Carpenters Local 98-T (Permacrete Products)

401 307 NLRB No. 58 CARPENTERS LOCAL 98-T (PERMACRETE PRODUCTS) 1 All December dates are in 1991 unless otherwise stated. All other dates are in 1992 unless otherwise stated. 2 George Allen Construction Co. is party to a collective-bargaining agreement with Cement Masons Local 502. Tile, Marble, Terrazzo Finishers, Granite Cutters, and Shopmen, Local 98-T, United Brotherhood of Carpenters and Joiners of America, AFL– CIO and Permacrete Products Corporation Cement Masons’, Rock Asphalt and Composition Floor Furnishers’ Local Union No. 502 of the Operative Plasterers, Cement Masons Institute of America, AFL–CIO and Permacrete Prod- ucts Corporation. Cases 13–CD–451 and 13– CD–452 April 30, 1992 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT The charges in this Section 10(k) proceeding were filed January 21, 1992, by the Employer, Permacrete Products Corporation, alleging that the Respondent, Tile, Marble, Terrazzo Finishers, Granite Cutters, and Shopmen, Local 98-T, United Brotherhood of Car- penters and Joiners of America, AFL–CIO (Granite Cutters Local 98-T), violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in pro- scribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to employees represented by Cement Masons’, Rock Asphalt and Composition Floor Furnishers’ Local Union No. 502 of the Operative Plasterers, Ce- ment Masons Institute of America, AFL–CIO (Cement Masons Local 502), and that Cement Masons Local 502 violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to employ- ees represented by Granite Cutters Local 98-T. The hearing was held February 7, 1992, before Hearing Of- ficer Bruce Standish. The National Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board affirms the hearing officer’s rulings, find- ing them free from prejudicial error. On the entire record, the Board makes the following findings. I. JURISDICTION The Employer, a Delaware corporation, is engaged in the manufacture and installation of precast mau- soleum crypts, lawn crypts, and railroad foundations. During the calendar year prior to the hearing, the Em- ployer, from its South Holland, Illinois facility, derived gross revenues in excess of $50,000 from its sales and performance of services to customers directly outside the State of Illinois. The parties stipulate, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Granite Cutters Local 98-T and Cement Masons Local 502 are labor organizations within the meaning of Sec- tion 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute The Employer manufactures individual mausoleum crypts at its South Holland facility. The Employer and Granite Cutters Local 98-T are parties to a collective- bargaining agreement, effective November 19, 1990, through November 18, 1993, covering the Employer’s employees who work at the Employer’s facility and employees involved in sealing the Employer’s crypts at cemeteries. On December 10, 1991,1 the Employer entered into a contract with a general contractor, George Allen Construction Co., to manufacture, set, install, and seal mausoleum crypts at the Holy Sepulchre Cemetery in Worth, Illinois.2 Shortly thereafter, the Employer began installing and sealing crypts at the Holy Sep- ulchre site using employees represented by Granite Cutters 98-T. On December 16, after the Employer had com- menced operations at the Holy Sepulchre site, Harold Mosel, business agent for Cement Masons Local 502, approached Michael Little, the Employer’s general foreman, and stated that the work being performed at the site by the Employer’s employees has always be- longed to employees represented by Cement Masons Local 502, and that he did not want employees rep- resented by Granite Cutters Local 98-T to perform that work. On December 23, Mosel again approached Little at the Holy Sepulchre site, repeated his claim that the work being performed by Granite Cutters Local 98-T has always belonged to employees represented by Ce- ment Masons Local 502, and added that he believed Cement Masons Local 502 would be awarded this work. Mosel showed Little a letter from a jurisdiction board, dated in 1986, awarding certain crypt sealing work in Calumet City, Illinois, to employees rep- resented by Cement Masons Local 502. Little told Mosel to contact Emil Quaglia, business agent for Granite Cutters Local 98-T. Mosel responded that he had tried to contact Quaglia but his call was not re- turned. Mosel added that if he was unable to contact Quaglia he would bring this matter before the ‘‘joint board,’’ and that Cement Masons Local 502 would picket the Holy Sepulchre jobsite if the matter was not resolved. On December 30, Mosel had another conversation with Little at the Holy Sepulchre site. Mosel again 402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 On January 31, Cement Masons Local 502 filed with the Region a motion to quash the notice of hearing and attached to the motion to quash a purported disclaimer of interest in performing the work in dispute. On February 5, the Regional Director denied the motion to quash. At the hearing, Cement Masons Local 502 did not renew its motion to quash, but moved that its previously denied motion to quash and its purported disclaimer of interest be admitted into evi- dence. The motion to quash was admitted into evidence but the pur- ported disclaimer was rejected. claimed that the work belonged to employees rep- resented by Cement Masons Local 502 and stated that Cement Masons Local 502 would picket the site if the matter was not resolved. On January 6, James Matt, the Employer’s general manager, had a conversation at the jobsite with Quaglia and Robert Wesselhoff, business agent for Ce- ment Masons Local 502. Wesselhoff told Matt that the work being performed by the Employer at this site clearly belonged to employees represented by Cement Masons Local 502. Matt responded that the Employer would continue to use employees represented by Gran- ite Cutters Local 98-T at the Holy Sepulchre site. By mailgram dated January 13, Cement Masons Local 502 accused the Employer of not paying the proper area standard wages. The mailgram requested the Employer to state whether it was complying with area standards, but also stated the following: We have no interest in organizing your employees or in securing a collective bargaining agreement. If you fail to demonstrate, we will have no alter- native but to so inform the public that you fail to comply with area standards. This prevailing wage rate inquiry is not a claim for the work and only involves compliance with area standards. On January 17, Matt called Cement Masons Local 502 President Gerald Horejs concerning the mailgram. Matt explained that he was confused by the mailgram in light of Wesselhoff’s previous claim that the work be assigned to Cement Masons Local 502. Matt asked Horejs to clarify what Cement Masons Local 502 wanted. Horejs replied that Cement Masons Local 502 wanted the Employer to assign the work to employees represented by Cement Masons Local 502 and that it also wanted employees represented by Granite Cutters Local 98-T removed from the jobsite. On January 20, Cement Masons Local 502 picketed the Holy Sepulchre jobsite with signs stating that the Employer does not pay the prevailing wage rate in the area. The picketing continued for a week. By letter dated January 20, Granite Cutters Local 98-T informed the Employer that it was aware that Ce- ment Masons Local 502 was demanding that the Em- ployer assign the crypt sealing work to employees rep- resented by Cement Masons Local 502. The letter fur- ther stated that Granite Cutters Local 98-T ‘‘will take all necessary action, including striking and picketing the job site, to protect our work jurisdiction, and de- mand that you take no action towards transferring the work.’’ On January 21, Little and Mosel spoke again con- cerning the disputed work. Mosel told Little that he had rejected an offer by Quaglia to allow one em- ployee represented by Cement Masons Local 502 to perform the crypt sealing work at the jobsite. Mosel stated that he would remove the pickets only if two employees represented by Cement Masons Local 502 were assigned to work at the site. At the hearing, Mosel testified that he believed that Cement Masons Local 502 should be performing the disputed work. The parties have stipulated that there is no agreed- upon or approved method for voluntary adjustment of the dispute. B. Work in Dispute The work in dispute involves the sealing of modular precast concrete burial crypts at the Holy Sepulchre Cemetery in Worth, Illinois. C. Contentions of the Parties The Employer contends that Cement Masons Local 502 failed to disclaim interest in the disputed work, that reasonable cause exists to believe that Cement Masons Local 502 violated Section 8(b)(4)(D) of the Act, and that the work in dispute should be awarded to employees represented by Granite Cutters Local 98- T based on the factors of collective-bargaining agree- ments, employer preference and past practice, and economy and efficiency of operations. Cement Masons Local 502 contends that it has dis- claimed interest in the disputed work and that its only interest is in preservation of the prevailing area stand- ards wage.3 Cement Masons Local 502 further con- tends that reasonable cause to believe that it has vio- lated Section 8(b)(4)(D) of the Act does not exist be- cause it has engaged only in area standards picketing. It also argues that the contract between the Employer and Granite Cutters Local 98-T is purely a plant con- tract that does not cover construction work, and there- fore does not control this site or assignment. D. Applicability of the Statute Before the Board may proceed with a determination of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to be- lieve that Section 8(b)(4)(D) of the Act has been vio- lated and that the parties have not agreed upon a meth- od for the voluntary adjustment of the dispute. As discussed above, on December 23 and 30, Mosel told Little that Cement Masons Local 502 claimed that the work in dispute belonged to employees it rep- 403 CARPENTERS LOCAL 98-T (PERMACRETE PRODUCTS) 4 It is well established that picketing falls within the scope of Sec. 8(b)(4)(D) so long as one object is to coerce an employer to assign work to employees represented by a particular union rather than to employees represented by another union. See, e.g., Teamsters Local 50 (Schnabel Foundation), 295 NLRB 68 (1989). Thus, it is irrele- vant whether another object of the picketing might have been to maintain area standards. See Plasterers Local 594 (Tectonics Engi- neering), 286 NLRB 259, 260 (1987). 5 The Employer moved to strike portions of Cement Masons Local 502’s brief for failing to comply with the provisions of Sec. 102.67(d) of the Board’s Rules and Regulations. We deny the Em- ployer’s motion, and find that the portions of the brief in question do not warrant striking. 6 Cement Masons Local 502 does have a collective-bargaining agreement with the general contractor at the Holy Sepulchure site, George Allen Construction Co. resents. Mosel further stated that Cement Masons Local 502 would picket the jobsite if the dispute was not resolved in its favor. On January 6, Wesselhoff told Matt that the disputed work belonged to Cement Masons Local 502. Further, although Cement Masons Local 502’s Janu- ary 13 mailgram stated that its interest was not in claiming the work for its members but only in ensuring that the Employer complied with area standards, the mailgram did not serve to effectively disclaim interest in the work in dispute because Cement Masons Local 502 subsequently engaged in conduct inconsistent with its disclaimer. Specifically, Horejs told General Man- ager Matt on January 17 that Cement Masons Local 502 wanted the Employer to assign the work to em- ployees it represents and to remove from the site em- ployees represented by Granite Cutters Local 98-T. We also note that 3 days later, on January 20, Ce- ment Masons Local 502 picketed the jobsite. While the pickets stated only that the Employer did not pay the prevailing area wage rate, it is apparent that at least one object of the picketing was to obtain the disputed work for employees represented by Cement Masons Local 502, as indicated by Mosel’s earlier threats to picket, by Wesselhoff and Horejs’ claims that the work belonged to employees represented by Cement Masons Local 502, and, most importantly, by Mosel’s state- ment on January 21 that the pickets would be removed only if two employees represented by Cement Masons Local 502 were assigned to perform the work in dis- pute.4 Additionally, we note that at the hearing, Mosel testified that he believed Cement Masons Local 502 should be performing the work in dispute. Finally, Granite Cutters Local 98-T informed the Employer by letter dated January 20 that it would take all necessary action, including striking and picketing the jobsite, to protect its work jurisdiction with respect to Cement Masons Local 502’s demand for the work in dispute. In light of the foregoing, we find reasonable cause to believe that Cement Masons Local 502 and Granite Cutters Local 98-T each have violated Section 8(b)(4)(D). We also find pursuant to the parties’ stipu- lation that there exists no agreed-upon method for vol- untary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dispute is properly before the Board for determina- tion.5 E. Merits of the Dispute Section 10(k) requires the Board to make an affirm- ative award of disputed work after considering various factors. NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U.S. 573 (1961). The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by balancing the factors in- volved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the de- termination of the dispute. 1. Collective-bargaining agreements The Employer has a collective-bargaining agreement with Granite Cutters Local 98-T, effective November 19, 1990, through November 18, 1993. Article I of the agreement states that the agreement applies only to the Employer’s plant in South Holland, Illinois. On page 28 of the agreement, under the heading ‘‘MEMO OF UNDERSTANDING ATTACHED TO AGREE- MENT,’’ the agreement states: ‘‘When crypts are de- livered and set at the cemetery, crypt sealing will be done by Permacrete employees.’’ The Employer does not have a collective-bargaining agreement with Cement Masons Local 502.6 We find that the factor of collective-bargaining agreements fa- vors an award to employees represented by Granite Cutters Local 98-T. 2. Employer preference and past practice General Manager Matt testified that the Employer prefers to assign the work in dispute to employees rep- resented by Granite Cutters Local 98-T. Matt further testified that since 1985 the Employer has performed its crypt sealing work using employees represented by Granite Cutters Local 98-T. We find that the factor of employer preference and past practice favors an award to employees represented by Granite Cutters Local 98-T. 3. Relative skills Matt testified that employees represented by Granite Cutters Local 98-T have the necessary skills to per- form the work in dispute. The Employer concedes, 404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD however, that employees represented by Cement Ma- sons Local 502 also have the necessary skills to per- form the work in dispute. We find that the factor of relative skills does not favor an award either to em- ployees represented by Granite Cutters Local 98-T or to employees represented by Cement Masons Local 502. 4. Economy and efficiency of operations Matt testified that it is more economical and effi- cient for the Employer to perform the work in dispute using employees represented by Granite Cutters Local 98-T rather than using employees represented by Ce- ment Masons Local 502. Specifically, Matt stated that employees represented by Granite Cutters Local 98-T work on the entire installation process, including the setting, mixing, sealing, and sweeping out of the crypts, that these employees have the skills to perform each of the tasks involved in the installation process, and that these employees work together in performing all the tasks involved. Cement Masons Local 502 stip- ulated that employees it represents would perform only the crypt sealing function. Thus, by performing the work in dispute using employees represented by Gran- ite Cutters Local 98-T, the Employer will have all of its employees working together on the entire project rather than having certain employees idle while other employees perform the crypt sealing aspect of the in- stallation process. We find that the factor of economy and efficiency of operations favors an award to em- ployees represented by Granite Cutters Local 98-T. Conclusions After considering all the relevant factors, we con- clude that employees represented by Granite Cutters Local 98-T are entitled to perform the work in dispute. We reach this conclusion relying on the factors of col- lective-bargaining agreements, employer preference and past practice, and economy and efficiency of oper- ations. In making this determination, we are awarding the work to employees represented by Granite Cutters Local 98-T, not to that union or its members. The de- termination is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the fol- lowing Determination of Dispute. 1. Employees of Permacrete Products Corporation represented by Tile, Marble, Terrazzo Finishers, Gran- ite Cutters, and Shopmen, Local 98-T, United Brother- hood of Carpenters and Joiners of America, AFL–CIO are entitled to perform the sealing of modular precast concrete burial crypts at the Holy Sepulchre Cemetery in Worth, Illinois. 2. Cement Masons’, Rock Asphalt and Composition Floor Furnishers’ Local Union No. 502 of the Opera- tive Plasterers, Cement Masons Institute of America, AFL–CIO is not entitled by means proscribed by Sec- tion 8(b)(4)(D) of the Act to force Permacrete Products Corporation to assign the disputed work to employees represented by it. 3. Within 10 days from this date of this decision, Cement Masons’, Rock Asphalt and Composition Floor Furnishers’ Local Union No. 502 of the Operative Plasterers, Cement Masons Institute of America, AFL– CIO shall notify the Regional Director for Region 13 in writing whether it will refrain from forcing the Em- ployer, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with the determination.