Plasterers Local 594 (Tectonics Engineering)

PLASTERERS LOCAL 594 (TECTONICS ENGINEERING) 259 Local Union No. 594 of the Operative Plasterers and Cement Masons International Association of the United States and Canada, AFL-CIO and Tec- tonics Engineering & Contracting Inc. and Con- struction and General Laborers Union Local No. 185, Laborers International Union of North America, AFL-CIO. Case 32-CD-1101 30 September 1987 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFr The charge in this Section 10(k) proceeding was filed 16 March 19871 by the Employer, alleging that the Respondent, Local Union No. 594 of the Operative Plasterers and Cement Masons Interna- tional Association of the United States and Canada, AFL-CIO (Cement Masons) 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 em- ployees it represents rather than to employees rep- resented by the Construction and General Laborers Union Local No. 185, Laborers International Union of North America, AFL-CIO (Laborers). The hearing was held 9 April 1987 before Hearing Officer Douglas Gallop. 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. 1. JURISDICTION The Company, a California corporation, engages in epoxy coating work appropriate for the con- struction industry. In the 12 months prior to the hearing, it has received materials valued in excess of $50,000 directly from sellers located outside the State of California. We find that the Employer is engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act and that the Cement Masons and the Laborers are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute Since January, the Employer has been involved in the construction of an addition to the University of California Life Sciences Building. Perini Corpo- ' All dates refer to 1987 unless otherwise indicated. ration (Perini), the general contractor overseeing the construction project, subcontracted the painting and integrated floor and wall system work to W. G. Thompson. Thompson then subcontracted the integrated wall and floor system work to the Employer. Such work, referred to here as epoxy coating work, entails, inter alia, the preparation and application of epoxy substances to the walls, floor, and ceiling of a room to eliminate seams or joints. Perini was party to a contract with the Cement Masons, but the Cement Masons did not have a collective-bargaining agreement with the Employ- er. The Laborers did have a collective-bargaining agreement with the Employer, but it expired in September 1986. Employees represented by the La- borers were still working for the Employer and doing the epoxy coating work covered under the expired agreement when the dispute over that work arose in February. Gerald Robinson, the project superintendent for Perini Corporation, testified that Paul Rogers (or Rodgers), a Cement Masons representative, visited his office twice in February. During their first con- versation, Rogers claimed the Laborers were using cement masons' tools2 and therefore doing the cement masons' work. Robinson replied that juris- dictional disputes were to be handled by the unions and that Perini was not getting involved. In the second conversation, approximately 2 weeks later, Rogers, when asked, informed Robinson that the jurisdictional dispute had not been resolved. While in Robinson's office, Rogers spoke by telephone with Gordon Douglas, Perini's labor relations rep- resentative, and told Douglas that Rogers would not back down from a fight. On 2 March the Cement Masons picketed the jobsite, resulting in the Employer's removal from the job on 3, 4, and 5 March. Subsequently, the Employer signed an agreement with the Laborers on 5 March extend- ing the terms of their previous contract through July and specifically assigning the disputed work to Laborers.3 The Employer returned to the jobsite on 6 March. On 9 March Rogers spoke to the Employer's vice president, James Falls, and complained that the Employer was treating the cement masons like "stepchildren," stating that "it's our work, we should be doing it and you should be dealing with us." Falls replied that he had an agreement with the Laborers to do the epoxy coating work and 8 The tools referred to were trowels used in the application of epoxy substances. 8 On 31 March the Laborers and the Employer signed both a memo- randum agreement and a letter of understanding essentially confirming their continuing bargaining relationship reflected in the 5 March agree- ment. 286 NLRB No. 23 260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that the Laborers had done this work for the Em- ployer for many years. Approximately 3 days later, Falls received a letter from the Cement Masons' Contract Administration Fund informing the Em- ployer that the Cement Masons had filed a griev- ance against the general contractor, Perini, claim- ing the epoxy coating work . Falls replied in a letter that the Employer had no collective-bargaining agreement with the Cement Masons and that the jurisdictional dispute should be directed towards the Laborers and not the Employer. On 13 March the Cement Masons resumed pick- eting at the jobsite, effectively shutting down the project.4 On 16 March Steve Thompson, the project manager for W. G. Thompson, informed Falls that Perini was upset about the picketing and asked the Employer to leave the jobsite. Picketing continued on 16, 17, and 18 March, with the Em- ployer removing its employees from the jobsite on 18 March; 5 it resumed operations on 1 April., B. Work in Dispute The work in dispute involves the application of epoxy substances to the walls, floors, and ceilings of the Life Sciences Building at the University of California located in Berkeley, California. C. Contentions of the Parties Only the Employer appeared at the hearing and filed a brief in this proceeding. The Employer con- tends that reasonable cause exists to believe that the Cement Masons violated Section 8 (b)(4)(D) and that the work in dispute should be awarded to the employees represented by the Laborers currently performing the work. The Employer bases its con- tention on the collective-bargaining agreement with the Laborers, past practice and area practice of as- signing epoxy coating work to employees repre- sented by the Laborers, the efficient assignment of the work to these employees , their specialized skill in performing the work, and employer preference. D. Applicability of the Statute It is undisputed that Cement Masons Representa- tive Paul Rogers informed Perini that its jurisdic- tional dispute was not resolved and that the Cement Masons would not back down from a fight. Following the assignment of the disputed 4 The picket sign stated "Tectonics Fails to Pay Wages & Fringes Es- tablished By Cement Masons In This Area " Robinson testified that on 13 March he offered to provide Rogers with the 5 March agreement entered into by the Employer and the Laborers and the Laborers' letter claiming the disputed work, but Rogers refused to accept them b The picket signs on these days bore the same legend as the 13 March sign 6 On 31 March the Region filed a petition for a 10(l) preliminary in- junction work to employees represented by the Laborers, the Cement Masons picketed the jobsite and caused both the temporary shutdown of the project and the temporary ouster of the Employer from the jobsite. Although the message on the picket signs was couched in "area standards" language, the evi- dence adduced at the hearing indicated that the picketing was in furtherance of the Cement Masons claim to the disputed work and that, indeed, an object of that picketing was to obtain the assign- ment of such work for employees represented by the Cement Masons. Thus, it is immaterial that an- other object of the picketing might have been to maintain area standards.7 One proscribed object, as here, is sufficient to bring a union's conduct within the meaning of Section 8(b)(4)(D). Carpenters Local 953 (T & P Iron Works), 266 NLRB 617, 618 (1983); Electrical Workers IBEW Local 701 (Ar- gonne National Laboratory), 255 NLRB 1157, 1161 (1981). We conclude, therefore, that there is rea- sonable cause to believe that an object of the Cement Masons picketing was to force or require the Employer to assign the disputed work to em- ployees it represents. Accordingly, we find that a jurisdictional dispute exists under Section 8(b)(4)(D) of the Act. Because there is no evidence of any agreed-upon method for voluntarily adjusting the dispute within the meaning of Section 10(k), we find that the dis- pute is properly before the Board for determina- tion. 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). The following factors are relevant in making the determination of this dispute. 1. Collective-bargaining agreements The Laborers have an established collective-bar- gaining relationship with the Employer dating back to 1980. Both the 1980 and 1983 agreements con- tain provisions that refer to the types of skills and tools used by laborers in performing the epoxy coating work. These same skills and tools have ' We find it unnecessary to determine whether such an object in fact existed PLASTERERS LOCAL 594 (TECTONICS ENGINEERING) 261 been used at the jobsite. As noted previously, the Laborers signed an extension of the 1983 agree- ment with the Employer effective through July. The Cement Masons has never had an agreement with the Employer to do the epoxy coating work. We find this factor favors an award to the employ- ees represented by the Laborers. 2. Past practice and employer preference Since its inception in 1979, the Employer has as- signed epoxy coating work to laborers and prefers to maintain such an assignment at the Life Sciences Building jobsite. We therefore find the factor of past practice and employer preference favors an award to employees represented by the Laborers. 3. Area and industry practice The Employer's president, Michael Heraty, testi- fied that he did not know whether the Employer's competitors in the northern California area have collective-bargaining agreements with the Cement Masons to do epoxy coating work. Heraty did tes- tify that out of the over 1000 jobs the Employer has performed in the northern California area, the Cement Masons have never claimed any of the work. We find Heraty's testimony inconclusive in determining the area practice standards of northern California. There is no evidence regarding industry practice. Accordingly, we find the factor of area and industry practice favors neither group. 4. Specialized skills and efficiency of operations Vice President Falls testified extensively regard- ing the complexities concerned with the 18-step epoxy coating process that results in an integrated wall and floor system and claimed that only certain steps of the process involve work normally per- formed by cement masons. Employees represented by the Laborers possess the specialized skills neces- sary to perform all the work of the 18-step proc- ess.8 On the other hand, there is insufficient evi- dence to establish that cement masons have the requisite skills to perform the entire 18-step proc- ess.9 Thus, an award of some of the epoxy coating work to cement masons would create the need for an additional crew at the jobsite to complete the 18-step process. Falls testified that because the s In addition, we note the Employer's undisputed claim that the epoxy application process at issue was invented by the Employer with the as- sistance of its Laborers-represented employees 9 Falls testified that he explained the nature of the work to Rogers, and Rogers claimed he had people who could do the work We find this testimony insufficient to show that cement masons could engage in all phases of the 18-step process epoxy coating work is one of the final steps in the construction process, several other crafts would be in the various rooms of the Life Sciences Building completing their assignments and causing more delay. Falls also claimed that it would be impossi- ble to ascertain when cement masons would be needed to complete their phase of the process be- cause each room would be ready for a particular phase at a different time. In sum, without having the necessary flexibility of one crew with all the requisite skills needed for each step of the epoxy coating process, cement masons would have to wait for rooms to become ready to complete their part of the process. We find that the employees represented by the Laborers possess the specialized skills to efficiently perform the work in dispute and that this factor favors an award to them. Conclusions After considering all the relevant factors, we conclude that employees represented by the Labor- ers are entitled to perform the work in dispute. We reach this conclusion relying on the Employer's collective-bargaining agreement with the Laborers, its past practice and preference of assigning the work to laborers, and the specialized skills and effi- ciency of operations gained by assigning the disput- ed work to employees represented by the Laborers. In making this determination, we are awarding the work to employees represented by the Laborers, not to that Union or its members. The determina- tion is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Employees of Tectonics Engineering & Con- tracting Inc., represented by Construction and General Laborers Union Local No. 185, Laborers International Union of North America, AFL-CIO are entitled to perform the work of applying epoxy substances to the walls, floors, and ceilings of the University of California Life Science Building, Berkeley, California. 2. Local Union No. 594 of the Operative Plaster- ers and Cement Masons International Association of the United States and Canada, AFL-CIO is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Tectonics Engineering & Con- tracting, Inc. to assign the disputed work to em- ployees represented by it. 262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3. Within 10 days from this date, Local Union will refrain from forcing the Employer, by means No. 594 of the Operative Plasterers and Cement proscribed by Section 8(b)(4)(D), to assign the dis- Masons International Association of the United puted work in a manner inconsistent with this de- States and Canada, AFL-CIO shall notify the Re- termination. gional Director for Region 32 in writing whether it