Bricklayers, Local Union No. 1

148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bricklayers, Stone Masons, Marble Masons, Tile Set- ters and Terrazzo Workers Local Union No. 1 of Tennessee and Bricklayers, Masons and Plasterers International Union of America and Shelby Marble & Tile Co. Case 26-CD-77 January 27, 1971 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by Shelby Marble & Tile Co., herein called the Employer, alleging that the Bricklayers, Stone Masons, Marble Masons, Tile Setters and Ter- razzo Workers Local Union No. 1 of Tennessee, herein called Local No. 1, and Bricklayers, Masons and Plasterers International Union of America, here the International, with both correctly referred to as Respondents, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign the work in dispute to bricklayers represented by the amalgamated Local No. 1 rather than to tileset- ters also represented by the same local. Pursuant to notice, a hearing was held before Hearing Officer Jo- seph I. Nachman in Memphis, Tennessee, on August 25, 26, and 27, 1970. All parties appeared at the hear- ing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, briefs were filed by the Employer and by the Respondents. 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 powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. The Board has considered the entire record in this case, including the briefs,' and hereby makes the fol- lowing findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that the Employer is engaged in the sale and installation of tile and related products at Memphis, Tennessee, and that during the past year ' The Eidployer's request for oral argument is hereby denied as the briefs and the entire record adequately present the issues and positions of the parties. it has purchased and received goods and materials valued in excess of $50,000 from points located out- side the State of Tennessee. Accordingly, the parties stipulated, and we find, that the Employer is 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. II THE LABOR ORGANIZATIONS The parties stipulated, and we find, that Local No. 1 and the International are labor organizations within the meaning of Section 2(5) of the Act. III THE DISPUTE A. The Background Facts The Employer entered into a contract with Arthur G. McKee & Company, a general contractor, to in- stall acid proof paver floors and related toppings and coatings and furnish the materials necessary to such installation in the construction of a brewery for Jo- seph Schlitz Brewing Company. The installation of said floors, which constitutes the disputed work, was assigned to employees of the Employer who are tiles- etters represented by Local No. 1. Prior to its assignment of the work in dispute, the Employer entered into a contract with the Interna- tional in which the Employer agreed, inter alia, "to work the hours, pay the rate of wages and abide by the working conditions agreed upon or established by the Bricklayers, Masons and Plasters' International Union of America in the locality in which any work is being performed by our company." In addition, the "National Agreement" contains the following prov- isions: 5. The Employer and Union severally agree to be governed by the terms and provisions of the Agreement effective May 1, 1948, creating the National Joint Board for Settlement of Jurisdic- tional Disputes to which plan both Employer and Union are signatory. * * * 8. The Employer and the Union also agree that no stoppage of work or any strike of its members either collectively or individually shall be entered into until said dispute or misunderstanding has been referred to the International Office of the Union and arbitrated between such International Office of the Union and the Home Office of the Employer. The disputed work is the installation of material referred to in the job specifications as "acid proof 188 NLRB No. 15 BRICKLAYERS, LOCAL UNION NO. I floor brick," which is also often called "quarry tile paver," and "acid proof paving brick," interchangea- bly. The contract between Arthur G. McKee & Com- pany and the Employer provided for the installation of 180,000 square feet of the disputed paving material over a 9-month period. The Employer assigned the installation to the tilesetters, who are represented by Local No. 1, rather than the bracklayers, who are also represented by the amalgamated union, Local No. 1, and began performance of the installation in April 1970 2 ' Sometime in mid-April, Blackney, business agent for the bricklayer members of Local No. 1, indicated to Young, business agent for tilesetter members of Local No. 1, that he (Blackney) thought the work in dispute was properly bricklayer work. Thereupon, Young and Blackney jointly requested that Interna- tional Vice President Parks review the disputed work in Memphis and determine whether it was properly bricklayer or tilesetter work. At that point, after ap- proximately 5,000 or 180,000 feet had been laid, the work was stopped for reasons unconnected with the dispute. Parks met with Young, Blackney, and employer officials Hill, Price, and Rulman on May 14 at the jobsite, reviewed the work, and advised them that he was awarding the work to the bricklayers. He did offer, however, to allow the work to be performed by a composite crew of 50 percent from both crafts pro- vided that all were paid bricklayer rates. Parks claims that his decision was based on the work jurisdictional provisions of the International constitution and rules of order. At the time Parks announced his decision he also explained to those present that his decision was not final and was subject to review first by the Union's executive board and then by the Union's biannual convention. It is unclear who, at this point, announced an ap- peal would be filed. However, there is no dispute that the Employer's vice president, Price, and the Tile Set- ter Business Agent Young went to the Employer's office where a call was made to a vice president of the International to obtain information on the procedure to be followed in perfecting an appeal, after which Price prepared a rough draft of a document which he claims he wrote to assist Young in appealing Parks' decision. Price gave Young permission to use the Employer's office clerical employees to prepare the appeal, and Young admits that in so doing he made some changes in the draft. The appeal, in its final form, was written on the stationery of Local No. 1, dated May 15, and signed by Business Agent Young. There is no indication on the face of the document that the Employer participated. On May 17, parks 2 Unless otherwise indicated, all dates fall in 1970 149 sent a report of his investigation and award to the executive board to assist it in its review. By letter dated June 3, addressed to Price as vice president of the Employer, the executive board indicated that the work in dispute "properly falls within the jurisdiction of the bricklayer members of this international Un- ion." The letter further indicates that the executive board "took into account a letter you directed to [In- ternational] President Thomas F. Murphy, under date of May 18, 1970 ...." The record does not indicate why the letter was sent to Price when the appeal was filed by Young without mention of Price's participa- tion in drafting the appeal. The record also does not indicate whether any communication from Price to the International dated May 18 existed. On June 11, after the International's decision is- sued, the parties met to discuss the assignment of the work. The parties present included Parks, Blackney, Young, and representing the Employer, Hill, Rulman, and Price. At the meeting, Price stated that he intend- ed to proceed using tilesetters and asked Tile Setter Business Agent Young if he would supply the men. Young stated he would, whereupon Parks reminded them that the work had been awarded to the bricklay- ers and that is the way it would have to be. Price stated he could not comply with the decision and asked what would happen if he used tilesetters to perform the work. Hill, Rulman, and Price testified that Parks told Price that if Price persisted in using tilesetters for the work the Respondents would not supply men for the work on the Schlitz site and Price was badly mistaken if he thought he would be able to run any of his other jobs. Parks testified that he responded to Price by posing the question, how could the Employer expect to have members of the Union on its other jobs if it failed to comply with its commitment to submit the dispute to the executive board and failed to honor the decision. Parks further admitted that either Hill or Rulman told Price that what Parks meant was that if he did not comply with the decision, he would not have men on his jobs, and that he (Parks) did not speak out to affirm or deny this interpretation of his position. On July 21, the Tile Setter Business Agent Young sent the Employer a telegram withdrawing its claim to the laying of the acid proof floors. Nevertheless, the Employer continued using tilesetters to lay the floors and the work was proceeding, at the end of the hear- ing, without any action taken by the Union to inter- fere with the work since it was resumed in mid-August. B. Work in Dispute The work in dispute is the laying of acid proof floors by the installation of acid proof pavers, which 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is also called "acid proof floor brick" and "quarry tile paver." The Floors are being installed as part of the construction of a brewery for Joseph Schlitz Brewing Company in Memphis, Tennessee. The manner in which the acid proof pavers are to be installed is set forth in sec on 8 of the specifications (Joint Exh. 4). Briefly, the installation involves the application of primer and of glass reinforced asphalt membrane (the former is spread by brush, squeegee, or broom and the latter by a tempered Masonite Squeegee). Thereafter, the specifications call for the application of acid proof mortar spread with a notched trowel. The bottom of the brick is buttered and the specifications direct that after buttering the workman is to "strike off to insure that grooves are filled flush with brick bottom ...." Then, after the acid proof mortar bed is set and the brick is secured to the floor, the specifications require the pouring of fresh grout on waxed surfaces of the brick and the spreading and working of the grout into the brick joints using a rubber faced or plasterer's trowel with an unserrated edge. Finally, the split brick pavers are to be cleaned. C. Contentions of the Parties The Employer contends that Respondents violated Section 8(b)(4)(D) of the Act by threatening the Em- ployer with a work stoppage in an effort to have the Employer assign the work in dispute to the bricklayer members of Local No. 1. The Employer further contends that the work has been assigned to the tilesetters and that such work should properly be awarded to the tilesetters in view of area and industry practice; considerations of skill, efficiency, and economy; and the absence of a volun- tary method for settling disputes. Respondents contend that the work in dispute should be assigned to the bricklayers. In support of their position, Respondents argue that the parties have agreed to a voluntary method of settlement and that the work has been awarded to the bricklayers pursuant to that arrangement. Respondents also ar- gue that, on the merits, the work should be assigned to the bricklayers as the method of installation is more akin to the work of bricklayers than to tilesetters work as indicated by the specifications for the work in dis- pute and comports with area practice. D. Applicability of the Statute Before the Board may proceed with a determina- tion of a 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. As set forth previously, according to the testimony of Employer Representatives Hill and Rulman and the testimony of Employer's Vice President Price, Inter- national Vice President Parks threatened that if the Employer refused to abide by the International award of the disputed work, Respondents would not supply men to the Schlitz job and that Price was badly mis- taken if he thought he was going to be able to run any of his other jobs. Although Parks denied that state- ment, he testified that he stated to Price that he (Parks) did not know what would happen if the Em- ployer used tilesetters on the Schlitz job and did ask Price how the Employer could expect to have mem- bers of the Union on its other jobs if it failed to honor its commitment to submit this dispute to the executive board and comply with its decision. Parks also admit- ted that when one of the Employer's representatives explained to Price that what he (Parks) meant was that if Price did not comply with the decision, Price would not have men on the Employer's jobs, Parks neither affirmed nor denied such interpretation of his remarks. In a jurisdictional dispute context, the Board is not charged with finding that a violation did in fact occur, but only that there is reasonable cause to believe that there has been a violation.' On these facts, and with- out ruling on the credibility of the testimony in issue,4 we are satisfied that there is reasonable cause to believe Respondents threatened to strike and that an object of such threat was to force the Employer to assign the disputed work to individuals who are brick- layer members of Local No. 1, rather than to those employees who are tilesetter members of Local No. 1. We do not find merit in the contention by Respon- dents that the Employer agreed to voluntary dispute settlement machinery in connection with the work assignment dispute. Section 5 of the national agreement, set out, supra, provides for the settlement of jurisdictional disputes by the National Joint Board for Settlement of Juris- dictional Disputes. None of the parties contends that section 5 is relevant to the settlement of the intraunion dispute herein, and, insofar as the procedural rules of the National Joint Board reveal that disputes of this type would not be entertained by that forum, it is clear that section 5 of the national agreement does not pro- vide a voluntary method of dispute settlements How- ever, Respondents argued at the hearing, but not in their brief, that section 8 of the national agreement, to which the Employer is a party, is evidence of such a method for the voluntary adjustment of the dispute. ' Locals 138, 138A, 138B, 138C, and 138D, International Union of Operating Engineers, AFL-CIO (Cafasso Lathing & Plastering, Inc), 149 NLRB 156, 158-159 See Local Union No 3, International Brotherhood of Electrical Workers, AFL-CIO (Western Electric Company, Incorporated), 141 NLRB 888, 893. 5 Cf Local No 2 of Detroit, Bricklayers, Masons, and Plasterers Internation- al Union of America, AFL-CIO (Decora, Inc ), 152 NLRB 278, 282. BRICKLAYERS, LOCAL UNION NO. I We find no merit in this contention. Section 8, set out, supra, refers to strikes and work stoppages and does not refer to jurisdictional disputes, either specifically or impliedly. Nor are we persuaded that the Employ- er, through Vice President Price, evinced an unequi- vocal intent to be bound by the intraunion method of dispute settlement. The facts that Price allowed Brick- layer Business Agent Young to use the Employer's offices and clerical service to draft the appeal to the International Union executive board and Price helped to draft it, cannot be regarded as a submission to the union executive board by the Employer. The Employ- er never committed itself either by its course of con- duct, or in writing, to such a submission, but rather persisted in its assignment of the work after Parks' initial determination for the International and, in ad- dition, never appeared on the appeal documents which were sent by Young alone to the executive board. We find, therefore, that the Board is not pre- cluded from making its determination in this proceed- ing.6 E. Merits of the Dispute On the basis of the entire record in this case, we find that there is reasonable cause to believe that a viola- tion of Section 8(b)(4)(D) has occurred and that the dispute is properly before the Board for determjna- tion. Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to various relevant factors.' The Board has held that its determination in a jurisdiction dispute is an act of judgment based upon common sense and experience, reached by balancing those fac- tors involved in a particular case.' The following factors are relevant in making a de- termination of the dispute before us: 1. Collective-bargaining agreements As previously indicated, the Employer entered into a contract with the International. However, as the disputed work will be awarded to either bricklayers or tilesetters represented by an amalgamated local un- ion, the existence of a collective-bargaining agree- ment alone is not a relevant factor in making a determination of the dispute before us. But insofar as 6 Cf. Local 169, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (W H Condo, Brick Contractor and Masons Contractors ' Associa- tion of East St Louis), 119 NLRB 583; International Union of Operating Engineers, AFL-CIO, Local 520 (Biebel Bros., Inc), 170 NLRB No. 38. N.L.R.B v Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO (Columbia Broad- casting System), 364 U.S. 573. 6 International Association of Machinists, Lodge No 1743, AFL-CIO (J.A. Jones Construction Company), 135 NLRB 1402 151 the Employer contractually agreed "to work the hours, pay the rates of wages and abide by the work- ing conditions ... established by the [International] ... in the locality in which any work is being per- formed by our company," the definitions of bricklay- er and tilesetter as set forth in the International constitution are relevant considerations in reviewing area practice though, as Respondents admit in their brief, the work in dispute falls somewhere between the two definitions. The material involved in the work in dispute is known as both split brick and quarry tile. It is approx- imately an inch thinner than standard brick and an inch thicker than standard tile. The constitution makes operative distinctions: if the method by which the material is installed can be said to constitute bed- ding and jointing with one operation, it is bricklayers' work and if the bed is floated or screeded and the joints grouted, it is tilesetters' work. The record indic, "ates that the installation in the instant dispute in- volved the pouring of a glass reinforced asphalt membrane of uniform thickness, layer upon layer un- til a bed of uniform and measured thickness is ob- tained. Thereafter, an acid proof mortar bed is spread, also of uniform and measured thickness, upon-which the buttered paver is set. Finally, an acid proof grout is applied. Whether the application of a uniform as- phalt membrane and mortar layer is called screeding as the Employer contends, or is not characterized at all, the entire' installation process is more akin to the tilesetter's two step screeding or floating and grouting than to the bricklayer's craft which, according to the International constitution, requires bedding and jointing in one operation. . 2. Area and industry practices It is undisputed that tilesetters laid the identical material at issue herein several years ago in Memphis at Plough, Inc. There the installation process used was substantially the same as that used herein, particularly in that a layer of furane resin was spread with a ma- sonite edge which constitutes, according to tilesetter Nichols, "screeding." Further, tilesetters have, in fact, laid the disputed material over approximately 2 mil- lion square feet nationwide including the laying of the acid proof paver pursuant to specifications similar to those herein at another Joseph Schlitz Brewing Com- pany plant in the Los Angeles area. The Employer called as witnesses tile contractors operating out of various areas 9 who testified, in substance, that such work is performed by tilesetters and not by bricklay- ers. The Union introduced testimony indicating that such work has, on occasion, been performed in the 9 These areas, in addition to Memphis, were Nashville, Baton Rouge, Atlanta, Raleigh, Detroit, Wichita Falls (Texas), and Jackson (Mississippi). 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Memphis area by bricklayers. In addition, it appears that bricklayers performed similar work in another plant constructed for Schlitz in Winston-Salem, North Carolina. We are persuaded, however, that the more prevalent and more widely accepted area and industry practice is to employ tilesetters to lay acid proof paver. 3. Skills, efficiency, and economy While it appears from the record that bricklayers have, on occasion, successfully performed the work similar to that in dispute, the work is essentially instal- lation involving more than a single step. It involves spreading layers of certain surface materials of spec- ified thickness, and, in addition, involves buttering and grouting. The bricklayers require some training to perform this work while tilesetters perform the work without any preparatory training . Furthermore, the Employer is satisfied with the skills and performance of the tilesetters and has introduced evidence indica- ting that it is more efficient and economical to assign the work to the tilesetters in that they can do the work more quickly than bricklayers and at a lower cost to the Employer. Accordingly, considerations of skill, efficiency, and economy of operation all tend to favor an assignment consistent with that made by the Em- ployer. F. Conclusions Having considered all pertinent factors present herein, we conclude that employees who are tilesetters represented by Local No. 1 are entitled to perform the work in dispute . This assignment is not inconsistent with the collective-bargaining agreement between the International and the Employer, and is consistent with area and industry practice of masonry contrac- tors. In addition, tilesetter members of Local No. I possess sufficient skills to perform the disputed work and the Employer has been satisfied with the quality of their work and the resulting efficiency and econo- my of operations . We conclude from all the foregoing that the Employer's assignment of work to tilesetter employees represented by Local No. 1 should not be disturbed. On the basis of the entire record, therefore, we shall determine the existing jurisdictional contro- versy by awarding the work of laying acid proof paver to the tilesetter employees of the Employer repre- sented by Local No. 1, rather than to bricklayer indi- viduals represented by Local No . 1. In making this determination, we are assigning the disputed work to the employees of Shelby Marble & Tile Co., who are represented by Local No. 1, but not to that Union or its members. The present determination is limited to the particular controversy which gave rise to this pro- ceeding. 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 case, the National Labor Relations Board hereby makes the following determination of dispute: 1. Tilesetter employees of Shelby Marble & Tile Co., who are represented by Bricklayers, Stone Ma- sons, Marble Masons, Tile Setters and Terrazzo Workers Local Union No. 1 of Tennessee , are entitled to perform the work of laying all acid proof paver in the construction of the Joseph Schlitz Brewing Com- pany brewery at Memphis, Tennessee. 2. Bricklayers, Stone Masons , Marble Masons, Tile Setters and Terrazzo Workers Local Union No. 1 of Tennessee and Bricklayers , Masons and Plasterers In- ternational Union of America are not entitled by means proscribed by Section 8(b)(4)(D ) of the Act to force or require Shelby Marble & Tile Co. to assign such laying of acid proof paver to bricklayers repre- sented by Bricklayers, Stone Masons, Marble Ma- sons, Tile Setters and Terrazzo Workers Local Union No. 1 of Tennessee. 3. Within 10 days from the date of this Decision and Determination of Dispute , Bricklayers, Stone Ma- sons, Marble Masons, Tile Setters and Terrazzo Workers Local Union No. 1 of Tennessee and Brick- layers, Masons and Plasterers International Union of America shall notify the Regional Director for Region 26, in writing, whether or not it will refrain from forc- ing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to bricklayers represented by Bricklayers, Stone Masons, Marble Masons , Tile Setters and Ter- razzo Workers Local Union No. 1 of Tennessee, rath- er than to tilesetter employees represented by Bricklayers, Stone Masons, Marble Masons, Tile Set- ters and Terrazzo Workers Local Union No. 1 of Tennessee.