Premier Plastering, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 342 NLRB No. 111 1072 Premier Plastering, Inc. and Plasterers Local No. 80 a/w Operative Plasterers & Cement Masons In- ternational Association, Petitioner and Bricklay- ers and Allied Craftworkers, Local 16, Interve- nor. Case 8–RC–16341 September 16, 2004 DECISION ON REVIEW AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND WALSH On April 4, 2002, the Regional Director for Region 8 issued a Decision and Direction of Election in which he found appropriate the petitioned-for unit of plasterers working in Ashtabula, Cuyahoga, Geauga, Lake, and Loraine Counties in Ohio. Pursuant to Section 102.67 of the National Labor Relations Board’s Rules and Regula- tions, the Intervenor filed a timely request for review of the Regional Director’s Decision and Direction of Elec- tion. On May 15, 2002, the Board granted the Interve- nor’s request for review. The Petitioner filed a brief on review. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. After careful consideration of the entire record, includ- ing the Petitioner’s brief on review, we find, on the record before us, that the only unit appropriate for bargaining is a residual geographic unit of all plasterers working in areas not otherwise covered by a current 9(a) agreement.1 Facts This case arises from the unique and long-running dis- pute between the Bricklayers and the Operative Plaster- ers’ unions. Prior to 1998, the Operative Plasterers and the Bricklayers were bound to a nationwide agreement establishing geographical limitations on each other’s jurisdiction where there was overlapping coverage of job classifications. While providing stability and preventing raids, this agreement resulted in a patchwork quilt of county-based units founded more on the convenience of the two unions than on a rational grouping of the em- ployers’ employees. In 1998, the Operative Plasterers unilaterally revoked this agreement. This move was up- held by the AFL–CIO in July 2000 and was the catalyst for a number of petitions from both the Plasterers and the Bricklayers seeking to expand their relationships and establish bargaining relationships in territory not permit- ted to them under their pre-1998 agreement. Since the jettisoning of the nationwide agreement, the Plasterers and Bricklayers have filed numerous petitions with the Board and have been locked in years of litiga- 1 See fn. 3, infra. tion. Nearly all of these cases, such as this one, pre- sented difficult bargaining unit scope issues.2 Here, the Petitioner seeks to represent a unit of plaster- ers working in five counties in northeastern Ohio. The Employer and the Petitioner are parties to a 8(f) agree- ment covering, by its terms, Cuyahoga County. The par- ties, however, have historically applied the agreement to work in adjacent counties as well. The Employer and Intervenor are parties to a 9(a) agreement covering brick- laying and cement masonry work in Ashtabula, Lake, and Geauga Counties.3 The Employer is also party to two other collective-bargaining agreements with other Operative Plasterers locals covering limited geographic areas in Ohio. First, the Employer has an 8(f) agreement with Plasterers Local 109 covering Carroll, Holmes, Me- dina, Portage, Stark, Summit, Tuscarawas, and Wayne Counties effective from June 1, 2001, to June 1, 2006. Second, the Employer has a 9(a) contract with Plasterers Local 179 covering Trumbull, Mahoning, and Columbi- ana Counties, effective from June 1, 2001, to May 31, 2005. No party disputes that both Intervenor’s and Local 179’s are 9(a) agreements. The Regional Director found the geographically lim- ited petitioned-for unit appropriate. He based this find- ing on the fact that the Employer uses a core group of plasterers for all of its jobs in the counties covered by the petition. However, the record shows that this same group of core employees performs plastering work in areas not covered by the petition and that the Employer does not geographically limit the areas in which it seeks work. The Intervenor argues that the Regional Director erred in finding the petitioned-for unit appropriate for two reasons. First, the Intervenor argues that the unit should have no geographic limitations, that such a unit would be barred by Local 179’s 9(a) agreement, and that accordingly the petition must be dismissed. Second, the Intervenor argues that the unit should be limited to plas- terers working in Cuyahoga County, the Petitioner’s original 8(f) jurisdiction. As explained below, we agree that, on this record, the petitioned-for five-county unit is not an appropriate unit for bargaining and that normally the only appropriate unit would include all of the Employer’s plasterers with- 2 See, e.g., G.L. Milliken Plastering, 340 NLRB 1077 (2003); Say- lor’s, Inc., 338 NLRB 330 (2002); Alley Drywall, Inc., 333 NLRB 1005 (2001); Pontiac Ceiling & Partition Co., 337 NLRB 120 (2001); Rei- chenbach Ceiling & Partition Co., 337 NLRB 125 (2001); Verkler, Inc., 337 NLRB 128 (2001). 3 Intervenor’s 9(a) agreement with the Employer was set to expire on April 30, 2002. The petition was filed on February 20, 2002, well within the 60- to 90-day open period for such filings. This 9(a) agree- ment, therefore, does not result in the exclusion of Ashtabula, Lake, and Geauga Counties from the unit. PREMIER PLASTERING, INC. 1073 out geographic limitation. However, because the Em- ployer is party to an admitted 9(a) agreement covering a limited geographic area, we will direct an election in a residual geographic unit of all of the Employer’s plaster- ers working in areas not covered by such an agreement.4 Analysis We start with the basic proposition that where an em- ployer uses a core group of employees to work at its various worksites regardless of job location, the proper unit description is one without geographic limitation. See Alley Drywall, 333 NLRB 1005, 1008 (2001). Com- pare Oklahoma Installation Co., 305 NLRB 812 (1991) (finding unit limited to one county appropriate); Dezcon, Inc., 295 NLRB 109 (1989) (finding petitioned-for three county unit appropriate based on community-of-interest factors). Furthermore, the Board has held that the his- torical limitations on bargaining, while a factor to be weighed in the analysis, are not conclusive of the appro- priateness of a petitioned-for unit. See Alley Drywall, 333 NLRB at 1008. Based on the sparse record before us, we are unable to conclude that the Employer’s plasterers possess a com- munity of interest while working in the petitioned-for five counties that is somehow different from that of the same employees when working in other counties. The only fact that could justify such a grouping would be the historical pre-1998 geographic boundaries. However, because the Plasterers and Bricklayers scuttled those traditional boundaries, we do not accord controlling weight to that bargaining history. See Alley Drywall, 333 NLRB at 1007–1008; A. C. Pavement Striping Co., 296 NLRB 206, 210 (1989). Accordingly, we agree with the Intervenor’s first proposition that the only appropriate unit would normally include all of the Employer’s plasterers without regard to the location of the Employer’s jobsites. The Board’s decisions in Oklahoma Installation, supra, and Dezcon, supra, are not to the contrary. In both cases, although the Board approved geographically limited units even though the employers used a core group of employees at all its worksites, the Board based its findings on a thorough examination of all the community-of interest-factors and concluded that the petitioned-for units were appropriate. Here, the Regional Director relied solely on the fact that the Employer uses a core group of employees, citing Dezcon. Finding the petitioned-for unit appropriate, 4 Based on our reading of the record, the unit description should only exclude Trumbull, Mahoning, and Columbiana Counties because those are covered by a current 9(a) agreement with Local 179. however, requires more than the existence of a core group of plasterers and the incantation of Dezcon. In- stead, the Regional Director should have examined all of the community-of-interest factors to determine whether this unit was appropriate. However, the Regional Direc- tor was unable to perform the required analysis because the record failed to contain a sufficient level of evidence to justify the petitioned-for unit.5 Even if we could imag- ine a scenario under which such a geographically limited unit might be considered appropriate, the Petitioner’s failure to adduce sufficient record evidence foreclosed that possibility. Allen Health Care Services, 332 NLRB 1308, 1309 (2000). While we agree with the Intervenor that the petitioned- for five-county unit is inappropriate, we do not agree that the only appropriate unit is one completely without geo- graphic limitation and consequently barred by the current 9(a) agreement between the Employer and Local 179 covering Trumbull, Mahoning, and Columbiana Coun- ties. Recently, in G.L. Milliken Plastering, supra, the Board approved the use of a geographic residual unit where the employer was a party to various geographi- cally limited 9(a) agreements. In that case, the employer maintained a number of geographically limited 9(a) agreements with various Plasterers locals. In an attempt to avoid potential contract bar problems, Bricklayers Local 9 petitioned for a residual unit of the employer’s plasterers in all areas not covered by existing 9(a) agree- ments. The Board approved the unit and remanded the case to determine the proper residual unit in which to hold an election. Here, the Intervenor argues that the 9(a) agreement be- tween the Employer and Plasterers Local 179 must bar the petition because an election can only be held in an overall unit. We reject that argument and instead follow the reasoning of G.L. Milliken and direct the Regional Director to craft a residual geographic unit which would exclude from the unit those areas covered by current 9(a) agreements. Accordingly, we remand this case to the Regional Direc- tor to direct an election in a unit of all the Employer’s plas- terers excluding those areas covered by the current 9(a) agreement between the Employer and Plasterers Local 179. 5 The hearing lasted a mere 27 minutes, and the parties produced a scant 27 pages of transcript.