Plasterers Local 502 (Elliot Construction)

PLASTERERS LOCAL 502 (ELLIOT CONSTRUCTION) 815 Cement Masons’ Local Union No. 502 Operative Plas- terers’ and Cement Masons’ International Asso- ciation of the United States and Canada and El- liot Construction Corporation and Chicago and Northeast Illinois District Council of Carpen- ters, United Brotherhood of Carpenters and Joiners of America, AFL–CIO. Case 13–CD– 599 April 4, 2001 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN AND WALSH The charge in this Section 10(k) proceeding was filed on December 29, 2000, by the Employer, Elliot Con- struction Corporation (Elliot Construction or Employer), alleging that the Respondent, Cement Masons’ Local Union No. 502 Operative Plasterers’ and Cement Ma- sons’ International Association of the United States and Canada (Cement Masons), 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 Chicago and Northeast Illi- nois District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL–CIO (Car- penters). The hearing was held on January 17, 2001, before Hearing Officer Cathy Brodsky. The National Labor Relations Board has delegated its authority 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 re- cord, the Board makes the following findings. I. JURISDICTION The Employer, an Illinois corporation with its princi- pal place of business located in Glen Ellyn, Illinois, is engaged in the business of concrete construction. It an- nually has gross revenues in excess of $50,000 from its performance of services to public utilities, transit sys- tems, newspapers, healthcare institutions, broadcasting stations, commercial buildings, educational institutions, and/or retail concerns. 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. We further find, based on the stipulation of the parties, that the Ce- ment Masons and the Carpenters are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute Elliot Construction has been engaged in the business of concrete construction for residential, commercial, and industrial construction projects for the past 47 years. Elliot Construction has collective-bargaining agreements with both Unions. Elliot Construction was hired as a cement subcontrac- tor to perform several concrete construction projects on a jobsite at Harper College in Palatine, Illinois, and began work on the project in July 2000.1 Elliot Construction began performing the disputed work, forming concrete stairs and risers, in October.2 Elliot Construction as- signed the disputed work to employees represented by the Cement Masons as it had done for the past 47 years. In a telephone call in early November, the Carpenters advised the Employer that the Harper College form work should be reassigned to employees the Carpenters repre- sented. This demand was reiterated in a December 14 letter that further stated that if the Employer failed to reassign the work, then the Carpenters’ members should be paid in lieu of the form work not reassigned. On De- cember 21, the Cement Masons informed the Employer by letter that if Elliot Construction reassigned the work as the Carpenters demanded, the Cement Masons would strike and picket in order to maintain the work originally assigned to it. This charge followed and a 10(k) hearing was con- ducted. Neither Union has disclaimed interest in the work. B. The Work in Dispute The work in dispute is forming concrete stairs and ris- ers on a jobsite located at Harper College, 1200 W. Al- gonquin Road, Palatine, Illinois.3 C. Contentions of the Parties The Employer and Cement Masons contend that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that the work in dispute should be awarded to employees represented by the Cement Ma- sons based on the Employer’s collective-bargaining agreement with the Cement Masons, the Employer’s preference, past practice, area practice, relative skills, and the economy and efficiency of operations. The Car- penters contend that there is no jurisdictional dispute here because the Carpenters did not make a demand for the work and consequently there are not competing claims for the disputed work. The Carpenters contend 1 All dates hereafter are in 2000, unless otherwise noted. 2 Forming stairs and risers involves setting a piece of wood, known as a board, riser, or screed, to the desired shape. After this is com- pleted, concrete is poured. The wood is removed as the concrete hard- ens. The disputed work concerns only forming. 3 The Employer and the Cement Masons stipulated to this descrip- tion of the work in dispute. Although the Carpenters did not join this stipulation, it is clear from the record that the work in dispute is the forming of concrete stairs and risers. 333 NLRB No. 96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 816 that it is requesting that wages be paid to its members if the Employer utilizes noncarpenters to perform carpenter jurisdictional “form work.” The Carpenters also assert that there is an agreed-upon method for the voluntary resolution of this dispute. The Carpenters accordingly have moved that the Board quash the notice of hearing. D. Applicability of the Statute Before the Board may proceed with determining a dis- pute pursuant to Section 10(k) of the Act, two jurisdic- tional prerequisites must be met. First, the Board must find reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated. This requires a finding that there are competing claims to the disputed work between rival groups of employees and that there is reasonable cause to believe that a party has used proscribed means to enforce its claim. Second, the Board must find that no method for the voluntary adjustment of the dispute has been agreed on. In November, and again in December, the Carpenters demanded that the Harper College form work, which the Employer had assigned to employees the Cement Ma- sons represent, be reassigned to employees it represents. The record further establishes that the Cement Masons threatened the Employer with a strike and picketing if the form work was assigned to employees represented by the Carpenters. Clearly, there are competing claims for the disputed work between rival groups of employees4 and there is reasonable cause to believe the Cement Masons threatened to use proscribed means to enforce its claim if the work was reassigned. The Employer and the Cement Masons stipulated that there is no agreed-upon method to adjust the dispute vol- untarily. Although the Carpenters claimed that such a method exists, the Carpenters pointed to no evidence that all parties are bound by a single mechanism for adjusting the dispute. We find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed-upon method for voluntary adjustment of the dis- pute to which all parties are bound within the meaning of Section 10(k) of the Act. Accordingly, we deny the Car- penters’ motion to quash the notice of hearing and find that the dispute is properly before the Board for determi- nation. E. Merits of the Dispute Section 10(k) requires the Board to make an affirma- tive award of disputed work after considering various factors. See NLRB v. Electrical Workers IBEW Local 4 We find no merit to the Carpenters’ contention that its December 14 letter was not a demand for the disputed work to be reassigned to employees it represents. 1212 (Columbia Broadcasting), 364 U.S. 573 (1961). The Board has held that its determination in a jurisdic- tional dispute is an act of judgment based on common sense and experience, reached by balancing the factors involved in a particular case. See Machinists Lodge 1743 (J.A. Jones Construction), 135 NLRB 1402, 1410– 1411 (1962). The following factors are relevant in making the de- termination of this dispute.5 1. Certifications and collective-bargaining agreements The parties stipulated there are no Board certifications concerning the employees involved in this dispute. The Employer is bound by collective-bargaining agreements with both the Cement Masons and with the Carpenters. Section 6A, paragraph 1 of the agreement between the Employer and the Cement Masons provides that “the setting of all strips, screeds, and bulkheads when set to grade and used as a screed” shall be per- formed by cement masons under this agreement. Patrick Rizio, a Cement Masons’ business agent, testified that a screed is another term for the form boards that are at is- sue in this dispute. Although the Carpenters claimed its contract with the Employer covered the disputed work, the Carpenters did not specify the language on which it relied. Article 1 of its contract states that the Carpenters’ occupational jurisdiction is “the milling, fashioning, join- ing, assembling, erection, fastening or dismantling of all material of wood, plastic, metal, fiber, cork, and compo- sition, and all other substitute materials.” We find that section 6A of the agreement between the Employer and the Cement Masons, particularly in light of Rizio’s uncontradicted testimony, more specifically pertains to the work in dispute. See Steelworkers Local 392 (BP Minerals), 293 NLRB 913, 914–915 (1989). The factor of collective-bargaining agreements accord- ingly favors an award of the disputed work to employees represented by the Cement Masons. 2. Employer preference and past practice The Employer assigned the disputed work to employ- ees represented by the Cement Masons and prefers that the work in dispute continue to be performed by employ- ees represented by the Cement Masons. Robert Elliot, president and owner of the Employer, testified that for the past 47 years Elliot Construction has consistently assigned the type of work in dispute to the employees represented by the Cement Masons. He fur- ther testified that Elliot Construction has never assigned this type of work to employees represented by the Car- penters. We accordingly find that this factor favors an 5 The Carpenters called no witnesses during the hearing. PLASTERERS LOCAL 502 (ELLIOT CONSTRUCTION) 817 award of the disputed work to employees represented by the Cement Masons. 3. Area and industry practice Elliot testified that in his more than 40 years of experi- ence the forming of concrete risers and stairs has always been performed by cement masons. Further, Elliot testi- fied that on the Harper College job and on the hundreds of other similar jobs completed by Elliot Construction in the area he has assigned such work to cement masons. Rizio similarly testified that based on his 30 years of experience the forming of concrete risers and stairs has traditionally been the work of cement masons. He fur- ther stated that other employers in the area likewise as- sign such work to cement masons. The Carpenters did not submit any evidence to the contrary. We accordingly find that the factor of area practice6 favors awarding the work in dispute to the employees represented by the Ce- ment Masons. 4. Relative skills Elliot testified that employees represented by the Ce- ment Masons possess the requisite skill and ability to perform the disputed work. Rizio testified that cement masons undergo apprenticeship programs designed to train them to recognize the appropriate time to remove the screeds after the concrete has been poured, so as not to spoil the concrete, and to be familiar with the steps and layout involved in the forming and pouring process. The Carpenters did not submit any evidence concerning the skills of Carpenters-represented employees. Based on the evidence submitted by the Employer and Cement Masons, we find that this factor favors awarding the dis- puted work to employees represented by the Cement Ma- sons. 6 The parties did not present any evidence regarding industry prac- tice. 5. Economy and efficiency of operations Elliot testified that it is more economical to assign the disputed work to cement masons, who perform pouring work as well as the disputed forming work. To assign employees represented by the Carpenters to perform the disputed work would require operating with two crews, and carpenters would be idle when cement masons were pouring. Clearly, it is more efficient to assign the dis- puted work to employees who can perform both forming and pouring. Accordingly, we find that this factor favors awarding the work in dispute to employees represented by the Cement Masons. CONCLUSIONS After considering all the relevant factors, we conclude that the Employer’s employees represented by the Ce- ment Masons are entitled to perform the work in dispute. We reach this conclusion relying on the factors of collec- tive-bargaining agreement, employer preference and past practice, area practice, relative skills, and economy and efficiency of operations. In making this determination, we are awarding the disputed work to employees repre- sented by Cement Masons’ Local Union No. 502 Opera- tive Plasterers’ and Cement Masons’ International Asso- ciation of the United States and Canada, not to that Un- ion or to its members. This determination is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the follow- ing Determination of Dispute. Employees of Elliot Construction Corporation, repre- sented by Cement Masons’ Local Union No. 502 Opera- tive Plasterers’ and Cement Masons’ International Asso- ciation of the United States and Canada are entitled to perform the work of forming concrete stairs and risers on a jobsite located at Harper College, 1200 W. Algonquin Road, Palatine, Illinois.