Masonry Magazine January 1969 Page.34
NLRB Decision
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provide that the signatories submit jurisdictional disputes to the National Joint Board for the Settlement of Jurisdictional Disputes, hereinafter referred to as Joint Board, or abide by its decisions. The Employer, Pagura Masonry Co., Inc., has no collective-bargaining agreement with Carpenters Local 200.
Fred D. Pagura, President of the Employer, testified that on or about January 21, 1969, he was contacted by Ernest E. Plunkett, Business Representative of the Carpenters Local 200, who inquired as to the assignment of the masonry scaffolding on the DeSoto plant job. Pagura informed Plunkett that he had assigned the work to Laborers (mason tenders, Local 423) in accordance with his national agreement through the Masonry Contractors Association, Inc. He further stated that it was his policy to have mason tenders attend to the building of scaffolding. Plunkett then told Charles Ralston, superintendent for Cunningham-Limp who was present at the time, that the scaffolding over 14 feet was properly carpenters' work and he would have to see that carpenters were assigned the work. On January 23, Plunkett again appeared at the jobsite and insisted that Ralston in Pagura's presence, submit the question of jurisdiction as to the he scaffolding to the Joint Board. Upon Ralston's refusal to acquiesce Plunkett told Pagura to take the question to the Joint Board. Pagura then told Plunkett he was not stipulated to the Joint Board and further he had made an assignment and was satisfied with it. To the latter Plunkett stated, "I will fight it with everything I've got to get this straightened out." This above-described conversation took place near lunchtime and when Pagura and Ralston returned from luncheon they found that the four or five carpenters who were working on the job had suddenly became "sick" and left the job. On the following day Cuningham-Limp was unable to obtain carpenters from the Carpenters Local 200, and none was referred for about 2 weeks despite repeated requests.
B. The Work in Dispute
The work in dispute is the erection of steel tubular section scaffolds above the height of 14 feet at the DeSoto Chemical Company plant located in Columbus, Ohio.
C. The Contention of the Parties
Carpenters Local 200 contends that Pagura Masonry Contractors, Inc. and Fred D. Pagura, Inc., are a single Employer, and because of the latter firm's signing of the AGC agreement, Pagura Masonry is bound by an award by the Joint Board. On the latter basis Local 200 argues that all parties therefore have agreed to submit the dispute to the Joint Board, and accordingly the Board may not determine the dispute under Section 10(k) of the Act.
Laborers Local 423 and the Employer contend that on the basis of their collective-bargaining agreement they are not stipulated to the Joint Board, and that historically laborers (mason tenders) have performed the type of work in dispute for the Employer and for other masonry contractors, members of the Masonry Contractors Association in the area. They further contend that the assignment of the work to laborers by the Employer was proper because it is more skillfully, efficiently, and economically performed when done by laborers.
The Employer contends that the Employer and Fred D. Pagura, Inc., are wholly independent corporate entities and that each corporate entity performs work of an entirely different nature, and each is bound only to the collective-bargaining agreement it has executed.
D. Applicability of the Statute
Section 10(k) of the Act empowers the Board to determine a dispute out of which a Section 8(b) (4) (D) charge has arisen. However, before the Board proceeds with a determination of dispute, it must be satisfied that there is reasonable cause to believe that Section 8(b) (4) (D) has been violated.
The record shows that in January 1969, the Carpenters' business agent at the DeSoto Chemical plant construction site, where laborers employed by the Employer were engaging in scaffolding work, told the Employer that carpenters and not laborers should perform that work. The Employer responded that he was satisfied with the assignment to Laborers. Shortly thereafter, there having been no reassignment of the work, Carpenters employed by the prime contractor became "sick" and left the job. No carpenters were referred to the job for approximately 2 weeks despite repeated requests.
The record further shows that the Employer in 1968 was involved in two other disputes with the Carpenters over the use of laborers to perform masonry scaffolding on projects in Columbus, Ohio. The Employer, as a masonry subcontractor on both projects, assigned the scaffolding work to employees represented by the Laborers. The Carpenters officials claimed the scaffolding work as work of the carpenters, upon both projects. On one project when the Employer informed the Carpenters officials he would not change his assignment, the general contractor's carpenters became "ill" for 2 or 3 weeks. The general contractor, in order to get the carpenters back to work, removed the scaffolding work from the Employer's subcontract and assigned the work to carpenters. However, when the carpenters performed the work the laborers walked off the job. When the Employer completed his masonry subcontract the prime contractor back-charged the Employer $1300 as the cost to the prime contractor for building the scaffolds with carpenters. On the other project, after the Carpenters' claim and the Employer's refusal to change his assignment, the carpenters walked off the job and did not return until the general contractor submitted a request to the Joint Board.
In view of the conduct described above, we find 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.
E. Merits of the Dispute
The Employer, through its membership in the Masonry Contractors Association, is bound by a collective-bargaining agreement with Local 423 Laborers' International Union which covers all masonry scaffolding
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masonry Nov./Dec., 1969