Plasters Local Union No. 79

PLASTERS LOCAL UNION NO. 79 565 Plasterers Local Union No. 79, Operative Plasterers and Cement Masons International Association of Houston, Texas and Southwestern Construction Company Plasterers Local Union No. 79, Operative Plasterers and Cement Masons International Association of Houston, Texas and Martini Tile and Terrazzo Company ' Cases 23-CD-133 and 23-CD-137 JUNE 27, 1968 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA Upon charges filed on January 30, 1967, and February 7, 1967, by Southwestern Construction Company, herein called Southwestern, and on March 17, 1967, by Martini Tile and Terrazzo Company, herein called Martini, the General Coun- sel of the National Labor Relations Board, by the Regional Director for Region 23, issued a com- plaint on September 14, 1967, against Plasterers Local Union No. 79, Operative Plasterers and Ce- ment Masons International Association of Houston, Texas, herein called the Respondent , alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii )(D) of the National Labor Rela- tions Act, as amended. In substance, the complaint alleges that the Respondent violated the Act by en- gaging in picketing and other activities at the M. D. Anderson Library project, Houston, Texas, and at the Rainbo Baking Company , Houston , Texas, with an object of forcing or requiring Southwestern and/or its subcontractor, Texas State Tile and Ter- razzo, Inc., herein called Texas Tile, and Martini, to assign the work of applying to walls a coat of Port- land cement mortar upon which tile was to be in- stalled to employees represented by the Respon- dent, rather than to employees represented by Tile, Terrazzo and Marble Setters Local Union No. 20, Bricklayers, Masons and Plasterers International Union of America, AFL-CIO, herein called the Tile Setters . The Respondent filed an answer admitting certain allegations of the complaint and denying certain other allegations. On October 30, 1967, at a hearing held pursuant to the complaint and notice of hearing, the parties agreed to submit this proceeding directly to the Board for the issuance of findings of fact, conclu- sions of law, and a Decision and Order. It was agreed that the entire record in this case shall con- sist of. the Decision and Determination of Disputes, the transcript of testimony, exhibits, and formal papers in the prior 10(k) proceeding,' and the transcript, exhibits, and formal papers in the present proceeding. The parties waived a hearing before a Trial Examiner, the making of findings of fact and conclusions of law by a Trial Examiner, and the is- suance of a Trial Examiner's Decision. On April 22, 1968, the General Counsel filed a motion to transfer case to the Board. On April 24, 1968, the Board granted the motion.3 The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Briefs were filed by the Respon- dents and jointly by Texas Tile, Martini, the Tile Setters and the Intervenors, which have been duly considered. Upon the entire record in these cases, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYERS The parties stipulated that: A. Texas Tile, a Texas corporation with its prin- cipal office and place of business located in Houston, Texas, is engaged in the business of in- stalling tile and terrazzo. During the 12-month period prior to the hearing Texas Tile purchased and received goods, materials, and supplies valued in excess of $50,000, which materials were shipped from points outside the State of Texas directly to Texas Tile at points within the State of Texas. B. Martini, a Texas corporation with its principal office and place of business located in Houston, Texas, is engaged in the business of installing tile and terrazzo . During the , 12-month period prior to the hearing Martini purchased and received goods, materials, and supplies valued in excess of $50,000, ' On October 10, 1967, Associate Chief Trial Examiner Charles W Schneider granted a motion for intervention to the following organizations: Bricklayers, Masons and Plasterers International Union of America ; Inter- national Association of Marble , Slate, and Stone Polishers , Rubbers and Sawyers, Tile and Marble Setters' Helpers, and Marble Mosaic and Terraz- zo Workers' Helpers; and Tile Contractors' Association of America , Incor- porated. r On August 22, 1967 , in a proceeding pursuant to Section 10(k), the Board issued its Decision and Determination of Disputes ( 167 NLRB 185), in which the Board concluded that employees of Texas Tile and Martini represented by the Tile Setters were entitled to perform the work in dispute . At no time since the issuance of the Board 's Decision and Deter- mination of Disputes has the Respondent given written notification to the Regional Director for Region 23 that it would refrain from forcing or requiring Texas Tile and/or Martini, by means proscribed in Section 8(b)(4)(D), to assign the work in dispute to plasterers rather than tileset- ters. 8 Pursuant to the provisions of Section 3(b) of the National Labor Rela- tions Act , as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three -member panel. 172 NLRB No. 77 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which materials were shipped from points outside the State of Texas directly to Martini at points within the State of Texas. We find that Texas Tile and Martini are engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. requiring Texas Tile to change the assignment of the disputed work from its own employees, who were members of or represented by the Tile Setters, to employees who were members of or represented by the Respondent. B. The Rainbo Job 11. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated , and we find, that the Plasterers and the Tile Setters are labor organiza- tions within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The M. D. Anderson Library Job In 1965 , Southwestern , a general contractor, en- tered a contract with the University of Houston to construct an addition to the M. D. Anderson Libra- ry. Southwestern let a subcontract for the tile and terrazzo work to Texas Tile, which commenced work in August 1966. Texas Tile has a collective- bargaining agreement with the Tile Setters and as- signed the work to employees represented by the Tile Setters. At the outset of work in August 1966, the Tile Setters began to apply a coat of Portland cement mortar to receive tile. The Respondent claimed the work. The matter was sent to the Na- tional Joint Board for the Settlement of Jurisdic- tional Disputes . On November 10, 1966, the Joint Board rendered a decision awarding the disputed work to the Respondent. Texas Tile was not bound by the Joint Board decision. The record shows, and we find, that thereafter, the Respondent, through its representative, George Longshore, made several attempts to obtain the work in question but Texas Tile and the Tile Setters refused to accede to its de- mands. On January 24, 1967, the Respondent established a picket at the jobsite. The picket sign read as follows: Plasterers Local 79 protest the refusal of Texas State Tile and Terrazzo to comply with the National Joint Board. Local Union 79 does not intend by this picket line to induce or en- courage the employees of any other employer to engage in a strike or concerted refusal to work. In fact, all crafts working on the job honored the picket, causing a complete work stoppage. The picket was removed after an injunction was granted by the United States District Court for the Southern District of Texas, Houston Division, on February 20, 1967. We further find that the Respondent en- gaged in such picketing with an object of forcing or Martini has a contract with the Rainbo Baking Company in Houston, Texas, to furnish labor and materials for the installation of ceramic tile. Martini delivered its materials to the jobsite on or about March 14, 1967, and began work the next day. Martini has a collective-bargaining agreement with the Tile Setters and assigned the work in dispute to employees represented by the Tile Setters. On the morning of March 17, 1967, the Respon- dent established a picket line at the jobsite. The picket sign read as follows: Plasterers Local No. 79, protests substan- dard conditions Martini Tile Co., Inc., Local Union 79 does not intend by this picket line to induce or encourage the employees of any other employer to engage in a strike or a con- certed refusal to work. Shortly after the establishment of the picket, offi- cials of Rainbo requested Martini to remove its em- ployees from the premises. Martini complied and a work stoppage ensued. Thereafter, the Respondent removed the picket and picketing was not resumed although Martini returned and continued work on the job. Respondent has stipulated, and we find, that the Respondent engaged in such picketing with an object of forcing or requiring Martini to change the assignment of the disputed work from its own employees, who were members of or represented by the Tile Setters, to employees who were mem- bers of or represented by the Respondent. C. Respondent's Contentions The Respondent's defense herein, as argued in its brief, is in the nature of a request for reconsidera- tion of the Board's Decision and Determination of Disputes issued in the 10(k) proceeding. It argues, inter alia, that the word "parties" as used in Sec- tion 10(k) does not mean the Employer and the two Unions or groups of employees claiming the work in dispute need agree upon a method for the voluntary adjustment of the dispute for the Board to quash the notice of hearing , but only that the two Unions or groups of employees need agree upon such a method of adjustment, and that since Respondent and the Tile Setters are both subject to the Joint Board's jurisdiction, the notice of hearing should have been quashed. We reiterate, however, PLASTERS LOCAL UNION NO. 79 567 our consistent interpretation of Section 10(k) that the employer controlling the work assignment as well as the rival unions involved comprise the "parties to such dispute," and all must approve and enter into a voluntary adjustment procedure in order to preclude a hearing and determination pur- suant to that section.4 Moreover, we note that the Board 's longstanding interpretation of this aspect of Section 10( k) was neither questioned nor disturbed when the National Labor Relations Act was most recently amended by Congress in 1959. Ac- cordingly , we find no merit in this contention of the Respondent . We have examined the remaining ar- guments in support of the Respondent 's position, and also find nothing therein which was not previ- ously considered by the Board . We perceive no reason for distrubing the prior Decision and Deter- mination of Disputes.5 On the basis of the foregoing facts, and the entire record in these cases, we find that the Respondent's picketing of the M. D. Anderson and Rainbo pro- jects as described above was for a proscribed object and in violation of Section 8(b)(4)(i) and ( ii)(D). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 2. The Respondent and the Tile Setters are labor organizations within the meaning of Section 2(5) of the Act. 3. By its picketing at the M. D. Anderson Libra- ry job, Houston, Texas, with an object of forcing or requiring Texas Tile to assign certain work (apply- ing a coat of Portland cement mortar to walls on which tile was to be installed) to employees represented by the Respondent rather than to em- ployees represented by the Tile Setters, the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(D) of the Act. 4. By its picketing of the Rainbo Baking Com- pany job, Houston, Texas, with an object of forcing or requiring Martini to assign certain work (apply- ing a coat of Portland cement mortar to walls on which tile was to be installed) to employees represented by the Respondent rather than to em- ployees represented by the Tile Setters, the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(D) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. The activities of the Respondent set forth in sec- tion 3, above, occurring in connection with the operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent violated Sec- tion 8(b)(4)(i) and (ii)(D) of the Act, we shall order it to cease and desist therefrom and take cer- tain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Texas Tile and Martini are engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. I United Association of Journeymen and Apprentices of the Plumbing and Pipefttting bidustry of the United States and Canada. Local 428, AFL (Philadelphia Association), 108 NLRB 186, 195-198 ; United Brotherhood of Carpenters and Joiners of America, Local 1622 (O R. Karst), 139 NLRB 591. See also our Decision in the prior 10(k) proceeding , 167 NLRB 185, and the cases cited in fn 4 therein ' By motions made on February 21, 1968 , to correct record on material omissions , and on May 22, 1968, to correct 10 (k) record on material mis- statement, Texas Tile, Martini , and the Tile setters seek to supplement the ORDER Pursuant to Section 10(k) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respon- dent, Plasterers Local Union No. 79, Operative Plasterers and Cement Masons International As- sociation of Houston, Texas, its officers, agents, and representatives, shall: 1. Cease and desist from engaging in, or induc- ing or encouraging individuals employed by Texas State Tile and Terrazzo, Inc., or Martini Tile and Terrazzo Company, or any other person engaged in commerce or in an industry affecting commerce to engage in, a strike or refusal in the course of their employment to use, manufacture, process, trans- port, or otherwise handle or work on any materials or to perform any services; and from threatening, coercing, or restraining the aforesaid persons, where an object in either case is to force or require Texas State Tile and Terrazzo, Inc., or Martini Tile and Terrazzo Company, to assign the work of ap- I0(k) record with various evidentiary matter that is in the nature of new evidence, which is not shown to be newly discovered and previously unavailable It is clearly not a "correction" of the 10(k) record, or a sup- plying of evidence to fill an obvious omission in the record The motions are hereby denied. Previously, on January 17, 1968, the Board denied a motion to reopen 10(k) record on issuance of nationwide order filed by the Tile Setters and the two employers , on the ground , utter alta, that the asser- tion that the evidence offerred therein was newly discovered and previ- ously unavailable was unsupported 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plying a coat of Portland cement mortar to walls upon which tile is to be installed at the M. D. An- derson Library and Rainbo jobs , to employees represented by the Respondent rather than to em- ployees represented by Tile, Terrazzo and Marble Setters Local Union No. 20, Bricklayers , Masons and Plasterers International Union of America, AFL-CIO. 2. Take the following affirmative action the Board finds will effectuate the policies of the Act: (a) Post at its business offices, meeting halls, and all other places where notices to employees are customarily posted , in Houston , Texas, copies of the attached notice marked "Appendix . 116 Copies of said notice , on forms provided by the Regional Director for Region 23, after being duly signed by the Union's representative , shall be posted by the Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Union to in- sure that said notices are not altered, defaced, or covered by any other material. (b) Sign and mail copies of said notice to the Regional Director for Region 23 for posting by Texas State Tile and Terrazzo, Inc., and Martini Tile and Terrazzo Company, the Companies willing, at locations where notices to its employees are customarily posted. (c) Notify the Regional Director for Region 23, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. WE WILL NOT engage in, or induce or en- courage individuals employed by Texas State Tile and Terrazzo , Inc., or Martini Tile and Terrazzo Company, or any other person en- gaged in commerce , or in an industry affecting commerce, to engage in a strike or refusal in the course of their employment to use, manu- facture , process, transport , or otherwise handle or work on any materials, or to perform any services; or threaten , coerce, or restrain the aforesaid persons , where an object in either case is to force or require Texas State Tile and Terrazzo , Inc., or Martini Tile and Terrazzo Company, to assign the work of applying a coat of Portland cement mortar to walls on which tile is to be installed, at the M. D. An- derson Library job or at the Rainbo Baking Company, Houston , Texas, to employees represented by this Union , rather than to em- ployees represented by Tile, Terrazzo and Marble Setters Local Union No. 20, Bricklayers, Masons and Plasterers Interna- tional Union of America , AFL-CIO. PLASTERERS LOCAL UNION No. 79, OPERATIVE PLASTERERS AND CEMENT MASONS INTERNATIONAL ASSOCIATION OF HOUSTON, TEXAS (Labor Organization) Dated By " In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words " a Decree of the United States Court of Appeals Enforc- ing an Order - APPENDIX NOTICE TO ALL OUR MEMBERS Pursuant to a Decision and Order of the Na- tional Labor Relations Board and in order to effec- tuate the policies of the National Labor Relations Act, as amended , we hereby notify you that: (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Rgional Office, 6617 Federal Office Build- ing, 515 Rusk Avenue, Houston, Texas 77002, Telephone 226-4296, if they have any questions concerning this notice or compliance with its provi- sions.