Local 44, Bricklayers

354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 44, Bricklayers, Masons and Plasterers Interna- tional Union, AFL-CIO and Raymond Interna- tional, Inc. and Local 509, Laborers International Union of North America, AFL-CIO.' Case 22-CD-220 November 15, 1973 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Raymond International, Inc., herein called the Employer, alleging that Local 44, Bricklayers, Masons and Plasterers International Union, AFL-CIO, herein called Bricklayers, has violated Section 8(b)(4)(D) of the Act. Pursuant to notice, a hearing was held in Newark, New Jersey, on various dates from February 8, 1973, to March 2, 1973, before Hearing Officer Bruce W. Taylor. 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, the proceeding was trans- ferred to and continued before the Board, and the Employer and the Bricklayers filed briefs in support of their respective positions. On June 20, 1973, the Board issued an order reopening record and remanding proceeding for further hearing for the purpose of receiving evidence describing and identifying the precise nature and extent of work in dispute; the identity of the individual or individuals performing the disputed work and his or their actual duties in carrying out that work; the supervisory or independent contractor status of any individual performing the work in dispute; and the status of John Pinnisi as an employee or supervisor. Further hearings were held on July 30 and 31, 1973, before the same Hearing Officer.2 Thereafter, the Employer and the Respon- dent filed supplemental 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. The rulings are hereby affirmed. Upon the entire record in this case, including the briefs, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The Employer, a New Jersey corporation, is engaged in the business of heavy construction contracting. During the past 12-month period, the Employer has derived gross revenue in excess of $500,000 from its construction contracting. During the same period, the Employer has purchased goods valued in excess of $50,000 from employers located outside of the State of New Jersey. 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. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Bricklay- ers and Laborers Locals 509 and 6A are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute In the fall of 1972,3 the Employer entered into a contract with Diesel Construction Company, the general contractor, to perform the pile-driving work, including the work of handling and pouring the concrete, at the Paramus Park Shopping Center in Paramus, New Jersey. On October 18, the Employer moved its equipment to the building site. In November or December, it began to pour its first test piles at the jobsite. The Employer assigned such work to individuals represented by Laborers Local 509 and assigned the laborer foreman's job to its employee, John Pinnisi, a member of Laborers Local 6A. Thereupon, Henry Massaro, business representative of the Bricklayers, contacted the Employer's officials at the jobsite and claimed that a cement mason should be on the job to direct the handling and pouring of the concrete pilings. The Employer's official at the jobsite replied that it had always used a laborer to perform such work. On a number of occasions in December, Massaro called Malcolm King, the Employer's construction manager for the Eastern Region, and informed him that the area practice in Bergen County was to use cement masons to supervise pile jobs. King repeated to Massaro what the latter had been told previously; namely, 1 Hereinafter with Laborers International Union of North America, 2 Laborers did not appear at the reopened hearing. Local 6A, collectively referred to as Laborers. Local 6A was notified of the 3 All dates refer to 1972, unless otherwise indicated. hearing, but did not appear. 207 NLRB No. 25 LOCAL 44,- BRICKLAYERS 355 that the Employer used laborers to perform that work. On or about December 29, Thomas Urzalino, chairman of the Bergen County Conference, a group of cement masons locals in Bergen County, to which Respondent belonged, telephoned King and in- formed him that he was going to put a picket line on the Employer's Paramus job until such time as a cement mason was placed on the job. On January 2, 1973, the Bricklayers commenced picketing at the jobsite with signs that read "Ray- mond International and Diesel are being unfair to Local 44." The laborers at first refused to cross the picket line, - but, later, were informed ^ by their representatives to do so. On January 3, 1973, the Employer filed the instant charge . Bricklayers con- tinued to picket at the ,jobsite until January 12, 1973. B. The Work in Dispute The work in dispute pertains to the process of pouring concrete into steel shells (caissons) from ready-mix concrete trucks. More specifically, the work in dispute includes: (I) Responsibility for inspection of driven piles for water and/or foreign objects in preparation for pouring; (2) ordering the concrete ; (3) starting up of the concrete flow from the ready-mix concrete trucks; (4) cutting off of the flow of concrete from the truck after concrete has reached a proper elevation; (5) determination to pour concrete with respect to the adequacy of its consist- ency; (6) removal of excess concrete from the poured pile; (7) direction of the movement of concrete chutes and trucks to the next pile to be poured; and (8) direction during cold weather that poured concrete be protected by covering piles with various materials. the work in dispute involves the supervision of laborers, and not competing claims for the same work by two employee groups . Further, Respondent urged at the close of the reopened hearing that, even if a jurisdictional dispute is found to exist, the Board should nevertheless quash the 10(k) notice of hearing since all parties are bound to a voluntary procedure for resolution of the dispute. Finally, Respondent contends that, if the Board proceeds to determine the merits of this dispute, consideration of the relevant factors favors an award to employees represented by Bricklayers. The Employer contends that it has been enmeshed in a jurisdictional dispute ; that there is no agreed- upon method for its resolution ; ' and, that the Board should confirm its assignment of the work in dispute to its laborer foreman, represented by Laborers. Specifically, the Employer argues that Pinnisi per- formed the work in dispute ; that Reiman, although a supervisor, did not perform the work in dispute; that Pinnisi is not , a supervisor ; and that the Employer is not bound to ^ the procedures of the National Joint Board. As to the merits of the dispute, the Employer contends that the Board should uphold the Employ- er's assignment of the disputed work, relying on such relevant factors as its long-established practice of assigning it to a laborer foreman, represented by the Laborers ; the fact that the laborer foreman has the skill, experience, and competence to do the work to the Employer's satisfaction; and the fact that it is more economical and efficient to give the work to a laborer. Laborers have not taken a position regarding the assignment of the work in dispute. D. Applicability of the Statute C. Contentions of the Parties Respondent contends that its conduct, described in section III, A, above, was intended solely to compel the assignment of the work in dispute to employees rather than to the supervisors being used by the Employer in performing the disputed work; that no dispute exists between competing groups of employ- ees and, therefore, the Board should quash the 10(k) notice of hearing. More particularly, Respondent urges that the' work in dispute was performed by either Fred Reiman, the Employer's job superintend- ent, or John Pinnisi, the laborer foreman; that both Reiman and Pinnisi are supervisors ; and, that thus -Before the Board proceeds with a determination of 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) of -the Act 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 shows that in Novem- ber and December 1972 Bricklayers protested the Employer's failure to.assign the disputed work to one of its members. In late December 1972, after- the Employer advised Bricklayers that it planned on continuing the work assignment to laborers, Brick- layers threatened to picket. Subsequently, from January 3, 1973, to January 12, 1973, Bricklayers 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD picketed the jobsites and precipitated a work stoppage. On these facts, we are satisfied that there is reasonable cause to believe that Bricklayers threat- ened to, and did, picket the Employer's jobsite at the Paramus Park Shopping Center, with an object of forcing assignment of the disputed work to members they represented. As to Respondent's contention that it sought to compel the assignment of work to employees rather than to supervisors, the record shows that the work in dispute was performed by John Pinnisi, a member of Laborers Local 6A.4 Pinnisi has worked for the Employer for approximately 20 years, the last 12 years of which he has been employed as a laborer foreman. While both the Employer and Pinnisi deny that he is a supervisor within the meaning of the Act, we believe an examination of his status is warranted. Between 60 and 75 percent of Pinnisi's workday is spent in manual labor alongside the other laborers. Part of his time is spent removing excess concrete from poured piles. The balance of his time is spent in performing such tasks as inspection of piles and visually checking the consistency of the concrete. As an experienced employee, Pinnisi starts and stops the pouring of concrete into the steel shells. He tells the other laborers when to rod the concrete and when to move the pouring chutes to the next caisson. Late in the season, he instructs the other laborers when a poured piling must be protected from the cold weather. In performing these duties, Pinnisi works alongside the other laborers and assists them in the performance of their duties as the need arises. Pinnisi testified that he was responsible for the training of laborers. He also testified that he did not order materials, with the exception of concrete. As to the ordering of concrete, Pinnisi merely calls the supplier and tells him how many truckloads will be needed on the next day. The specifications and price are predetermined by the supplier's contract with the Employer. Pinnisi does not order repairs to company property, nor does he attend policy meetings. Although Pinnisi contacts the Laborers hiring hall to obtain laborers for the Employer's job, he does so only after consulting with Superintendent Reiman regarding the number of men needed on the job. Pinnisi also has laid off employees after being instructed by Reiman to do so. However, there is no evidence that Pinnisi ever made such decisions on his 4 The record shows that Reiman, as the job superintendent, was on the jobsite usually on a daily basis. Since his office was in a construction trailer stationed 200 feet from the laborers work area, he regularly walked the jobsite several times a day. He had daily meetings with Pinmsi and other foremen concerning the scheduling of work. He authorized the ordering of concrete, the hiring of employees, and any necessary layoffs. Accordingly, as it is undisputed, we find that Reiman is a supervisor within the meaning of the Act. However, despite Massaro's testimony that he saw Reiman performing the work in dispute, the record only shows that Massaro saw own. Pinnisi also informed Reiman when an individ- ual laborer was absent, but employees were not instructed to advise Pinnisi of their absence or to seek his permission for such absence. Pinnisi also assigned one of the three laborers to nonpouring work, but he was not responsible for any personnel records kept by the Employer and did not have access to them. Significantly, Pinnisi was not given the authority to, nor did he, adjust the grievances of employees. He did not independently assign overtime, nor did he report employees' misconduct to the supervisor. Pinnisi has not disciplined employees on the job and was never informed that he had the authority to do so. Pinnisi receives the wages and fringe benefits of the Local 6A contract and the other laborers on the job received the terms of the Local 509 contract. The Local 6A contract contains a classification for laborer .foremen. Pinnisi is paid at the same time other employees are paid and does not receive any type of bonus on the job. As the record clearly shows that the laborer foreman only performs work covered by the Local 6A Laborers agreement; that he does not exercise independent judgment in carrying out his duties; and that most of his work is of a routine nature, we find that the work in dispute does not involve supervision within the meaning of Section 2(11) of the Act. Although the record shows that John Pinmsi in the routine performance of his duties calls the union hall when additional men are needed on the jobsite, we find that the weight of the evidence establishes that he is not a supervisor within the meaning of the Act since such authority is exercised only on higher approval or in routine situations. Having found that the work in dispute does not involve the work of a statutory supervisor, that it was performed by John Pinnisi, and that Pinnisi is not a supervisor within the meaning of the Act, we are satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated.5 As to (2) above, although Respondent contended at the close of the hearing that all parties were bound by the procedures of the National Joint Board for the Settlement of Jurisdictional Disputes, we find no evidence in the record that the Employer herein is so bound. Therefore, we find that the parties do not Reiman talking to Pmnisi on several occasions Even accepting Massaro's surmise that Reiman was giving instructions to Pinmsi and the other laborers, there is no evidence that Reiman actually performed any of the work in dispute. Accordingly, we find that the work in dispute was performed by Pinmsi and not Reiman 5 Compare Local 236, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Mason Construction Company), 194 NLRB 594. LOCAL 44, BRICKLAYERS 357 have an established procedure for the amicable resolution of this dispute. Accordingly, as we have found that there is reasonable 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 pursuant to Section 10(k) of the Act, we shall proceed to make a determination of the dispute. 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 factors. As the Board has stated, its determination in a jurisdictional dispute case is an act of judgment based upon common sense and experience in the weighing of these factors .6 The following factors are relevant in making a determination of the dispute before us. 1. Certification and collective-bargaining - agreements None of the labor organizations herein has been certified by the Board as the collective-bargaining representative for a unit of the Employer's employ- ees. The Employer is not a signatory to any collective- bargaining agreement with either Laborers Local 509 or Bricklayers. Although the Employer's building contract with Diesel Construction Company states, in part, that "It is further mutually agreed by the parties hereto that all labor employed under this contract shall be that recognized by the Building Contractors Association of New Jersey," the record fails to show that the Employer is a member of the Building Contractors Association (BCA). However, even if the Employer were a member of the BCA, neither the BCA agreement with Respondent nor with Laborers clearly supports Respondent 's claim for the disputed work assignment. Under the foregoing circumstances, we are satisfied that the Employer's assignment of the disputed work to its own employees represented by Laborers is not in derogation of any existing contract. 2. The Employer's assignment and past practice The record shows that the Employer has tradition- ally used the laborers to perform the disputed work not only in Bergen County, where the instant project is located, but throughout its operation. Under these circumstances, we find that the Employer's long and continuous custom of assigning the disputed work to employees represented by Laborers is a factor favoring continuation of this practice. 3. Area practice Bricklayers presented testimony to the effect that it is the prevailing area practice to have cement masons supervise all concrete pouring in Bergen County, including the piling jobs. However, John Vermeulen, director of industrial relations for the Building Contractors Association of New Jersey, testified that the precedent in the area established no need for a cement mason on a job where, as in, the instant case, there was no "cement finishing" work required, and that, consequently, in accord with past practice, the job would likely be handled by laborers.' The record, viewed as a whole, therefore supports the view that contractors in the area, engaged in piling work of a type and nature involved in the work in dispute, utilize laborers to perform such work. 4. Relative skills and efficiency of operation Bricklayers stated that they had an apprenticeship program covering the work in dispute. However, the Employer introduced evidence to the effect that its laborer foremen, represented by Laborers, had worked on similar jobs for the Employer for about 20 years. Moreover, the Employer indicated that the laborers, including the laborer foreman, in this case Pinnisi, spend only about 30 percent of their time in work pertaining to concrete, the rest of the time being spent in miscellaneous duties, such as unload- ing the piles, denesting and stacking the piles, preparing the shells for the concrete pour, and performing cleanup tasks. Hence, the laborer fore- man performs the work in dispute for substantially less than 50 percent of his time. The Employer has indicated that its well-estab- lished practice of assigning the disputed work to its own employees, represented by Laborers, has been totally satisfactory. Moreover, from an economic standpoint, it has proved to be beneficial to the Employer to employ a regular crew of laborers to perform the disputed work along with their other related and necessary work at the jobsite. Under the foregoing circumstances, it appears that the assignment of the disputed work to the Employ- er's own employees, represented by Laborers, is clearly the most efficient and economical manner of operation. B International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402. 7 Vermeulen testified that he obtained this information from the various members of the association who do work regularly in the Bergen County area, and he passed it on to the Employer. 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conclusion Upon the entire record in this case, and after full consideration of all relevant factors , involved, we conclude that the Employer's employees, who are represented by Laborers, are entitled to perform the work in dispute. We reach this conclusion based on the Employer's past practice of assigning the disput- ed work to its own employees and' the facts that the assignment is not in derogation of any existing contract; the assignment is 'consistent with the practice. of area contractors; the Employer's employ- ees possess the necessary skills and experience to perform the work and their work has been totally satisfactory; and such assignment will result in greater -efficiency and economy. We shall, therefore, determine the dispute before us by awarding the work in dispute at the Employer's Paramus Park, New Jersey, jobsite to its own- employees represented by the Laborers, but not to that Union or its members. Our present determination is limited to the particular controversy which gave rise to this proceeding. Accordingly, we find that Bricklayers are not entitled, by means proscribed by Section 8(b)(4XD) of the Act, to force or require the Employer to assign the disputed work to members represented by that labor organization.8 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 case, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees of Raymond International, Inc., who are represented by either Local 6A or Local 509, 8 See, e g., Pile Drivers, Millwrights & Window Erectors, Local No. 1966, affiliated with United Brotherhood of Carpenters and Joiners of America, Laborers International Union of North America, AFL-CIO are entitled to perform the work in dispute, specifically: (1) Responsibility for inspection of driven piles for water and/or foreign objects in preparation for pouring; (2) ordering the concrete; (3) starting up of the concrete flow from the ready- mix concrete trucks; (4) cutting off of the flow of concrete flow from the truck after concrete has reached a proper elevation; (5) determination to pour concrete with respect to the adequacy of its consist- ency; (6) removal of excess concrete from the poured pile; (7) direction of the movement of concrete chutes and trucks to the next pile to be poured; and (8) direction during cold, weather that poured concrete be protected by covering piles with various materials, in connection with Raymond Internation- al's - Paramus Park Shopping Center project at Paramus, New Jersey. 2. Local 44, Bricklayers, Masons and Plasterers International Union, AFL-CIO, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Raymond International, Inc., to assign the above-described work to members repre- sented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 44, Bricklayers, Masons ' and Plasterers International Union, AFL-CIO, shall notify the Regional Director for Region 22, in writing, whether or not it will refrain from forcing or requiring Raymond International, Inc., ' by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed, work to its members, rather than to employees of Raymond International, Inc., represented by either Local 6A or Local 509, Laborers International Union of North America, AFL-CIO. AFL-CIO (Raymond International, Inc), 184 NLRB 7260.