Plasterers Local 1 (Brinck & Schmidt, Inc.)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plasterers' Local No. 1, Operative Plasterers' and Cement Masons' International Association of the United States and Canada, AFL-CIO and Brinck & Schmidt, Inc. and International Brotherhood of Painters and Allied Trades, District Council No. 12, AFL-CIO. Case 9-CD-334 November 9, 1977 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, PENELLO, AND MURPHY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed on May 10, 1977, by Brinck & Schmidt, Inc., herein called the Employer, alleging that Plasterers' Local No. 1, Operative Plasterers' and Cement Masons' International Association of the United States and Canada, AFL-CIO, herein called the Plasterers, has violated Section 8(b)(4)(D) of the Act by threatening, coercing, and restraining the Employer with an object of forcing the Employer to assign certain work to employees represented by Plasterers rather than to employees represented by International Brotherhood of Painters and Allied Trades, District Council No. 12, AFL-CIO, herein called the Painters. Pursuant to notice, a hearing was held before Hearing Officer Francis X. Schwegmann on May 31 and June 2 and 6, 1977. 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 Employer and the Plasterers 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 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, including the briefs of the parties, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated that the Employer, an Ohio corporation, is engaged in the painting contractor business in Cincinnati, Ohio, and that during the most recent 12-month period it purchased and received goods valued in excess of $50,000 from points outside the State of Ohio. Accordingly, we find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 233 NLRB No. 53 and it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated and we find that the Plasterers and Painters are labor organizations within the meaning of Section 2(5) of the Act. 111. THE DISPUTE A. The Work in Dispute The work in dispute is the spray application of "Albi-Clad 89S" as a fireproofing material to steel beams and columns at the Dry Creek Waste Water Treatment Plant located at Bromley, Kentucky. B. Background and Facts of the Dispute On or about August 1, 1975, the Employer entered into a contract with the R. J. Beischel Building Company covering the work in dispute. The contract calls for the Employer to provide the "paint-on intumescent mastic fireproofing" at the Bromley, Kentucky, Dry Creek Waste Water Treatment Plant. Beischel is the prime subcontractor on the project, with the Foley Construction Company the general contractor for the entire project. The actual work covered by the subcontract involves spraying the contents of 55-gallon drums of ready-mix Albi-Clad 89S to a 3/16-inch thickness on structural steel beams and posts, and smoothing and finishing the sprayed coating by means of either a paintbrush or paintroller. Shortly after the Employer was awarded the contract, Edward Hartkemeyer, business agent of the Plasterers, contacted Elmer Schmidt, the Employer's president, claiming that the application of Albi-Clad 89S belonged to the Plasterers and requesting Schmidt to sign the Plasterers contract. Schmidt refused, stating that he was a painting contractor, that the job had been bid on the basis of using painters, that he had a contract with the Painters, and that he intended to use painters on the job. Several times thereafter Hartkemeyer contacted Schmidt, and each time Schmidt told him that he had a contract with the Painters and that as long as he could get painters pursuant to the contract he would use painters for the work in question. In March 1977, the Employer began working at the jobsite using painters to apply the Albi-Clad 89S fireproofing material. After the work had started, Hartkemeyer met Schmidt at the jobsite and again unsuccessfully claimed that the work belonged to plasterers. At this time Hartkemeyer told Schmidt that he would take the dispute to the Impartial Jurisdictional Disputes Board (IJDB). Subsequently, 360 PLASTERERS' LOCAL NO. I the Plasterers presented the issue to the IJDB which ruled that the work, based on trade practice, belonged to the Plasterers. When Hartkemeyer requested that the Employer abide by the IJDB award, the Employer refused on the ground that it was not bound by that award. Shortly thereafter Hartkemeyer again asked Schmidt to abide by the IJDB award and, when Schmidt refused, stated that he would take other measures to see that the Employer used plasterers. On May 2, 1977, Hartkemeyer, along with several members of the Plasterers, came on the jobsite where they engaged in a conversation with Wayne Meyer, a painter working at the site. Meyer testified that they requested and encouraged him to "take a couple of days off" or "take a couple of days off sick." Meyer refused. During this same jobsite visit, Hartkemeyer also asked Beischel's field superintendent, Russ Waters, to abide by the IJDB award. Waters explained that he could not get involved in any labor dispute. On Friday, May 6, Hartkemeyer returned to the jobsite and showed copies of the IJDB decision to various workmen on the job. Meyer testified that Hartkemeyer told him he was going to bring the thing to a head Monday, explaining that he was going to put a picket up on Monday. On Monday, May 9, several members of the Plasterers appeared at the jobsite entrance. Two of the men carried picture "signs" of a rat with his tail wrapped around a paintbrush. Following the appearance of the plaster- ers, the electricians, who were already on the jobsite, refused to perform any work until after they talked with their business agent. The electricians returned to work about 9:30 a.m. The ironworkers on the site also refused to work and stayed off the job the entire day. The plasterers again appeared at the jobsite on May 10 carrying the picture "signs," but left the jobsite about 9:30 a.m. There is no evidence that any employees refused to work on Tuesday. C. Contentions of the Parties The Plasterers contends that its conduct was not violative of Section 8(b)(4)(D) of the Act, but rather was nothing more than an attempt to resolve the dispute by discussion, peaceful persuasion, and orderly dispute settlement procedures, and, when all of these failed, by publicizing the Painters breach of its contractual obligation to abide by the decision of the IJDB which had awarded the work to the Plasterers. The Plasterers also contends that there is no evidence that the refusals of the ironworkers or electricians to perform work on May 9 were related to the Plasterers demonstration on that date. Alter- natively, the Plasterers contends that the work should be awarded to its members based on historical and trade practices. The Employer contends that there is reasonable cause to believe that the Plasterers violated Section 8(b)(4)(D) of the Act and that there is no voluntary method of adjustment to which all parties have agreed to be bound. The Employer claims that it is not bound by IJDB awards since it has not signed a stipulation to that effect, it is not a member of a stipulated employer association, it is not a party to any collective-bargaining agreement providing for settlement of such disputes by the IJDB, and it did not appear and participate in any IJDB proceeding. The Employer also claims that the disputed work should be awarded to painters because they possess the skills required to perform the work; the Employer has a collective-bargaining agreement with the Painters; and economy and job efficiency dictate that the work be performed by painters. D. Applicability of the Statute The Board is satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. We find no merit in the Plasterers contention that it was merely publicizing its dispute with the Painters. The testimony shows that a representative of the Plasterers on numerous occasions demanded the work in dispute from the Employer and solicited an employee to cease working on the project. When this failed, the Plasterers brought "the thing to a head Monday" when several members of the Plasterers appeared at the jobsite gate carrying "signs" of the rat with a paintbrush wrapped in its tail. In addition, while stationed at the jobsite gate, members of the Plasterers spoke with other individuals coming onto the jobsite, some of whom turned around and left, and the Plasterers offered no evidence that they in any way indicated to any of the employees coming through the gate that their "demonstration" was not an inducement to other employees to cease working. We are also satisfied, for the reasons stated by the Employer, that there is no agreed-upon method for voluntary settlement of the dispute. Accordingly, we conclude that the dispute is properly before us for determination. E. Merits of the Dispute In making a determination of dispute under Section 10(k) of the Act, the Board finds the following factors relevant: i. The collective-bargaining agreements The Employer has had a history of collective- bargaining with the Painters for several years. The 361 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Painters most recent agreement with the Employer provides that its members shall perform all "painting, decorating, taping and paperhanging work in all their branches and all preparatory work." The Employer has no contract with the Plasterers, but the Plasterers most recent contract with the local Plastering and Lathing Contractors Association provides that it applies on jobs where "cementitious type fireproofing is the material being applied with the gun. " (Emphasis supplied.) Although the Plasterers does not have a collective-bargaining agreement with the Employer, it contends that the work in question is not painting within the meaning of the Painters contract, but rather is fireproofing, the application of which has traditionally been the work of plasterers. The Employer asserts that the Plasterers contract jurisdic- tional clause applies to "cementitious" type fire- proofing and that Albi-Clad 89S, is an "intumes- cent" I mastic, further described as a "modified vinyl rich heavy bodied mastic containing basically one form of inorganic fibers and a solvent based system utilizing a blend of aromatic solvents." It is also described as having a flash point of 50 degrees Fahrenheit, is red-labeled because of this flash point, and during application requires ventilation and fire safety precautions. The manufacturer claims that Albi-Clad 89S has a smoother surface and is recommended for application to interior exposures where heavy service abuse or exposure to public view is anticipated. On large orders special color pigmen- tation is available. The Employer's contract with Beischel requires that "While still wet, the coating shall be smoothed to specified texture with a wet sharp nap roller. This texture coating only applies to areas visible after finish of construction. The finish coat shall be free of lumps and drips." Mr. Schmidt testified that approximately 90 percent of the Albi- Clad 89S, as applied under the present contract, will be exposed to public view and finished smooth with either a brush or roller. It is clear that Albi-Clad 89S is a dual-function compound that serves both as a fireproofing material and a decorative finish surface covering. Notwith- standing its fireproofing qualities, Albi-Clad 89S, when used as the finish or decorative coat exposed to public view, appears to fall within the scope of the Painters contract with the Employer as decorative work. Consequently, this factor favors awarding the disputed work to employees represented by the Painters. ' Webster's Third New International Dictionary (unabridged ed., 1971) defines "intumescent" as "2 of paint: Swelling and charring when exposed to flame and forming an insulating fire-retardant barrier between the flame and the coated material." "Cementitious" is defined as "having the properties of cement: like or relevant to cement (the adhesion of materials)." 2 The plasterers are trained for and traditionally have applied cementi- 2. Company and industry practice Albi-Clad is a relatively new product that has been used for fireproofing purposes since the late 1960's. The Employer, after its representatives completed a 2-day training course at the Albi plant in Rockville, Connecticut, was certified as a qualified applicator of Albi fireproofing materials in September 1976. While the Employer has had no prior experience in the application of Albi-Clad 89S, Schmidt testified to various construction projects over the past several years where the application of Albi-Clad 89S was applied by painters. At the same time, Mr. Brown of Brown Plastering Company testified that his firm became certified by Albi in 1974 and that he has applied Albi-Clad 89S on several projects since then using plasterers. However, on cross-examination, Mr. Brown testified that in 1974 his company took over the Albi-Clad application from the Wm. E. Tennison Company, a painting company, and that he was aware of the fact that prior to his taking over the Albi-Clad work Tennison used painters to apply the product. Other evidence shows that both painting and plastering contractors are certified Albi-Clad applicators. Of the four bids submitted for the work in dispute, three were submitted by painting contrac- tors with Brown Plastering being the fourth bidder. This factor, therefore, favors neither employees represented by the Plasterers nor employees repre- sented by the Painters. 3. Relative skills The record shows that both groups of employees are experienced in using the basic tools necessary, i.e., spray guns, pumps, and compressors, and none of the parties seriously questions the competency of either group to perform the work.2 As noted above, Albi-Clad 89S appears to be a relatively new product to be used in fireproofing, and the record shows that both the Employer and Brown Plastering Company sent representatives to the Albi Training Program who then trained other employees of their respective employers. That Albi-Clad is relatively new in the field is further attested to by the fact that Hartkem- eyer asked Brown if his trained applicator could be loaned to the Employer if the Plasterers were awarded the work. Apparently, at the time the Plasterers did not have a reservoir of trained Albi- Clad applicators. tious types of fireproofing using spray guns, pumps, and compressors, while the painters use similar equipment in applying heavy finish coats such as block sealer. In addition, as the record reflects, both painters and plasterers have been trained and certified by the Albi Company as qualified Albi- applicators. 362 PLASTERERS' LOCAL NO. 1 This factor, therefore, favors neither employees represented by the Plasterers nor employees repre- sented by the Painters. 4. Economy and efficiency of operations The evidence supports the Employer's argument that its use of plasterers would increase its direct labor costs and, where it is using two painters on the job, additional costs would result from the Plasterers contract requirements that, where two or more pumps are operating, there must be a third plasterer on the job who would perform incidental functions and act as a relief man. Also, where two or more plasterers are working, one of them must 'be designated foreman at a higher rate of pay. The Painters contract has no similar "operating pump" requirement and no foreman at the higher rate of pay need be designated unless there are at least five painters on the job. Schmidt also testified that, if he were forced to hire plasterers to do the work, he would have to assign one of his painters to the job as foreman in order to be assured that the work was being done according to the Employer's standards. The Employer further asserts that the fact that the use of plasterers would result in increased costs is reflected in the fact that of the four bids submitted three were submitted by painting contractors which ranged from the Employer's low bid of $216,000 to $247,000, whereas Brown Plastering Company's bid was $342,000. The differences in the bids submitted, although not in any way conclusive as to the economy factor, do appear to have some relevance. Based on all of the above circumstances, the factor of economy and efficiency supports the award of the work in dispute to employees represented by the Painters. 5. Safety Albi-Clad 89S, a solvent-based product having a flash point of 50 degrees, is a "red-label" product requiring certain safety procedures. The evidence shows that the Employer's painters spend approxi- mately 50 percent of their time in work using solvent- based products with dangerous flash points. Mr. Brown, on the other hand, testified that his plasterers use solvent-based products "less than 5% of the time" and work with water-based materials the remaining 95 percent of the time. In view of the obviously greater overall experience of painters in working with solvent-based products and their inherent dangers and required safety procedures, this factor supports the award of the work in dispute to employees represented by the Painters. 3 Cf. Operative Plasterers' and Cement Masons' International Association of the United States and Canada. Local 80. AFL CIO (Jack Ebert and Company), 226 NLRB 242 (1976). 6. Joint Board awards The Plasterers submitted into evidence numerous Joint Board awards, including the April 15, 1977, award by the IJDB concerning the work in dispute herein. All of these awarded the application of fireproofing material to employees represented by the Plasterers. No Joint Board awards were submit- ted which awarded fireproofing work to employees represented by the Painters. This factor favors awarding the disputed work to employees represented by the Plasterers. 7. Employer assignment and preference The disputed work is now being performed by employees represented by the Painters pursuant to the Employer's assignment. The Employer is satisfied with the quality of the work, all of which has passed inspection to date, and prefers that the work be performed by painters. The Employer's current assignment and preference thus favor the award of the work to these employees. Conclusions Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that the employees who are represented by the Painters are entitled to perform the work in dispute. In reaching this conclusion, we have particularly relied on the Employer's collective-bar- gaining agreement with the Painters, economy and efficiency of operations, safety, and the Employer's assignment and preference that painters do the work in dispute. We have given particular consideration and weight to the fact that approximately 90 percent of the applied Albi-Clad 89S will serve as the finish or decorative coat exposed to public view.3 We shall therefore determine the dispute before us by award- ing the work involved herein to employees represent- ed by the Painters, but not to that Union or its members. Our determination is limited to the work in controversy being performed by the Employer at the Dry Creek Waste Water Treatment Plant located at Bromley, Kentucky. 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 hereby makes the following Determination of Dis- pute: 363 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I. Employees employed by Brinck and Schmidt, Inc., who are represented by International Brother- hood of Painters and Allied Trades, District Council No. 12, AFL-CIO, are entitled to perform the work of spray application of Albi-Clad 89S as a fireproof- ing material to steel beams and columns at the Dry Creek Waste Water Treatment Plant located at Bromley, Kentucky. 2. Plasterers' Local No. 1, Operative Plasterers' and Cement Masons' International Association of the United States and Canada, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Brinck and Schmidt, Inc., to assign such spray application work to individuals who are represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Plasterers' Local No. I, Operative Plasterers' and Cement Masons' Inter- national Association of the United States and Canada, AFL-CIO, shall notify the Regional Direc- tor for Region 9, in writing, whether it will refrain from forcing or requiring the Employer, by means proscribed in Section 8(b)(4)(D), to assign the work in dispute to employees represented by that labor organization rather than to the employees employed by the Employer and represented by International Brotherhood of Painters and Allied Trades, District Council No. 12, AFL-CIO. 364