Local 42, Bricklayers

DECISIONS OF NATIQNAI, LABOR, RELATIONS BOARD Local-42, Bricklayers, Masons and Plasterers Interna- tional Union of, America, AFL-CIO and Spancrete Northeast, Inc. and Local 7, Laborers International Union of North America, AFL-CIO Local' 158, International-Association of Bridge, Struc- ;al and Ornamental Iron Workers,AFL-CIO.and, zx ncrete Northeast, Inc. and ,Local 7,Laborers eruational l Union of North America, AFL,-, CIO. Cases 3-CD-347-land 3-CD-347-2 July, 13, 1971 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN This is a proceeding under Section , 10(k) of the National Labor Relations Act, as amended, following charges filed by Spancrete Northeast, Inc.,' alleging in substance that Local 42, Bricklayers, Masons and-,- Plasterers - International Union , of America, AFL-CIO, hereinafter called Bricklayers,,and Local 158, International Association of Bridge , Structural and Ornamental Iron Workers, AFL-CIO, hereinaft- er called Iron Workers, have violated Section 8(b)(4)(D) of the Act. A hearing was held before Hearing Officer Alexan- der T. Graham on February 16 and 17, 1971. 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 . Thereafter, Spancrete Northeast, Inc., hereinafter called the Employer or Spancrete , filed a brief. Pursuant to -the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three- member panel. The Board has reviewed the Hearing Officer's rulings 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: I. THE BUSINESS OF THE EMPLOYER The parties stipulated that Spancrete Northeast, Inc., a New York corporation, is engaged in the building construction industry; that it annually purchases and receives goods in excess of $50,000 directly from points outside the State of New York; and that its gross volume of business exceeds $500,000 per year. We find that Spancrete is engaged in commerce,within the meaning of the Act,.and that it will effectuate policies of the Act to; assert juri sdiction herein, II. ,'THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Iron Workers, the Bricklayers, and ` Local 7, ^ Laborers International Union of North -America, AFL-CIO, hereinafter, called Local 7 or Laborers, ' are labor organizations' within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute At all times, meterial hereto, Avella Construction Company,'Inc., a general- contractor in the building and construction industry, has been '-engaged in the construction of a dining hall and , five dormitory buildings at the State , University of New -York at Binghamton, New York. Pursuant thereto, Avella awarded a contract to Spancrete` calling for the delivery and installation of prestressed, precast concrete floor and roof planks on the crane as it lifts said planks off the trucks to the point of installation, to its employees who are represented by Local? and Laborers Local 435 of Rochester, New York. Span- crete also assigned to these employees the work of installing the aforementioned concrete floor and roof planks. On November 19, 1970, the Iron Workers demand- ed that Spancrete assign the work of rigging the concrete floor and roof planks to employees who are represented by it rather than by the Laborers. On the same date, the Bricklayers made a similar demand of Spancrete for the installation work. Spancrete refused to depart from its original work assignments, and, accordingly, on January 5, 1971, the Iron Workers and the Bricklayers engaged in a work stoppage at the University jobsite. The work stoppage ended with the issuance of a temporary injunction pursuant to Section 10(11) of the Act by the United States District Court for the Northeastern District of New York, on February 9,1971.1 B. The Work in Dispute The parties are in general agreement that the work in dispute involves the rigging and installation of prestressed, precast concrete hollow core floor and roof planks at the University jobsite. C. Contentions of the Parties The Employer contends that since 1963 it has 1 Civil No. 71-Cv-45. 192 NLRB No. 6 LOCAL 42, BRICKLAYERS always assigned the erection of its prestressed con- crete materials to crews composed of its regular employees who are represented by the Laborers, or by other affiliated locals within its franchise area. This assignment, - Spancrete avers, is justified by Board certifications, `contracts between it and the Laborers International and affiliated locals, and the-fact that the disputed' work can be more economically and- efficiently performed when undertaken by its crews whose members are employed on a recurring basis by Spancrete. The Laborers supports the position taken by Span- crete. The Bricklayers and the Iron Workers claimed at the hearing that local and area practice support assignment of the disputed work to employees whom they represent. They also contended that the matter herein was decided by the National Joint Board for the Settlement of Jurisdictional Disputes on February 10, .1970; -and that that ,award assigned the rigging of precast -materials to • 'the Iron Workers and ° the installation thereof tothe Bricklayers. pplicability of the Statute D. 7A _ Before ,theBoard may proceed with a determination of dispute pursuant to' Section 10(k) of the Act, it must be satisfied that there''is reasonable cause to believe that Section Xb)(4)(D)' has been violated, -and: that, there is' no agreed-upon method ` for voluntary adjustment of the dispute. All parties stipulated- that the Iron Workers and the Bricklayers engaged-in picketing on`January 5, 1969, for the purpose of forcing or requiring Spancrete to make a 'work assignment to employees represented by those Unions. Tie record establishes that the rigging and installation work at the University jobsite sought by the IronWorkersand the Bricklayers, respectively, was claimed and is,being, performed by employees represented by the Laborers. - _. The record also shows that Spancrete'is neither a party to, nor is bound by, any labor agreement' committing it to the National Joint Board for the purpose - of adjusting this dispute.2 Indeed, during negotiations between Spancrete and the prime con- tractor on the project here 'involved; Spancrete successfully caused all reference to the Joint Board to be' deleted from the ensuing agreement. It is well' 2 The Respondents' contention that Spancrete is so committed by reason of the "national agreement" between Spancrete and the Laborers International is without- merit. Article Iv, section 1, of that agreement, upon which , the, Respondents rely, merely requires that when Spancrete "enters an area where wages, hours and working conditions have, been negotiated through" bona fide collective bargaining," Spancrete will "conform his operations accordingly."-Neither that agreement nor those negotiated with the Laborers - locals • which are here in evidence bind Spancrete to Joint Board procedure for the settlement of jurisdictional disputes. 3 Lathers Union Local 104, The Woo4 Wire, and Metal Lathers 65 established that, regardless whether the unions in- volved are bound to arbitration procedures such as the Joint Board, if the employer has not agreed to be found, this Board is empowered and directed under Section 10(k) of the Act to make a binding determina- tion of the ,dispute that will be controlling on all the parties, including the employer.3 In these circumstances, we find there is reasonable cause to believe that the Iron Workers and the Bricklayers have violated Section 8(b)(4)(D) o'f the Act, and that^there is no agreement binding all the parties to Voluntary adjustment of the dispute here involved. E. The Merits; of the Dispute Section 10(k) of the Act requires that the - Board make an affirmative award of the disputed work after giving due consideration to various relevant factors.4 As the Board has stated, its determination in a jurisdictional dispute case isan act of judgment based upon common sense and experience in the weighing of these factors.5, We deem the following factors relevant in the case now before us. 1. Collective-bargaining agreements Spancrete has, since it commenced'business, em- ploye,d_ permanent crews, stationed at its various production plants, to perform the rigging and installa- tion work necessary inathe pursuit of its business. The members' of these'-crews are 'represented -by the Laborers, 'or by affiliated' Laborer's locals "'having territorial jurisdiction over the area in 'which the particular plant is located. These permanent crews are supplemented at the various installation sites' by one or two individuals who are recruited by the Laborers local situated in that p`articular' area. The-c6 nditions governing the' employment of all individuals`-are set forth in the agreement 'between Spancre'te- and the International 'Laborers - Union of North America, AFL-C'IO: The scope of this agreement encompasses "all field construction work' performed by the Em- ployer." Article II, section 1, thereof, provides that the-' covered work jurisdiction 19'-that- specified in the International Laborers' - Union, Manual of Jurisdic. tion. That manual claims jurisdiction over concrete, - work: International Utuo, AFL-CIO (Associated General Contractors), 186 NLRB No. 70. Cf. Plasterers Local Union No. 79 (Southwestern Construction Co.) v. N.L.R.'B., 440 l.2d 174 (C.A.b.C., 1970), cent, granted 91' S. Ct. 1195 (1971). In this -latterconnection it is noted that'Qte,Boardlhas expressed its- respectful disagreement with the court's view in Plasterers, Local, 79. See Lathers Local 104, supra at sec. III, 0. - ' 4 ML.R.B. V. Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO (Columbia Broadcasting Systems), 364 U.S. 573. 5 International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A, Jones Construction Company), 135, NLRB 1402. - 66 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD Where pre-stressed -or pre-cast concrete slabs, wall or , sections , are used, all loading, unloading, stockpiling, hooking -on,- signalling, unhooking, setting and barring into place of such slabs, walls or sections. In' addition, as previously stated, Spancrete has negotiated supplementary agreements `with the sever- al Laborers locals situated in the locality of the Spancrete plants. On, the other hand, Spancrete has, negotiated no agreement with , either the Iron orkers or the, Bricklayers and employs no individuals represented by either of those Unions. In sum, we find that the contracts in'^question favor the assignment of the disputed work to those individuals who are employed by, SpancreteGild are represented by theLaborers or by its affiliates. . Other factors Evidence was introduced as to industry and area practice and also as to Joint Board Awards with respect to this type of work. While there is some evidence to support a claim of an industry practice to grant jurisdiction to the Bricklayers and the Iron Workers, it also appears that the laborers-have been assigned this work, and particularly 'that it has been the consistent' practice of `Spancrete for "nearly a decade to,assign such work to laborers in, the area in which; this dispute arose, as well-as in other parts of the country.`Thus; area and industry practice appear to be inconclusive. As to skill and safety, Spancrete employs permanent, basic crews, whose,menibers have-under -gone from'3 to 6 months of training to attain the desired state -of proficiency iii perforing the required work. It seems :,ei, her of the competing groups of employ- likely that ees could, after, a reasonable period of, time, be trained' adequately ii the, use `of the tools and equipment necessary foa the aperformance of the work herein question, .such 'as slings, rigging, cutting tools, and saws. However, 'the, recoil shows, that those individu- als presently employed,, by, Spancrete now possess sufficient skills to perform satisfactorily all phases of the work in dispute. The efficiency and economy to be derived from the continued use of Spancrete's trained crews' are apparent. In sum, 'we find that, whereas considerations of skilf'`and, safety' do not favor any of the .,competing groups, Spancrete's practice and the efficiency and, economy of operations are factors favoring the, continued. performance, of the disputed work by Spancrete's present employees. 6 Cf. Iron Workers 'Local No. 563, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Spanerete Midwest 3, Conclusions as to the ,merits of. the dispute Upon the entire record in' this proceeding and the foregoing consideration of all,.relevant , factors, in particular the contractual, relationships- between Spancrete and,the Laborers International, Union and its affiliated locals, employer practice, and efficiency. and economy of operations, we - conclude that employees, of Spancrete who ; are represented by. the Laborers or its affiliated locals are entitled to the work in question and we shall determine the dispute in their favor. In making this determination, we award, the work to the employees of Spancrete who are currently represented by the Laborers or its,affiliated locals but not to. those'Unions or-their members. 4. Scope of the award Spancrete is here requesting Ghat the, Board-issue a broad, work award on behalf of the Laborers, contending that such-an award is necessary in order to avoid repetition of similar jurisdictional claims and attendant work stoppages at its other construction sites. In support of its request, Spancrete,avers that, since the hearing held -herein, it has' filed, similar charges against another affiliate of the -Bricklayers and another affiliate, of the Iron Workers in Troy and New York City, . respectively, alleging similar viola- tions by those unions. We are not disposed to find that the filing of such charges , against these diifferent affiliates, even if' deemed'teritorious,:demonstrates a proclivity on _t a part of the Responde_nt,,Unionsrhere involved to , en age in further unlawful,c,onduct._The likelihood of further, work interruptions by these, speculative. Nor- is 'there Respondent -Unions' evidence in the record 'that: the instant,dispute ,is a continuous source of controversy 'in the. geographic area here` involved.6 Accordingly, we hold, that the issuance of a broad award is not appropriate in, this case. 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 proceeding, the National Labor Relations Board makes thefollowing determination of dispute. 1., Employees employed as crewinenibers by-Span- crete Northeast, Inc.,,currently _ represented by the Laborers or by an'-affiliated local,, ar`e entitled to perform the work. o'f rigging and installing prestressed concrete units in connection-with' the` construction of Co.), 183 NLRB No. 112. LOCAL 42, BRICKLAYERS 67 buildings at the State University of New York at Binghamton, heretofore performed by them. 2. The Iron Workers and the Bricklayers are not and have not been entitled, by means proscribed by Section 8(b)(4)(D) of" the Act, to force or require Spancrete Northeast, Inc., to assign the above work to individuals who are currently represented- by such labor organisations. ' 3. Within 10 `days- from the date of this Decision and Determination of Dispute, the Iron Workers and the Bricklayers shall notify-the Regional Director for Region 3, in writing, whether they will or will not refrain from forcing or requiring Spancrete, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to individuals represented by them rather, than to employees represented by the Laborers or by an affiliated local.