Local 10, Bricklayers

LOCAL 10, BRICKLAYERS Local 10, Bricklayers, Masons, Plasterers, Marble, Tile and Terrazo Workers International Union of America, AFL-CIO' and Unistress Corp. and Local 452, Laborers International Union of North America, AFL-CIO and Local 473, Laborers International Union of North America, AFL-CIO. Case 3-CD-398 July 27, 1972 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER.AND MEMBERS JENKINS AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Unistress Corp., herein called the Employer, alleging that Local 10, Bricklayers, Masons, Plasterers, Marble, Tile and Terrazo Work- ers International Union of America, AFL-CIO, herein called Local 10, had violated Section 8(b)(4)(D) of the Act. Pursuant to notice, a hearing was held in Albany, New York, before Hearing Officer John H. Sauter on May 18, 1972. All parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to present evidence bearing on the issues; the parties waived filing briefs with the Board. 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 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 case, the Board makes the following findings: 1. BUSINESS OF THE EMPLOYER The Employer, a Massachusetts corporation with its principal office in Pittsfield, Massachusetts, is engaged in the building and construction industry. During the past 12-month period, Unistress trans- ported goods and materials valued in excess of $50,000 from one State to another. The Employer's contract with Vappi and Company, Inc., for the work involved in this proceeding is valued in excess of $600,000. We find that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED 443 The parties stipulated , and we find, that Local 10, and Locals 452 and 473 , Laborers International Union of North America , AFL-CIO, hereinafter Locals 452 and 473 , are labor organizations within the meaning of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The Employer is a subcontractor for the fabrica- tion and erection of all precast structural concrete members used to frame the Student Center Building project at the Hudson Valley Community College in Troy, New York. To perform the disputed work at the construction site, the Employer used its employ- ees who are represented by Locals 452 and 473. The employees are covered by two agreements entered into between the Employer and Local 473, and Laborers International Union of North America, AFL-CIO, respectively. Neither agreement provides for the submission of jurisdictional disputes to the National Joint Board for Settlement of Jurisdictional Disputes. Moreover, article I of the Local 473 agreement gives jurisdiction over the work in question to Laborers and states that the substitution of other trades to do such work is a violation of the agreement. On April 18, 1972, the Employer's general manag- er, Harold Nelson, received a telephone call from his erection foreman on the job, who stated that Local 10 Business Representative Salvatore Mauriello was present. Nelson spoke to Mauriello who stated that it was necessary for Unistress to hire masons represent- ed by his local to erect precast structural concrete members; that in the Troy area, the Masons claimed this type of work; and that he was concerned that Nelson had not notified him when the Employer came into the area to do the work in dispute. Nelson and Mauriello agreed to meet at 2 o'clock that afternoon at the jobsite. Present at the meeting were the president of the Ironworkers local, the Ironworker's steward at the jobsite, and a representa- tive of the general contractor, Vappi. Mauriello again told Nelson that the Employer was required to hire masons and ironworkers to erect precast concrete members. Nelson told them he had a contract with Laborers, that the agreement was an International agreement which bound him to use laborers, and that he was unable to hire masons or ironworkers. Mauriello then asked if that was Nelson's final answer. Nelson stated that that was correct. Mauriel- lo then said he had to take some kind of action. 1 As amended at the hearing 198 NLRB No. 67 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The following day, at approximately 7 a.m., a picket appeared at the jobsite with a sign stating: "Unistress refuses to hire members from Local 10 on this jobsite." The picketing did not cause the employees of the Employer or the general contractor to cease working. The picketing lasted only one day. The assignment of all phases of the work to laborers was continued-by the Employer. B. The Work in Dispute The work in dispute involves the erection, han- dling, and installation of precast, prestressed con- crete members manufactured and sold by the Employer. The situs of the dispute is the Student Center Building project on the Hudson Valley Community College campus in Troy, New York. C. Contentions of the Parties The Respondent contends that it has not violated any section of the Act. At the hearing, Mauriello asserted that the April 19, 1972, picket line merely had an informational purpose. The Respondent further contends that the work in dispute should be done by a crew of three laborers and one mason. In support of its position, the Respondent states that other area contractors use similar composite crews and that its collective-bargaining agreement with the Local Contractors Association calls for masons to set, plumb, and grout precast concrete members. The, Employer and Locals 452 and 473 contend that the Respondent has violated the Act. These parties assert that the erection, handling, and installation of precast member panels on the Hudson Valley Community College job should be done by laborers pursuant to the Employer's past practice, the collective-bargaining agreement between the Employer and the Laborers, and good construction practices. would not hire masons. A picket line was established by the Respondent on April 19, 1972. As noted, Mauriello asserted that the picket line only had an informational purpose. However, the Respondent at no time disclaimed the disputed work and, in fact, continued throughout to assert its demand that the work be assigned to members of the Respondent. We find, therefore, that the clear import of the picket line was to coerce the Employer into assigning the work in dispute to Local 10's members. Moreover, Mauriello's conduct at the hearing was patently inconsistent with the purported informa- tional character of the picket line.2 From the above, we find that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated. The record shows that the Employer is not a party to an agreed-upon method for the voluntary adjust- ment of jurisdictional disputes. Accordingly, since the Employer is not so bound, it is unnecessary to consider whether the Respondent or Locals 452 and 473 are bound by similar procedures.3 It is clear and we find, from the foregoing, that at the time of the instant dispute there did not exist any agreed-upon method for the voluntary adjustment of the dispute to which all parties herein were bound. Accordingly, the matter is properly before the Board for determination under Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to all relevant factors involved. The following factors are relevant in making a determination of the dispute before us: 1. Certifications and collective-bargaining agreement D. Applicability of the Statute Before the Board may determine a dispute pur- suant 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. The record shows that the Employer assigned the work to its employees who are represented by Locals 452 and 473. It is clear that the Respondent, at two meetings with Nelson on April 18, 1972, demanded that the Employer assign the disputed work to its members. At the close of the second meeting that day Mauriello stated that he would have to take some kind of action since Nelson None of the labor organizations involved herein has been certified by the Board as the collective- bargaining representative for a unit of the Employ- er's employees. The Employer has been a party to collective- bargaining agreements with Local 473, and Laborers International Union of North America, AFL-CIO, since 1968. Unistress has never had a collective- bargaining agreement with Local 10 or its Interna- tional, Bricklayers, Masons, Plasterers, Marble, Tile and Terrazo Workers International Union of Ameri- ca, AFL-CIO. 2 At the hearing, Maunello stated that one mason should be assigned to Corporation, 174 NLRB 30, and Biebel Bros, Inc, 170 NLRB 285. each crew of laborers , "to help plumb and to help grout and help point up 3 See International Association of Bridge, Structural and Ornamental Iron the precast concrete " Mauriello also stated that there should be one mason Workers, Local Union No 3, AFL-CIO (Dickerson Structural Concrete for each crew of three laborers to assist the laborers See Bethlehem Steel Corp), 195 NLRB No. 90 LOCAL 10, BRICKLAYERS 445 2. Company and area practice The Employer's consistent practice has been to assign the disputed work to employees represented by Laborers. The record is unclear with respect to area practice. 3. Relative skills, efficiency, and economy of operations The record shows that the laborers presently employed by the Employer possess sufficient skills to satisfactorily perform the work in dispute . Moreover, the Employer is satisfied with the productivity, economy, and efficiency of its laborers and desires to continue assigning such work to them. Thus, the foregoing factors favor an award of the work to the Employer's employees who are repre- sented by Locals 452 and 473. Conclusion Upon the entire record in this proceeding, and after full consideration of the relevant factors, particularly the contractual relationship between the Employer and Local 473 , the Employer's past practice, the skills and training required , and the efficiency and the economy of operations, we conclude that the laborers employed by the Employ- er who are represented by Locals 452 and 473 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 the Employer who are represented by Laborers but not to that Union or its members. 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 the following Determination of Dispute: 1. Employees of Unistress Corp. who are current- ly represented by Locals 452 and 473, Laborers International Union of North America, AFL-CIO, are entitled to perform the erection, handling, and installation of precast , prestressed structural concrete members at the Student Center Building project at Hudson Valley Community College, Troy, New York. 2. Local 10, Bricklayers, Masons, Plasterers, Marble, Tile and Terrazo Workers International Union of America, AFL-CIO , is not entitled, by means proscribed by Section 8(b)(4)(D ) of the Act, to force or require Unistress Corp . to assign such work to masons represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute , Local 10, Bricklayers, Masons, Plasterers, Marble, Tile and Terrazo Work- ers International Union of America , AFL-CIO, shall notify the Regional Director for Region 3, in writing, whether or not it will refrain from forcing or requiring Unistress Corp., by means proscribed by Section 8(b)(4)(D), to assign the disputed work to employees it represents rather then to employees represented by Laborers.