Operative Plasterers' Union, Local 524

OPERATIVE PLASTERERS' UNION, LOCAL 524 Operative Plasterers' and Cement Masons' Interna- tional Association of the United States and Canada, Local Union No. 524, AFL-CIO' and Woeste Tile and Terrazzo Company, Inc. and Bricklayers, Ter- razzo, Mosaic and Tile Layers Union, Local No. 18, Ohio, Affiliated with Bricklayers, Masons and Plas- terers' International Union of America, AFL-CIO' and Terrazzo Helpers Local Union No. 72, Affiliated with the International Association of Marble, Slate and Stone Polishers, Rubbers and Sawyers , Tile and Marble Setter's Helpers and Marble Mosiac and Terrazzo Workers Helpers, AFL-CIO: Case 9-CD- 207 April 30, 1971 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following charges filed by Woeste Tile and Terrazzo Company, Inc. (sometimes referred to herein as the Employer), on May 14, 1970, alleging that Cement Masons has vi- olated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the assignment of certain work described be- low to employees represented by Cement Masons rather than to employees represented by Terrazzo Workers. A hearing was held before Hearing Officer James E. Murphy on August 12 and 13, 1970. 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. The Cement Masons and the Employer filed briefs in support of their positions and they have been duly con- sidered. 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 made by the Hearing Officer at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: Hereinafter referred to as Cement Masons Hereinafter referred to as Terrazzo Workers I THE BUSINESS OF THE EMPLOYER 211 Woeste Tile and Terrazzo Company, Inc., is a Ken- tucky corporation engaged as a tile and terrazzo con- tractor with its principal place of business in Cincin- nati, Ohio. During the past year, a representative period, Woeste purchased goods value in excess of $50,000 from points directly outside the States of Ohio and Kentucky, and during the same period Woeste performed services valued in excess of $500,000. The parties have stipulated, and we find, that the Employer is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Cement Masons and the Terrazzo Workers are labor organiza- tions within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The city of Cincinnati is engaged in an extensive redevelopment of its downtown business district known as the Cincinnati Central Business District project. The construction of a part of the redevelopment project, known as the Fifth-Third Center, was contracted out to the Turner Construction Company.' Among the ar- chitect's specifications was a requirement that the side- walks and pedestrian walkways be composed of cement rustic terrazzo. Because of the specifications Turner solicited competitive bids from terrazzo contractors and the Employer was awarded the work of installing the rustic terrazzo sidewalks and walkways. The work of installing the sidewalks and walkways began sometime in the fall of 1969. Cement masons employed by Turner installed structural slabs and the Employer's employees, represented by the Terrazzo Workers, installed the terrazzo sidewalks on top of the slabs. On May 1, 1970, a meeting was held at the jobsite attended by Paul Cobb of the Cement Masons; Frank Brock of the Terrazzo Workers; James Houghton and Vic Smith of Turner Construction Company; and Mark Carnevale and Howard Jones representing the Em- ployer. Cobb demanded that the work of installing the terrazzo sidewalks should be done by the cement ma- sons. Brock replied that the work belonged to the ter- razzo workers and that the Employer would be violat- ing his contract with the Terrazzo Workers if he assigned the work to the Cement Masons. Jones then asked Cobb what would happen if the terrazzo workers continued to do the work and Cobb replied that "he did ' Hereinafter referred to as Turner. 190 NLRB No. 33 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not know what he would do but he would do some- thing." Thereafter the terrazzo workers continued to install the sidewalks. On May 12 Houghton met Paul Steffen, a cement mason foreman for Turner, on the jobsite. Steffen told Houghton that Cobb had instructed him not to finish any concrete work on which rustic ter- razzo was to be placed. Houghton then telephoned Cobb who confirmed what Steffen had told Houghton. Cobb then said "Why don't you get Woeste to do your concrete work, too? You're giving them our work for the rustic terrazzo." Houghton then contacted the sup- plier of cement to stop deliveries and also the rigging company which had supplied the crane to place the concrete. The Employer continued to lay rustic ter- razzo for that day but then was forced to stop since there were no longer concrete slabs on which to lay the rustic terrazzo. On May 19, after the filing of the charge in this case, Cobb called Houghton and informed him that the cement masons would proceed with the laying of the concrete slabs. A few days later the Employer was able to resume the work of laying the. rustic ter- razzo. B. The Work in Dispute The dispute arises from competing claims by the Terrazzo Workers, the bargaining representative for the Employer's employees, and the Cement Masons to the performance of the work of installing the rustic terrazzo portion of sidewalks and walkways at the Fifth-Third Center project in Cincinnati, Ohio. C. The Contention of the Partin The Employer contends that the work of installing rustic terrazzo requires the skills of the terrazzo work- ers whom it employs to perform the work. The Em- ployer further contends that economy and efficiency, its contractual obligations, its preference in assigning the work to the terrazzo workers, and company and area practice are all factors compelling the conclusion that the Terrazzo Workers should be awarded the work of installing the rustic terrazzo. The Cement Masons relies primarily on decisions of the National Joint Board for Settlement of Jursidic- tional Disputes which have awarded similar work to the Cement Masons in disputes between the parties herein. In doing so, the Cement Masons disputes the Employer's contention that the factors the Employer relies on are sufficient to override the Joint Board's awards in assigning the work to the Cement Masons. D. Applicability of the Statute Before the Board may proceed with a determination of the dispute pursuant to Section 10(k) of the Act, it must be satisified that there is reasonable cause to be- lieve that Section 8(b)(4)(D) has been violated. The evidence is uncontroverted that on May 1, 1970, the Cement Masons demanded that the work of install- ing the rustic terrazzo in the sidewalks and walkways of the Fifth-Third Center project be assigned to mem- bers of that Union rather than the employees of the Employer then assigned to the work, who were repre- sented by the Terrazzo Workers. It is also uncon- tradicted that on May 12 the Cement Masons imple- mented this demand by ceasing the construction of concrete slabs on which the rustic terrazzo was to be placed, thus forcing the Employer's employees to cease work and the cessation of continued construction of the sidewalks and walkways. It is therefore clear from the record that the Cement Masons conduct in refusing to lay concrete slabs was for the object of forcing or re- quiring the Employer to assign the work of installing rustic terrazzo to employees under the jurisdiction of the Cement Masons rather than to employees under the jurisdiction of the Terrazzo Workers, to whom the Em- ployer had assigned the work. The facts thus clearly establish a prima facie case supporting the allegations that a violation of Section 8(b)(4)(D) has occurred. Contrary to the contentions of the Cement Masons, we do not find that the parties have agreed upon meth- ods for the voluntary resolution of the dispute or that the dispute has been decided by a Joint Board award. Neither the Employer nor the general contractor, Turner, was bound to submit disputes to the Joint Board at the time the dispute in this case arose, and the Joint Board award of August 22, 1969, and the appeal of that award to the Appeals Board which rendered a decision on January 5, 1970, did not pertain to the specific work here in dispute. Thus no agreed-upon method of voluntary adjustment existed within the meaning of Section 10(k) of the Act and no award of the work has been made.4 At the hearing the Cement Masons moved that the notice of hearing in this case be quashed or, in the alternative , that the hearing be continued so that the Unions involved herein could submit the dispute to the Building & Construction Trades Department of the AFL-CIO. The basis for this motion is a recent decision of the Court of Appeals for the District of Columbia, Plasterers Local 79 [Southwestern Contruction Co.] v. N.L.R.B., 74 LRRM 2575 (June 30, 1970), in which the court ruled that the only "parties" to a jurisdictional dispute were the contending unions . With due respect to the majority of the court which so ruled, we shall adhere to our longstanding and consistent position that the employer controlling the as- signment , as well as the rival unions, is a necessary "party" to the dispute and must agree to the method of adjustment of the dispute to satisfy the requirements of Section 10(k) of the Act. Lathers Union Local 104, the Wood Wire and Metal Lathers International Union, AFL-CIO (The Blaine Petty Company), 186 NLRB No. 70. OPERATIVE PLASTERERS' UNION, LOCAL 524 E. Merits of the Dispute In the C.B.S. case,' the Supreme Court charged the Board with the "responsibility and duty to decide which of two or more employee groups claiming the right to perform certain work tasks is right and then specifically to. award such tasks in accordance with its decision." Pursuant to the mandate, the Board in the J. A. Jones case,' stated that it would thenceforth deter- mine the proper assignment of disputed work only after taking into account and balancing all relevant factors. The following factors are asserted in support of the claims of the parties herein. 1. Certification and bargaining agreements There are no certifications of the Board relevant to this proceeding. The Employer has no contractual rela- tionship with the Cement Masons. The Employer does, however, have collective-bargaining agreements with Terrazzo Workers Locals 18 and 72 which represent the terrazzo workers. "The Jurisdiction of Work" clause in the Terrazzo Workers agreement extends the jurisdiction of the Terrazzo Workers to "all places where terrazzo may be used to form a finished surface for practical use, sanitary finish, or decorative pur- poses, when installed by the usual terrazzo or mosaic methods." We therefore conclude that the Employer's contracts with the Terrazzo Workers clearly favor as- signment of the work in dispute to employees repre- sented by the Terrazzo Workers. 2. Company and area practice The record reveals that the Employer uses the ter- razzo workers in its installation of terrazzo. The other two contractors in the Cincinnati area engaged in ter- razzo work also utilize employees represented by the Terrazzo Workers. This factor also favors the assign- ment of the work in dispute to employees represented by the Terrazzo Workers. 3. Skills and efficiency It is clear from the record that the terrazzo workers are competent to perform the work of installing the rustic terrazzo sidewalks and walkways. It is also clear that it was contemplated that they should do the work since the general contractor, Turner, turned to the ter- razzo contractors in the Cincinnati area for bids and the architect's specifications require that "all terrazzo work shall be conducted in accordance with the recom- ' NL R B. v Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting System], 364 U S 573, 586 6 International Association of Machinists, Lodge No. 1743, AFL-CIO (J A Jones Construction Co.), 135 NLRB 1402 213 mendations of the National Terrazzo and Mosaic As- sociation, Inc.," an association of which the Employer is a member. Moreover the record shows that the ar- chitect drawing up the specifications wanted the ter- razzo work to conform to that which was performed in the Nicollet Mall in Minnesota, and Jones, the Em- ployer's president, has made a trip to that project to observe the terrazzo work at that location and thus to obtain information which would enable him to meet the architect's specifications at the worksite here involved. As a result, the Employer's employees have received additional training so that the rustic terrazzo specified at the present worksite will be similarly and properly installed. The Cement Masons contends that its members are engaged in laying similar sidewalks and walkways by a process known as "exposed aggregate," which would enable them to meet the architect's specifications. The architect, however, testified that he had observed work done by both the terrazzo and exposed aggregate meth- ods and found that the work done by the terrazzo workers was preferable both from an appearance and quality standpoint. It was, in fact, this quality of the terrazzo work that caused the architect to set it forth with particularly in the specifications. The record thus further establishes that the employ- ment of terrazzo workers presently in the employ of the Employer would be more efficient than the substitution of cement masons . The cement masons would have to receive additional training before they would be capa- ble of performing the work of installing this rustic ter- razzo. And when the terrazzo workers cannot work on rustic terrazzo because of adverse weather conditions they can be utilized on similar work in the interior of the buildings, thus making full utilization of their ser- vices. This is not true of the cement masons. We therefore find that the terrazzo workers possess skills necessary to the proper completion of the rustic terrazzo work required by the architect's specifications and that their employment will be more efficient than the employment of cement masons. These are also fac- tors favoring assignemnt of the disputed work to em- ployees represented by the Terrazzo Workers. 4. Joint Board awards As we have indicated above, the award of the Joint Board of August 22, 1969, and the appeal of that award to the Appeals Board which rendered a decision on January 5, 1970, affirming the award of the Joint Board were limited by their terms to the specific jobs involved in those disputes and are not binding on the Employer since the award did not relate to the work involved herein. We have also found that the Employer was not bound to seek a decision of the Joint Board at the time the dispute herein arose. We therefore find that the 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Joint Board awards are not determinative of the issue before us. Conclusions Upon the entire record in this case, and considera- tion of all the relevant factors involved, in particular the factors of the collective-bargaining agreements, the Employer's assignment, company and area practice, the skills of the employees and efficiency in employing them, we conclude that employees of the Employer who are represented by the Terrazzo Workers are enti- tled to the work in question, and we shall determine the dispute in their favor. We do not, however, award the work to the Terrazzo Workers or its members. It appears from the record that contracts for the installation of rustic terrazzo sidewalks and walkways in the Cincinnati Central Business District project may be let in the future and that the Employer may be a successful bidder for some or all of such contracts. There is thus a strong possibility that similar disputes involving the Cement Masons may occur in the future and we therefore hold that the determination in this case applies not only to the job in which this dispute arose but also to all similar work done by the Employer in the Cincinnati Central Business District project. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Re- lations Act, as amended, and upon the basis of the foregoing findings and the entire record in this case, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees employed by Woeste Tile and Terrazzo Company, Inc., who are currently represented by Bricklayers, Terrazzo, Mosaic and Tile Layers Union, Local No. 18, Ohio, affiliated with Bricklayers, Masons and Plasterers' International Union of America, AFL- CIO, and by Terrazzo Helpers Local Union No. 72, affiliated with the International Association of Marble, Slate and Stone Polishers, Rubbers and Sawyers, Tile and Marble Setters' Helpers and Marble Mosaic and Terrazzo Workers Helpers, AFL-CIO, are entitled to perform the work of installing rustic terrazzo sidewalk finishes at the Fifth-Third Center project of the Cincin- nati Central Business District project in Cincinnati, Ohio. 2. Operative Plasterers' and Cement Masons' Inter- national Association of the United States and Canada, Local Union No. 524, AFL-CIO, is not, and has not been, entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Woeste Tile and Terrazzo Company, Inc., to award the work of installing rustic terrazzo sidewalk finishes to its mem- bers or employees it represents in the Cincinnati Cen- tral Business District project in Cincinnati, Ohio. 3. Within 10 days from the date of this Decision and Determination of Dispute, Operative Plasterers' and Cement Masons' International Association of the United States and Canada, Local Union No. 524, AFL-CIO, shall notify the Regional Director for Re- gion 9, 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 work in dispute to its members rather than to employees repre- sented by the Terrazzo Workers. CHAIRMAN MILLER, dissenting; I must respectfully disagree with my colleagues' con- clusion that the work in dispute herein should be awarded to employees represented by the Terrazzo Workers. The factors relied upon in awarding the work are, in this case, weak and in some instances inconclu- sive, and are largely the result of the initial awarding of the work to a subcontractor specializing in indoor terrazzo work. Thus it is quite natural that an employer specializing in such work should have contracts with the Terrazzo Workers and that other employees in the area performing terrazzo work would also have con- tracts with that union. But had the general contractor done the work himself or had he awarded the work to an employer engaged in laying outdoor sidewalks by the "exposed aggregate" process that employer would have had contracts with the Cement Masons. In like vein the additional training received by terrazzo work- ers was the result of the employment of a subcontractor utilizing members of the Terrazzo Workers and pre- sumably the same training would have been accorded members of the Cement Masons had the Employer obtaining the subcontract been one engaged in laying sidewalks by the "exposed aggregate" process, a proc- ess which, from the record, appears to be substantially the same as that employed by members of the Terrazzo Workers. In short, the factors relied upon by my col- leagues are primarily the result of the awarding of the subcontract and thus are not entitled to controlling weight in determing the dispute that has arisen between the competing Unions as to the work involved. Under these circumstances I would find the decision of the National Joint Board for Settlement of Jurisdic- tional Disputes to be determinative. It is true, as my colleagues point out, that neither the general contrac- tor nor the Employer subcontractor was bound by the Joint Board's decision at the time this dispute arose and that the decision on which the Clement Masons primarily relies specifically states that the decision per- tained only to the work then before the Joint Board. But it is now well settled that awards by a joint board in the same or related cases are relevant factors in determining disputes.' The decision on which the Ce- ' Millwrights Local Union No. 1102, United Brotherhood of Carpenters and Joiners ofAmerica, AFL-CIO (Don Cartage Company), 154 NLRB 513, 517. OPERATIVE PLASTERERS' UNION, LOCAL 524 215 ment Masons has placed its principal reliance involved another walkway in this very same project , with the same specifications, the same union , and with the same employer-subcontractor as are involved in the present case. On August 22, 1969, the National Joint Board awarded the work to the Cement Masons . This decision was appealed to the Appeals Board by the employer- subcontractor. The position of the employer was ar- gued by its president and evidence was presented to the Appeals Board regarding job specifications and meth- ods of installation, and on January 5 , 1970, the Appeals Board affirmed the decision of the Joint Board in a written opinion. The only elements differentiating that case from this are the facts that the general contractor awarding the work was not the same as the general contractor herein and that the walkways involved were in another area of this same project. In my opinion neither of these differences is of sufficient importance to justify ignoring the decision of the Joint Board and the Appeals Board where, as here, the decisions were reached only after considering much the same evidence and arguments as were presented in this case, and with respect to work so closely related to that now in dis- pute. Where other factors are of so little assistance in determing the dispute, I would accord such a decision significant weight. I would therefore quash the notice of hearing.