Carpenters Local 623 (E.P. Donnelly, Inc.)

National Labor Relations Board - Board Decisions

Dec 31, 2007

351 N.L.R.B. 1417 (N.L.R.B. 2007)

CARPENTERS LOCAL 623 (E. P. DONNELLY, INC.)
351 NLRB No. 97
1417
United Brotherhood of Carpenters and Joiners of
America, Local Union No. 623 and E. P. Don-
nelly, Inc. and Sheet Metal Workers’ Interna-
tional Association, Local 27, AFL–CIO. Case 4–
CD–1178
December 31, 2007
DECISION AND DETERMINATION OF DISPUTE
BY MEMBERS LIEBMAN, SCHAUMBER, AND KIRSANOW
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act. E. P.
Donnelly, Inc. (the Employer) filed a charge on May 2,
2007,1 alleging that the Respondent, United Brotherhood
of Carpenters and Joiners of America, Local Union No.
623 (Local 623), violated Section 8(b)(4)(D) of the Act
by engaging in proscribed activity with an object of forc-
ing the Employer to continue to assign certain work to
employees it represents rather than to employees repre-
sented by Sheet Metal Workers’ International Associa-
tion, Local 27, AFL–CIO (Local 27). Thereafter, Local
27 filed a Motion to Quash Notice of Hearing or Bifur-
cate Section 10(k) Proceeding. On June 29, the Board
denied Local 27’s motion without prejudice to Local 27
raising its arguments at the hearing. The hearing was
held on July 2, 3, and 5 before Hearing Officer Donna D.
Brown. Thereafter, the Employer, Local 623, and Local
27 filed posthearing briefs.2
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.

1 Unless otherwise indicated, all dates refer to 2007.
2 After the briefs had been filed, Local 27 submitted to the Board a
letter dated September 6, 2007, attaching transcript pages from a hear-
ing in a civil proceeding in Federal district court. The hearing con-
cerned a motion for preliminary injunction brought by Local 27. Local
27 states that it “feel[s] that the Court’s comments should be considered
by the Board in its determination of this § 10(k) proceeding.” Local 27
does not state any other basis for the Board to consider its untimely
submission.
Sec. 102.90 of the Board’s Rules and Regulations provides that any
party to a proceeding under Sec. 10(k) of the Act may file “a brief”
with the Board “within 7 days after the close of the hearing.” Neither
Sec. 102.90 nor any other provision of the Board’s Rules provides for
any other submission to the Board in a 10(k) case. In Reliant Energy,
339 NLRB 66 (2003), the Board held that parties in unfair labor prac-
tice and representation cases may submit postbrief letters, not to exceed
350 words, for the purpose of calling to the Board’s attention “pertinent
and significant authorities.” The Board has never extended Reliant
Energy to a 10(k) proceeding. But even assuming the Board were to do
so, Local 27’s submission would be improper under Reliant Energy
because the attached transcript pages of a motion hearing do not qualify
as “pertinent and significant authorities.” As there is no basis in rule or
decision to entertain Local 27’s September 6 submission, that submis-
sion is rejected. Thus, we need not consider letters submitted in oppo-
sition to Local 27’s submission by the Employer and Local 623.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire re-
cord, the Board makes the following findings.
I. JURISDICTION
The Employer, a Pennsylvania corporation, is a con-
tractor engaged in the construction industry. During the
12 months preceding the hearing, a representative period,
the Employer, at its Jamison, Pennsylvania location, pur-
chased and received goods and services valued in excess
of $50,000 directly from points outside the State of
Pennsylvania. The parties stipulated, and we find, that
the Employer is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act and that Locals 623
and 27 are labor organizations within the meaning of
Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer is a contractor in the construction indus-
try, specializing in the installation of prefabricated stand-
ing seam metal roofs and related tasks, and performing
work (as relevant here) in south and central New Jersey.
The Employer is signatory to the Carpenters’ Interna-
tional agreement, which binds the Employer to the Local
623 agreement while working in Local 623’s geographi-
cal jurisdiction. As more fully detailed below, both the
Carpenters’ International agreement and the Local 623
agreement assert work jurisdiction over the installation
of standing seam roofs. The Employer has had a collec-
tive-bargaining relationship with the Carpenters since
1999. It retains a core group of seven or eight Carpen-
ters-represented employees and hires more as needed
through the applicable local Carpenters’ agreement.
On March 30, the Employer subcontracted with gen-
eral contractor Sambe Construction Company, Inc. to
install prefabricated standing seam metal roofing, soffit,
fascia and related trim at the Egg Harbor Township
Community Center project in Egg Harbor Township,
New Jersey (the disputed work). The Egg Harbor Town-
ship Community Center project is covered by a project
labor agreement (PLA). The signatories to the PLA are
Egg Harbor Township, Sambe, the South Jersey Building
and Construction Trades Council, and certain local un-
ions, including Local 27. Local 623 is not a signatory to
the PLA. When the Employer entered into the subcon-
tract with Sambe, the Employer signed a letter of assent
binding it to the terms and conditions of the PLA.
Pertinent provisions of the PLA are as follows:
Article 2, Section 4: This Agreement, together
with the local Collective Bargaining Agreements ap-
pended hereto as Schedule A[,] represents the com-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1418
plete understanding of all signatories and supersedes
any national agreement, local agreement or other
collective bargaining agreement of any type which
would otherwise apply to this Project(s), in whole or
in part. Where a subject covered by the provisions,
explicit or implicit, of this Agreement is also cov-
ered by a Schedule A [collective-bargaining agree-
ment], the provisions of this Agreement shall pre-
vail. . . .
Article 3, Section 1: [W]here there is a conflict,
the terms and conditions of this Project Agreement
shall supersede and override terms and conditions of
any and all other national, area, or local collective
bargaining agreements. [¶] It is understood that this
is a self-contained, stand alone, Agreement . . . .
Article 4, Section 1: The Contractors recognize
the signatory Unions as the sole and exclusive bar-
gaining representatives of all craft employees who
are performing on-site Project work within the scope
of this Agreement . . . .
Article 10, Section 2: (A) There shall be a man-
datory pre-job markup/assignment meeting prior to
the commencement of any work. Attending such
meeting shall be designated representatives of the
Union signatories to this Agreement, the CM [Con-
struction Manager], and the involved Contractors
. . . . (B) All Project construction work assignments
shall be made by the Contractor according to the
area practice as contained within the jurisdiction of
the [South Jersey Building and Construction Trades
Council] . . . .
In addition, article 10, section 3 of the PLA sets forth a pro-
cedure for resolving jurisdictional disputes.
One of the “schedule A” agreements appended to the
PLA is a collective-bargaining agreement between Local
27 and Sambe, effective June 1, 2006 until May 31,
2009. As more fully detailed below, the “scope of work”
provision in the Local 27 agreement encompasses the
disputed work.
The “prejob markup/assignment meeting” referenced
in article 10, Section 2 of the PLA was held on April 4.
At the prejob meeting, Sambe assigned the disputed
work to the Employer. At the same meeting, Local 27
claimed the disputed work. On April 13, the Employer
stated that it was assigning the disputed work to employ-
ees represented by Local 623. On April 16, Local 27
invoked the PLA’s provisions for the settlement of juris-
dictional disputes. A hearing was held before Arbitrator
Stanley L. Aiges on June 5. On June 15, the arbitrator
issued his short-form decision, and on July 2, issued his
long-form decision awarding the disputed work to Local
27. The Employer, Sambe, and Local 27 participated in
the arbitration, but Local 623 did not.
On April 30, Local 623 informed the Employer that
any attempt to assign work within the Carpenters’ juris-
diction to another trade would be “considered a breach of
the Collective Bargaining agreement and [would] result
in a grievance, picketing or any other means available to
preserve this work for the Carpenters.” On May 2, the
Employer filed 8(b)(4)(D) charges against both Local
623 and Local 27, alleging that each Union was coercing
the Employer to assign the disputed work to employees it
represents rather than to employees represented by the
other Union. The Board dismissed the Employer’s
charge against Local 27. This 10(k) proceeding ensued.
B. Work in Dispute
The notice of hearing describes the disputed work as
“the installation of architectural metal roofing panels and
associated flashings and architectural metal siding wall
panels for E.P. Donnelly, Inc. at the Egg Harbor Town-
ship Community Center in Egg Harbor Township, N.J.”
Based on the testimony at the hearing, the hearing officer
defined the work in dispute as the installation of prefab-
ricated standing seam metal roofing, soffit, fascia, and
related trim to be performed by the Employer at the Egg
Harbor Township Community Center.
C. Contentions of the Parties
The Employer contends that there is reasonable cause
to believe that Local 623 violated Section 8(b)(4)(D)
because both Local 623 and Local 27 claim the disputed
work, and Local 623 threatened to picket if the Employer
assigned the work to employees represented by Local 27.
The Employer further asserts that there is no agreed-upon
voluntary method to adjust the dispute. On the merits of
the dispute, the Employer asserts that its collective-
bargaining agreement with Local 623, employer prefer-
ence, past practice, area and industry practice, relative
skills and training, and economy and efficiency of opera-
tions favor awarding the disputed work to Carpenters-
represented employees.
Local 623 agrees that the dispute is properly before the
Board under Section 10(k) and, on the merits, cites the
same factors as the Employer for asserting that the dis-
puted work should be awarded to employees that it
represents. Local 623 also asserts that because Egg Har-
bor Township is not an employer in the construction in-
dustry, the PLA is an unlawful prehire agreement, and
therefore Local 27 violated Section 8(b)(4)(D) by seek-
ing, through arbitration, to enforce its PLA-based claim
to the disputed work.
Local 27 contends that the notice of hearing should be
quashed because the Board “cannot make an affirmative
CARPENTERS LOCAL 623 (E. P. DONNELLY, INC.) 1419
award of the disputed work.” In support of this conten-
tion, Local 27 argues that the Board is precluded from
exercising its authority under Section 10(k) with regard
to any work that is within the scope of the PLA because
the PLA is authorized by a New Jersey statute, N.J. Stat.
Ann. §§ 52:38-1 et seq., which (according to Local 27) is
not subject to NLRA preemption under the Supreme
Court’s decision in Boston Harbor.3 Local 27 further
contends that there is no reasonable cause to believe that
Section 8(b)(4)(D) has been violated because Local 27
did not use proscribed means to enforce its claim to the
work in dispute, and Local 623 and the Employer col-
luded in an effort to evade the PLA. Local 27 contends
that the notice of hearing should be quashed on the addi-
tional ground that the PLA provides an agreed-upon
method for voluntarily adjusting the dispute. Local 27
asserts that, should the Board decline to quash the notice
of hearing, it should award the disputed work to employ-
ees represented by Local 27 based on its “schedule A”
collective-bargaining agreement attached to the PLA and
on area and industry practice, relative skills, and econ-
omy and efficiency of operations.
D. Applicability of the Statute
Before the Board may proceed with determining a dis-
pute pursuant to Section 10(k) of the Act, it must be es-
tablished that (1) there are competing claims for the
work; (2) there is reasonable cause to believe that Sec-
tion 8(b)(4)(D) of the Act has been violated; and (3) the
parties have no agreed-upon method for voluntary ad-
justment of the dispute. Carpenters Local 272 (Lymo
Construction Co.), 334 NLRB 422, 423 (2001). For the
reasons stated below, we find that this dispute is properly
before the Board for determination under Section 10(k).
At all times, both Local 623 and Local 27 have
claimed the disputed work for employees represented by
their respective unions. Local 27’s Business Representa-
tive, Scott Sheridan, testified that when Sambe an-
nounced at the April 4 prejob meeting that the disputed
work was being assigned to the Employer (known to
employ Carpenters-represented employees), he “raised
issue with the assignment.” On April 16, Local 27 ex-
pressly claimed the disputed work by invoking the PLA’s
grievance/arbitration apparatus for the settlement of ju-
risdictional disputes. On April 30, Local 623 advised the
Employer that any attempt to assign work within its ju-
risdiction to another trade would be “considered a breach
of the Collective Bargaining agreement and [would] re-
sult in a grievance, picketing or any other means avail-
able to preserve this work for the Carpenters.” Accord-

3 Building & Construction Trades Council v. Associated Builders &
Contractors of Mass./R.I., Inc. (Boston Harbor), 507 U.S. 218 (1993).
ingly, there is reasonable cause to believe that there are
competing claims to the disputed work. See Bakery
Workers Local 205 (Metz Baking Co.), 339 NLRB 1095,
1097 (2003).
There is also reasonable cause to believe that Local
623 used proscribed means to enforce its claim. After
learning that Local 27 claimed jurisdiction of the dis-
puted work, Local 623 threatened the Employer, in its
April 30 letter, with picketing and any other means avail-
able should the Employer assign the disputed work to
Local 27. It is well established that a picketing threat
constitutes proscribed means. See Bricklayers (Cretex
Construction Services), 343 NLRB 1030, 1032 (2004);
Laborers Local 1359 (Krall’s Masonry), 281 NLRB
1034, 1035 (1986). Although Local 27 contends that the
Employer and Local 623 colluded to evade the PLA, it
does not claim that Local 623’s picketing threat was a
sham. Nor does Local 27 offer any direct evidence that
Local 623 did not intend its threat seriously. Absent
such evidence, Local 623’s letter, which on its face
threatens economic action, supports finding reasonable
cause to believe that Section 8(b)(4)(D) has been vio-
lated. Cretex, supra at 1032.4
We also find that no agreed-on method exists for vol-
untarily resolving the dispute. Local 27 urges that the
PLA contains such an agreed-upon method, but Local
623 is not a party to the PLA and therefore is not bound
to its dispute-resolution procedure. See Metz Baking,
supra at 1097.
Based on these facts, we find reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated, that there
are competing claims to the disputed work, and that there
is no agreed-upon voluntary method to adjust the dispute.
Thus, we find Section 10(k) applicable.
Local 27 further contends, however, that the Board
“cannot make an affirmative award of the disputed work”
because the PLA is authorized by a New Jersey statute,
which is not subject to NLRA preemption. Local 27 thus
appears to suggest that a Board award of the work in
dispute to employees represented by Local 623 would
effectively and impermissibly preempt New Jersey law
authorizing public entities such as Egg Harbor Township
to negotiate project labor agreements. The suggestion is
without merit. An award of the disputed work to Local
623 would not prevent Egg Harbor Township from exer-
cising its authority under state law to negotiate and exe-

4 As stated above, Local 623 contends that reasonable cause exists to
believe that Local 27 violated Sec. 8(b)(4)(D), and Local 27 opposes
that contention. We need not address these arguments. We have found
reasonable cause to believe that Local 623 violated Sec. 8(b)(4)(D).
That suffices to support our jurisdiction under Sec. 10(k). Moreover,
the Employer’s charge against Local 27 was dismissed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1420
cute project labor agreements, nor would it invalidate the
PLA. The Employer would continue to be bound under
the terms of the PLA, and the parties to the PLA would
retain any rights they may have under state law to bring a
suit for damages against the Employer for any breach of
the PLA.
But even assuming arguendo that our exercise of juris-
diction in this case would put the Board at cross-
purposes with the New Jersey statute, it does not follow
that the Board is precluded from exercising its statutory
authority. It is one thing to urge that, under Boston Har-
bor, the state statute is not subject to preemption; it is
quite another to suggest that as a result the Board has no
jurisdiction over this dispute arising under Section 10(k).
Such a suggestion is contrary to the Constitution’s Su-
premacy Clause.
In sum, we find that the dispute is properly before the
Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive award of disputed work after considering various
factors. NLRB v. Electrical Workers Local 1212 (Co-
lumbia Broadcasting), 364 U.S. 573, 577 (1961). The
Board has held that its determination in a jurisdictional
dispute is an act of judgment based on common sense
and experience, reached by balancing the factors in-
volved in a particular case. Machinists Lodge 1743 (J.A.
Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Collective-bargaining agreements
The Employer is signatory to the Carpenters’ Interna-
tional agreement, which binds the Employer to the Local
623 agreement while working in Local 623’s jurisdiction.
Both the International agreement and the Local 623
agreement contain language asserting jurisdiction over
the disputed work. The former agreement claims “[a]ll
work in connection with the unloading, handling, distri-
bution, and installation by any means of all prefabricated
standing seam metal roofing, soffit, fascia, and related
trim.” The latter claims “erection or application of all . .
. standing seam roofs, aluminum siding, siding wall-
board, or sheets composed of wood pulp, plastic, plaster,
transite or composition materials or any combination of
any of the above with any other material including com-
bined or faced with metal regardless of the manner at-
tached.”
The Employer has no collective-bargaining agreement
with Local 27. However, the Employer is signatory to a
letter of assent that binds it to the PLA; and Local 27’s
agreement with, inter alia, Sambe is appended to the
PLA. The latter agreement, in turn, claims for Local 27
“roof curbs . . . fascia, soffits . . . metal roofing and deck-
ing and all other architectural sheet metal work. . . .”
Assuming, without deciding, that the Employer’s execu-
tion of the letter of assent binding it to the PLA also
bound it to the appended Local 27 agreement, we dis-
agree with Local 27’s contention that the “supremacy”
provisions in article 3, section 1 of the PLA cause this
factor to favor an award of the disputed work to employ-
ees represented by Local 27. Every contract implies an
expectation of the parties that its terms will be honored,
notwithstanding the existence of any conflicting agree-
ments entered into by any of the parties. Both Local 623
and (arguably) Local 27 have separate binding contracts
with the Employer, and the Employer’s obligations under
one contract cannot be used to void its obligations under
the other. Accordingly, the PLA’s supremacy provisions
do not privilege the Employer to breach its agreement
with Local 623, which is not a party to the PLA, nor
would a similar provision in the Local 623 contract allow
the Employer to breach the Local 27 agreement. There-
fore, the factor of collective-bargaining agreements does
not favor an award to employees represented by either
union. See Operating Engineers Local 318 (Kenneth E.
Foeste Masonry), 322 NLRB 709, 712 (1996).
2. Employer preference, current assignment, and
past practice
Under the Employer’s agreements with the Carpenters
dating back to 1999, its past practice has been to assign
work of the kind in dispute here to Carpenters-
represented employees. Consistent with this practice, the
Employer currently assigns the disputed work to those
employees, and prefers to continue doing so. Its project
manager, Gerry Campi, testified that the Employer has
“had a lot of success using the Carpenters. They get the
job done on time and as far as the workmanship goes
we’re very satisfied with it.” Although Local 27 urges
the Board to accord this factor little weight, Local 27
does not deny that the Employer’s preference and past
practice is to assign the work in dispute to Carpenters-
represented employees. Based on the foregoing, we find
that the factors of employer preference, current assign-
ment, and past practice favor awarding the disputed work
to employees represented by Local 623.
3. Area and industry practice
In the past several years, the Employer has installed 24
prefabricated standing seam metal roofs in New Jersey
with Carpenters-represented employees. In addition, the
evidence shows that several other area contractors simi-
larly employ and have employed Carpenters-represented
employees to perform this type of work. For example,
CARPENTERS LOCAL 623 (E. P. DONNELLY, INC.) 1421
Patriot Roofing, Inc. did so on 67 projects completed
between 2004 and 2007, and it is currently doing so on
10 projects. Bamco, Inc. has done so on 38 completed
projects in the last 5 years. La Morte Construction, Inc.
did so on 12 projects; Avon Contractors, on 10 projects.
J.D. Contractors and Newmet Corporation similarly use
Carpenters-represented employees for this type of work.
Campi testified that the Employer often bids against con-
tractors who use Carpenters-represented employees to
install standing seam metal roofs.
The evidence also shows that employees represented
by the Sheet Metal Workers have an extensive history of
performing this type of work. George Thomas, vice
president of Thomas Company, Inc., testified that be-
tween 2002 and 2004, his company completed 28 New
Jersey projects of the type at issue with employees repre-
sented by Local 27, and that he was currently performing
similar work in Atlantic City with Local 27–represented
employees. Brian Kiker, president of Kiker Sheet Metal
Corporation, testified that his company has had a collec-
tive-bargaining relationship with Local 27 since 1953
and has completed 27 projects of this type in New Jersey
since 2003. Kiker acknowledged that he competes for
these jobs with contractors that employ Carpenters-
represented employees. Raymond Sykes, project man-
ager and superintendent of John Sykes Company, testi-
fied about Sykes’ collective-bargaining relationship with
Local 27 dating back to 1901 and about projects success-
fully completed involving work of the kind at issue here.
He further testified that employees represented by the
Iron Workers and the Carpenters perform this type of
work. Scott Sheridan, Local 27’s business representa-
tive, acknowledged that employees represented by Iron
Workers, Carpenters, and Sheet Metal Workers all per-
form the type of work at issue.
Because the evidence shows that employees repre-
sented by both Carpenters and Sheet Metal Workers per-
form work of the type in dispute here, we find that the
factor of area and industry practice does not favor an
award of the disputed work to employees represented by
either union.5
4. Relative skills and training
Local 623 presented evidence that Carpenters-
represented employees are trained to perform work of the
kind in dispute as part of a 4-year apprenticeship pro-
gram, which includes a required standing seam roofing
component. The record further shows that the Em-

5 Local 27 notes that the arbitration pursuant to the PLA in this case
resulted in an award assigning the disputed work to employees repre-
sented by Local 27 based exclusively on “[t]he prevailing area prac-
tice.” The evidence above does not support the arbitrator’s conclusion.
ployer’s Carpenters-represented work force is certified in
the installation of the Merchant and Evans’ Zip Rib sys-
tem, which is the specific prefabricated standing seam
metal roofing to be installed on the project. The Em-
ployer is also certified by other manufacturers for this
type of work.
Local 27 presented evidence of its apprentice training
program, wherein apprentices must complete modules
related to louvers, metal flashings, metal roofs, and roof
systems. Andrew Caccholi, training coordinator for the
Local 27 Sheet Metal Workers Education Fund, testified
that apprentices receive approximately 1000 hours of
combined on-the-job and classroom training in roofing
and architectural sheet metal, including installation of
prefabricated seamless steel roofing.
George Thomas testified that his company and its Lo-
cal 27-represented employees were called in to repair
poor work done by the Employer and its Carpenters-
represented employees on the Sovereign School project.
The Employer disputed this contention and made an offer
of proof that the project manager for the Sovereign
School project would attest to the Employer’s satisfac-
tory completion of work on that project. Yan Giryla,
vice president and general manager of Sambe, testified
that he had experience using employees represented by
both unions, and he found both groups of employees
“technically proficient” and “acceptable . . . in terms of
quality” in installing prefabricated standing seam metal
roofing. John Reilly, president of Patriot Roofing, testi-
fied that he always uses employees represented by the
Carpenters but that employees represented by the Sheet
Metal Workers are equally “qualified” to perform the
work at issue.
On this record, we find that employees represented by
both Local 623 and Local 27 have the skills and training
necessary to perform the work in question. Accordingly,
the factors of relative skills and training do not favor an
award to employees represented by either union.
5. Economy and efficiency of operations
Campi, the Employer’s project manager, testified that
the installation of standing seam metal roofs sometimes
requires the performance of ancillary carpentry work.
Thus, the Employer avoids coordination problems and
employee downtime and thereby gains efficiency by em-
ploying Carpenters-represented employees who can per-
form this ancillary work in addition to the roof installa-
tion. Local 27 notes that its members are skilled in ancil-
lary tasks such as louvers or metal flashing, for which
Carpenters-represented employees receive no training.
Local 27 contends that these skills make it more efficient
to employ its workers. The work in dispute, however,
does not include louvers. Campi testified that louvers
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1422
were not “part of [the] package” on the project. Giryla
confirmed this, adding that roofing bids usually exclude
louvers from the scope of the work. Accordingly, we
find that the factor of economy and efficiency of opera-
tions favors awarding the disputed work to employees
represented by Local 623.
6. The arbitrator’s determination
Arbitrator Aiges awarded the work in dispute to em-
ployees represented by Local 27. We find, however, that
his award is entitled to little weight because he did not
consider most of the factors that the Board takes into
account in making an award of disputed work under Sec-
tion 10(k). Rather, he found that under article 10, section
2(B) of the PLA, the only applicable consideration was
area practice within the jurisdiction of the South Jersey
Building and Construction Trades Council. Applying
this single factor, the arbitrator’s only option was to find
that it favored one union over the other; the alternative,
finding that it favored neither union, was unavailable.
Thus, the arbitrator found in favor of Local 27, notwith-
standing his acknowledgment that the Employer intro-
duced “scores of examples” of standing seam metal roof
installations performed by Carpenters-represented em-
ployees. We cannot determine how the arbitrator would
have ruled on the factor of area practice had the option of
“favors neither union” been available. Nor can we
evaluate his decision according to our own standards.
Thus, we find that the arbitrator’s decision does not favor
awarding the disputed work to either group of employ-
ees.
Conclusions
After considering all the relevant factors, we conclude
that employees represented by Local 623 are entitled to
continue performing the work in dispute. We reach this
conclusion relying on the factors of employer preference,
current assignment and past practice, and economy and
efficiency of operations. In making this determination,
we award the work to employees represented by Local
623, not to that labor organization or to its members.
The determination is limited to the controversy that gave
rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of E. P. Donnelly, Inc., represented by
United Brotherhood of Carpenters and Joiners of Amer-
ica, Local Union No. 623, are entitled to install prefabri-
cated standing seam metal roofing, soffit, fascia and re-
lated trim on the Community Center Project in Egg Har-
bor Township, New Jersey.