Masonry Magazine May 1964 Page. 7
Applicability of the Statute
Before the Board may proceed to a determination of a dispute, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated. We find, on the basis of the foregoing and the entire record, that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that the dispute is properly before the Board for determination under Section 10(k) of the Act.
Merits of the Dispute
Section 10(k) of the Act requires the Board, after giving due consideration to various relevant factors, to make an affirmative award of disputed work. The following factors are asserted in support of the claims of the parties herein.
1. Assignment by the Employer. Gorman assigned the disputed work to a composite crew of ironworkers and a stone mason. The stone mason was an employee of Gorman and a member of the Bricklayers.
2. Employer Past Practice. In past instances in which Gorman contracted to erect and install pre-cast concrete panels involving work substantially similar to the work in dispute, Gorman assigned the work to a composite crew of ironworkers and stone masons.
3. Skills. Both the Carpenters and the Bricklayers contend that the disputed work involves skills and tools unique to their respective trades. In this connection the record indicates that employees represented by each of these Unions have the skills necessary to erect and install the precast concrete panels. Further, although the trowel which is used to straighten the mortar on the lintel is a bricklayer's tool, other tools utilized in the course of performing the disputed work, such as a transit, are carpenter's tools. The record also indicates that the Carpenters have schools in the St. Louis area which offer instruction in the skills necessary to perform the work in dispute. However, as noted, stone masons in the St. Louis area also possess these skills. Nor do we accord any weight to the fact that other work performed in connection with the panels, such as grouting, tuckpointing, and repair work, is done solely by bricklayers, since such work is done after the disputed work of installing the panels has been completed and it is not performed by members of the composite crew that install the panels. We therefore conclude that the skill factor favors neither the Bricklayers nor the Carpenters.
4. Efficiency of Operations. The Bricklayers contends that a bricklayers performed work on the job other than the disputed work, the use of a stone mason in the composite crew made for a more efficient operation in the Employer's construction of the building, since the stone mason installing the panels could spend idle time assisting the bricklayers to do other work. We find no merit in this contention since the record indicates that in fact the stone mason member of the composite crew at the 121 Building did no work other than installing the precast panels.
5. Area and Industry Practice. Considerable testimony was taken as to the assignment of work involved in the erection and installation of precast concrete panels in the St. Louis area and throughout the country. It appears that area practice in other parts of the country favors the Bricklayers. However, it is also apparent from the record that even within the St. Louis area, stone masons have performed work similar to the work in dispute on a number of occasions. We also deem it significant that a sizeable proportion of the erection and installation of precast panels done by carpenters in the St. Louis area involved the "tilt-up" type of panel construction. Unlike the panels involved in the present case, which are prepared away from the jobsite, the "tilt-up" panels are prepared on the jobsite by pouring concrete into forms constructed by carpenters and thereafter raised into place for installation. The Bricklayers do not claim the work involved in the erection and installation of panels of the "tilt-up" variety because an integral part of the work is the construction of forms which requires the skills of a carpenter.
6. Decisions of the Joint Board. Both the Carpenters and the Bricklayers rely respectively on various decisions of the Joint Board which in some instances awarded work similar to that in dispute to Carpenters. The parties agreed that the Carpenters and Bricklayers are bound by decisions of the Joint Board by virtue of their affiliation with the AFL-CIO Building and Construction Trades Department. However, there is no evidence that Gorman is bound by the decision of the Joint Board and Gorman contends that he is not bound. The Board has previously held that where one party has not agreed to be bound by a decision of the Joint Board, it cannot be said that the parties have submitted satisfactory evidence that they have adjusted, or agreed upon voluntary methods for the adjustment of, the dispute. International Association of Operating Engineers, Local 66 (Frank P. Badolato and Sons), 135 NLRB 1392. The Carpenters contends that the fact that the stone mason assigned to the composite crew in the present case performed only the work of aligning, plumbing, and leveling of the panels shows that the stone masons lack the necessary skills to perform all of the disputed work. We find no merit in this contention as there is no explanation in the record for the particular division of work between ironworkers and stone masons at the 121 Building and the record otherwise indicates that stone masons in the St. Louis area are sufficiently skilled to perform all facets of the disputed work and have done so on other jobs in the area.