Asbestos Workers, Local No 4

National Labor Relations Board - Board Decisions

Apr 3, 1973

202 N.L.R.B. 832 (N.L.R.B. 1973)

832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Heat and Frost Insulators
and Asbestos Workers, AFL-CIO and its Local
No. 4 and John W. Cowper, Inc. and Carpenters
District Council of Buffalo and Vicinity , United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO.' Case 3-CD-407
April 3, 1973
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by John W. Cowper, Inc., herein
called Cowper, alleging that International Associa-
tion of Heat and Frost Insulators and Asbestos
Workers, AFL-CIO and its Local No. 4, herein
called Respondents or Asbestos Workers, had
violated Section 8(b)(4)(D) of the Act by engaging in
certain proscribed activity with an object of forcing
or requiring Cowper to assign certain work to
employees represented by Respondents rather than
to employees represented by Carpenters District
Council of Buffalo and Vicinity, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO,
herein called the Carpenters.
A hearing was held before Hearing Officer Barry
Kearney on September 21, 1972, in Buffalo, New
York. 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 upon the issues. Thereafter, briefs were filed
by Cowper and Respondents.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE EMPLOYER
Cowper is a New York corporation having its main
place of business in Tonawanda, New York, where it
is engaged in the general contracting business.
During the past year it had gross revenue in excess of
$1 million, and received goods and materials valued
1 Carpenters District Council of Buffalo and Vicinity was permitted to
intervene in this proceeding on the basis of a current contract with The
Mader Corporation
2 Although the Asbestos Workers had demanded of Cowper that its
in excess of $50,000 from sources outside the State of
New York.
The parties have stipulated , and we find, that
Cowper is engaged in commerce within the meaning
of the Act and that it will effectuate the purposes of
the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS
The parties stipulated, and we find, that Respon-
dents and Carpenters are labor organizations within
the meaning of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
Cowper has a contract for the construction of
certain buildings at the Buffalo, Amherst campus of
the State University of New York. Cowper awarded
a subcontract to The Mader Corporation, herein
called Mader, for the purchase and installation of
drywall, insulation, studs, partitions, doorbacks, and
all interior partitions other than masonry. Mader has
a collective-bargaining agreement with the Carpen-
ters. It does not have any such agreement with the
Asbestos Workers. In accordance with its practice,
Mader assigned the work under its subcontract,
including insulation work, to its employees, who
were members of the Carpenters. On July 31, 1972, a
representative of the Asbestos Workers demanded of
Cowper, under threat of picketing the jobsite, that
the work of installing all insulation be assigned to
members of that labor organization. Cowper rejected
the demand.
B. The Work in Dispute
The work in dispute involves the installation of
insulation on the inside surface of exterior walls
behind convector units in A and D dormitory
buildings at the Cowperjobsite at the State Universi-
ty of New York at Buffalo, Amherst, New York,
campus.2
C. The Contentions of the Parties
Respondents contend that the present dispute
involves work identical with that in Asbestos Workers
Local Union No. 4 (The Mader Corporation), 196
NLRB No. 130, where the Board awarded the
disputed work to members of the Asbestos Workers,
and that a similar determination should therefore be
made in the present case.
Cowper asserts that the work involved in the cited
members perform all the insulation work, that demand has apparently been
withdrawn The present dispute involves only the installation of insulation
behind convector units
202 NLRB No. 94
ASBESTOS WORKERS, LOCAL NO 4 833
case is not identical with that in this case. It argues
that in the prior case the insulation was attached to
the wall with adhesives and did not require any
particular skill, whereas in the present case the work
of installing the insulation is more complicated and
requires the skills of carpenters. It also asserts that
the cited case is different from the present case in
that all the insulation work there was behind
convectors, whereas here the similar insulation work
is only a small part of the entire job and a small part
of the insulation work being performed by Mader.
The Carpenters participated in the hearing, but did
not file a brief. Apparently its position is the same as
that of Cowper.
D. Applicability of the Statute
Before the Board may proceed to the determina-
tion of a dispute pursuant to Section 10(k) of the Act,
it must be satisfied that (1) there is reasonable cause
to believe that Section 8(b)(4)(D) has been violated,
and (2) the parties have not agreed upon a method
for the voluntary adjustment of the dispute.
The parties stipulated that on July 31, 1972, an
agent of the Respondents demanded the disputed
work for Asbestos Workers and threatened to picket
Cowper's jobsite unless the demand was complied
with. The parties also stipulated, and we find, that
the foregoing constitutes reasonable cause to believe
that Section 8(b)(4)(D) has been violated.
The parties further stipulated that there is no
effective method for the determination of the dispute
within the meaning of Section 10(k) of the Act.
Accordingly, we find that the 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.3 The Board has
held that its determination in ajurisdictional dispute
is an act of judgment based on commonsense and
experience reached by balancing those factors
involved in a particular case.4
2. Company and industry practices
According to Robert F. Peck, project coordinator
for Mader at the A and D buildings, the insulation at
these buildings runs from floor to ceiling and is
installed with a metal furring strip that is placed on
the masonry backup on the exterior walls. A drywall
application is then applied for a finished product.
According to Mr. Peck: "It is a very involved process
where the metal furring strip and the insulation have
to be installed in a single plane so that the drywall
that is applied thereto . . . provides a smooth surface
that can be ready for painting." The same type of
insulation and method of application is used behind
convector units.
Peck testified that the practice of Mader is to
assign this particular kind of work to carpenters. He
also testified that he had talked with the superintend-
ents of two other construction companies in the area
and they had told him that they had never seen
asbestos workers engaged in this type of installation.
This testimony of Peck was indirectly corroborated
by John W. Kelleher, business representative of
Respondent Local 4, who testified that members of
his organization do not apply metal furring strips in
connection with insulation work, the technique used
by Mader on the job in question.
3. Economy and efficiency
Mader's subcontract calls for considerably more
work than the installation of insulation. It includes
such tasks as setting studs, door frames, attaching
drywall, and insulation. Less than 5 percent of its
subcontract calls for the installation of insulation, of
which only a very small amount involves installation
behind convector units. All Mader's work under the
subcontract is performed by carpenters. It is there-
fore more economical and efficient for Mader to be
able to move its carpenters from one part of the job
to another. It would certainly be less efficient if
Mader were required to employ asbestos workers to
install insulation behind convector units, while
carpenters performed the same type of installation
on the rest of the project. Moreover, it appears that
carpenters are more skilled than asbestos workers in
the application of the technique here used.
1. Collective-bargaining agreement
Mader employs members of the Carpenters, but no
members of the Asbestos Workers. It has a collec-
tive,bargaining agreement with the Carpenters, but
none with the Asbestos Workers.
3 N L R B v Radio & Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 U S 573
Conclusion
The foregoing factors, including specifically com-
pany and area practice, economy, and efficiency,
justify the award of the disputed work to members of
the Carpenters. However, Respondents contend that
4 International Association of Machinists, Lodge No 1743, AFL-CIO
(J A Jones Construction Company), 135 NLRB 1402
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the work involved in this case is the same as that
which was the subject of the earlier cited case
involving essentially the same parties where the
award was to asbestos workers, and that therefore a
similar award should be made in the present case.
(Asbestos Workers Local Union No. 4, supra, involved
Mader, Respondents, and the Carpenters at another
project in the same general area.) That dispute
related to the "complete installation of insulation on
the inside surface of exterior walls behind convector
units" on certain college dormitories. The Board
awarded the work to asbestos workers on the ground
that the assignment would be "consistent with area
practice, Joint Board decisions, 5 agreements between
Respondent Local 4 and Carpenters and their
Internationals, and the criteria set forth in Mader's
contract with Carpenters for assignment of work."
Although the two cases involve the installation of
insulation behind convector units there are certain
important differences between them. The technique
of application is different. In the earlier case,
application of the insulation was by the use of
adhesives; in the present case metal furring strips are
used for attachment purposes. Greater skill is
required in the application of the latter technique
than in the former. In the earlier case, the evidence
indicated that industry practice favored assignment
to asbestos workers. In the present case, the evidence
of industry practice is all the other way. In the earlier
case, the only insulation work being performed by
Mader under its subcontract involved that behind
convector units. The assignment therefore was
dispositive of all Mader's insulation work. In the
present case, the work behind convector units is only
a small part of the overall insulation work being
performed by Mader. If the Board were to make the
same determination in this case as in the prior case, it
would be assigning parts of identical work to two
different groups of employees. Finally, it is not
apparent from the evidence that the decisions of the
Joint Board or the agreement between the two
Internationals relate to the technique used in this
case for the application of insulation behind convec-
tor units. For all the foregoing reasons we find that
Asbestos Workers Local Union No. 4, supra, is
distinguishable from, and not dispositive of, this
case. We shall assign the work in dispute to
carpenters.6
Having considered all pertinent factors herein, we
conclude that employees represented by the Carpen-
5 The National Joint Board for the Settlement of Jurisdictional Dispute
6 Chairman Miller agrees with this result , but relies only on the factors
showing company and area practice , economy , and efficiency in awarding
the work in dispute to carpenters He does not attach significant weight to
the additional factors relied on above concerning the difference in method
ters are entitled to perform the work in dispute. In
making this determination, we are assigning the
disputed work to employees of The Mader Corpora-
tion who are represented by Carpenters District
Council of Buffalo and Vicinity, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO,
but not to that Union or its members. Our present
determination is limited to the particular controversy
which gave rise to this proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
hereby makes the following Determination of Dis-
pute:
1. Employees of The Mader Corporation, who
currently are represented by Carpenters District
Council of Buffalo and Vicinity, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO,
are entitled to perform the work of installing
insulation on the inside surface of exterior walls
behind convector units in A and D dormitory
buildings at the Cowperjobsite at the State Universi-
ty of New York at Buffalo, Amherst, New York,
campus.
2. International Association of Heat and Frost
Insulators and Asbestos Workers, AFL-CIO and its
Local No. 4, are not entitled by means proscribed by
Section 8(b)(4)(D) of the Act to force or require John
W. Cowper, Inc., to assign the above-described
insulation work to employees represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, International Associ-
ation of Heat and Frost Insulators and Asbestos
Workers, AFL-CIO and its Local No. 4, AFL-CIO,
shall notify the Regional Director for Region 3, in
writing, whether or not it will refrain from forcing or
requiring John W. Cowper, Inc., by means pro-
scribed by Section 8(b)(4)(D) of the Act, to assign the
work in dispute to employees represented by Interna-
tional Association of Heat and Frost Insulators and
Asbestos Workers, AFL-CIO and its Local No. 4,
rather than to employees represented by Carpenters
District Council of Buffalo and Vicinity, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO.
of application between the use of metal furring strips and adhesive , and the
higher degree of skill to affix metal furring strips which the carpenters
purportedly possess In his view, the facts do not establish a sufficient
difference in skill as between the two methods of application to be worthy
of the reliance placed on them by his colleagues