Bricklayers, Masons and Plasterers' Union

BRICKLAYERS, MASONS AND PLASTERERS' UNION •ricklayers, Masons and Plasterers' International Union of America, Local No. 1, AFL-CIO and Rocky Mountain Prestress , Inc. and Rocky Moun- tain Prestress, Inc., John Madden Company and Carpenters District Council of Denver & Vicinity. Cases 27-CD-129 and 27-CD-131 February 25, 1972 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY This is a proceeding under Section 10(k) of the Na- onal Labor Relations Act, as amended, following Iarges filed on March 29 and April 2, 1971,' by Rocky fountain Prestress, Inc. (herein called the Employer Rock Mountain), alleging that Bricklayers, Masons id Plasterers' International Union of America, Local o. 1, AFL-CIO (herein called Bricklayers or Re- )ondent), had violated Section 8(b) (4)(D) of the Act y engaging in certain proscribed activity with an ob- ct of forcing or requiring Rocky Mountain and John [adden Company (herein called Madden) to assign .rtain work to employees represented by Bricklayers ether than to employees represented by Carpenters 'istrict Council of Denver & Vicinity (herein called arpenters). A hearing was held before Hearing Officer Jerry C. egler on June 9, 1971. All parties appeared at the Baring and were afforded full opportunity to be heard, examine and cross-examine witnesses, and to adduce °'idence bearing upon the issues. Briefs have been filed r Bricklayers, the Employer, and Carpenters; Brick- yers filed a Motion To Reopen Hearing, and the Em- oyer filed a response to this motion.' Pursuant to the provisions of Section 3(b) of the ational Labor Relations Act, as amended, the Na- anal Labor Relations Board has delegated its an- lority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings ade at the hearing and finds that they are free from •ejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board makes le following findings: Unless otherwise noted, all the events took place in 1971. As the findings herein would not be affected by the additional evidence uch the Bricklayers wishes to introduce, the Motion To Reopen Hearing denied as being without merit. )5 NLRB No. 88 1. THE BUSINESS OF THE EMPLOYER 555 The parties stipulated that Rocky Mountain Pre- stress, Inc., is a Colorado corporation which will annu- ally do business outside the State of Colorado in an amount of approximately $2 million. We find, there- fore, 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 juris- diction herein. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that Bricklayers and Carpenters are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Facts The Employer is a manufacturer and erector of structural precast and prestressed concrete. Under sub- contract with Weaver Construction Company, the Em- ployer was the supplier and erector of the precast, pre- stressed stairs, walls, and slabs and window surrounds at the Nedco Apartments for the Elderly (herein called the Nedco projects). Under subcontract with John Madden Company, the Employer was the supplier and erector of all the precast, prestressed, component struc- tural parts of two multistory office buildings at the Greenwood Park Development, Englewood, Colorado (herein called the Madden project). On both of these projects, the Employer had assigned the erection work to a composite crew of carpenters and laborers pursu- ant to collective-bargaining contracts with unions representing these two groups. The Employer is signa- tory to a Memorandum of Agreement with Carpenters signed on September 15, 1969, binding the parties to the agreement negotiated by the Associated Building Contractors of Colorado (herein called ABC), an affili- ate of Associated General Contractors (herein called AGC), although the Employer is not a member of ABC. The Employer also had a contract with Laborers (not a party in the instant proceeding) signed on Au- gust 1, 1969. The Employer did not have a contract with the Bricklayers at the time the dispute arose. The Employer's contracts with both Carpenters and Labor- ers called for jurisdictional disputes to be submitted to an arbitral body then in existence, the National Joint Board for the Settlement of Jurisdictional Disputes (herein the old Joint Board).' ' The agreement constituting that organization expired on September 30, 1969. Thereafter, a similarly named body was constituted on an interim, and then permanent, basis, but without participation of a major contractors association, the Associated General Contractors. See Bricklayers, Masons and Plasterers' International Union of America, Local No. 1, AFL-CIO (Cont.) BRICKLAYERS, MASONS AND PLASTERERS' UNION ricklayers, Masons and Plasterers' International Union of America, Local No. 1, AFL-CIO and Rocky Mountain Prestress , Inc. and Rocky Moun- tain Prestress, Inc., John Madden Company and Carpenters District Council of Denver & Vicinity. Cases 27-CD-129 and 27-CD-131 February 25, 1972 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY This is a proceeding under Section 10(k) of the Na- onal Labor Relations Act, as amended, following iarges filed on March 29 and April 2, 1971,i by Rocky [ountain Prestress, Inc. (herein called the Employer - Rock Mountain), alleging that Bricklayers, Masons id Plasterers' International Union of America, Local o. 1, AFL-CIO (herein called Bricklayers or Re- )ondent), had violated Section 8(b) (4)(D) of the Act r engaging in certain proscribed activity with an ob- ct of forcing or requiring Rocky Mountain and John [adden Company (herein called Madden) to assign rtain work to employees represented by Bricklayers tther than to employees represented by Carpenters istrict Council of Denver & Vicinity (herein called arpenters). A hearing was held before Hearing Officer Jerry C. egler on June 9, 1971. All, parties appeared at the Baring and were afforded full opportunity to be heard, examine and cross-examine witnesses, and to adduce 'idence bearing upon the issues. Briefs have been filed t Bricklayers, the Employer, and Carpenters; Brick- yers filed a Motion To Reopen Hearing, and the Em- oyer filed a response to this motion.' Pursuant to the provisions of Section 3(b) of the ational Labor Relations Act, as amended, the Na- Dnal Labor Relations Board has delegated its au- iority in this proceeding to ' a three-member panel. The Board has reviewed the Hearing Officer's rulings ade at the hearing and, finds that they are free from -ejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board makes ,e following findings: Unless otherwise noted, all the events took place in 1971 As the findings herein would not be affected by the additional evidence rich the Bricklayers wishes to introduce, the Motion To Reopen Hearing denied as being without merit. I. THE BUSINESS OF THE EMPLOYER 555 The parties stipulated that Rocky Mountain Pre- stress, Inc., is a Colorado corporation which will annu- ally do business outside the State of Colorado in an amount of approximately $2 million. We find, there- fore, 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 juris- diction herein. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that Bricklayers and Carpenters are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Facts The Employer is a manufacturer and erector of structural precast and prestressed concrete. Under sub- contract with Weaver Construction Company, the Em- ployer was the supplier and erector of the precast, pre- stressed stairs, walls, and slabs and window surrounds at the Nedco Apartments for the Elderly (herein called the Nedco projects). Under subcontract with John Madden Company, the Employer was the supplier and erector of all the precast, prestressed, component struc- tural parts of two multistory office buildings at the Greenwood Park Development, Englewood, Colorado (herein called the Madden project). On both of these projects, the Employer had assigned the erection work to a composite crew of carpenters and laborers pursu- ant to collective-bargaining contracts with unions representing these two groups. The Employer is signa- tory to a Memorandum of Agreement with Carpenters signed on September 15, 1969, binding the parties to the agreement negotiated by' the Associated Building Contractors of Colorado (herein called ABC), an affili- ate of Associated General Contractors (herein called AGC), although the Employer is not a member of ABC. The Employer also had a contract with Laborers (not a party in' the instant proceeding) signed on Au- gust 1, 1969. The Employer did not have a contract with the Bricklayers at the time the dispute arose. The Employer's contracts with both Carpenters and Labor- ers called for jurisdictional disputes to be submitted to an arbitral body then in existence, the National Joint Board for the Settlement of Jurisdictional Disputes (herein the old Joint Board).' ' The agreement constituting that organization expired on September 30, 1969 Thereafter, a similarly named body was constituted on an interim, and then permanent, basis, but without participation of a major contractors association, the Associated General Contractors. See Bricklayers, Masons and Plasterers' International Union of America, Local No. 1, AFL-CIO (Con':) )5 NLRB No. 88 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 8, 1971, the Employer was first notified by the reconstituted Joint Board that there was a juris- dictional dispute between Bricklayers and Carpenters over the erection of exterior wall panels and columns at the Employer's Madden project, and a full descrip- tion of the work in dispute was requested. On January 22, the Employer, notified the Joint Board that it had not received any communication from Bricklayers, ad- vised the Joint Board as to the work being done, and advised that it had assigned the work to carpenters and laborers, in keeping with its area practice for over 10 years. Under date of February 25, the Employer was notified by the Joint Board of Bricklayers claim for work on exterior brick wall panels on the Nedco project. On March 12, the Employer advised the Joint Board that the procedural rules of the Joint Board were not applicable to the Employer, and that it had as- signed the work to carpenters and laborers in accord with its collective-bargaining agreements. On March 1, the Joint Board notified the Employer of a dispute involving Bricklayers, Carpenters, and La- borers over work on exterior wall panels and columns and interior marble-faced precast panels at the Madden project. On March 19, the Employer was advised by the Joint Board that it had awarded the work on exterior wall panels at the Madden project, and the work on the exterior brick wall panels at the Nedco project, to Bricklayers. Following a letter dated March 25, from Bricklayers to the Employer, advising the Employer that Bricklay- ers planned to engage in informational picketing against the Employer, and emphasizing in the letter that the picketing was not an attempt to seek an assign- ment of the work in question or any work to the mem- bers of that union, Bricklayers picketed at the Nedco project beginning March 26, and at the Madden project beginning March 30, which picketing caused the charges in the instant cases to be filed on March 29 and April 2. This picketing caused both jobs to be shut down. Upon the insistence of the owner of the Madden project that the work commence again on the job im- mediately, the Employer, on April 2, advised the brick- layers that they would assign the erection of the ex- terior single "T" columns to the bricklayers, although the award was for exterior wall panels. Following negotiations between Bricklayers and the Employer, a contract was signed by the Employer to use bricklayers for the duration of the job or until the dispute was otherwise settled by the National Labor Relations Board or the Joint Board. A similar arrangement was made on the Nedco project, whereafter pickets were removed and the jobs reopened. The Employer then (Lembke Construction Company of Colorado, Inc.), 194 NLRB No 98 advised the Joint Board by letter that although it was not under the Joint Board's jurisdiction, it had been affected by the decision and had attempted to comply with the, decision to remove the Bricklayers pickets. It further advised that the work awarded to Bricklayers on the Madden project was not work being done on the job and that the employment of the bricklayers on the job had caused considerable expense and confusion. The Employer also made an effort to have the Unions submit accurate information to the Joint Board, follow- ing which Carpenters president also wrote to the Joint Board. At its meetings of April 14 and 15, the Joint Board considered the above letters and voted to rescind the job decision of March 17 and 18 as it did not reflect the work actually being performed on the Madden project. Following this recision of the award, bricklayers were not used at the Madden project subsequent to April 16. The bricklayers had worked about 6 days on the Nedco project, at which time that job had been completed. On April 27, the Joint Board notified the Employer of a new claim by Bricklayers on the Madden job for "exterior structural wall panels and columns and in- terior marble faced precast concrete panels" and ad- vised that a meeting was scheduled for May 6. There- after, the Employer, requested Laborers and Carpenters to meet with it on May 3, in connection with that claim. At that time Laborers advised ,the Employer that the Laborers Union was in "non-compliance" with, the Joint Board since January 7, and that since that time it had no representation on the Joint Board and had not recognized the Joint Board's actions. Likewise, Car- penters advised it was in "non-complaince" since April 1 and has had no representation on the Joint Board since that time and it was not participating in Joint Board proceedings. As a result of this meeting of May 3, the Employer's contracts with Laborers and Carpen- ters were amended on May 5 to delete reference to the Joint Board as a method for the settlement of jurisdic- tional disputes, and the Joint Board was promptly, ad- vised of this action. On May 6, the Joint Board voted to defer any action on the Bricklayers claim pending receipt of more information, and, at the time of the hearing in the instant case, the Joint Board had taken no other action. B. The Work in Dispute The work in dispute involves the setting, aligning, plumbing, cleaning, patching, pointing, bolting, and/or welding of exterior wall panels and columns at the Employer's Madden project, Englewood, Colorado, and the setting, leveling, aligning, plumbing, cleaning, patching, pointing, bolting, and/or welding of exterior brick wall panels at the Nedco project, Denver, Colorado. d BRICKLAYERS, MASONS AND PLASTERERS' UNION 557 C. The Contentions of the Parties The Employer and Carpenters took the position that prior to the dispute, ABC (as an affiliate of AGC) had withdrawn from the Joint Board, and as the parties had signed the ABC agreement, they are not bound by awards made by the Joint Board. They further take the position that Carpenters and Laborers are in "non- compliance" with the Joint Board, are no longer repre- sented on the Joint Board, and are not bound by deci- sions made by that Board. Further, they contend that, as they had deleted from the contracts the provisions calling for submission of disputes to the Joint Board before final determination was made by that Joint Board, they are not compelled to honor such a deter- mination. These parties further contend that the Em- ployer's assignment of the disputed work was proper in light of certain factors usually considered by the Board in these matters. Respondent Bricklayers on the other hand contends that the Board is without jurisdiction to determine the merits of the dispute under Section 10(k) of the Act, since the parties by the terms of their collective-bar- gaining agreements have agreed upon a method for the voluntary adjustment of the dispute, arguing that the AGC's withdrawal from the Joint Board is immaterial and does not affect the Employer's obligation to abide by Joint Board decisions. Respondent Bricklayers con- tends that the notice of hearing must be quashed. D. Applicability of the Statute Before the Board may proceed to the determination of a dispute pursuant to Section 10(k) of the Act it must be satisfied that (1) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and (2) the parties have not agreed upon methods for the voluntary adjustment of the dispute. As to (1) above, the record is clear that Bricklayers began picketing the Employer's Nedco project on March 26, and the Employer's Madden project on March 30. Although the Bricklayers letter of March 25 emphasized that the picketing to be conducted was informational and that it was not seeking an assign- ment of the work in question for members of Bricklay- ers, the picketing in question did follow the Bricklayers demand for the work and its submission of disputes at the two projects to the Joint Board. Further, the picket- ing followed closely the award of the work to Bricklay- ers by the Joint Board which the Employer had failed to honor. Also, the picketing did have the effect of causing the closing down of the Nedco and Madden projects. Accordingly, we find that reasonable cause exists to believe the Bricklayers picketing violated Sec- tion 8(b)(4)(D) of the Act. With respect to (2), the Bricklayers contends that the Joint Board was the proper forum for determining the jurisdictional disputes because of Employer's agree- ments with Carpenters and Laborers that such forum should be used for that purpose. As stated, the Em- ployer is party to ABC's current collective-bargaining agreement with Carpenters, which is effective from May 1, 1969, to April 30, 1972, and expressly provides for the settlement of jurisdictional disputes by the "Na- tional Joint Board for the Settlement of Jurisdictional Disputes." The contract between Laborers and the Employer, effective from May 1, 1969, to May 1, 1972, contains a provision of like import. Both of these contracts were signed prior to the date on which the original Joint Board expired and the AGC withdrew. Subsequently, the new National Joint Board for Settlement of Jurisdictional Disputes was established. Neither the Employer in this case, ABC, nor AGC participated in the negotiation or execution of the new National Joint Board agreements. The instant case is to a great degree similar to the Lembke case, 194 NLRB No. 98, recently decided by this Board (Member Fanning dissenting), where the employer was a party to the same contract between ABC and Carpenters as is the Employer in the instant case. In that case we found that when the parties en- tered into the contract designating the Joint Board as the forum for determining jurisdictional disputes, the obligation to be bound by determinations of that Joint Board ceased with the cessation of the existence of that particular Joint Board. As the parties did not intend that they be bound by the determinations of a subse- quently formed entity also calling itself the Joint Board, but in which the ABC was not represented, the Em- ployer was not bound by any determination made by the subsequent Joint Board.4 Although the employer in the Lembke case was a member of the ABC, and the Employer in the instant case is not, we believe that the same rationale must apply. It is clear that, when the Employer signed its contracts, the makeup of the Joint Board was different than it is now. Also, the Employer did not, subsequent to the formation of the new Joint Board, agree to be bound by the determinations of this Joint Board. Therefore, we will not find that the parties intended to be so bound. Also, we would not find that the Em- ployer, by its actions following the submission of the disputes to the Joint Board by Bricklayers, accepted as fact that the Joint Board has jurisdiction over it. On the contrary, although the Employer did inform the Joint Board of the, work being done at the ,projects, and did The Lembke case overruled International Association of Heat & Frost Insulators & Asbestos Workers, Local 28 (Paul Jensen, Inc.), 186 NLRB No. 20 558 DECISIONS OF NATIONAL LABORRELATIONS BOARD assign work to the bricklayers following the picketing, at all times it continued in its insistence that it was not subject to the procedures of the Joint Board. This we believe additionally shows that the Employer did not intend to be bound by the Joint Board. For the foregoing reasons, we find that the parties in instant case had not agreed upon methods for the voluntary adjustment of jurisdictional disputes and that the instant dispute 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 and balancing all relevant factors. The following factors are relevant in making the determina- tion of the dispute before us: 1. Employer's assignment and past practice As stated, the Employer assigned the work of erect- ing and installing the precast structural concrete at both the Nedco and Madden projects to its employees who are represented by Carpenters and Laborers in accordance with its past practice. The Employer pre- sented evidence that it customarily assigns this dis- puted work to its employees represented by Carpenters and Laborers and has done so for at least 10 years. 2. Area practice The Employer and Carpenters introduced much evi- dence to show that it is the practice in the area to assign the work in dispute to carpenters or composite crews of carpenters and laborers. Included in this evidence was testimony that the Employer and one other com- pany, Prestressed Concrete of Colorado, together do about 95 percent of the prestressed structural concrete business in the Denver area . Like the Employer in the instant case, Prestressed Concrete of Colorado uses carpenters and laborers , and also occasionally uses ironworkers . Bricklayers offered no evidence as to area practice. 3. Collective-bargaining agreements Prior to the dispute in the instant case the Employer was not a party to any contract with Bricklayers. As a result of the picketing earlier described, the Employer and Bricklayers entered into temporary agreements covering work at the Nedco and Madden projects only, and specifically limited to terms ending in the event that the National Joint Board or the National Labor Relations Board made a determination awarding the work to employees other than bricklayers or the work became completed, whichever was sooner. The Employer has had contracts with Carpenters and Laborers since at least 1963 covering the work in dispute, and has also agreed to assign the work to com- posite crews of carpenters and laborers in accordance with a Memorandum of Understanding between Car- penters and Laborers dated September 16, 1969. 4. Efficiency, economy, integration of operations, and skills The Employer has used a composite crew of carpen- ters and laborers in the erection of its prestressed, pre- cast structural concrete for many years and has been very satisfied with the work of these two groups of employees. According to the testimony of the Em- ployer's witnesses, these employees have the skills needed to do the work efficiently, whereas when the Employer assigned work temporarily to bricklayers in April, after the picketing, those bricklayers did not have the skills to do the work quickly and efficiently and had to be supervised constantly. Another factor affecting the efficiency and economy of the Employer's operation is the idleness resulting from the use of the bricklayers. Because Bricklayers claimed only part of the work, it was necessary to retain the crew of carpenters to do the other work. The tes- timony shows that the nature of the operation of install- ing the structure of a building precludes the carpenters and bricklayers from doing their respective jobs at the same time. Therefore, in each workday, each of the two crews is idle up to 50 percent of the time while waiting for completion of the other crew's work, although both crews must be paid for a full day. The evidence also shows that the Bricklayers wage rates are higher than the Carpenters, thereby adding considerably to the cost of the job. According to tes- timony of employer witnesses, if the bricklayers had been on the two projects throughout their duration, the projects would have cost an estimated 20 percent more. The evidence reveals that such an increase would cause the use of prestressed concrete to drop out of competi- tion with masonry and poured concrete in the erection of structures. The foregoing evidence demonstrates that the assign- ment of the disputed work to the carpenters results in greater efficiency on the job, especially in light of the necessity of having carpenters on the job to do other work not in dispute herein. CONCLUSIONS Upon the record as a whole and after full considera- tion of all the relevant factors involved we conclude that Rocky Mountain's employees who are represented by Carpenters are entitled to the work in dispute. We reached this conclusion on the Employer' s assignment of the disputed work to its employees, the fact that the BRICKLAYERS, MASONS AND PLASTERERS' UNION 559 assignment is consistent with the Employer's past prac- tice and its current bargaining agreement with Carpen- ters, the fact that it is consistent with area practice as evidenced in the record, the fact that the employees represented by Carpenters possessed the requisite skills to perform the work, and the fact that such assignment will result in greater efficiency, economy, and con- tinuity of the operations. Accordingly, we shall deter- mine the dispute before us by awarding the work in the dispute at the Employer's Nedco project in Denver, Colorado, and Madden project in Englewood, Colorado, to those employees represented by Carpen- ters, but not to that Union or its members. In conse- quence, we also find that 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. Scope of Award The Employer, in its brief, requests that the Board's award be extended to cover all future erection and installation of prestressed and precast concrete of a structural nature to be performed by Employer in the geographical jurisdiction of the Carpenters Union. The Employer argues that the way it did is work on the two projects in the instant case is typical of the way it performs its work on other jobs, and that it is obvious that Bricklayers is engaged in an effort to secure assign- ment of Rocky Mountain's work in the future. Al- though the Board need not restrict its award to a single job if there is evidence that similar disputes will appear in the future, we conclude that a broad award is not clearly justified by the evidence herein. Thus, the record is not clear with respect to future operations of the Employer, except that its typical jobs are much the same as the jobs in the instant case. Nor is it clear with respect to the future activities of the parties involved. Therefore, we will limit our award only to the projects presently under consideration. 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 Rocky Mountain Prestress, Inc., who are represented by Carpenters District Council of Denver & Vicinity are entitled to perform the work of setting, aligning, plumbing, cleaning, patching, point- ing, bolting, and/or welding of exterior wall panels and columns at the Greenwood Park Development (Mad- den), Englewood, Colorado, and of exterior brick wall panels at the Nedco Apartments for the Elderly, Den- ver, Colorado. 2. Bricklayers, Masons and Plasterers' International Union of America, Local No. 1, AFL-CIO, is not enti- tled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Rocky Mountain Prestress, Inc., to assign the above work to' employees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Bricklayers, Masons and Plasterers' International Union of America, Local No. 1, AFL-CIO, shall notify the Regional Director for Region 27, in writing, whether or not it will refrain from forcing or requiring the Employer by means pro- scribed by Section 8(b)(4)(D) of the Act to assign the work in dispute to employees represented by Bricklay- ers rather than to employees represented by Carpen- ters.