Cement Workers Local 577 (Rocky Mountain Prestress)

CEMENT MASONS LOCAL UNION NO. 577 Cement Masons Local Union No. 577 and Rocky Mountain Prestress, Inc.1 and Local 720, Laborers International Union of North America. Case 27- CD-194 December 5, 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, based on a charge filed by Rocky Mountain Prestress, Inc., herein called the Employer. The charge alleges that Cement Masons Local Union No. 577, herein called Cement Masons, violated Section 8(b)(4)(D) of the Act by engaging in certain activity with an object of forcing the Employer to assign certain work to individuals represented by the Cement Masons rather than to employees of the Employer represent- ed by Local 720, Laborers International Union of North America, herein called Laborers or Local 720. A duly scheduled hearing was held on August 19, 1977, before Hearing Officer Marvin T. Harmatz, at which the Employer and Cement Masons appeared. The hearing was reopened on September 9, 1977, at which time the Laborers appeared along with the other parties. All parties were afforded full opportu- nity to be heard, to examine and cross-examine the witnesses, and to adduce evidence bearing on the issues. Thereafter, the Cement Masons and the Laborers filed 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: I. THE BUSINESS OF THE EMPLOYER The Employer is a Colorado corporation engaged in the manufacture and erection of precast and prestressed concrete construction components. On an annual basis, the Employer furnishes goods and services valued in excess of $500,000 and both purchases and sells goods and materials in excess of $50,000 from and to points outside the State of Colorado. Accordingly, we find that the Employer is engaged in commerce within the meaning of Section I The charge is this case incorrectly named Petry C. M. as the Employer. However, the charge should have named Rocky Mountain Prestress, Inc., as 233 NLRB No. 131 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 the Cement Masons and the Laborers are labor organi- zations within the meaning of Section 2(5) of the Act. II1. THE DISPUTE A. The Work in Dispute The work in dispute consists of the patching or cosmetic repair of prestressed concrete building components at the site of construction of the Cherry Creek High School, located near Denver, Colorado. B. Background and Facts of the Dispute The Employer manufactures prestressed concrete construction components at its plant in Sheridan, Colorado. After initial fabrication, the Employer's employees finish the product by patching or cosmeti- cally repairing the components. Thereafter, the building components are loaded onto trucks which haul the concrete to construction sites where the components are erected into place. Occasionally during the hauling and erection of these large building materials, chips and spalls are created in the concrete. In addition, at times a component needs to be modified at the jobsite because of specification changes. The employees of the Employer repair and patch the chips and spalls and make any necessary modifications at the jobsite. It is the assignment of this cosmetic repair work which is in dispute. The Employer was awarded a contract by the Cherry Creek School District for the manufacture and erection of prestressed concrete building compo- nents for the construction of a high school. The Employer assigned the cosmetic repair work at the site of that construction to its employees represented by the Laborers. According to testimony at the hearing by its vice president of operations, the Employer based its work assignment both on its current collective-bargaining agreement with the Laborers and on its past practice of assigning such work to the employees represented by that Union. However, for reasons set forth below, the Cement Masons claims that individuals represented by it are entitled to perform the work which is the subject of the instant dispute. the Employer, and, accordingly, we have changed the Employer's name in this case. 923 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Cement Masons first pursued its claim in February or March 1977,2 at which time a vice president of the Cement Masons International union discussed the matter with a field superintendent of the Employer. About the same time, the Internation- al unions of the Cement Masons and the Laborers submitted the dispute to the Impartial Jurisdictional Disputes Board for the Construction Industry, which ultimately awarded the work to individuals repre- sented by the Cement Masons. The Employer, however, did not participate in that Impartial Board proceeding. The Cement Masons again met with the Employer in late May or early June regarding the dispute, but the Employer refused to reassign the disputed work to employees whom the Cement Masons represents. Subsequently, representatives of the two International unions drafted an agreement tentatively settling the dispute. However, at a meeting in mid-July, Local 720 and another local union of Laborers rejected that proposed settlement, and thereafter its International also repudiated the agreement. On July 26, the Employer called a meeting between the competing unions after it had received informa- tion that the Laborers might not be interested in continuing to claim the disputed work for employees that it represents. However, Local 720's business representative contacted the Employer before the meeting, reasserted the Laborers claim regarding the work in dispute, and canceled the meeting. Accord- ing to testimony by a witness for the Employer, a representative of the Cement Masons International union shortly thereafter reported that the local union planned to picket the Employer's operations at the Cherry Creek High School the following day. On the next day, the Cement Masons did in fact picket the Employer's operations at the high school construc- tion site. The picket signs stated: Cement Masons' Local 577. Rocky Mountain Prestress, Inc. paying substandard wages. We have no dispute with any other contractor. AFL-CIO. The picketing lasted I day. On the first day of the hearing, the Employer estimated that the work in dispute would be completed in I to 2 weeks. C. The Contentions of the Parties The Employer and the Laborers contend that a jurisdictional dispute exists and that there is reason- able cause to believe that Section 8(b)(4)(D) of the Act has been violated. They further contend that the disputed work should be awarded to employees 2 All dates hereafter are in 1977 unless otherwise indicated. 3 See Painters and Drywall Finishers, Local No. 79 affiliated with represented by the Laborers on the basis of the parties' collective-bargaining agreement, area prac- tice, efficiency and economy, and the Employer's past practice and current assignment of the work. The Cement Masons initially asserts that there is no reasonable cause to believe that it violated Section 8(b)(4)(D) of the Act. It argues that the picketing was lawful since its object was not to force the Employer to assign the work in dispute to individuals whom its represents; rather, it contends that the object of the picketing was merely to inform the public that the Employer was paying substandard wages to its employees who were performing the disputed work. However, the Cement Masons argues in the alternative that, if the Board concludes that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, individuals it represents should be assigned the work in dispute on the basis of the agreement between the International unions, the Impartial Board award, area practice, and the relative skills of the employees involved. 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 and that the parties have not agreed upon a method for the voluntary adjustment of the dispute. The Cement Masons contends that the object of its picketing was to protest the Employer's substandard wages for the work in dispute. In support of that position, the Cement Masons notes that (1) the picket signs state: "Rocky Mountain Prestress, Inc. paying substandard wages," and (2) the Employer does in fact pay its employees represented by the Laborers lower wages for the work in dispute than those which employees represented by the Cement Masons receive from other employers for the same type of work. However, while these factors tend to support a finding that one object of the picketing may have been to protest the Employer's wage scale, the Board must still determine whether there is reasonable cause to believe that an object of the picketing was also to force or require the Employer to assign the work to individuals represented by the Cement Masons. One proscribed object is sufficient to bring a union's conduct within the ambit of Section 8(b)(4)(D).3 The evidence discloses that the Cement Masons has continuously asserted its claim regarding the work in dispute since February or March 1977. At each meeting with the Employer, the Cement International Brotherhood of Painters and Allied Trades, AFL-CIO (Richard O'Brien Plastering Co.), 213 NLRB 788, 790 (1974). 924 CEMENT MASONS LOCAL UNION NO. 577 Masons object was to obtain the Employer's reas- signment of the work in dispute to individuals that it represents. The Cement Masons also submitted the dispute to the Impartial Board; however, the Em- ployer failed to honor that board's award. The International union of the Cement Masons thereafter sought to obtain a voluntary agreement with the Laborers International, but Local 720 withheld its approval of the settlement. Finally, after Local 720's business agent canceled the July 26 meeting, which was designed to reach an agreement regarding the work in dispute, the Cement Masons picketed the Employer on the following day. Thus, the picketing closely followed a series of abortive attempts by the Cement Masons and its International to persuade either the Employer to reassign the work in dispute or the Laborers to release its claim regarding such work. Moreover, the Cement Masons has at no time disclaimed the disputed work for employees it represents and has in fact continued throughout to assert its claim regarding the work in dispute. In these circumstances, we conclude that there is reasonable cause to believe that an object of the Cement Masons picketing was to force the Employer to assign the work in dispute to individuals it represents. 4 No party contends and no evidence was presented at the hearing that there exists an agreed-upon method for the voluntary resolution of the dispute which is binding on all of the parties. Accordingly, we conclude that the dispute is properly before the Board for determination under Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) requires the Board to make an affirmative award of disputed work after giving due consideration to and balancing all relevant factors involved.5 Our determination is an act of judgment based on commonsense and experience in weighing these factors.6 The following factors are relevant in making a determination of the dispute before us: 4 See Sheet Metal Workers International Association, Local Union No. 420, AFL-CIO (Rusco Building Systems, a Division of Ruseo Industries, Inc.), 198 NLRB 1207, 1209 (1972); Local 10, Bricklayers. Masons, Plasterers, Marble. Tile and Terrazo Workers International Union of America, AFL-CIO (Unistress Corp.), 198 NLRB 443, 444 (1972); Bricklayers, Masons and Plasterers' International Union of America, Local No. 1, AFL-CIO (Rocky Mountain Prestress. Inc.). 195 NLRB 555., 557 (1972). Cf. Local 25, International Brotherhood of Electrical Workers, AFL-CIO (Charlane Electric Co., Inc., d/b/a Unity Electric Co.), 211 NLRB 256, 257-258 (1974). 5 N.L.R.B. v. Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting System], 364 U.S. 573 (1961). 1. Collective-bargaining agreement The Employer and Local 720 are parties to a collective-bargaining agreement, effective from July 1, 1976, through June 30, 1979, whereby the Employer recognizes Local 720 as the representative of its production employees located at its plant. The recognitional clause of the contract does not explicit- ly include employees who work at the site of building construction. However, two articles in the agreement specifically refer to work on a construction site, and both the Employer and the Laborers have mutually understood for over a dozen years that employees represented by the Laborers are entitled to perform the cosmetic repair work at the site of construction. The Employer does not have a collective-bargaining agreement with the Cement Masons. Thus, the existence of the collective-bargaining agreement between the Employer and Laborers favors assign- ment of the work in dispute to employees represented by Local 720. 2. Employer's assignment and past practice As mentioned above, the Employer currently assigns the disputed work to its employees represent- ed by the Laborers. This assignment has been the practice of the Employer for over 14 years. However, on occasion the Employer subcontracts all or part of work similar to that in dispute to firms employing cement masons.7 Nevertheless, the Employer gener- ally assigns the work to its employees represented by the Laborers. Thus, the Employer's current assign- ment and past practice favor assignment of the work in dispute to employees represented by Local 720. 3. Economy and efficiency of operations As mentioned above, after manufacture of the concrete building components, the Employer finishes the product at its plant by patching the concrete where necessary. The employees who perform this work at the plant are the same individuals represent- ed by the Laborers who perform the cosmetic repair work at the construction site.8 As stated by the Employer's vice president at the hearing, the employ- ees who do the patch work at the plant and at the construction site are basically "interchangeable." 6 International Association of Machinists, Lodge Na 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402, 1411 (1962). 1 The Employer in fact subcontracted a portion of the work in dispute at Cherry Creek High School to Colorado Commercial Concrete, Inc., which employed a member of the Cement Masons to perform its part of the disputed work. The Employer usually subcontracts the type of work in dispute to firms employing individuals represented by the Cement Masons when its contract with a general contractor requires it to use employees represented by that Union. The Cement Masons, however, does not claim the patch work at the Employer's plant for the individuals it represents. 925 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover, that witness stated that onsite patching only amounts to 5 percent of the total work at the jobsites. In these circumstances, we are satisfied that it is more efficient and economical for the Employer to complete all phases of the patching work with a crew represented by the Laborers than to hire an irregular, casual, or part-time employee represented by the Cement Masons to do the limited work in dispute. Thus, efficiency and economy of operations favor assignment of the work in dispute to employees represented by the Laborers.9 4. Relative skills The record evidence establishes that, in general, cement masons are more highly skilled than laborers in performing the type of work in dispute, especially if cement masons' tools are used. Nevertheless, the Employer's vice president testified that employees represented by the Laborers have generally per- formed the work in dispute satisfactorily. In fact, the cement mason utilized by the Employer on part of the work in dispute (see fn. 7, supra) was a member of the Laborers before he become a cement mason, and, according to his testimony, learned his trade as a laborer. Thus, while cement masons may be more highly skilled at patching concrete building compo- nents, it appears that employees represented by the Laborers have the necessary skills to satisfactorily perform the work in dispute. Thus, the difference in skills does not necessarily favor assignment of the disputed work to individuals whom the Cement Masons represents. 5. Area practice Each competing union claims that area practice favors assignment of the disputed work to individuals represented by it. The Cement Masons introduced evidence that employees it represents perform the type of work in dispute for two of the Employer's competitors in the prestressed concrete business, Stanley Structures and Mack Precast. Moreover, it submitted five Impartial Board awards regarding the type of work in dispute at different jobs of the Employer. Each award assigned the work to indivi- duals represented by the Cement Masons on the basis of trade practice. ° On the other hand, record 9 Operative Plasterers' and Cement Masons' International Association, Local No. 394, AFL-CIO (Warner Masonry, Inc.), 220 NLRB 1074, 1076 (1975). 10 The Cement Masons also introduced in support of its claim an agreement between local Cement Masons unions in Colorado and certain members of the Associated General Contractors of Colorado (not including the Employer), in which the Cement Masons claims jurisdiction over the work in dispute. However, that agreement provides that the union's claim is not binding on an employer and that, if two or more unions with whom an employer has a collective-bargaining agreement claim the work for individuals represented by their unions, the employer may assign the work evidence also demonstrates that both Stanley Struc- tures and Mack Precast also utilize employees represented by the Laborers in performing the type of work in dispute. Additionally, the presidents of two of the Employer's other competitors stated at the hearing that each company has only employed individuals represented by the Laborers to do the onsite patching work of prestressed concrete con- struction components on their jobs. Thus, in the circumstances presented here, area practice does not favor either competing union's claim with regard to the assignment of the disputed work. 6. Interunion agreement The Cement Masons also contends that the agreement, discussed earlier, between representatives of the International unions of the Cement Masons and the Laborers regarding the work in dispute favors assignment of the work to employees it represents. While this agreement does in fact favor the Cement Masons claim, we do not attach significant weight to it, since, as mentioned above, it was neither agreed to nor complied with by Local 720, it was eventually repudiated by the Laborers International union, and, in addition, the Employer was not bound by any such interunion agreement." 7. Impartial Board award Lastly, the Cement Masons asserts that the award of the Impartial Jurisdictional Disputes Board, mentioned above, favors assignment of the disputed work to individuals whom it represents. Although we do consider Impartial Board awards as a factor in determining proper assignment of work in dispute, we do not accord it significant weight in these circumstances, since the Employer did not partici- pate in the proceeding and is not bound by its determination,' 2 and since the award did not set forth and discuss the crucial issue of whether the factors supporting an award to the Cement Masons outweigh those supporting the assignment to employ- ees represented by the Laborers. 13 Conclusion Upon the record as a whole, and after full consideration of all relevant factors involved, we in whole or part to employees represented by either of the competing unions. Thus, this agreement is not demonstrative of an area practice favoring the Cement Masons claim. i' See Warner Masonry, supra at 1076; Southern California Pipe Trades District Council No. 16 (Kistrock Division, Tridair Industries, Inc.), 198 NLRB 1240, 1243 (1972). 12 See Richard O'Brien Plastering Co., supra at 792; Bricklayers Local Union No. I of Missouri, Bricklayers, Masons and Plasterers International Union, AFL-CIO (St. Louis Home Insulators, Inc.), 209 NLRB 1072, 1077 (1974). i3 Warner Masonry, supra at 1076. 926 CEMENT MASONS LOCAL UNION NO. 577 conclude that the employees of the Employer who are represented by the Laborers are entitled to perform the work in dispute. In reaching this conclusion, we have relied particularly on the Employer's assignment of the disputed work to its employees represented by the Laborers, the fact that this assignment is consistent with the Employer's past practice and current collective-bargaining agree- ment with the Laborers, and the efficiency and economy of operations which result from such assignment. We shall, therefore, determine the dispute before us by awarding the work involved herein to those employees represented by the Laborers, but not to that Union or its members. The present determination 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 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 Rocky Mountain Prestress, Inc., currently represented by Local 720, Laborers Inter- national Union of North America, are entitled to perform the work of patching or cosmetically repairing prestressed concrete building components at the Cherry Creek High School construction site outside Denver, Colorado. 2. Cement Masons Local Union No. 577 is not entitled, 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 that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Cement Masons Local Union No. 577 shall notify the Regional Director for Region 27, in writing, whether or not it will refrain from forcing or requiring Rocky Moun- tain Prestress, Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work to employees represented by it rather than to employees represented by Local 720, Laborers International Union of North America. 927