Bricklayers Local 44

BRICKILAYE RS I.()CAI. 44 Bricklayers and Allied Craftsmen, Union No. 44, AFI.-CIO and aborers International Union of North America, Local Union Nos. 17 and 1000 and Corbetta Construction Company, Inc. Case 2-CD-617 October 28, 1980 DECISION AND DETERMINATION OF DISPUTE BY CIIAIRMAN FANNIN( ANI) MlNsBI:RS JENKINS ANI) PI'NI lA.0O This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Laborers International Union of North America, Local Union No. 17, AFL. CIO, and Laborers International Union of North America, Local Union No. 1000, AFL-CIO, herein Laborers, alleging that Bricklayers and Allied Craftsmen, Local Union No. 44, AFL-CIO, herein Bricklayers, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring Corbetta Con- struction Company, Inc., herein the Employer, to assign certain work to employees represented by it rather than to employees represented by Laborers. Pursuant to notice. a hearing was held before Hearing Officer John R. Westhoff on June 2 and 4, 1980. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evi- dence bearing on the issues. Thereafter, the Em- ployer and Laborers filed briefs. Subsequently, La- borers submitted two statements of position per- taining to, inter alia, its request for a broad work award, and Bricklayers filed a letter in response thereto. All the materials filed have been duly con- sidered. 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 rulings made by the Hearing Officer at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this proceeding, the Board makes the following findings: 1. THI BUSINESS OF THE FMPI.OYIR The parties stipulated, and we find, that the Em- ployer, a New York corporation with its principal place of business in Hamden, Connecticut, is en- gaged in general construction work. During the 12 months preceding the hearing, the Employer pur- chased and received machinery, goods, and sup- 253 NLRB No. 15 plies valued in excess of S50,(00() directly fromn points outside the States of New York and Con- necticut. Based on the foregoing, we find that Corbetta Construction Company, Inc., is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act, and that it wvill effectuate the purposes of the Act to assert jurisdiction herein. 11. 1lil. I AIOR OR(AN IZ.xI ION IN, 0()1 %11) The parties stipulated, and we find, that l.abor- ers and Bricklayers are labor organizations within the meaning of Section 2(5) of the Act. Ill. [ tE I)ISI'tJ l: A. Background and 'Facts o the Dispute The Employer is enigaged as a structural con- crete subcontractor to American Bridge Company, which is erecting the Newburgh-Beacon Bridge No. 2 across the Hudson River in the State of New York. Pursuant to the terms of its contract with thile American Bridge Company, the Employer is in- stalling a concrete deck on the bridge surface. On March 17, 1980,1 the Employer commllenced work on the Newburgh, New York (west), side of the bridge in preparation for the concrete pour. Employees represented by carpenters started the process by laying precut fabricated forms. Then, other employees represented by ironworkers in- stalled reinforcing bars on the forms before em- ployees represented by carpenters set the end bulk- heads. After inspectors from the State of New York had approved the progress of the structure, the Employer placed an order for concrete on April 15. On this date, the Employer also contacted Andrew Gallente, business agent of Bricklayers, to obtain the services of those craftsmen needed to complete this stage of the project. Gallente initially refused to supply any men because the Employer had not executed a collective-bargaining agreement with Bricklayers. Jerry Corbetta, the Employcr's president, immediately called Gallente and prom- ised him that the Employer would sign a contract with Bricklayers by Friday, April 18. Gallentc, in turn, agreed to send bricklayers to the jobsite the following day. When the Employer began surfacing the deck on April 17,2 employees represented by Laborers op- erated the hoses which deposit concrete from a holding tank into the precut fabricated forms in- stalled previously. Employees represented by oper- All dales arc , In {)SO, ilk I -t.. . dii.ted - hi% ll [ *ork s idcl. d I di h IclCl ICrIt x' tl . III I)FtCISI()NS ()OF NATIONA. I.ABO()R RELAI I()NS It()ARI) ating engineers then ran the finishing machines used to level off the concrete. Thereafter. employ- ees represented by Bricklayers used ining tools to give the concrete a fine finish and hand trowels to provide for smooth gutterline. The concrete pour for that day was completed when an employee rep- resented by Laborers performed the spray curing function by hand-pumping a white pigmented sub- stance, which retains water, onto the deck to pre- vent suface cracking. That night, Ben Puitti, the Bricklayers foreman, informed Gallente that employees represented by Laborers had been assigned the spray curing work at the project. Gallente instructed Puitti that he should tell Bricklayers shop steward, Benjamin Trevelli, to grab the spray can the following day so that employees represented by Bricklayers could begin doing this work. Early the next morning, Trevelli and Frank Mar- chese, the Laborers shop steward, engaged in a brief tugging match over possession of the spray can. Trevelli then went to John Ahlsen, the Em- ployer's project superintendent, and told him that there would be no concrete poured that day unless employees represented by Bricklayers were as- signed the spray curing work. When Ahlsen con- tacted Gallente later in the day concerning this matter, Gallente remarked, "No spray curing, no men," emphasizing that Trevelli's action had been in accordance with the instructions he had given. Gallente also mentioned that his men were work- ing without a contract. After the parties were unable to reach any agreement over these issues, Gallente told Trevelli to take the bricklayers off the job. The Employer continued its operations the next 2 working days. On or about April 22, Bricklayers began picketing the project with signs which stated: "No contract between Corbetta and Local 44." Since laborers were the only employees who would cross the picket lines, Ahlsen decided to shut down the entire project. Consequently, the Employer quickly executed a collective-bargaining agreement with Bricklayers the following day. On the basis of this contract, Bricklayers obtained a temporary restraining order from a New York State Supreme Court requiring the Employer to assign spray curing work to employees represented by Bricklayers. The court subsequently altered its work assignment to divide the work equally among employees represented by Laborers and employees represented by Bricklayers. Consequently, the Em- ployer currently is employing a laborer and a bricklayer to perform what ordinarily is a one-man job. B. I'he Work in Dispute The work in dispute concerns the spray curing of poured concrete at the Newburgh-Beacon Bridge Project No. 2. C. The Contentions of the Parties Bricklayers argued at the hearing that there is no reasonable cause to believe that it has violated Sec- tion 8(b)(4)(D) and that, therefore, the dispute is not properly before the Board and the notice of hearing should be quashed. It contended that there is no clear showing that it threatened, coerced, or restrained the Employer with an object of forcing it to assign the spray curing work to employees represented by it. In this regard, Bricklayers assert- ed that the strike was based solely on the Employ- er's refusal to enter into a collective-bargaining agreement with it. In the event that the Board should find that the dispute is properly before it, Bricklayers claimed that its existing contract with the Employer covers the disputed work and that area practice favors an award to the employees it represents. Finally, in its letter to the Board re- sponding to Laborers request for a broad work award, Bricklayers urges that the dispute herein should be submitted to the Impartial Jurisdictional Disputes Board for resolution. The Employer and Laborers contend that the as- signment of the disputed work to employees repre- sented by Laborers should be upheld on the basis of the Employer's preference and past practice, area practice, and their collective-bargaining agree- ment. Laborers also claims that there is a real pos- sibility that the dispute will continue to recur at other jobsites unless the Board makes a broad award of the work. It therefore requests that the Board extend the scope of the work award to cover the performance of all spray curing work within the geographical jurisdiction of Bricklayers. D. Applicability of the Statute Before the Board may proceed with a determina- tion 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) there is no agreed-upon method for the voluntary resolution of the dispute. With respect to (1), above, the record discloses that the Employer assigned the work in dispute to employees represented by Laborers when it com- menced pouring concrete on April 17. The Em- ployer's operations proceeded that day without in- cident as the Bricklayers did not protest this work assignment. The following day, however, Shop Steward Trevelli told Ahlsen "unless he got the 132 BRICKIAYIRS I O()CA 44 spray curing job assigned to him, there will be no Masons or, for that matter, no pour on that date." Business Agent Gallente reiterated this position on behalf of Bricklayers in a telephone conversation with Ahlsen later that afternoon. After Ahisen re- fused to comply with these demands, the bricklay- ers walked off the job. On or about April 22. em- ployees represented by Bricklayers picketed the jobsite causing the Employer to shut down oper- ations for 2 days. While Trevelli and Gallelte denied threatening Ahlsen in any maniner, a con- flict in testimony does not prevent the Board from proceeding under Section 10(k) for, in this type of proceeding, the Board is not charged with finding that a violation did, in fact, occur, but only with determining that reasonable cause exists for finding such a violation. Accordingly, without ruling on the credibility of the testimony at issue. :' we find that there is reasonable cause to believe that Sec- tion 8(b)(4)(D) has been violated. In reaching this conclusion, we note Bricklayers contention that its work stoppage resulted solely from the Employer's failure to enter into a collective-bargaining relation- ship with it. The record plainly shows, however, that Bricklayers was willing to supply workers on the project for several days without a contract until the work assignment dispute arose. Thus, con- trary to the argument raised by Bricklayers, we find that the walkout and subsequent picketing was undertaken with an object of securing the Employ- er's assignment of the spray curing work." With respect to (2), Bricklayers claims that both labor organizations involved herein have agreed to be bound by determinations of the Impartial Juris- dictional Disputes Board. There is no evidence, however, that the Employer participates in and is bound by this method of adjudicating such dis- putes. It is therefore clear that at the time of the instant dispute there did not exist any agreed-upon method for the voluntary adjustment of the dispute to which all parties to the dispute were bound. Ac- cordingly, we find that the matter is properly before the Board for determination under Section 10(k) of the Act. See. e.g., Local 'nion .Ao 334. Lahoreri Internationul 'nion t/ i.;rth America 41L-CIO ( I terw Corporationm. 175 N RH Bo08, N)9 (190) 4The instant case is clearly distinguishable from nirted Selwuorkir, o! America. Local 12970 (Rainbo., Securitr ,Seoumi. Inc.), 250 NRB t)10 (190), where Ihe hoard found that here didl il exist rcas'onahle caulle to believe that Sec (b){4t1)) h ld hbeen violalItd ince the strike therei was over ecn(lloriic demands, rather thail it work assiginlenlt isul I hre, the parties had reached uhstantlial agrccmCnt regarding he ork aIsigin mcnt issue pri(or to the pickctinlg 1i tlt itlistilllt cas. t ppears thai Bricklayers had agreed to to rk on the tiinphi er ' prl ect shiile conlract negtilatllons wuere in prl/gress E. Merits o' lhe Dispute Section 1()(k) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to various relevant flactors.' As the Board has frequently stated, the determination in a jurisdictional dispute case is an act of judgment based on commonsense and experi- ence in weighing these factors. The followving fac- tors are relevant in making a determination of the dispute before us, 1. Board certifications and relevant collective- bargaining agreements 'There is no evidence that either of the labor or- ganizations concerned herein has been certified by the Board as the collective-bargaining representa- tive for a unit of the Employer's employees. Section XVI of the existing collective-bargaining agreement between the Employer and Laborers provides. inter alia. that "waterproofing, spraying and brushing of concrete for preservative pur- poses" shall be assigned to employees represented by Laborers. Therefore, we conclude that the La- borers contract with the Employer covers the work in dispute. The Employer, as noted, subsquent to the begin- ning of the dispute here, executed a contract with Bricklayers on April 23, 1980. Article 4.4 of this agreement states in relevant part as follows: The application of the following materials in- cluding the cleaning, priming and preparation of concrete floor surfaces to receive concrete stains. sealers, curers, hardeners and waxers; the aforementioned materials included in con- crete prior to pouring or in the finishing proc- ess performed during the curing period (not to exceed one week) is the work of the cement masons. In view of the circumstances surrounding the ex- ecution of the Bricklayers agreement, as described above, and the fact that the Employer previously had assigned the disputed work to employees rep- resented by Laborers pursuant to section XVI of their agreement, we find that this provision is enti- tled to less weight than that which we give to the Laborers contract. Accordingly, while there are no certifications which would favor an award of the disputed work to employees represented by either Laborers or V 1 R If s Radio & lh'ivion flriad t hi in, eerr Union, 1 i local 121. Intlrnati al Brotherhod I / Elictriul HirAi-r, .-11.-(1() [C(ol/um- iti lru i a/!nig Si w I,, htn4 S 573 t 19l1 ), lni r It/ional 4 tatiron il Afactll'll t Wi. I sgl . . / 74. -l1 . (10 J -I J i (Consrlruionii C ip'lip- n,,, I N R 141)2 121 1I3 I)t..('ISI()NS ( NA I O()NAI. .AB()R Rl.A I I)NS BO()ARD) Bricklayers, we find that the Laborers existing col- lective-bargaining agreement with the E mployer favors an award of the spray curing work to em- ployces represented by Laborers. 2. Employer assignment and preference The Employer has assigned the work in dispute to its employees who are represented by Laborers, and has manifested a preference to continiue that assignment. We therefore firid that this factor favors an aard of the disputed work to employees represented by laborers. 3. Relative skills I'here are no special skills required in the per- formance of the disputed work. Accordingly we find that this factor does not favor an award to em- ployees represented by either Laborers or Bricklay- ers. 4. Industry and area practice There is no specific evidence regarding the in- dustry practice as to the work in dispute. With re- spect to area practice, John Obermeyer. project su- perintendent for John Arborio, Inc., and Htoward Wein, president of Halmar Construction Corp., tes- tified that their established practice is to assign the spray curing of concrete to employees represented by Laborers and that they had done so on work performed at the Newburgh-Beacon Bridge Project No. 2. Construction contractors Anselm Avignone and Sal Ferreira both testified, however, that their companies regularly assign the disputed work to employees represented by Bricklayers. In view of the foregoing, we conclude that both industry and area practice are inconclusive and do not favor an award to employees represented by either Laborers or Bricklayers. 5. Economy and efficiency of operations The Employer's project superintendent, Ahlsen, testified that the Employer's decision to assign the disputed work to employees represented by Labor- ers was not made for reasons of economy or effi- ciency. Accordingly, we find that these factors are inconclusive and do not favor an award of the dis- puted work to employees represented by either La- borers or Bricklayers. Conclusions Upon consideration of all the relevant factors, we conclude that the Employer's employees who are represented by Laborers International Union of North America, Local Union No. 17, and Laborers International Union of North America, Local Union No. 10XX), are entitled to perform the work in dispute. We reach this conclusion based on the Employer's current collective-bargaining agree- ment with Laborers and the Employer's preference and past practice of assigning the disputed work to these employees. Accordingly, we shall determine the instant dispute by awarding the disputed work to employees represented by Laborers International Union of North America, Local Union No. 17, and Laborers International Union of North America, Local Union No. I(XX), but not to that Union or its members. Additionally, we find that Bricklayers is not entitled by means proscribed under Section X(h)(4)(D) of the Act to force or require the Em- ployer to assign the disputed work to employees rcpresented by it. Scope of the Award Laborers requests that the Board issue a broad award on behalf of the employees it represents to be applicable throughout the Bricklayers territorial jurisdiction. It subsequently reiterated this position in its letter to the Board of July 17, noting that a New York State Supreme Court recently had granted Bricklayers a temporary restraining order regarding performance of the disputed work at an- other jobsite. In doing so, however, Laborers con- cedes that Bricklayers did not employ illegal means in that instance to secure the disputed work for employees it represents. Thus, absent evidence of any such activities, we conclude that the conduct engaged in by Bricklay- ers in this proceeding "does not demonstrate a pro- clivity on [its] part . . . to engage in further unlaw- ful conduct. Nor does [Bricklayers] alleged interest in obtaining work similar to that in dispute here, as such work becomes available on future [area] jobs, demonstrate the likelihood that [it] will again resort to unlawful means to obtain it. " 6 We therefore find that the issuance of the broad order sought by La- borers is not warranted in this case. Thus, our pres- ent determination is limited to the particular con- troversy 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 Corbetta Construction Compa- ny, Inc., who are represented by Laborers Interna- Loc(al l'fnion .Vo. 417. Inicrnat naul .4so atriton {o Bridgl'. Stru(tural andt Ornamental Iron.orAcr .. ,. L ( /CO (.Spat'rt \eorthccu. In. , 21 NI RH 96. 99 (1975); I.,oal V\; 6, Internaurmnal 1to¢tarotfl o/ ridge ,Strut ural & ()rnoa cnal IrOonrnrrA (.Spat nrote .Aortheua. Int -I, 1g NI R 1182, 1185 (1972) 114 BRICKILAYERS LO()CAI. 44 tional Union of North America, Local Union No. 17, and l.aborers International Union of North America, Local Union No. 10(X), are entitled to perform the work involved in the spray curing of concrete at the Newburgh- Beacon Bridge Project No. 2. 2. Bricklayers and Allied Craftsmen, Local Union No. 44, AFL-CIO, is not entitled by means proscribed by Section X(b)(4)(D) of the Act to force or require Corbetta Construction Company, Inc., to assign the disputed work to employees rep- resented by it. 3. Within 10 days fromn the date of this l)ccision and Detcrmination of Dispute, Bricklayers and Allied Craftsmen, I.ocal Union No. 44, AFI.-C I(), shall notify the Regional I)irector for Region 2, n writing, whether or not it will refrain fromi forcilng or requiring Corbetta ConstruCetiio Company. Inc. by means proscribed by Section 8(b)(4)([)) of hC Act, to assign the disputed work to employees rep- resented by it rather than to employees rreslntcd by Laborers International Union of North Amer- ica, Local Union No. 17, and I aborers Internalion- al Union of North America, I.ocal Union No. 1(00. I ,