Plasterers Local 502 (Advance Terrazzo)

810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cement Masons' Union Local No 502, Operative Plasterers' and Cement Masons' International Association of the United States and Canada and Advance Terrazzo and Tile Co, Inc Construction and General Laborers' Local 118, La borers' International Union of North America, AFL-CIO and Advance Terrazzo and Tile Co, Inc Cases 13-CD-342 and 13-CD-343 15 October 1984 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS The charges in this Section 10(k) proceeding were filed 12 and 13 June 1984 1 by the Employer alleging respectively that the Respondents Cement Masons Union Local No 502 Operative Plaster ers and Cement Masons International Association of the United States and Canada (Cement Masons) and Construction and General Laborers Local 118 Laborers International Union of North America AFL-CIO (Laborers) 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 they represent rather than to employees represented by Ceramic Tile Layers and Terrazzo Workers Union Local No 67 International Union of Bricklayers and Allied Craftsmen AFL-CIO (Terrazzo Me chanics) and Local 98 Tile Marble Terrazzo Fin ishers & Shopmen International Union AFL-CIO (Terrazzo Helpers) The hearing was held 28 June before Hearing Officer Gloria DiLorenzo 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 Employer a Minnesota corporation is en gaged in the construction business as a terrazzo contractor in Minnesota Illinois and other States During the 12 months preceding the hearing the Employer purchased and received at its construc lion sites in Illinois goods and materials valued in excess of $50 000 directly from points located out side the State of Illinois The parties stipulate and we find, that the Employer is engaged in corn - merce within the meaning of Section 2(6) and (7) ' All dates are in 1984 unless otherwise indicated 272 NLRB No 121 of the Act and Cement Masons Laborers Terraz zo Mechanics and Terrazzo Helpers are labor or gamzations within the meaning of Section 2(5) of the Act II THE DISPUTE A Background and Facts of Dispute In early 1984 the Employer subcontracted with Osman Construction Corporation (Osman) to install 55 000 feet of structural terrazzo flooring at a Cub Food Store site in Arlington Heights Illinois On 7 June the Employer s foreman Steve Torok the Terrazzo Mechanics business manager Ken Bieschke the Terrazzo Helpers business agent Emil Quaglia the Cement Masons business repre sentative David Laube a Laborers agent Richard Augustine and several representatives of Osman met concerning the assignment of the hauling pouring and screeding 2 of the structural terrazzo concrete underbed Cement Masons and Laborers claimed the work and told the Employer they wanted a composite crew to perform the work 3 In response to Torok s statement that the Employer had collective bargaining agreements with the Ter razzo Mechanics and Terrazzo Helpers covering the work and that operating a composite crew would be inefficient because workers would be idle at times Laube stated he would have a sign out there 11 June Picketing commenced at the jobsite 11 June at 9 a m with picket signs stating the Em ployer had assigned work in violation of a Joint Conference Board decision Both Cement Masons and Laborers representatives were observed on the picket line The picketing lasted until 1 p m 11 June and caused operating engineers cement masons electricians and perhaps plumbers em ployed at the site to cease work B Work in Dispute The disputed work involves the hauling pour mg and screeding of a structural terrazzo concrete underbed at the Cub Food Store jobsite in Arling ton Heights Illinois C Contentions of the Parties The Employer contends that reasonable cause exists to believe that Cement Masons and Laborers violated Section 8(b)(4)(D) of the Act It contends that the work in dispute should be awarded to em 'Witnesses used the word screed at the hearing as both a noun i e any device used to gauge the grade of concrete and as a verb i e the leveling of concrete to a required height ' Laborers and Terrazzo Helpers claim the hauling and pouring of the concrete Cement Masons and Terrazzo Mechanics claim the screeding All Unions agree applying the terrazzo topping is solely the work of em ployees represented by the terrazzo unions PLASTERERS LOCAL 502 (ADVANCE TERRAllO) 811 ployees represented by Terrazzo Mechanics and Terrazzo Helpers based on its collective bargaining agreements with both unions employer preference and past practice area and industry practice and economy and efficiency of operations The Em ployer further argues that any award of the disput ed work by the Board should be extended to the Employer s future Cub Food Store jobsite 4 At the hearing Cement Masons and Laborers argued employees they represented should be awarded the disputed work because of a Joint Con ference Board decision rendered 14 June purport ing to award the disputed work to Cement Masons and Laborers 5 The Respondents further argued the Unions interested in the disputed work had made a verbal agreement that a composite crew was appropriate and the meeting 7 June was to fi nalize the details of the agreement The Respond ents filed a disclaimer of the disputed work 20 July and in their motion to strike filed 1 August with the Board (see fn 4) argued they had aban doned their claim and the issue was therefore moot The Respondents admitted the disputed work had been completed and argued issuance of a broad order would 'be inappropriate because Cement Masons and Laborers have made no work assignment claims on other Cub Food Store job sites D Applicability of the Statute It is undisputed Cement Masons representative L,...ube threatened to place a sign on the jobsite 7 June and Cement Masons and Laborers picketed 11 June to obtain assignment of the disputed work In a document filed with the Board 20 July Cement Masons and Laborers purported to dis -'4 In its brief to the Board the Employer appended a private letter la beled Exhibit A from Alfiero Fanucci the Employer s corporate sec retary to Lawrence M Cohen the Employer s attorney purporting to show that the disputed work had been completed and that the Employer planned to bid on future work and assign it to employees represented by Terrazzo Mechanics and Terrazzo Helpers The Employer also moved to reopen the record for receipt of Exhibit A The Respondents filed a motion to strike the Employer s Exhibit A as untimely and argued the record was silent as to any work assignment claims on future Cub Food Store jobsites The Employer filed an objection to the Respondents motion to strike alleging the additional evidence was previously unavail able because the Respondents disclaimed the disputed work nearly a month after the hearing closed and only several days prior to the submis sion date for briefs The Respondents do not dispute the Employer s con tentions that work on the Arlington jobsite has been completed or that it plans to bid on future Cub Food Store work The record establishes there are 30 Cub Food Stores planned and 14 in the works right now Thus because either the record shows or the parties do not dispute the facts recited in the Fanucci letter we find it unnecessary to pass on the Em ployer s motion to admit the letter Itself in evidence or the Respondents motion to strike 5 All Unions party to this proceeding are members of the Joint Confer ence Board of the Construction Employers Association and the Chicago and Cook County Building and Construction Trades Council The Em ployer is not signatory to contracts negotiated by or a member of the association claim interest in the disputed work Although the Board has stated that an effective renunciation of disputed work resolved the jurisdictional dispute it has also found that a hollow disclaimer given for the purposes of avoiding an authoritative decision on the merits cannot be given effect Carpenters Local 102 (Meiswinkel Interiors) 260 NLRB 972 975 (1982) In Meiswinkel the Board refused to honor a disclaimer where the unions did not dis claim the work until after the hearing had closed and at a time when no work of any kind was being performed at the site Id Similarly in this case the Respondents did not disclaim until the work was completed and the hearing concluded Regarding the alleged Joint Conference Board decision awarding the disputed work to employees represented by Cement Masons and Laborers [i]t is well settled that the Board will defer to a [pn vate tribunal] only when all parties in the work dis pute are bound Painters Local 1075 (Trencor) 244 NLRB 80 81 (1979) Here deferral is mappropri ate while the Unions may be bound the Employer has not agreed to abide by the Joint Conference Board decision Id Accord NLRB v Plasterers Local 79 (Texas State Tile) 404 U S 116 (1971) We find reasonable cause to believe that a viola tion of Section 8(b)(4)(D) has occurred and that there exists no agreed method for voluntary adjust ment of the disp Ite within the meaning of Section 10(k)' of the Act Accordingly we find the dispute is properly before the Board for determination E Merles' 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 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' 1 743 (J A Jones Construction) 135 NLRB 1402 (1962) The following factors are relevant in making the determination of this dispute 1 Certifications and collective bargaining agreements - ■ The Board has not certified any of the Unions involved in this dispute as the collective bargaining representative for a unit of the Employier s employ ees The Employer however is a merither of the Chicago Terrazzo and Mosaic Contractors Asso elation (Chicago Association) which has a collec tive bargaining agreement with Terrazzo Helpers 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD covering all worker/finisher employees who per form all the handling of sand cement marble chips and all other materials after being deliv ered to the building and mixing rubbing grouting and cleaning all marble mosaic and terrazzo work floors base stairs and wain scoting when run on the building by hand or machine and they shall also help the mechan ics in any and all phases in the performance of this work This Agreement pertains to the setting or installation of all classes of ter razzo mosaic and similar architectural fin ishes The Chicago Association also has a collective bargaining agreement with the Terrazzo Mechanics covering all Mechanic employees performing the laying of all terrazzo and mosaic work all straight edge work all laying of concrete subfloors co perta scratch coats for base wainscoting stair work the setting of temporary wood grounds and all dividing strips We find the collective bargain ing agreements cover the work in dispute The Employer has no collective bargaining agreements with either the Cement Masons or La borers We therefore find the factor of collective bar gaining agreements favors an award of the disputed work to the Employer s employees represented by Terrazzo Mechanics and Terrazzo Helpers 2 Company preference and past practice The Employer has consistently assigned the dis puted work over 25 years solely to employees rep resented by Terrazzo Mechanics and Terrazzo Helpers or to different local unions of terrazzo workers and concededly prefers to maintain such assignments Employer Foreman Torok specifically testified in all of its 18 jobs across the country in the past 2 years involving structural terrazzo the Employer used terrazzo mechanics and terrazzo helpers to perform the disputed work This factor therefore favors an award to employees represent ed by Terrazzo Mechanics and Terrazzo Helpers 3 Area and industry practice Edward Grazzini executive director of the Na tional Terrazzo and Mosaic Association (National Association) testified he was unaware of any work involving the laying of structural terrazzo locally or nationally that had not been performed by ter razzo mechanics and terrazzo helpers based on his informal poll of 20 contractors involving 106 struc tural terrazzo installations over the past 20 years No evidence of a contrary practice by the Employ er by Chicago area contractors or in the industry generally was presented on structural terrazzo in stallation 6 We therefore find this factor favors an award to employees represented by Terrazzo Me chanics and Terrazzo Helpers 4 Relative skills Torok and Grazzini testified employees repre sented by Terrazzo Mechanics and Terrazzo Help ers possess the requisite skills to perform the dis puted work The record indicates cement masons and laborers have performed conventional terrazzo work for other areas employers and it appears they would be qualified to perform the disputed work 7 We therefore find this factor does not favor an award to employees represented by any one of the labor organizations 5 Economy and efficiency of operation The Employer presented evidence from Torok and Grazzim that assigning the disputed work to employees represented by Terrazzo Mechanics and Terrazzo Helpers would be more economical effi cient and easier to coordinate with its work sched ule than assigning work to a composite crew of all four Unions Torok testified the work is installed in layers First terrazzo mechanics and terrazzo helpers would grade the gravel base to the required height and dnve stakes into the bed to ensure the concrete lays uniformly After an ironworker installs a wire mesh terrazzo helpers haul the concrete in power buggies to the site After pouring the concrete ter razzo helpers assist terrazzo mechanics in screeding the concrete to the proper level Terrazzo mechan ics insert zinc divider strips into the concrete after it becomes semi plastic several hours later Twenty four to forty eight hours later after the concrete underbed has fully hardened terrazzo me chanics and terrazzo helpers spend 2 to 3 days pouring screedmg, grinding and polishing the ter razzo topping Torok testified the concrete un derbed is poured and screeded in the morning until approximately 2 p m and the afternoon work con sists of installing the zinc divider strips As the afternoon work is indisputably the work of the ter razzo employees there would be no work available 6 Grazzini testified he had heard rumors one job in the Chicago area had been performed by a composite crew of employees represented by Cement Masons Laborers Terrazzo Mechanics and Terrazzo Helpers Cement Mason President Gerald Horejs however testified the composite crew assignment was awarded by the Joint Conference Board and in volved conventional rather than structural terrazzo 7 Torok distinguished conventional terrazzo from structural terrazzo on the type of fill used Conventional terrazzo uses a concrete base fill while structural terrazzo uses a sand/gravel fill which is sturdier and does not tend to move under a heavy load PLASTERERS LOCAL 502 (ADVANCE TERRAllO) 813 for cement masons and laborers in the afternoon should the morning work be assigned to them and no work in the morning for the terrazzo mechanics and terrazzo helpers The same situation would exist during the 2 or 3 days the terrazzo employees install grind and polish the terrazzo topping Although Cement Masons and Laborers claim employees they represent could pour concrete in other locations while the divider strips or the ter razzo topping is installed Torok testified the prac tice would cause scheduling problems because all work is staggered into priorities throughout the entire building and must be coordinated with the other unions on the site Torok also testified it is difficult to know in advance when a given portion of concrete will harden allowing for the installa tion of the divider strips Consequently employees scheduled to perform this work on a composite crew could either arrive too early or too late and be idle until conditions were proper to perform their work Torok also stated because such arrangements might provide only part time employment for em ployees represented by the four Unions it would be difficult to recruit and hire the required terrazzo mechanics and terrazzo helpers Of the 11 terrazzo workers employed by the Employer at the Illinois jobsite 3 are from Minnesota and 2 are from Wis consin Torok testified he would have been unable to recruit such employees absent a guarantee of 40 hours of work per week and such a guarantee to the terrazzo workers would be difficult with a composite crew Finally Torok stated the terrazzo unions work well together and anticipate each other s moves and that with a composite crew it would be difficult to determine fault in the event of a mistake In contrast Terrazzo Mechanics and Terrazzo Helpers guarantee the work of employees they represent and make restitution for any faults of workmanship We therefore find the factor of economy and ef ficiency of operation favors an award to employees represented by Terrazzo Mechanics and Terrazzo Helpers 6 Interunion agreement Cement Masons witnesses Horejs and Taube tes tified Terrazzo Mechanics and Terrazzo Helpers verbally agreed to use a composite crew on the dis puted work No contrary evidence was presented This factor therefore favors an award to employees represented by Cement Masons and Laborers Conclusions After considering all the relevant factors we conclude employees represented by Terrazzo Me chanics and Terrazzo Helpers are entitled to per form the work in dispute We reach this conclusion relying on the Employer s collective bargaining agreements with both unions company preference and past practice area and industry practice and economy and efficiency of operation In making this determination we are awarding the work to employees represented by Terrazzo Mechanics and Terrazzo Helpers not to those Unions or their members Scope of the Determination The Employer requests the Board issue a broad work order award on behalf of the employees rep resented by Terrazzo Mechanics and Terrazzo Helpers applicable to all Cub Food Store projects in the Chicago Illinois area The Employer con tends such an order is necessary in order to avert further jurisdictional work interruptions in the area In this respect the Employer claims it is likely the dispute will continue at future sites because it has occurred in this case and at a similar Cub Food Store site in 1983 There has been no continuing demand for future similar work by Cement Masons and Laborers however and we are not satisfied the record is sufficient to demonstrate the likeli hood Cement Masons and Laborers will again resort to unlawful means to obtain assignment of such work 8 Therefore we find the issuance of the broad order the Employer seeks is not warranted and limit our present determination to the particu lar controversy which gave rise to this proceeding DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute 1 Employees of Advance Terrazzo and Tile Co Inc represented by Ceramic Tile Layers and Ter razzo Workers Union Local No 67 International Union of Bricklayers and Allied Craftsmen AFL- CIO and Local 98 Tile Marble Terrazzo Finish ers and Shopmen International Union AFL-CIO are entitled to haul pour and screed the structural terrazzo concrete underbed at the Cub Food Store jobsite in Arlington Heights Illinois 2 Cement Masons Union Local No 502 Opera tive Plasterers and Cement Masons International Association of the United States and Canada and Construction and General Laborers Local 118 La borers International Union of North America AFL-CIO are not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Advance 8 There is no indication for example the Employer s bids for future Cub Food Store work will be successful 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Terrazzo and Tile Co Inc to assign the disputed work to employees represented by them 3 Within 10 days from this date Cement Masons Union Local No 502 Operative Plaster ers and Cement Masons International Association of the United States and Canada and Construction and General Laborers Local 118 Laborers Inter national Union of North America AFL-CIO shall notify the Regional Director for Region 13 in writ mg 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 inconsist ent with this determination