Plasters Local 80

242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Operative Plasterers' and Cement Masons' Interna- I. THE BUSINESS OF THE EMPLOYER tional Association of the United States and Canada, Local 80,,AFL-CIO and Jack Ebert and Company and International Brotherhood of Painters and Al- lied Trades, District Council No. 6, AFL-CIO. 8- CD-328 October 5, 1976 DECISION AND DETERMINATION OF DISPUTE By CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER The Employer is an Ohio corporation engaged in the business of painting commercial and industrial establishments. The record shows that the Employer annually furnishes goods and services valued in ex- cess of $50,000 to enterprises which satisfy the Board's direct jurisdictional standards. Accordingly, 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 purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Jack Ebert and Company, here- in called the Employer, alleging that Operative Plas- terers' and Cement Masons' International Association of the United States and Canada, Local 80, AFL-CIO, herein called Plasterers, violated Sec- tion 8(b)(4)(D) of the Act by engaging in certain pro- scribed activity with an object of forcing or requiring the Employer to assign certain work to employees represented by it rather than to employees repre- sented by International Brotherhood of Painters and Allied Trades, District Council No. 6, AFL-CIO, herein called Painters. A duly scheduled hearing was held on June 14, 24, 25, 28, and 30, 1976, and on July 1 and 2, 1976, be- fore Hearing Officer Cornelius J. Baasten. All parties appeared at the hearing and were afforded full op- portunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the is- sues. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed.' Upon the entire record in this proceeding, the Board makes the following findings: i At the hearing, the Employer moved to amend the description of the work in dispute to read as follows "The application of fireproofing and decorative material onto the iron work " The Plasterers moved to dismiss the subject charge on the grounds that the work dispute has been resolved by an Impartial Jurisdictional Disputes Board award and that the Board is not following the mandate of the Su- preme Court in N L R B v Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Co- lumbia Broadcasting System], 364 U S. 573 (1961) The motions were referred by the Hearing Officer to the Board The motions are hereby denied Substantive discussion of their merits is set forth herein The parties stipulated, and we find, that the Plas- terers and the Painters are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The Employer is a painting contractor whose prin- cipal place of business is at Cleveland Heights, Ohio. In July 1975, the Employer was awarded a subcon- tract for fireproofing work at Lincoln Junior High School in Cleveland, Ohio, by the general contractor, Panzica Construction Company. Panzica informed the Employer that there was the possibility of a juris- dictional dispute and instructed the Employer to get it resolved. The Employer responded by soliciting advice from the International Brotherhood of Paint- ers jurisdictional department and from the local joint trade board of the Painters Union.2 In accordance with the advice received, the Em- ployer assigned the fireproofing work to two employ- ees represented by the Painters in April 1976. On May 5, 1976, Tom McHale, business representative for the Plasterers, met with the Employer, asserted that the fireproofing work belonged to employees represented by the Plasterers, and threatened to pick- et the site unless two employees represented by the Plasterers were assigned the work. The Employer refused to change his assignment of the work and on May 6 and 7, 1976, the Plasterers picketed the jobsite, virtually shutting down the job. A few days after the picketing ended, Panzica called a halt to the fireproofing work until such time as the jurisdictional dispute was resolved. 2 The Employer did not solicit advice from the International Plasterers jurisdictional department or from the Plasterers local joint trade board. 226 NLRB No. 42 PLASTERERS LOCAL 80 243 B. The Work in Dispute The work in dispute consists of the application of spray-on fireproofing material onto the steel beams and decks of Lincoln Junior High School in Cleve- land, Ohio. The Employer and the Painters sought at the hear- ing to establish that the work in dispute involved the application of decorative material onto the iron work as well as the application of fireproofing material. Their position was based on the belief that some of the fireproofing was exposed to public view and was therefore decorative in nature. Considerable testimo- ny by Carl Long, business manager for the Cleveland Board of Education; Vito Arsena, a plastering con- tractor; and Jack Ebert, the Employer's president, conclusively showed, however, that none of the fire- proofing work was to be exposed to public view. In recognition of this fact the Employer entered into a stipulation that the work in dispute did not involve the application of decorative material.' Based on the testimony taken at the hearing, we find that the work in dispute has no decorative value and consists solely of the application of fireproofing material onto iron work. C. Contentions of the Parties The Employer contends that a jurisdictional dis- pute exists and that there is reasonable cause to be- lieve that Section 8(b)(4)(D) of the Act has been vio- lated. The Employer further contends that the disputed work should be awarded to employees rep- resented by the Painters on the basis of past practice, economy and efficiency of operations, and the Employer's assignment of the work. The Painters contends that should the work be found to be decorative in nature, the work should be assigned to employees represented by it. The Plasterers contends that no jurisdictional dis- pute exists for the reason that the Painters has dis- claimed the work in dispute and for the additional reason that the Employer, together with the Painters and the Plasterers, has participated in and agreed to be bound by the proceedings of the Impartial Juris- dictional Disputes Board, an agreed-upon method of voluntary adjustment. The Plasterers further contends that should a stat- utory dispute be found to exist, employees repre- sented by it should be assigned the disputed work on the basis of collective-bargaining agreements, the skills and training involved, the economy and effi- 3 The Painters representative was absent from the hearing at this time and did not join in the stipulation ciency of operations, safety, area and industry prac- tice, and joint board awards. 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. Addressing itself to this issue, the Plasterers claims that there is no dispute because the Painters has dis- claimed the work. The record shows that Mr. Anthony DeMarco, ex- ecutive secretary of the Painters, stated at the hearing that the Painters Union contends that the work be- longs to employees represented by it only if there is decorative value to the work. The record also estab- lishes, as found above, that there is no decorative value to the work in dispute. However, Frank Soreo, one of the two painters assigned the fireproofing work by the Employer, testified that he claimed the disputed work. Soreo also testified that he performed spraying work at the jobsite for a period of approxi- mately 2 days `sometime after the picketing ended. In these circumstances, we find the purported disclaim- er to be insufficient to support a finding by us that no dispute exists.4 The Plasterers also contends that no dispute exists because all the relevant parties, i.e., the Employer, the Painters, and the Plasterers have agreed upon a voluntary method of settling the dispute. The Plas- terers argues that the Employer is bound by a May 20, 1976, decision of the Impartial Jurisdictional Dis- putes Board which awarded the work involved herein to employees represented by the Plasterers. We find no merit to this contention. Although the Painters and the Plasterers are concededly bound by the joint board award, it is manifestly clear that the Employer is not so bound. The Employer is not obli- gated by contract with either union to participate in the disputes board's proceedings, has not stipulated to be bound by the disputes board's procedures, was not present nor represented at the hearings, and did not inform anyone that it would consider itself bound by any decision rendered by that body. The Employer's only affirmative act was to provide the Impartial Jurisdictional Disputes Board with some requested information. Moreover, the Employer 4 See Local No. 2 of Detroit, Bricklayers, Masons, and Plasterers Interna- tional Union of America, AFL-CIO (Decora, Inc), 152 NLRB 278 (1965); International Union of Operating Engineers, AFL-CIO, Local 520 (Biebel Bros, Inc), 170 NLRB 285 (1968), International Brotherhood of Electrical Workers, and its Local No 46 (Sanford Productions, Inc), 209 NLRB 741 (1974) 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stamped an information form submitted to James Shay of the Painters Union, who represented the Painters in the dispute board's proceedings, with an express denial that it considered itself bound by those proceedings.5 Accordingly, since it is uncontroverted that the Plasterers picketed the Lincoln High School jobsite with the intent of forcing a reassignment of the dis- puted work, we find that there is reasonable cause to believe that Section ' 8(b)(4)(D) of the Act has been violated and that the, dispute is properly before the Board for determination under Section 10(k). 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 all relevant factors in- volved. The following factors are relevant in making the determination of the dispute before us. 1. Collective-bargaining agreements The Employer's contract with the Painters, which was negotiated by the Cleveland Chapter, Painting and Decorating Contractors of America, Inc., makes no specific reference to fireproofing work. The Plasterers agreement with the Cleveland Lath- ing and Plastering Contractors' Association and Em- ployers signatory thereto expressly provides: Plasterers claim all Spray-on, or hand applied fire-proofing materials, regardless of the type of materials used. Thomas McHale, business representative for the Plasterers, testified that ° the word "claim" in the above clause means "shall do the work." The Employer, however, is not signatory to a con- tract with the Plasterers. This factor, therefore, favors neither employees represented by the Plasterers nor employees repre- sented by the Painters. 2. Company and industry practice Thomas McHale, business representative for the Plasterers, and Joseph Paratore and Vito Arsena, plastering contractors, testified that the area and in- dustry practice is to assign fireproofing work to em- ployees represented by the Plasterers. The Employer and three painting contractors, in rebuttal, testified that they had performed various 5 Glaziers, Glassworkers and Glass Warehouse Workers Union, Local No. 636, Affiliated with the International Brotherhood of Painters and Allied Trades, AFL-CIO (Plaza Glass Company), 214 NLRB 912 (1974). fireproofing jobs both within and outside the Plas- terers jurisdiction and had assigned the fireproofing work to,employees represented by the Painters. However, this testimony established that the fire- proofing work performed by painters was infrequent and relatively minor when compared with the fire- proofing work performed by employees represented by, the Plasterers. It was further shown that the Plasterers 'and other Plasterers locals had never acquiesced in an assign- ment of the-disputed work to Painters. This factor, consequently, favors the employees represented by the Plasterers. 3. Relative skills Employees represented by the Plasterers are given 6 to 9 months of on-the-job training in fireproofing work in order to develop the requisite technical ex- pertise. Employees represented by the Painters have no such program for training.' This factor, therefore, favors employees repre- sented by the Plasterers. 4. Economy and efficiency of operations Employees represented by the Plasterers were shown to be much more efficient than employees represented by the Painters. Employees represented by the Plasterers can spray on approximately 80 to 100 bags of fireproofing material a day, whereas the Painters employed by the Employer sprayed only ap- proximately 20 to 25 bags a day. This factor favors employees represented by the Plasterers. 5. Joint board awards The Plasterers submitted into evidence numerous joint board awards, including the May 20, 1976, award concerning the work in dispute herein. All these awards awarded the application of fireproofing material to employees represented by the Plasterers. No joint board awards were submitted which awarded fireproofing work to employees represented by the Painters. This factor favors employees represented by the Plasterers. 6. Safety Evidence was introduced which showed that the 6 The Employer testified that he has only one painter doing fireproofing work who has received instruction. This consisted of 2 days of training at the fireproofing material factory. PLASTERERS LOCAL 80 245 safety precautions taken by the Plasterers exceeded the precautions taken by the Painters. Consequently, this factor favors assignment of the work to employees represented by the Plasterers. 7. Employer's assignment of the work employer's assignment of disputed work will proba- bly be based on the aforementioned factors and is ordinarily given considerable weight, it "cannot be made the touchstone in determining a jurisdictional dispute."' We shall therefore determine the dispute before us by awarding the work involved herein to employees represented by the Plasterers, but not to that Union or its members. The Employer's practice in the past has been to assign fireproofing work to employees represented by the Painters. Additionally, the Employer's assign- ment of the work in dispute herein was to employees represented by the Painters. This factor therefore favors employees represented by the Painters. Conclusions Upon the record as a whole, and after full consid- eration of all relevant factors involved, we conclude that the employees who are represented by the Plas- terers are entitled to perform the work in dispute. In reaching this conclusion, we have particularly relied on industry practice, the relative skills involved, the economy and efficiency of operations, outstanding joint board awards, and safety factors. Although an 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 pro- ceeding, the National Labor Relations Board makes the following Determination of Dispute: Employees represented by Operative Plasterers' and Cement Masons' International Association of the United States and Canada, Local 80, AFL-CIO, are entitled to perform the work in dispute which consists of the application of spray-on fireproofing onto the steel beams and decks of Lincoln Junior High School in Cleveland, Ohio. 7 Millwrights Local Union No. 1102, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Don Cartage Company), 160 NLRB 1061, 1078 (1966)