Bricklayers Local No. 3

232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bricklayers & Stonemasons Union Local No. 3 of Arizona and Concrete Erection and United Brother- hood of Carpenters and Joiners of America (AFL- CIO) Local Union No. 1089. Case 28-CD-132 II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Bricklayers and Carpenters are labor organizations within the meaning of Section 2(5) of the Act. January 31, 1972 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following charges filed by Concrete Erection, hereinafter called Employer, alleging that Bricklayers & Stonemasons Union Local No. 3 of Arizona, hereinafter called Brick- layers, violated Section 8(b)(4)(D) of the Act by engag- ing in certain proscribed activity with an object of forc- ing or requiring the Employer to assign certain work to employees represented by Bricklayers rather than to employees represented by United Brotherhood of Car- penters and Joiners of America (AFL-CIO) Local Un- ion No. 1089, hereinafter called Carpenters. Pursuant to notice, a hearing was held before Hear- ing Officer Lewis S. Harris on September 7 and 8, 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, briefs were filed by Bricklayers and jointly by the Employer and Carpenters. The Bricklayers also filed a motion to quash the notice of hearing. 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 au- thority in this proceeding 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. Upon the entire record in this proceeding, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that Concrete Erection, a sole proprietorship, is an Arizona contractor specializing in the installation of precast panels and prestressed tees. It annually performs subcontracting services valued in excess of $50,000 for employers who, in turn, annually receive goods and materials valued in excess of $50,000 from sources outside the State of Arizona. 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. 195 NLRB No. 32 III THE DISPUTE A. Facts M. M. Sundt Construction Co. is the general con- tractor for the construction of the Trevor G. Browne High School in Phoenix, Arizona. It subcontracted to United Metro, a division of Tanner Industries, the fur- nishing and installing of precast architectural aggre- gate-faced exterior wall panels and prestressed concrete tees. United Metro, in turn, subcontracted the installa- tion part of its subcontract to the Employer. Sundt has collective-bargaining agreements with both Carpenters and Bricklayers. United Metro and the Employer each has a bargaining agreement with Carpenters, but nei- ther has a contract with Bricklayers. The Employer began work on the project on or about June 15, 1971. Bricklayers claimed the work of setting the wall panels for employees represented by it, but was advised by the Employer that the work would be as- signed to the Employer's employees who are repre- sented by Carpenters. Following the Employer's as- signment of the work, Bricklayers referred the dispute to the National Joint Board, which awarded the work to Bricklayers. Neither the Employer nor the Carpen- ters (which is in "non-compliance" status with the Na- tional Joint Board), participated in the Joint Board proceedings and the Employer has refused to recognize or abide by the Joint Board's decision. On July 20, 1971, the Bricklayers began picketing the job. Some of the crafts at the site honored the picket line, as a result of which the parties hereto and others began various legal proceedings on July 22, 1971. Subsequently, on July 26, 1971, the parties were informally advised that the Board would initiate proceedings under Section 10(k) of the Act and the Bricklayers thereupon agreed not to resume picketing pending the Board's resolution of the issue. Following a meeting with representatives of Carpen- ters and Bricklayers on July 26, 1971, the Employer also awarded to employees represented by Carpenters the work of installing prestressed concrete tees. The Bricklayers has claimed that work and has also referred that dispute to the National Joint Board. B. The Work in Dispute As described in the amendment to the Notice of Hearing issued by the Regional Director on August 26, 1971, the work in dispute consists of: Setting, plumb- ing, aligning, leveling, welding, anchoring, pointing BRICKLAYERS LOCAL NO. 3 233 and caulking of precast architectural aggregate-faced exterior wall panels, and installing of prestressed con- crete tees at the Trevor G. Browne High School multi- story project in Phoenix, Arizona. At the hearing, how- ever, the parties stipulated that Carpenters disclaimed all interest in "pointing and caulking," inasmuch as that work is not included in the Employer's subcon- tract with United Metro. Accordingly, "pointing and caulking" is not here in dispute. C. Contentions of the Parties The Employer and Carpenters take the position that the Employer's assignment of the disputed work was justified by the Employer's collective-bargaining agree- ment with Carpenters, the Employer's past practice, the area practice respecting similar work, and the fact that the work is performed more economically and efficiently when done by the Employer 's own crews of carpenters . The Employer and Carpenters further con- tend that neither is bound by the award of the National Joint Board. The Bricklayers , on the other hand , contends that all necessary parties to this dispute (i.e., the contesting unions) are bound by the determinations of the Na- tional Joint Board, which has awarded the work to Bricklayers , and hence the Board is without jurisdic- tion to determine the dispute under Section 10(k) of the Act. In this regard, Bricklayers relies on the constitu- tion of the Building and Construction Trades Depart- ment, AFL-CIO, of which both the Bricklayers and Carpenters parent organizations are members, which requires all local councils and local unions of members International to incorporate in their collective -bargain- ing agreements words of allegiance to the National Joint Board . Alternatively, Bricklayers contends that the disputed work should be assigned to employees represented by it on the basis of area practice and other factors normally considered by the Board in these mat- ters. D. Applicability of the Statute Before the Board 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 8(b)(4)(D) has been violated, and that there is no agreed-upon method for the voluntary adjustment of the dispute. The parties stipulated that the Bricklayers com- menced picketing the job on July 20, 1971; that such picketing began after the Employer refused to reassign the disputed work pursuant to a determination of the National Joint Board; and that on July 26 , 1971, Brick- layers agreed not to resume picketing pending our reso- lution of the matter under Section 10(k) of the Act. Based on the foregoing and the record as a whole, we find that an object of the Bricklayers picketing was to force or require the Employer to assign the disputed work to employees represented by Bricklayers. Accord- ingly, we find that reasonable cause exists to believe that Bricklayers picketing violated Section 8(b)(4)(D) of the Act. Contrary to the Bricklayers contention, the Supreme Court' has recently upheld the Board's position that an employer picketed to force reassignment of work, is a necessary "party" to the "dispute" for purposes of Sec- tion 10(k) of the Act. In the instant case, the record does not establish that the Employer was party to an agreed-upon method for the voluntary settlement of the subject dispute even if, as argued by the Bricklayers, both contesting unions were bound by the National Joint Board procedures. Thus, the Employer's collec- tive-bargaining agreement effective June 22, 1970, with Carpenters' does not bind the parties to the National Joint Board but, to the contrary, states at paragraph 1101.2.9: "If, and when, the Parties signatory hereto become a part of a National Joint Board for the Settle- ment of Jurisdictional Disputes or other similar Na- tional Plan, said Plan shall supersede the provisions contained in this Article 11, 1101.1 and 1101.2, and the Parties mutually agree to be bound by and implement said new Plan."' This they have not done. The only evidence adduced by Bricklayers in support of its claim that the Employer is bound by the National Joint Board is the Employer's agreement with another labor organization, Operating Engineers, to be bound by the National Joint Board with respect to work covered by their collective-bargaining agreement. The fact that the Employer and the Operating Engineers have agreed in an unrelated collective-bargaining agreement to follow the National Joint Board's resolution procedure has no bearing on this case; rather what is critical in this con- nection is whether the Employer has an agreement to utilize that procedure to resolve the instant dispute.4 No such showing has been made. Moreover, the evi- dence establishes that Carpenters has been in "non- compliance" with the National Joint Board since April 1, 1971, and since that time has withdrawn from and N.L.R.B. v Plasterers' Local Union No. 79, Operative Plasterers' and Cement Masons ' In ternational Association (South western Construction Co.), 404 U.S 116 (December 6, 1971) Although not a member of the Associated General Contractors of Arizona, the Employer signed the Arizona Master Labor Agreement and Wage Scales, which was executed by that association with various labor organizations, including Carpenters Article Il, 1101 1, and 1101 2 of this agreement refers to a jurisdictional dispute settlement procedure culminating in binding arbitration and coupled with a no-strike clause. Since Bricklayers is not party to this agreement, however, that settlement procedure likewise is not binding upon all parties to the instant dispute " Local 157, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting industry of the United States and Canada, AFL- CIO (L & K Contracting Company, Inc.), 186 NLRB No. 152. 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refused to participate in Joint Board proceedings.' We have held that, in these circumstances, Carpenters also is not bound by the Joint Board's determination.' It is clear from the foregoing, and we find, that at the time of the instant dispute there did not exist any agreed-upon or approved method for the voluntary ad- justment of the dispute to which all parties to the dis- pute were bound. Accordingly, the matter is properly before the Board for determination. E. 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 factors are relevant in making a determination of the dispute before us. 1. Certification and collective-bargaining agreements Neither of the labor organizations involved herein has been certified by the Board as the collective-bar- gaining representative for a unit of the Employer's em- ployees. As indicated above, the Employer has no employees represented by Bricklayers and has never had a collec- tive-bargaining agreement with Bricklayers. On the other hand, the Employer has had successive collective- bargaining agreements with Carpenters since beginning its business operations 3% years ago. The Employer's current agreement recognizes Carpenters as the exclu- sive representative of the employees who perform the work here in dispute. 2. Employer's assignment and past practice As stated, the Employer assigned the work in dispute to its employees who are represented by Carpenters. This assignment conformed with the Employer's con- tract with Carpenters and was consistent with its estab- lished practice of assigning all such work to employees represented by Carpenters. 3. Area practice With respect to the installation of prestressed con- crete tees,' the uncontroverted evidence establishes that employees represented by Carpenters have tradition- ` The procedural rules and regulations of the National Joint Board forbid its issuing any decisions in favor of unions in noncompliance status. 6 Bricklayers. Stone Masons Plasterers, Marble Masons, Tilelayers, Ce- ment Masons, Mosaic and Terrazzo Workers Union No. 1 of Oregon (Hoff- man Construction Co.), 193 NLRB No 168 ' A prestressed concrete tee was defined as a "precast concrete member that is designed primarily for use in floor and roof construction where it has clear spans to carry superimposed loads of different amounts " It may also be used for wall panels under certain conditions ally performed 100 percent of this work in the area.' With respect to the setting of precast architectural ex- terior wall panels, however, which comprises the major portion of the total work here in dispute, Bricklayers and Carpenters each adduced evidence of area practice supporting its claim for the work. Much of this evi- dence related to the differences between "tilt-up" ex- terior wall panels which, admittedly, are almost always installed by carpenters, and precast architectural ex- terior wall panels which, according to Bricklayers, are almost always installed by bricklayers. Despite manu- facturing and functional differences between the two types of panels,' it is undisputed that the actual work involved in setting them is identical. Bricklayers adduced testimony that employees represented by it generally perform from 90 to 98 per- cent of all the work with respect to setting precast architectural panels in the Phoenix area. The Employer and Carpenters, on the other hand, presented witnesses who testified variously that carpenters perform any- where from 50 to 75 percent of this work and that they perform from 80 to 90 percent of all exterior wall instal- lation work, including tilt-ups. In view of the foregoing conflicting evidence, we find that the area practice is generally inconclusive. 4. Relative skills, safety, availability of workers, and efficiency and economy of operations There is nothing in the record to establish that the employees represented by the competing unions cannot perform the disputed work with equal skill and safety. The Employer, however, strongly favors an award to its employees represented by Carpenters because of their skills, familiarity with the tools involved, efficiency, economy, and the greater availability of trained carpen- ter crews. The Employer testified that, having consist- ently and exclusively used carpenters on all its jobs, it now has regular trained crews who are familiar with the Employer's work and the tools involved. The Em- ployer further testified that it has never used bricklay- ers for any of its work and that to use them here would disturb the efficiency and economy of its operations. In this regard, the record shows that when bricklayers perform the work here in dispute, they are contractur- ally required to work in composite crews with iron- Bricklayers concedes that it claims this work only because Carpenters claims the setting of precast architectural panels which, according to Brick- layers, traditionally has been performed by employees represented by it. ' Basically the difference between these two types of wall panels is that the tilt-up panel is cast or manufactured at the site and, when tilted up and installed, becomes part of the superstructure It is a weight-bearing wall which is generally, but not always , used in the construction of warehouses and industrial plants. The precast architectural panels involved in the instant dispute, on the other hand, are fabricated away from the jobsite and are subsequently affixed to the outer walls of the existing superstructure These panels are generally more decorative and, hence, are used in the construc- tion of office buildings, schools, apartment houses, etc. BRICKLAYERS LOCAL NO. 3 235 workers. A comparison of the Bricklayers and Carpen- ters contracts also support the Employer 's contention that it is more economical to use carpenters than brick- layers . Also significant is the fact that the Employer can utilize its carpenters on other assignments when they are not doing the disputed work, whereas the Em- ployer has no other jobs available for bricklayers to perform if they are not doing the disputed work. 5. The National Joint Board award The Bricklayers contends that the National Joint Board determinations in this and other similar disputes favor awarding the disputed work to it . With respect to the instant dispute, we do not consider the Joint Board's award to Bricklayers binding on the Employer or Carpenters for the reasons already stated . The Brick- layers also placed in evidence a number of Joint Board decisions arising from disputes between Bricklayers and Carpenters in and out of the Phoenix area. These decisions favoring Bricklayers issued in 1963, 1966, and 1968 and did not involve this Employer nor work completely comparable to that herein . Furthermore, these decisions fail to specify the evidence and reason- ing on which the Joint Board relied. Although we normally consider National Joint Board awards a factor in determining the proper as- signment of disputed work , we find that the foregoing awards are neither binding upon the Employer nor determinative of area practice. CONCLUSIONS Upon the record as a whole, and after full considera- tion of all relevant factors involved , we conclude that Concrete Erection's employees who are represented by Carpenters are entitled to perform the work in dispute. We reach this conclusion upon the Employer's assign- ment of the disputed work to its employees , the fact that the assignment is consistent with the Employer's past practice and its current collective -bargaining agreement with Carpenters, the fact that it is not clearly inconsistent with the area practice, the fact that the employees represented by Carpenters possess the requisite skills to perform the work , and the fact that such assignment will result in greater efficiency, economy, and continuity of operations . Accordingly, we shall determine the dispute before us by awarding the work in dispute at the Trevor G. Browne High School project in Phoenix , Arizona, to the Employer's employees represented by Carpenters, and not to that Union or its members . In consequence, we also find that the Bricklayers is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer to assign the disputed work to employees represented by it. 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 proceed- ing, the National Labor Relations Board hereby makes the following determination of dispute: 1. Employees of Concrete Erection of Phoenix, Arizona, who are represented by United Brotherhood of Carpenters and Joiners of America (AFL-CIO) Lo- cal Union No. 1089, are entitled to perform the work of setting, plumbing, aligning, leveling, welding, and anchoring of precast architectural aggregate-faced ex- terior wall panels, and installing prestressed concrete tees at the Trevor G. Browne High School multistory project in Phoenix, Arizona. 2. Bricklayers & Stonemasons Union Local No. 3 of Arizona is not entitled , by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Concrete Erection to assign the above work to employees repre- sented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Bricklayers & Stonemasons Union Local No. 3 of Arizona shall notify the Regional Director for Region 28, 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 employees represented by Bricklayers, rather than to employees represented by Carpenters.