Masonry Magazine May 1977 Page. 16
MCAA INFORMATION
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delivering materials to the Employer had to pass. The afternoon meeting previously arranged for August 19 never took place. However, shortly after the commencement of picketing, a series of conversations ensued in which the participants at various times were one of the Casacios, Charles Anastasi, Pino, and Rudolph Hagan, the Bricklayers business representative. During these occasionally heated discussions, Pino steadfastly set forth his claim that the disputed rodsetting work should be assigned to members of Ironworkers. In reply, Hagan claimed the assignment for Bricklayers, while Casacio, professing the inability to effect changes in his subcontractor's work assignments, offered to carry a member of Ironworkers on his own payroll. Pino rejected Casacio's offer with the explanation that such an employee would do nothing and he felt the Ironworker was legally entitled to actually perform the tasks of handling and placing the reinforcing rods in the masonry walls.
Ironworkers picketed the Employer's jobsite from August 19 through August 24. Picketing ceased upon the filing of the charge in this proceeding by the EBA. Stanley Casacio, president of the family owned and operated Casacio firm, estimated at the hearing that completion of construction at Evergreen Towers will not occur until spring 1977, although the Employer was tentatively scheduled to finish its work by December 15.
B. The Work in Dispute
The work in dispute involves the placement of horizontal and vertical steel reinforcing rods associated with the construction of load-bearing masonry walls.
C. Contentions of the Parties
The Employer, EBA, and Bricklayers all contend that the Ironworkers violated Section 8(b) (4) (D) of the Act by seeking to compel the assignment of the disputed work to members of the Ironworkers. They further maintain that the Bricklayers should be awarded the work in dispute because of: (1) the contractual relationships between the parties: (2) the Employer's assignment: (3) company and industry practice; and (4) relative skills, efficiency, and economy of operations. The Ironworkers contends that its members should be awarded the disputed work on the basis of factors including past practice in the industry, economy and efficiency of operation, and prior rulings by the Impartial Jurisdictional Disputes Board.
D. Applicability of the Statute
Before the Board may proceed to a determination of the dispute under 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 dispute.
The record indicates and Ironworkers does not deny that its representatives sought and demanded from the Employer the assignment of the work in dispute. It is also uncontroverted that the Ironworkers picketed the Employer's jobsite from August 19 through August 24, 1976, with the object of forcing the Employer to reassign the disputed work to members of Ironworkers. On the basis of the entire record, we find there is reasonable cause to believe that Section 8(b) (4) (D) has been violated.
Although the Ironworkers and the Bricklayers have agreed to be bound by determinations of the Impartial Jurisdictional Disputes Board, the Employer itself is not bound by this method of adjusting disputes. It is therefore clear that there exists no agreed-upon method for the voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that this dispute is properly before the Board for determination.
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 various factors. The Board has held that its determination in a jurisdictional dispute is an act of judgement based on common sense and experience reached by balancing those factors involved in a particular case.
The following factors are relevant in making the determination of the dispute before us.
1. Board certification & collective-bargaining agreements
All parties stipulated that the Employer is not failing to conform to an order or certification of the Board determining the bargaining representative for the employees performing the work in dispute.
As a member of a multiemployer bargaining unit, the Employer contends that the current collective-bargaining agreement between the EBA and the Bricklayers requires assignment of the entire masonry wall construction process to employees represented by Bricklayers. Article 14.1 of the current contract states that "all mason work coming under the jurisdiction of the Bricklayers, Masons and Plasterers International Union of America.. shall be done by bricklayers and shall include without limitation the following:...the laying of cement blocks...." Although the language of this article contains no specific reference to the placement of reinforcing rods within cement block walls, the Employer and EBA assert that this procedure is integrally related to masonry work which is specifically covered. As previously noted, neither the Employer nor the EBA has a collective-bargaining agreement with the Ironworkers.
We find that factor favors awarding the disputed work to employees represented by Bricklayers.
2. The Employer's assignment and past practice
As it has done without exception in the numerous past occasions on which it has been involved in load-bearing masonry wall construction, the Employer has assigned the work in dispute to its employees who are represented by the Bricklayers. Accordingly, the Employer has never employed workers represented by Ironworkers to perform such work. We find that this factor favors an award to the employees represented by the Bricklayers.
3. Area and industry practice
The Ironworkers contends that load-bearing masonry wall construction is not materially distinguishable from poured concrete construction in which the employees it represents have traditionally performed all reinforcing rod work. In this regard, the Ironworkers notes that the masonry walls at the Evergreen Towers site were begun by fitting cement blocks over reinforcing rods projecting from the foundation. Those rods were set by employees of Gunite Corporation represented by the Ironworkers. The record indicates, however, that while poured concrete and reinforced cement block structures may resemble each other in their components and in their finished state, subcontractors within the construction industry make sharp distinctions between the processes used in building each type of structure.
With respect to the masonry wall construction industry, the Employer and EBA presented as witnesses four presidents of area masonry contracting firms, including the Employer, who collectively testified that they have been involved in many load-bearing masonry construction projects and have always assigned to employees represented by Bricklayers the installation of reinforcing rods within the cement block walls they were building. None of these witnesses had ever assigned rodsetting work to Ironworkers, although Richard Aronson, president of Jack Caspar Company testified that his company had participated as masonry subcontractors on one project, the construction of a bulk mail center in Philadelphia, where the general contractor employed an ironworker to do this work pursuant to a settlement agreement to which the masonry subcontractor was not a party.
Two representatives of the Bricklayers with extensive experience in the masonry construction industry stated at the hearing that employees represented by Bricklayers had handled the work in dispute herein on all jobs with which they are familiar. On the other hand, Ironworkers Business Agent Pino testified specifically that employees represented by Ironworkers performed such continued on page 19
2. N.L.R.B. v. Radio & Television Broadcast Engineers Union, Local 1212.
International Brotherhood of Electrical Workers, AFL-CIO (Columbia
Broadcasting System), 364 US. 573 (1961)
16 MASONRY/MAY, 1977
3. International Association of Machinists. Lodge No. 1743. AFL-CIO.A.
Jones Construction Company). 135 NLRB 1402 (1962)