Operative Plasterers', Local 179

OPERATIVE PLASTERERS', LOCAL 179 Operative Plasterers' and Cement Masons Internation- al Association of, the United, States and Canada, Local 179, AFL-CIO and The Bertolini Bros. Co. Case 8-CD 218 December 1, 1971 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, JENKINS, AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by The Bertolini Bros. Co., hereinafter called the Employer, alleging that Operative Plaster- ers' and Cement Masons International Association of the United States and Canada, Local 179, AFL-CIO, hereinafter called the Plasterers, had violated Section 8(b)(4)(D) of the Act. A hearing was held pursuant to notice at Youngstown, Ohio, on September 8, 1971, before Hearing Officer Lester B. Slate. The Employer, the Plasterers, and Bricklayers, Masons, Terrazzo and Tile Setters International Union, Local No. 8 Ohio, hereinafter called the Bricklayers, 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. No briefs were filed. Pursuant to the provisions of Section 3(b) of -the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The Employer, The Bertolini Bros. Co., is an Ohio corporation with its main office in Youngstown, Ohio, where it is engaged in the application of marble, tile, terrazzo, and decorative finishes. The Employer annually receives in excess of $700,000 for such work in the Youngstown area. Since the beginning of the work involved in the instant dispute, the Employer has received goods valued in excess of $50,000 directly from points located outside the State of Ohio. We find, in agreement with the parties, 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 assertjurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED 403 The parties agree, and we find, that the Plasterers and the Bricklayers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Dispute The work in dispute involves the application of epoxy to the walls of the Youngstown University Physical Education Building, currently under con- struction, at Youngstown, Ohio, and the seeding therein of marble chips, also known as aggregate. Employees of the Employer represented by the Bricklayers currently perform this work, which the Plasterers now claims. In performing this work, the Employer's employees represented by the Bricklayers work hand in hand with its employees represented by International Association of Marble, Slate, Stone Polishers, Rubbers, Sawyers, Tile, Marble and Terraz- zo Helpers, Local Union No. 44, not a party to this proceeding. In so doing, the employees represented by the Bricklayers also known as mechanics, work together with employees represented by the Stone Polishers on a one-to-one basis. The helper prepares the mix, known as epoxy, and the mechanic applies it with a trowel and performs any required seeding, which entails the manual insertion of marble chips in the epoxy. B. Background of the Dispute The Employer is affiliated with The Mahoning Valley Tile Contractors, herein called Mahoning Valley, which in turn is affiliated with Builders Association of Eastern Ohio and Western Pennsylva- nia, herein called Builders Association. For the past 5 years, the Employer has been engaged in epoxy application, a relatively new field in the area of decorative finishes. At the instant jobsite, the Em- ployer operates as a subcontractor for J. J. Coffey, herein called Coffey, which in turn is a plastering subcontractor for Joseph J. Bucheit Company, herein called Bucheit, the general contractor. The Employ- er's assignment of the disputed work to employees represented by the Bricklayers is pursuant to a collective-bargaining contract, effective from May 1, 1970, to April 30, 1973, between the Bricklayers, on the one hand, and Mahoning Valley in behalf of Builders Association and its members, on the other. The Employer assisted in negotiating the contract and separately signed it. The pertinent language of the contract relative to the work assignment is set forth below. 194 NLRB No. 61 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Work Stoppage On October 23, 1970, the National Joint Board for the Settlement of Jurisdictional Disputes awarded the stuccoing of the exterior of the Youngstown Universi- ty Physical Education Building, which it alleged to be in dispute, to the Plasterers. On June 21, 1-971, at a meeting attended by the Bricklayers, the Plasterers, Bucheit, and Coffey, but not by the Employer, the Plasterers, on the basis 'of the National Joint Board award, asked the Bricklayers for the assignment of the work in dispute, but was refused. On June 22 and 23, the Plasterers picketed the jobsite with the following sign: THE BERTOLINI BROS. CO. DOES NOT ABIDE BY NATIONAL JOINT BOARD'S JURISDICTIONAL JOB DECISION During the picketing, several workers other than Bricklayers, including cement finishers, laborers, and sheet metal workers, refused to cross the picket line. D. Contentions of the Parties The Plasterers contends that its members are entitled to the work in dispute on the basis of the National Joint Board award. The Bricklayers and the Employer, relying on past practice and their current contract, contend that the work in dispute belongs to employees represented by the Bricklayers. The Em- ployer additionally contends that it is not subject to the jurisdiction of the National Joint Board, and that the National Joint Board's award of the work in dispute to the Plasterers is therefore of no effect. E. Applicability of the Statute Before the Board may proceed with a determination of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is a reasonable cause to believe that Section 8(b)(4)(D) has been violated. It is undisputed that on June 22 and 23, 1971, the Plasterers caused a work stoppage at the Employer's jobsite because the work in dispute had not been assigned to employees represented by the Plasterers. The Plasterers contends that the National Joint Board award operates as a bar to a determination of the dispute under Section 10(k) of the Act. We find the contention without merit, absent evidence that the Employer or Builders Association or Mahoning Valley, with which' the Employer is affiliated, are subject to the National Joint Board's jurisdiction.' Accordingly, we conclude that there is 'reasonable 1 In so holding, we respectfully disagree with the majority opinion of the District of Columbia Court of Appeals, as announced in Plasterers Local Union No 79 v N LR B. (Southwestern Construction Co), 440 F.2d 174 (1970) setting aside 172 NLRB No 171, cert granted 401 U S. 973 (1971) Lathers Union Local 104, The Wood Wire and Metal Lathers International Union, AFL-CIO (The Elaine Petty Company), 186 NLRB No 70. cause to believe that a violation of Section 8(b)(4)(D) has occurred, and that the dispute is properly before the Board for determination under Section 10(k) of the Act.2 F. 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. The following are the factors relied on by the parties to the dispute in support of their respective claims: 1. Collective-bargaining contracts The current contract between the Bricklayers and the Employer, as an affiliate of Mahoning Valley and Builders Association, assigns the following work to employees represented by the Bricklayers: All bedding for preparation, laying or setting of the metal or wooden strips and grounds where mosaic and terrazzo is to be applied, or any substitute that is applied under the same method as mosaic or terrazzo, shall be the work of the mosaic and terrazzo workers. All terrazzo finished (rustic) or rough washed for interior or exterior of building, or any substitute that is applied under the same method as mosaic or terrazzo, shall be set by mosaic and terrazzo workers. All formulated resinous decorative architectural finishes shall also come under this section. [Emphasis supplied.] 2. Company, area, and industry practice The Employer has engaged in epoxy application for the past 5 years, employing employees represented by the Bricklayers for this work. Within the Youngstown area; the Employer has made several work assign- ments to the Bricklayers involving work essentially similar to the work in dispute. According to evidence submitted by the Plasterers, Ostrum Corp., a subcon- tractor for Coffey, has assigned epoxy-type work in Ohio and Pennsylvania, to the Plasterers, and the Plasterers are performing epoxy work in other parts of the United States. 3. Employee training and skills and efficiency of operations The Employer's epoxy work is performed under the general supervision of H. B. Fuller, with whom the Employer has an exclusive franchise for its use, and who occasionally sends one of its representatives to a 2 In view of our determination herein, we find it unnecessary to resolve conflicting evidence as to whether the term "stucco " properly embraces the term "epoxy," or whether, as the Employer contends the National Joint Board award was a nullity because it allegedly issued before the Employer's assignment of the work in dispute. OPERATIVE PLASTERERS', LOCAL 179 given jobsite on which the Employer is working in order to ensure the proper application of the epoxy. Evidence submitted by the Employer indicates that the epoxy application work at the instant jobsite can be performed more efficiently by utilizing employees represented by the Bricklayers, in view of their greater familiarity and experience with its application. It takes approximately 2 to 3 weeks for a mechanic to learn to apply epoxy under expert supervision, and it may take up to 6 months of training before a mechanic can complete a job independent of any supervision. The Bricklayers has several training programs covering the disputed work. The Plasterers introduced evidence that it is operating a job corps training program in seven centers throughout the United States, that the training is of approximately 1 year's duration, and that one phase of the training is the application of epoxy. Conclusions Upon the record as a whole, and after full consideration of all relevant factors involved, includ- ing the current contract which in effect assigns the work in dispute-to the Employer's employees repre- sented by the Bricklayers, the absence of a counter- vailing contract or assignment thereof to members of the Plasterers, and evidence indicating that the employees represented by the Bricklayers are well trained to perform this work and do so in an efficient, economical, and satisfactory manner, we conclude that the Employer's assignment of the work in dispute to employees represented by the Bricklayers should not be disturbed. We shall therefore determine the dispute before us by awarding the work of applying epoxy and marble chips to the Youngstown Universi- 405 ty Physical Education Building to the employees represented by the Bricklayers, but not to that Union or its members. This determination is limited to the particular controversy giving rise to this dispute. 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 hereby makes the following determination of dispute: 1. Employees represented by Bricklayers, Masons, Terrazzo and Tile Setters International Union, Local No. 8 Ohio, are entitled to perform the work of applying epoxy and marble chips to the Youngstown University Physical Education Building, at Youngs- town, Ohio. 2. Operative Plasterers' and Cement Masons International Association of the United States and Canada, Local 179, 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 The Bertolini Bros. Co. to assign the above work to employees that it represents. 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 179, AFL-CIO, shall notify the Regional Director for Region 8, in writing, whether they will or will not refrain from forcing or requiring The Bertolini Bros. Co., by means proscribed by Section 8(b)(4)(D), to assign the work in dispute to employees represented by the Plasterers rather than to employees represented by the Bricklay- ers.