Local 11, Bricklayers

624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 11 , Bricklayers, Masons and Plasterers Interna- tional Union of America, AFL-CIO and Local 694, Laborers International Union of North America, AFL-CIO and Sardaland Corporation and Local 15024, United Steelworkers of America, AFL- CIO. Case 22-CD-294 December 29, 1976 DECISION AND DETERMINATION OF DISPUTE during the past 12 months, ICE purchased from outside the State of New Jersey goods and materials valued in excess of $50,000 which were delivered to its warehouse facilities in New Jersey. Accordingly, we find that the Employer is an employer within the meaning of Section 2(2) of the Act; it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act; and it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS By CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, pursuant to charges filed by Sardaland Corporation, the Employer, alleging that Local 11, Bricklayers, Masons and Plasterers International Union of Ameri- ca, AFL-CIO (herein called Bricklayers) and Local 694, Laborers International Union of North America, AFL-CIO (herein called Laborers), violated Section 8(b)(4)(D) of the Act. Pursuant to notice a hearing was held before Hearing Officer Michael T. Fitzsimmons on August 16, 1976. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to present evidence bearing on the issues. The Employer and Steelworkers appeared at the hearing- Bricklayers and Laborers, although duly served with notice of the hearing, did not appear at the hearing nor have they filed a statement of position. 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 rulings made by the Hearing Officer at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. The Board has considered the entire record in this case and makes the following findings: I. THE BUSINESS OF THE EMPLOYER Sardaland Corporation, the Employer, is a corpora- tion engaged in providing construction services. The Employer and Steelworkers stipulated, and we find, the following facts respecting the Employer's opera- tions. In the 2-month period preceding the hearing, the Employer provided construction services valued in excess of $50,000 to various enterprises including ICE Associates. ICE Associates, a limited partnership located in New Jersey, builds warehouses and also provides warehouse services at four warehouse facili- ties in New Jersey. In the conduct of its business 227 NLRB No. 99 The Employer and Steelworkers stipulated, and we find, that Bricklayers, Laborers, and Steelworkers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background On June 1, 1976, the Employer entered into a written contract with ICE Associates to construct the major items of an industrial building. It began performance of the construction contract on June 14, 1976, with six employees, all of whom were members of Steelworkers. On that day the employees were preparing to start pouring concrete. Pickets appeared at the jobsite on the morning of June 14. Bricklayers Business Agent James Daley told the Employer's president, Yog Mahendroo, that the job should have employed Bricklayers members and that he was "not going to let this job go on" because it was being done by Frasetto, a subcontractor who had a collective- bargaining agreement with Bricklayers. Mahendroo denied that Frasetto was involved and explained that the beginning phase of the work was to be performed by the Employer's employees and the Employer had a collective-bargaining agreement with Steelworkers. Daley disputed this and Mahendroo then asked Daley to call the Employer's labor consultant. After a telephone conversation between Daley and the Em- ployer's labor consultant, Daley told Mahendroo that the picketing would continue, that he did not recognize Steelworkers right to the job, that he would give Mahendroo the names of masonry contractors who had collective-bargaining agreements with Bricklayers, and that the masonry work had to be done by Bricklayers members. Thereafter, Bricklay- ers and Laborers continued picketing the jobsite. Later the same day, President Mahendroo asked Bricklayers Business Agent Daley and Laborers Business Agent Joseph D'Argenio, both of whom were present at the worksite, to stop the picketing. They refused and both told Mahendroo that he should use their unions' members and, if he did, there would be no problems. Mahendroo insisted that he LOCAL 11, BRICKLAYERS had a binding collective-bargaining agreement with Steelworkers. Picketing continued from June 14, 1976, until about July 23.1 Some 8-16 individuals participated, carry- ing signs at times 2 and blocking the entrance to the jobsite. The Employer's president met with representatives of Bricklayers, Laborers, and- Steelworkers on June 18, 1976. Bricklayers Business Agent Daley asked Mahendroo to sign an agreement that all masons used on the job would be Bricklayers members. Laborers Business Agent D'Argenio made a similar demand with respect to laborers used on the job. Mahendroo proposed a mix of the contesting unions' members, but Daley and D'Argenio would not agree to that proposal, and D'Argenio questioned the ability of Steelworkers members to perform the work required. Bricklayers Business Representative Daley present- ed a proposed agreement for the Employer to sign which would bind the Employer to terms of a master agreement existing between designated Bricklayers locals and contractors' associations. Similarly, D'Argenio said that he had a contract but had not brought it to the meeting. Daley said that he would give Mahendroo a list of masonry contractors who were parties to the Bricklayers agreement and, if the Employer subcontracted to them, Bricklayers would not picket. Either Daley or D'Argenio said that "there were occasions when they were asked by the National Labor Relations, Board not to picket, and they have continued," and that "we do not comply, and we may not comply with any directive ...." On July 7, 1976, the Regional Director for Region 22, pursuant to Section 10(1) of the Act, filed a petition for injunctive relief with the United States District Court -for the District of New Jersey. Brick- layers and Laborers entered into a stipulation, signed and approved by the district court judge on July 26, 1976, in which the two unions agreed not to picket, threaten to picket, or threaten to coerce the Employer pending final disposition by the Board of the matters involved herein. B. The Work in Dispute The work in dispute consists of constructing floor footings and other preliminary masonry functions as well as grading, staking, laying of steel reinforcement, and other laborers' functions at the Employer's jobsite at 4-6 Just Road, Fairfield, New Jersey. i Picketing continued on days when the Employer's employees were not working. 2 The picket signs bore a legend to the {effect that the general contractor was not paying fair wages. 625 C. The Contentions of the Parties The Employer presented evidence to show that the disputed work should be left as assigned to employees represented by Steelworkers, and that this dispute is properly before the Board because of Bricklayers and Laborers violation of Section 8(b)(4)(D) to compel assignment of the disputed work to their members. The Employer presented evidence on the factors discussed herein in section III, E. Steelworkers appeared at the hearing and, while not making a separate statement on the record, apparent- ly continues to claim the disputed work. Bricklayers and Laborers did not appear at the hearing and the Board has not been apprised of their position by written statement. They have not disclaimed the disputed work. D. Applicability of the Statute Before the Board may proceed to the determination of a 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) has been violated; and (2) the parties have not agreed upon a method for voluntary adjustment of the dispute. The record shows that, after the Employer's assign- ment of the work to employees represented by Steelworkers, representatives of Bricklayers and La- borers made repeated demands upon the Employer that the work be assigned to their members. They further engaged in picketing to force the Employer to reassign the work to their members. It was only after the General Counsel sought injunctive relief that Bricklayers and Laborers agreed by written stipula- tion not to picket, threaten to picket, or threaten to coerce the Employer. We find that reasonable cause exists to believe that Section 8(b)(4)(D) has been violated. There is no showing of an independent method for voluntary adjustment of disputes which is binding on all the parties herein. Accordingly, we shall proceed to determine the instant 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 relevant factors involved.3 3 International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402, 1410 (1962). 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Certifications and collective-bargaining agreements None of the Unions involved has been certified by the Board as the collective-bargaining representative for a unit of the Employer's employees. Therefore this factor does not support any claimant. Only Steelworkers has a collective-bargaining agreement with the Employer. United Steelworkers of America, and its Local 15024, entered into a collec- tive-bargaining agreement with the Employer effec- tive from January 31, 1976, until December 31, 1978, with an automatic renewal provision in the absence of notice to terminate. Steelworkers also had a collective-bargaining agreement with the Employer's predecessor.4 The parties' current collective-bargaining agree- ment "applies to all phases of construction work and allied fields.' 15 The wage schedules annexed to the agreement include laborers' classifications in building construction work. As Steelworkers collective-bar- gaining agreement with the Employer covers the work in dispute, the collective-bargaining factor tends to support the award of work to employees represented by Steelworkers. 2. Company and industry practice The Employer utilized its own employees, repre- sented by Steelworkers, to perform the disputed work. The Employer's hiring practice favors assign- ment of disputed work to employees represented by Steelworkers. While there is no specific evidence as to industry practice, Mahendroo testified that some building construction is performed by employees who are not members of Bricklayers or Laborers.6 There is no showing on this record as to Laborers representation of employees performing like work.? Therefore, evidence of area practice is inconclusive. 3. Skills and experience The work involved herein does not require special skills or training for proper performance. The work is largely physical and training, if any, occurs on the job. Almost all of the Employer's employees have extensive experience in the construction tasks m- 4 The Employer's predecessor was a party to a collective-bargauung agreement with International Union of District No 50, Allied and Technical Workers of the United States and Canada , effective from June 30, 1972, to June 29, 1975. As recited in an undated agreement, Steelworkers was substituted as the union signatory to the original agreement by reason of District No 50's merger with Steelworkers and its going out ofexistence on August 9, 1972 As the record shows that this Employer had no employees before the commencement of the construction project descnbed herein, Steelworkers pre-1976 collective-bargaining agreement with the Employer's predecessor is not a factor favoring an award to the Employer's employees represented by Steelworkers volved herein. One has had 25 years' experience. A second has worked in the construction industry for 18 years, and another for 8 years. Two other employees have had about 2 and 3 years' experience, respective- ly, in the work required. There is no testimony respecting the relative skills and experience of em- ployees represented by Bricklayers and Laborers. Because of the Employer's employees' extensive experience, this factor favors an award of the work to these employees, represented by Steelworkers. 4. Efficiency and economy Under the Employer's collective-bargaining agree- ment with Steelworkers, all of the Employer's em- ployees perform work, including Steelworkers shop steward. Under some Laborers and Bricklayers agreements, President Mahendroo testified, union stewards sometimes are not engaged in the project's work. It was not entirely clear from this testimony whether President Mahendroo meant that the Em- ployer would therefore need to hire additional employees who could perform the work. We note this testimony but do not consider it determinative because it is vague. Use of its own employees, however, gives the Employer flexibility in the assignment of work. Because its employees, represented by Steelworkers, are multiskilled and some skills are needed for but a short period during the day, the Employer can reassign any current employee to a variety of tasks during the same day. If the Employer were required to assign work to an employee skilled only in one particular trade, it would have to employ additional personnel to perform the less skilled work. This would be inefficient and uneconomical . Accordingly, we find that the factors of efficiency and economy of operations favor an award of the work to the employees who are represented by Steelworkers. Conclusions Upon the record as a whole, and after a full consideration of all relevant factors involved, we conclude that the employees who are represented by Steelworkers are entitled to perform the work in dispute. We reach this conclusion based primarily on the Employer's assignment and preference, the collec- tive-bargaining relationship that exists between the S Art 1, sec. 1 7. 6 The fact that Bricklayers Business Representative Daley offered to give President Mahendroo the names of contractors with whom Bricklayers has bargaining agreements implies that Bricklayers members working on construction projects of other employers may perform the disputed work 7 We take cognizance of other cases in which Laborers members have performed tasks similar to those performed by the Employer's employees Local 1191, Laborers ' International Union of North America, AFL-CIO (The Morrison Company), 209 NLRB 310 (1974) LOCAL 11, BRICKLAYERS 627 Employer and Steelworkers, and the fact that the current work force can do the work and their long experience in doing that type of work. Further, we particularly note that use of the multiskilled employ- ees who comprise the Employer's work force allows for more economical and efficient operations. DETERMINATION OF DISPUTE Pursuant to Section 10(c) 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: 1. Employees of Sardaland Corporation who are represented by Local 15024, United Steelworkers of America, AFL-CIO, are entitled to perform the work of constructing floor footings and other preliminary masonry functions as well as grading, staking, laying of steel reinforcement, and other laborers' functions at Sardaland Corporation's jobsite at 4-6 Just Road, Fairfield, New Jersey. 2. Local 11, Bricklayers, Masons and Plasterers International Union of America, AFL-CIO, and Local 694, Laborers International Union of North America, AFL-CIO, are not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the assignment of the above work, or any part thereof, to their members or to employees they represent. 3. Within 10 days from the date of this Decision and Determination of Dispute , Local 11 , Bricklayers, Masons and Plasterers International Union of Ameri- ca, AFL-CIO, and Local 694, Laborers International Union of North America, AFL-CIO, shall notify the Regional Director for Region 22, in writing , whether or not they will refrain from forcing or requiring, by means proscribed by Section 8(b)(4)(D) of the Act, the assignment of the disputed work in a manner inconsistent with this Determination.