Laborers' International Union Of North America, Local No. 4

230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Laborers' International Union of North America, Local No. 4 and The Cleveland Marble Mosaic Co. and Local No. 102, Marble Finishers and Polishers, affiliated with Tile, Marble, Terraz- zo, Finishers & Shopmen International Union AFL-CIO. Case 13-CD375 6 August 1987 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JOHANSEN, BABSON, AND STEPHENS The charge in this Section 10(k) proceeding was filed 5 November 1986 by the Employer, alleging that the Respondent, Laborers' Local No. 4, violat- ed Section 8(b)(4)(D) of the National Labor Rela- tions Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to a composite crew composed of these employees and employees represented by Marble Finishers Local 102. The hearing was held 23 December 1986 before Hearing Officer Danielle Faulkner. The Em- ployer and Laborers subsequently filed briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board affirms the hearing officer's rulings, finding them free from prejudicial error. On the entire record, the Board makes the following find- ings. I. JURISDICTION The Company, an Ohio corporation, is engaged in the business of the installation of stone, such as marble, granite, and tile, on a nationwide basis. During the 12-month period preceding the hearing, a representative period, the Company purchased goods and materials valued in excess of $50,000 from directly outside the State of Illinois. During this same period, the Company performed work valued in excess of $50,000 for firms which are themselves engaged in interstate commerce. The parties stipulate, and we find, that the Employer is engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act and that Laborers and Marble Finishers are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute Turner Construction Company is engaged in the construction of a commercial building at 225 W. Washington Street in Chicago , Illinois. When the project began about May 1985 , Turner subcontract- ed the granite installation work at the site to Conti- nental Marble and Granite. Continental subsequent- ly encountered financial difficulties that hindered its ability to complete the work. Thus, in October 1986,1 Turner entered into a contract with the Em- ployer to perform some of the granite installation work on the project. The Employer's work there involves installing granite on the main arch of the arcade that surrounds the building and extends to the sidewalk, the columns that support the arcade, and the "return" portion of the building. Turner was familiar with the Employer through prior dealings on another project at 10 South La- Salle Street in Chicago. Before commencing work on that project, the Employer entered into collec- tive-bargaining agreements with the Laborers and the Marble Finishers which are also applicable to the present jobsite. At 10 South LaSalle Street, the Employer assigned the work of assisting the stone setters in installing the granite to employees repre- sented by Laborers. Employees represented by the Marble Finishers were assigned the work of assist- ing the marble setters in the installation of marble vanity tops. Although the Marble Finishers also claimed for employees it represents the granite in- stallation work described above and filed a griev- ance over the Employer's failure to assign them such work, Laborers-represented employees fm- ished that work before the dispute was resolved. On the 225 W. Washington Street project, Conti- nental Marble had assigned the work of assisting the stone setters in the granite installation work to employees represented by the Marble Finishers. Upon learning that the Employer would begin per- forming some of this work, the stone setters, who are represented by a union which is not involved here, indicated that they might strike if the Em- ployer used Laborers-represented employees to assist them. On 27 October Anthony Abri, Turner Construc- tion's project superintendent, held a meeting at the jobsite in an effort to resolve the dispute. Marble Finishers Business Agent Paul Nagel suggested to Laborers Business Agent Bill Hostey that the two unions equally divide all the disputed granite instal- lation work. Nagel and Abri both testified that Hostey agreed to this resolution. Hostey testified, in contrast, that he agreed to a composite crew only on the granite installation work being done inside the building. Because this interior work was completed more than a month before the hearing, Hostey claimed that the remaining exterior work should have been assigned exclusively to employ- ees represented by the Laborers. Furthermore, ac- 1 All dates are in 1986 unless otherwise noted. 285 NLRB No. 34 LABORERS LOCAL 4 (CLEVELAND MARBLE) cording to Hostey, the composite crew arrange- ment for the interior work was only to remain ef- fective until the Board made its work award. On 28 October Hostey sent a letter to the Em- ployer in which he threatened to strike if the Em- ployer reassigned any of the work "presently being performed by Laborers" to another group of em- ployees. The Employer then filed the instant unfair labor practice charge on 5 November. Thereafter, the Employer followed its understanding of the parties' 27 October agreement by assigning the dis- puted granite installation work to a composite crew composed of one employee represented by each labor organization. B. Work in Dispute The disputed work involves the work of assisting the stone setters in installing granite on the jobsite located at 225 W. Washington Street, Chicago, Illi- nois.2 C. Contentions of the Parties The Employer contends that the Laborers violat- ed Section 8(b)(4)(D) of the Act by threatening to engage in a work stoppage if the Employer reas- signed any of the disputed work to employees rep- resented by the Marble Finishers. Based on its view that none of the factors that the Board his- torically relies on in this kind of case is dispositive here, the Employer argues that its assignment of the disputed work at the 225 W. Washington Street jobsite to a composite crew should be upheld for the duration of the project. The Employer empha- sizes that at this jobsite it was confronted with a situation where work traditionally assigned to em- ployees represented by Laborers was being per- formed for another subcontractor by employees represented by the Marble Finishers and where both its own collective-bargaining agreements with these Unions arguably cover the disputed work, which is not easily classified as "exterior" (Labor- ers) work or "interior" (Marble Finishers) work. Although Marble Finishers filed no brief, it argued at the hearing that the Board should affirm the par- ties' 27 October agreement whereby a composite crew performs all the disputed work. Laborers argues that its contract with the Em- ployer, the Employer's original work assignment and past practice, area and industry practice, and efficiency and economy of operations favor an award of the disputed work to employees it repre- sents. Laborers claims that it was the general con- 2 Although the notice of hearing states that the dispute also encom- passed such work at the 10 South LaSalle Street project noted above, the parties stipulate at the hearing that the jobsite there is no longer involved in this dispute 231 tractor, Turner Construction, which demanded that the Employer change its original work assignment and assign the disputed work to a composite crew because Turner Construction sought to avoid a possible work stoppage. Finally, since the Marble Finishers did not claim any exterior installation work on the 10 South LaSalle Street project, La- borers contends that the Marble Finishers has dis- claimed at least this portion of the disputed work at the jobsite involved here. 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) that there is no agreed-upon method for the voluntary resolution of the dispute. With respect to the first requirement, the record discloses that on 28 October the Laborers sent a letter to the Employer threatening to strike if the Employer reassigned any of the disputed work to employees represented by the Marble Finishers. Accordingly, we find that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated. In reaching this conclusion, we note that the Marble Finishers' failure to claim the exte- rior granite installation work on an earlier project does not support a finding, as the Laborers asserts, that the Union has disclaimed an interest in such work on the 225 W. Washington Street jobsite. Furthermore, we note that at the hearing the Marble Finishers claimed any exterior work that extends from the building and which can be reached from scaffolding. With respect to the second requirement, we find that the agreement the parties allegedly reached was not a voluntary adjustment of the instant dis- pute within the meaning of Section 10(k) of the Act. We emphasize that the parties themselves dis- pute the scope and duration of the agreement and that both Unions continue to claim the disputed work. Accordingly, we find that this dispute is properly before the Board for determination. E. Merits of the Dispute Section 10(k) requires the Board to make an af- firmative 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 bal- ancing the factors involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). 232 DECISIONS OF' THE NATIONAL LABOR RELATIONS BOARD The following factors are relevant in making the determination of this dispute. 1. Board certifications and relevant collective- bargaining agreements There is no evidence that either of the labor or- ganizations involved in this case has been certified by the Board as the collective-bargaining represent- ative for a unit of the Employer's employees, and this factor therefore has no bearing on our determi- nation of which group of employees should be awarded the work. Section IX(h) of the collective-bargaining agree- ment between the Employer and the Laborers pro- vides that employees represented by the Laborers shall perform the work of "helping the stone set- ters set and distribute dimensional cut stone, terra cotta, granite or prefabricated materials replacing or substituted for cut stone, etc." We conclude that this provision specifically covers the work in dis- pute. We further note that article I, section 1 of the Marble Finishers' contract with the Employer pro- vides that: The bargaining unit covered by this Agree- ment shall consist of all employees employed by the Employer engaged in work covered by the occupational jurisdiction of the Union, in- cluding but not limited to handling, erection or installation of Interior Marble, Slate, Traver- tine, Art Marble, Serpentine, Alberene Stone, Blue Stone and other stones (meaning as to stone any foreign or domestic materials as are specified and used in building interiors and customarily known as stone in the trade): Car- rara, Sanionyx, Vitrolite and similar opaque glass and the laying of all marble tile, Terrazzo tile and Slate tile, or any other materials that may be used as substitutes for any of the afore- mentioned materials where used on exterior work up to and including two inches of thick- ness. Although this provision does not literally cover granite installation work, it does refer to stone in- stalled on "exterior work up to and including two inches of thickness." Business Agent Nagel testified that the granite being installed at the 225 W. Wash- ington Street building "would probably be an inch to an inch and a half' thick. Consequently, the Marble Finishers' contract arguably could cover the work in dispute. However, the Marble Finish- ers contends that the disputed work should be awarded on a composite crew basis. In light of that contention, it appears that the Marble Finishers' contract with the Employer is not being advanced by the Marble Finishers to support an award of the work to employees represented by that union. The Employer has no contract that covers the disputed work on a composite crew basis and, as noted above, there is no agreement between all the parties that could serve as a substitute for such a contract. We conclude that the relevant collective-bargain- ing agreements tend to favor an award of the dis- puted work to employees represented by Laborers because the Employer has no contract that pro- vides for a composite crew to' perform such work and because the Marble Finishers does not appear to rely on their contract with the Employer. 2. The Employer's preference The Employer admits that it has "historically as- signed" the work of assisting in the installation of exterior stone to employees represented by laborers at jobsites throughout the country. Consistent with its established practice, the Employer initially as- signed such work to these employees on the 225 W. Washington Street- project. The Employer's preference changed to a composite crew only after there were rumors at the jobsite that stone setters might cause a work stoppage if Marble Finishers- represented employees did not perform at least some of the work. Notwithstanding that the Em- ployer now professes a preference for a composite crew to perform the work, in evaluating the factor of employer preference, we cannot ignore these circumstances which apparently caused -the change in the Employer's longstanding past assignment of the work in dispute. Therefore, we are unable to accord as much weight to this factor in making our award of the work in dispute as we would have if the evidence had established that the preference fa- voring a composite crew had been freely made be- forehand.3 To the contrary, in view of the long period of employer preference favoring employees represented by Laborers, we find that this factor is at least equally favorable to those employees as to the composite crew that the Employer claims it prefers. 3. Employer's past practice As stated, before the instant dispute arose, the Employer consistently assigned work similar to the disputed work to employees represented by Labor- ers. We therefore conclude that this factor clearly favors an award to these employees. 8 See generally Ironworkers Local 380 (Stobeck- Masonry), 267 NLRB 284, 287 fn. 8 (1983); Bricklayers Local I (St. Louis Home Insulators), 209 NLRB 1072, 1076 (1974). LABORERS LOCAL 4 (CLEVELAND MARBLE) 233 4. Relative skills and efficiency and economy of operations It is clear from this record that either employees represented by Laborers or a composite crew of Laborers and Marble Finishers is equally capable of performing the disputed granite installation work. Additionally, there is no evidence that effi- ciency and economy of operations has an impact on the outcome of this dispute. We therefore find that all these factors are inconclusive and do not favor an award of the disputed work to either group of employees. 5. Industry and area practice There is no specific evidence regarding the in- dustry practice for the disputed work. Regarding area practice, Laborers Business Agent Hostey tes- tified the employees represented by Laborers gen- erally perform the disputed work in the Chicago area. Marble Finishers Business Agent Nagel stated, however, that employees represented by his Union also have performed the disputed work for Continental Marble and other Chicago area em- ployers. Since, however, there is no evidence showing that a composite crew has performed the disputed work in this area, we find that this factor tends to favor an award to Laborers-represented employees over an award to the composite crew. 6. Agreements between the parties There was testimony, as noted, that the parties agreed to resolve the instant dispute by assigning the granite installation work to a composite crew. Laborers contends, however, that the agreement was of an interim nature and only applied to work performed inside the building. In these circum- stances, we find that this factor is inconclusive and does not favor an assignment of the disputed work to either group of employees. Conclusions After considering all the relevant factors, we conclude that employees represented by Laborers' International Union of North America, Local No. 4 are entitled to perform the work in dispute. We reach this conclusion relying on the Employer's past practice of assigning the disputed work to these employees, its collective-bargaining agree- ment with Laborers, and area practice. In making this determination, we are awarding the work to employees represented by Laborers' International Union of North America, Local No. 4, not to that Union or its members. The determination is limited to the controversy that gave rise to this proceed- ing. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. Employees of The Cleveland Marble Mosaic Company who are represented by Laborers' Inter- national Union of North America, Local No. 4 are entitled to perform the work of assisting the stone setters in installing granite on the jobsite located at 225 W. Washington Street, Chicago, Illinois.