on at least one occasion it had four stonemasons on the job.7 The number of stonemasons was dependent upon the amount of preparatory work completed by other crafts, and there is testimony in the record that the Employer anticipated utilizing four stonemasons on the project once the work of the other crafts had progressed enough to make this possible. B. The dispute In August 1964, Fergus Johnson and William Smith, president and business representative, respectively, of Local No. 2, visited the Insti- tute of Arts project. They were accompanied by John Lodge, an International vice president of the Union. Smith informed employee Richard Savage that he would see to it that Savage and his brother would not install the exterior granite. Savage insisted that the work belonged to them as stonemasons. On September 8, 1964, the manager of labor relations of the Detroit Chapter of the Associated General Contractors (of which the general contractor is a member) wired the 6 In this connection, we note that neither the national agreement nor the Employer's contract with Local No. 32 requires the Employer to use the services of, or abide by the decisions of, the National Joint Board 'Two employees , Richard and Raymond Savage, were permanently assigned as stone- masons on the project Employees Gray and Meredyk also worked on the project in- termittently. However, as the rate of progress of the other crafts generally was such that only two stonemasons could be used, the latter employees were assigned duties at various other projects of the Employer. LOCAL NO. 2 OF DETROIT, BRICKLAYERS, MASONS, ETC. 2S1 International Union advising it of the dispute and requesting a deter- mination on jurisdiction of the works The International Union replied by wire on September 9, 1964, that the installation of exterior granite was the work of stonemasons. On the basis of the latter wire, Johnson informed Brace, the Employer's business manager, on Sep- tember 10, 1964, that the work belonged to Local No. 2 and that the Employer would have to sign a contract with Local No. 2. Brace pro- tested that the Employer had qualified stonemasons performing the work and that the Employer had a current contract with Local No. 32. At this point Johnson threatened to picket the job the following morn- ing a However, the Employer continued to refuse to alter the assign- ment or to execute a contract with Local No. 2. By letter dated September 25, 1964, the International Union notified the Employer that the installation of the exterior granite was the work of the stonemasons affiliated with Local No. 2. Thereafter, a meeting was held on October 5, 1964, among the representatives of Local No. 2, Vice President Lodge of the International Union, the Employer, the business representative of Local No. 32, and employee Richard Savage. Local No. 2 again insisted that the work was under its jurisdiction and that the Employer sign a contract with it. The business representative of Local No. 32, indicating that he was under pressure from the Inter- national Union, acquiesced in the demands of Local No. 2. However, Savage, speaking on behalf of the Employer's stonemason employees, insisted that the work assignment remain unchanged. Local No. 2 then offered to allow the Employer to keep the two Savage brothers on the job, but insisted that the Employer sign a contract with it and that the problem of additional stonemasons on the job be worked out by Local No. 2 and the employee involved. The Employer refused to accede to the demands of Local No. 2 and filed the charge herein. C. Contentions of the parties The Employer contends that it has a collective-bargaining agree- ment with Local No. 32 and that the work has been properly assigned to its employees who are represented by Local No. 32. The Employer further contends that the installation of exterior granite has only been assigned to employees who are stonemasons, and have been so qualified by the International Union. The employees to whom the work has been assigned claim that they are stonemasons and are qualified to perform the work. Local No. 2 claims that no jurisdictional dispute exists within the meaning of Section 10 (k) as both it and Local No. 32 agree that the work is within the jurisdiction of Local No. 2, and further, that there 'The wire stated in part that "Decora has assigned this work to marble setters and stonemasons of Bricklayers' Local No. 2 , Detroit are claiming it " 9 The threat to picket was never carried out by Local No 2 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has never been a demand that the Employer discharge any employees and replace them with members of Local No. 2. Local No. 2 also claims that even if there is a jurisdictional dispute, there is an agreed- upon method of resolving the dispute under the terms of the Employ- er's contract with the general contractor, and the notice of hearing should be quashed. IV. APPLICABILITY OF THE STATUTE As observed above, Local No. 2 denies that a jurisdictional dispute exists. We do not agree. The record clearly shows that Local No. 2 claims the work to be within its trade jurisdiction. Although Local No. 2 alleges that it made no demand for the discharge of any member of Local No. 32 presently performing the work and offered to allow the Employer's assignment to remain unchanged as to two employees, we note that, on at least one occasion, the Employer had four employ- ees assigned to install the granite and reasonably expected to assign additional employees as the work progressed. We find, therefore, that Local No. 2, by insisting that the Employer sign a contract with it, was claiming jurisdiction over the work and the employees performing the work. Concededly, the business representative of Local No. 32 acquiesced in the demands of Local No. 2, but it is pertinent to observe, in this connection, that the Employer's employees, members of Local No. 32, continue to assert their claim to the work. We also reject the contention that there is an agreed-upon method, binding on the parties, for voluntary adjustment of the dispute. The controversy here is intraunion in character, and examination of the procedural rules of the National Joint Board reveals that disputes of this type would not be entertained by that forum. Accordingly, we find that the agreement between the Employer and the general con- tractor does not provide a means of adjusting the competing claims within the meaning of Section 10 (k) of the Act. On the basis of the entire record before us, including the admission of Local No. 2 that it threatened to picket the project, we find that there is 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. V. THE MERITS OF THE DISPUTE Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various relevant factors, and the Board has held that its determination in a jurisdictional dispute case is an act of judgment based upon common- sense and experience and a balancing of all relevant factors 10 10lnternational Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Co.), 135 NLRB 1402. LOCAL NO. 2 OF DETROIT, BRICKLAYERS, MASONS, ETC. 283 Examination of the factors normally considered by the Board reveal many of them to be of minimal assistance in determining the dispute in this case. The contract between the Employer and Local No. 32 by its terms only relates to the installation of marble and structural stone in the interior of buildings, and is silent with respect to exterior work. Thus the contract presents no basis on which to predicate a determination in favor of Local No. 32. Nor do the skills involved offer a solution. The stonemason mem- bers of both Local Unions are certified as such by the same Interna- tional Union and possess identical skills. As their basic trades are not relevant in performing the work in dispute, i.e., brick masonry vis-a-vis marble masonry, there is no valid basis for distinguishing between the skills of the stonemason members of either Local Union. The testimony shows that stonemason contractors in the area who have collective-bargaining agreements with a labor organization gen- erally have such agreements with Local No. 2. However, the testimony also shows that marble mason contractors, while they generally con- tract for interior work, assign whatever exterior work they are required to perform to their own employees. Because of the apparent over- lapping of the types of work performed by the specialized contractors, the area practice does not offer a consistent pattern which weighs in favor of either disputant. Local No. 2 claims jurisdiction over the disputed work by virtue of the award by the International Union. However, we do not find this factor to be controlling. In this connection, we note that the Employer was not a party to the request for the determination. Moreover, the Employer's subsequent actions clearly indicate that it does not intend to be bound thereby.1' In the particular circumstances of this case, we have decided to award the contested work to the Employer's stonemason employees who are represented by Local No. 32. These employees have been assigned the work, they have performed the work to the Employer's satisfaction, and the Employer desires to retain them on the job. Moreover, this assignment is consistent with the Employer's past prac- tice and allows the use of skilled craftsmen, qualified by the Interna- tional Union, in their specialized area of work. In making this deter- mination, we are awarding the controverted work to the Employer's stonemason employees represented by Local No. 32 and not to that Local Union or its members. Furthermore, our determination is lim- ited to the particular controversy that gave rise to this proceeding. n Cf. Local 69, United Association of Journeymen and Apprentices of the Plumbing and Pspefittcng Industry, etc. (Bellezza Company, Inc.), 149 NLRB 559. 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings, the National Labor Relations Board makes the following Determination of Dispute. 1. The stonemasons employed by Decora, Inc., who are represented by Local No. 32, Bricklayers, Masons, and Plasterers International Union of America, AFL-CIO, are entitled to perform the work of installing and erecting the exterior granite on the new addition to the Detroit Institute of Arts building, Detroit, Michigan. 2. Local No. 2 of Detroit, Bricklayers, Masons and Plasterers Inter- national Union of America, AFL-CIO, is not entitled, by means pro- scribed by Section 8(b) (4) (D) of the Act, to force or require Decora, Inc., to assign the above work to stonemasons represented by Local No. 2. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local No. 2 of Detroit, Bricklayers, Masons, and Plasterers International Union of America, AFL-CIO, shall notify the Regional Director for Region 7, in writing, whether it will or will not refrain from forcing or requiring Decora, Inc., by means proscribed by Sec- tion 8 (b) (4) (D) of the Act, to assign the work in dispute to stone- masons represented by Local No. 2 rather than stonemasons repre- sented by Local No. 32. New Fashion Cleaners, Inc. and Laundry, Dry Cleaning and Dye House Workers' International Union, Local No. 52, Union-Peti- tioner. April 29,1965 DECISION AND ORDER GRANTING MOTION TO CLARIFY NONCERTIFIED BARGAINING UNIT Upon a motion for clarification of noncertified unit, filed by Laundry, Dry Cleaning and Dye House Workers' International Union, Local No. 52, herein called Local 52, and New Fashion Cleaners, Inc., herein called New Fashion, a hearing was held before Hearing Officer Barton W. Robertson of the National Labor Relations Board.' The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.2 i white Front Stores, Inc ., was permitted to intervene in this proceeding because of its lease agreement with New Fashion, the Employer-Petitioner. Retail Clerks Union, Locals Nos. 770 and 905 , API-CIO, herein referred to as the Retail Clerks, was permitted to intervene on the basis of its claim that it is a party to contracts covering the employees involved in this proceeding. 2 The Hearing Officer referred to the Board the Retail Clerks ' motion to dismiss the motion for clarification . For the reasons stated infra, this motion is hereby denied. 152 NLRB No. 16.