Plasterers' Local 449

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plasterers' and Cement Masons' Local 449, Interna- tional Association of Operative Plasterers and Cement Masons, AFL-CIO and Cusick's, Inc. and United Brotherhood of Carpenters and Joiners of America, Local 2205. Case 19-CD- 350 September 30, 1980 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Cusick's, Inc., herein called the Employer, alleging that Plasterers' and Cement Masons' Local 449, International Association of Operative Plasterers and Cement Masons, AFL- CIO, herein called the Cement Masons, had violat- ed Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forc- ing or requiring the assignment of work described below to employees represented by it rather than to employees represented by United Brotherhood of Carpenters and Joiners of America, Local 2205, herein called Local 2205. Pursuant to notice, a hearing was held before Hearing Officer Bruce L. Schroeder on December 11 and 12, 1979. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, Cusick's and the Cement Masons filed briefs. 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 Hearing Officer's rulings made 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: I. THE BUSINESS OF THE EMPLOYER The Employer is a Washington corporation with its principal office and place of business in Wenat- chee, Washington, where it is engaged in general contracting of commercial and industrial work. During the past year the Employer realized gross revenue in excess of $500,000 and, during the same period, purchased goods valued in excess of $50,000 directly from business concerns located outside the State of Washington. The parties have stipulated, and we find, that the Employer is en- 252 NLRB No. 113 gaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Local 2205 and the Cement Masons are labor organiza- tions within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The Employer is engaged in general contracting of commercial and industrial work, including work on the Garden Terrace Building in Wenatchee, Washington. Consistent with its practice since 1943, the Employer, in August 1979, assigned to employees represented by Carpenters Local 2205 the task of installing forms and screeds used in con- nection with pouring concrete for the Garden Ter- race Project. On May 1, 1979, and again on September 1, 1979, the Cement Masons, by and through its au- thorized agents or representatives, demanded that the installation of forms and screeds for concrete pours at the Garden Terrace jobsite be assigned to employees represented by it rather than to those represented by Local 2205. On November 15, 1979, Carl Hill, business manager of the Cement Masons, told the Employer that if the work in question was not assigned to cement masons then that Union would strike a jobsite of the Employer. The Cement Masons then picketed the Garden Terrace jobsite from November 19 through November 21 and again on November 26. No picketing has oc- curred since. There is no outstanding Board certifi- cation covering the work herein in dispute. B. The Work in Dispute During the hearing the parties stipulated that the dispute involves the assignment of the following tasks: the installation or reinstallation of any and all forms, screeds, screed forms, bulkheads, or pins used in connection with the horizontal pouring of concrete at each of the Employer's construction sites in the Wenatchee, Washington, area. C. The Contentions of the Parties The Employer contends that a jurisdictional dis- pute exists and that there is reasonable cause to be- lieve that Section 8(b)(4)(D) of the Act has been violated. It further contends that its separate col- lective-bargaining agreements with the Cement Masons and with Local 2205 do not provide a mechanism for the voluntary adjustment of dis- 780 PLASTERERS' LOCAL 449 putes to which all parties have agreed. Any agree- ments between the respective International unions are not binding on the Employer. The Employer asserts that while Local 2205 may have declined to oppose its own International it still would prefer to have the disputed work assigned to those employ- ees whom it represents. The Employer also argues that it should be allowed to maintain the present assignment of the screed installation work to em- ployees represented by Local 2205 for reasons of its own and of area practice, because of the Cement Masons' acquiescence to such practices, economy and efficiency of operations, and the rela- tive skills of the employees represented by the competing local Union. The Cement Masons initially asserts that the notice of hearing should be quashed and relies on the jurisdictional disputes clause of the Associated General Contractors collective-bargaining agree- ment with Local 2205 to which the Employer is bound through a compliance agreement. The Cement Masons further argues that, pursuant to the collective-bargaining agreements, the respective In- ternationals have resolved the work assignment dis- pute in favor of the Cement Masons and therefore Local 2205 can be said to have thereby renounced its claim to the screed installation work. The Cement Masons also counters the Employer's posi- tion by contending that employees represented by it have performed the disputed tasks in the Wenat- chee area and that it provides training for its mem- bers in screed installation skills. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that the parties have not agreed upon a method for the voluntary adjustment of the dis- pute. There can be little question on this record that the object of the Cement Masons conduct in picketing the Employer's Garden Terrace jobsite for 4 days in November 1979 was to force or re- quire the Employer to assign the work of screed installation to individuals represented by the Cement Masons. The Cement Masons conduct is thus within the ambit of Section 8(b)(4)(D). The record further discloses that there does not exist a single agreed-upon method for the voluntary resolution of the dispute which is binding on all of the parties. The Employer is bound, through its ex- ecution of a compliance agreement, to a collective- bargaining agreement between the Associated Gen- eral Contractors and Local 2205. Article 12 of that contract provides that, with respect to disputed work, if the affected local unions and the employer do not reach agreement within 24 hours then the dispute shall be referred to the two respective In- ternational representatives. They will then confer with the employer "for settlement," using a criteria "decisions of record, area practice, and Internation- al jurisdictional agreements." The Employer, also through a compliance agree- ment, is bound to a collective-bargaining agreement between the Associated General Contractors and the Cement Masons. Article 16 provides that an employer shall assign disputed work in accordance with any applicable "decisions of record" or "agreements of record between the disputing trades." While decisions of record are applicable to all trades, agreements of record apply only to par- ties who have signed such agreements. In the ab- sence of decisions or agreements the employer shall assign the disputed work in accord with local prac- tice. The contract further provides that if the local unions and the employer cannot settle the dispute then representatives of the contending International shall meet with the employer and settle the dispute. Although each contract provides for consultation between the employer, the signatory union, and any other union involved in a jurisdictional dispute, the two contracts clearly differ as to how and when the respective International unions become involved, and as to the precise criteria to be ap- plied in assigning disputed work. We are thus not satisfied that all three parties to this proceeding have agreed to be bound to the same voluntary method for the private settlement of this dispute. The fact that there are two collective-bargaining agreements, one between the Employer and Local 2205 and another between the Employer and the Cement Masons, each providing a different, albeit similar, method for adjusting jurisdictional disputes, does not support a finding that all parties have agreed to be bound by a single mutually agreed- upon procedure. Finally, we find that, contrary to the assertion of the Cement Masons, Local 2205 has not renounced its claim to the disputed work. The Cement Masons claim that Carpenters International has conceded the disputed work to them is not disposi- tive of the issue. The record reveals that the Local 2205 business representative, Carl Peaslee, testified that he would, notwithstanding any agreement be- tween the two Internationals, prefer that the car- penter members of his local continue to do the work of screed setting as assigned by the Employ- er. Thus, we find that an 8(b)(4)(D) jurisdictional dispute arises here since there are two different groups of employees claiming the work in question. 781 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, for the above-cited reasons, we conclude that the dispute is properly before the Board for determination under Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to and balancing all rele- vant factors involved.' Our determination is an act of judgment based on commonsense and experience in weighing these factors. 2 The following factors are relevant in making a determination of the dis- pute before us: 1. Employer's assignment and past practice As mentioned above, the Employer currently as- signs the disputed work to its employees represent- ed by Carpenters Local 2205. This assignment has been the practice of the Employer for over 37 years. Thus, the Employer's current assignment and past practice favor assignment of the work in dispute to employees represented by Local 2205. 2. Area practice Each competing Union claims that area practice favors assignment of the disputed work to individ- uals represented by it. However, the record reveals that executives of five general contractors in the Wenatchee area testified that for periods as long as 35 years their firms have regularly, if not exclusive- ly chosen carpenters to set screeds and screed forms used for concrete pours. The Cement Masons demonstrated that employ- ees represented by it had performed some screed work in the Wenatchee area but the Employer cor- rectly contends that most of that has been on non- commercial jobs, or for concrete contractors acting as their own general contractors, or curb and gutter work which is not involved in this dispute. Thus, in the circumstances presented here, area practice favors the claim of Carpenters Local 2205 with regard to the assignment of the disputed work to carpenters. 3. Economy and efficiency of operation The Employer has shown that employees repre- sented by Carpenters Local 2205, in addition to performing the undisputed work of constructing screed forms, are able to maximize their productive worktime by interspersing the disputed installation N.L.R.B. v. Radio & Television Broadcast Engineers Union, Local 112, International Brotherhood of Electrical Workers. AFL-CIO [Colum- bia Broadcasting System), 364 U.S. 573 (1961). International Association of Machinists, Lodge No. 1743. AFL-CIO (J. A. Jones Construction Company). 135 NLRB 1402, 1411 (1962). work with their other craft-related jobsite tasks. The scheduling of work associated with screed set- ting also requires coordination with sand leveling by laborers and rebar installation by ironworkers. Since employees represented by Local 2205 are al- ready on the jobsite and since assignment of the disputed work to employees represented by the Cement Masons would obligate the Employer to pay full 4-hour showup pay for work that would require interruption to provide for the sand level- ing and rebar work, we are satisfied that efficiency and economy of operation favor assignment of the diputed work to employees represented by Carpen- ters Local 2205. Conclusion Upon the record as a whole, and after full con- sideration of all relevant factors involved, we con- clude that the employees of the Employer who are represented by Local 2205 are entitled to perform the work in dispute. In reaching this conclusion, we have relied particularly on the Employer's as- signment of the disputed work to its employees represented by Local 2205, the fact that this assign- ment is consistent with the Employer's past prac- tice, and the efficiency and economy of operation which result from such assignment. We shall, therefore, determine the dispute before us by awarding the work involved herein to those em- ployees represented by Local 2205, but not to that Union or its members. The present determination is limited to the Employer's Garden Terrace jobsite in Wenatchee, Washington. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing and the entire record in this proceed- ing, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees of Cusick's, Inc., who are current- ly represented by United Brotherhood of Carpen- ters and Joiners of America, Local 2205, are enti- tled to perform the work of installing or reinstall- ing all forms, screeds, screed forms, bulkheads, or pins used in connection with horizontal pours of concrete at the Garden Terrace construction site in Wenatchee, Washington. 2. Plasterers' and Cement Masons' Local 449 is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Cusick's, Inc., to assign the above-disputed work to employ- ees represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Plasterers' and Cement Masons' Local 449 shall notify the Region- 782 PLASTERERS' LOCAL 449 al Director for Region 19, in writing, whether or not it will refrain from forcing or requiring Cu- sick's, Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work in a manner inconsistent with the above determina- tion. 783