Cement Masons' Union, Local No. 526

204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cement Masons' Union, Local No. 526 of the Opera- tive Plasterers' and Cement Masons' International Association, AFL-CIO ' (Samuel W. McCleskey Construction Company, Inc.) 2 and Associate Trades and Crafts Construction Union, Local 2.3 Case 6-CD-499 January 8, 1974 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JE.NKINS, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed on August 2, 1973,' by ATC, alleging that Cement Masons had violated Section 8(b)(4)(D) of the Act. A hearing was held pursuant to notice at Pittsburgh , Pennsylvania, on October 5, before Hearing Officer Michael H. Beck . Cement Masons and ATC 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, Cement Masons and ATC filed briefs. 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 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 EMPLOYER The parties stipulated that McCleskey, a corpora- tion with its principal office in Atlanta, Georgia, is engaged as a contractor constructing principally mausoleums. McCleskey has a current contract for construction work at the Butler County Memorial Park in Butler, Pennsylvania. During the past 12-month period, McCleskey performed services outside the State of Georgia valued in excess of $50,000. During the same period, McCleskey received in excess of $500,000 for work performed outside the Commonwealth of Pennsylva- nia. The Butler project is valued at approximately $140,000. Upon the facts so stipulated, we find that McCles- I Hereinafter called Cement Masons or Respondent Respondent's name appears as amended at the hearing. 2 Herein called McCleskey or the Employer The Employer's name key 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 The parties stipulated. and we find, that Cement Masons and ATC are labor organizations within the meaning of the Act. III. 1HE DISPUIE A. The Work in Dispute The work in dispute, as stipulated by the parties, is the work of cement pouring and finishing at the construction site of McCleskey at the Butler County Memorial Park in Butler, Pennsylvania. B. Background and Facts of the Dispute The Butler County Memorial Park project involves building a community mausoleum. The parties stipulated that on July 1, when work first com- menced on the project, McCleskey assigned the disputed work to a crew of its employees represented by ATC. Thereafter, on July 12 and 24, an agent of Cement Masons demanded of McCleskey that employees represented by Cement Masons be as- signed to the work in question. The July 24 demand was accompanied by a threat to picket unless the work reassignment demanded was, in fact, made. After this demand was refused by the Employer, on July 25, the Cement Masons commenced picketing the McCleskey worksite for the admitted purpose of requiring McCleskey to assign the disputed work to the employees represented by Cement Masons. The picketing effectively closed down the jobsite. According to Richard Harris, McCleskey's opera- tions manager, solely in order to stop the picketing and to allow construction to proceed, McCleskey agreed to allow workers represented by Cement Masons to assist employees represented by ATC in the cement finishing. At the time the employees represented by Cement Masons were employed, about 90 percent of the work had been completed. The present phase of construction work at the project had been completed as of the date of the hearing, but additional work will be performed on a yearly basis. Harris testified that the typical work performed by a mausoleum builder is specialty construction involv- ing form work, carpentry work, labor work, cement finishing, cement pouring, and iron work simultane- ously. Each man on the crew is skilled in each of the aforementioned crafts. appears as amended at the hearing. 3 Herein called ATC. I All dates hereinafter are in 1973, unless otherwise stated 208 NLRB No. 34 CEMENT MASONS' UNION, LOCAL NO. 526 A typical day on the project will go as follows. The first part of the day will involve the pouring of cement by about five men, two of whom are finishers. While these latter two men are finishing the cement, the remaining three men will be working on form work. When the cement dries in the afternoon, the men start breaking out the forms and setting the forms up for the next day. A unique form is used by the Employer which must be vibrated in a certain way. The crypt is set up with spacers rather than with the usual wall ties. When the form is set up, the men tie in the steel. There may be a half day's work for two cement finishers when they make the pour and finish it. Then the cement finishers will be through cement finishing and will start breaking out the forms. The workers use a special scaffolding that fits back inside the crypts which does not have to be built each time. The parties stipulated that there is presently no existing method for voluntary 'adjustment of the dispute. C. Contentions of the Parties ATC takes the position that the assignment of the disputed work to the employees of McCleskey represented by ATC should not be changed because this assignment is efficient, economical, and has proven satisfactory . It also relies on the fact that McCleskey has, in most instances on a nationwide basis, assigned the disputed work to employees represented by ATC, based on McCleskey's collec- tive-bargaining agreement with ATC, and on the fact that Cement Masons jurisdiction does not include all of the disputed work. Cement Masons relies on its two contracts with McCleskey and disputes the contentions of ATC concerning economy, efficiency , skills, and employer practice. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the 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. As set forth previously and stipulated by the parties, Cement Masons threatened to cause and did cause a work stoppage on the Employer's jobsite while employees of McCleskey represented by ATC were performing the disputed work, with the object of requiring the Employer to assign the disputed work to its members. We also conclude that, as stipulated by the parties, there exists no effective method for NLRB. v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting System], 364 U S. 573 (1961) 205 the voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. On the basis of the entire record, we find 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. 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 factors.5 The Board has held that its determination in ajurisdictional dispute is an act of judgment based on commonsense and experience reached by balancing those factors involved in a particular case.6 The following factors are relevant in making the determination of the dispute before us: 1. Company practice ATC adduced evidence that, of 50 mausoleums which were constructed by McCleskey throughout the United States in the last 2 years, employees who are members of ATC performed work on 90 percent of them. McCleskey completed two mausoleum construction jobs in the Pittsburgh area prior to the Butler job herein which it assigned to employees represented by ATC. One involved subcontracting by McCleskey to another company which hired employees represented by Respondent. In the other instance, employees represented by ATC did all of the work including cement pouring except for the cement finishing, which was performed by a crew of employees represented by Respondent but super- vised by an ATC member. Testimony was presented that Cement Masons was permitted to do this work only to avoid a work stoppage by the regular employees of the cemetery. We find that this factor favors the position of the ATC. 2. Skills of the employees The record shows that the employees represented by Cement Masons are only qualified to finish the cement, while the employees represented'by ATC are qualified to perform all the disputed work, which includes cement pouring and finishing. In fact, the employees who are ATC members have performed the disputed work to the satisfaction of the Employ- er. ATC adduced evidence that one job in the area was completed by members of Respondent in such 6 International Association of Machinists, Lodge No 1743, AFL-CIO (J A Jones Construction Company), 135 NLRB 1402. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an improper and unworkmanlike manner as to require their removal from the job. Another job in the area was completely performed by employees represented by ATC except for the cement finishing which was done by Cement Masons members. We find that this factor tends to favor the position of ATC. 3. Economy and efficiency ATC presented testimony that the disputed work can be done by five or six employees represented by ATC. Once the job is started, it must be completed rapidly. Each of the skills involved in form work, carpentry work, labor work, iron work, and cement pouring and finishing must be employed almost simultaneously. If a crew of employees represented by ATC could not be used, the number of men necessary to complete the work would double. Employees represented by Cement Masons would work only part of a day, leave, and come back a portion of another day. As a consequence, the Employer was required to spend $2,500 to $3,000 in additional funds as a result of the employees represented by Cement Masons being put on the job at Butler just to do the cement finishing. We find that these factors tend to favor the position of the ATC. 4. Collective-bargaining agreements The Employer assigned the work to employees represented by ATC pursuant to a 'contract with the ATC dated April 27, 1972, having a term starting January 1, 1971, and ending December 31, 1973. Phil Williams, the national president of ATC and at the time of this contract the Ohio business manager of the ATC, testified that the contract coA ers all construction activities of the Employer and that under its terms it was contemplated that ATC would provide journeyman cement finishers and pourers for McCleskey. There is no geographical limitation in the agreement or any mention of work limitations. ()n two occasions, the Employer executed identical collective-bargaining agreements with Cement Ma- sons. The initial agreement dates from June 1, 1970, to May 31, 1973, but is operative from August 23, 1971, when it was executed. An identical contract was dated May 8, 1973, with an expiration date of May 31, 1973. These contracts both contain language providing that termination of the contract would only be effective if notice is given 60 days prior to the termination date. No notice was given. These two agreements are limited to an 11-county area in Western Pennsylvania and cover work "which traditionally has been performed by Cement Ma- sons." As the evidence is inconclusive, we do not find that this factor tends to favor the positions of any of the parties. Conclusion Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that the work in dispute should be assigned to employees employed by McCleskey and currently represented by ATC, rather than to cement masons represented by Cement Masons. In reaching this conclusion, we rely on the Employer's assignment of the disputed work to its own employees represented by ATC; the fact that the Employer's employees represented by ATC possess the requisite skills to do all the disputed work; the fact that the assignment to employees represented by ATC will result in eco- nomy and efficiency of operations; and the fact that this assignment is consistent with the Employer's predominant practice in the past. In making this determination, we shall award the disputed work to McCleskey's employees who are represented by ATC but not to that Union or to its members. In consequence, we shall also determine that the Cement Masons was not and is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require McCleskey to assign the disputed work to its members. Our present determi- nation is limited to the particular controversy which gave rise to this proceeding. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended , and on 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 employed by McCleskey, currently represented by ATC, are entitled to perform the following work: Cement pouring and finishing at McCleskey's construction site at the Butler County Memorial Park in Butler, Pennsylvania. 2. Cement Masons is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require McCleskey to assign the above -described work to cement masons whom it represents. 3. Within 10 days from the date of this Decision and Determination of Dispute, Cement Masons shall notify the Regional Director for Region 6, in writing, whether it will refrain from forcing or requiring CEMENT MASONS' UNION, LOCAL NO. 526 207 McCleskey , by means proscribed by Section employees of McCleskey who are represented by 8(b)(4)(D) of the Act, to assign the work in dispute to ATC. cement masons whom it represents rather than to