United Brotherhood Of Carpenters And Joiners Of America, Local No. 424

National Labor Relations Board - Board DecisionsFeb 29, 1988

287 N.L.R.B. 1296 (N.L.R.B. 1988)

1296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD United Brotherhood of Carpenters and Joiners of America, Local No. 424 and Reardon -Underhill Joint Venture and Bricklayers and Allied Craftsmen , Local No. 52 . Case 1-CD-818 29 February 1988 DECISION AND DETERMINATION OF DISPUTE By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT The charge in this Section 10(k) proceeding was filed 2 October 1987, and an amended charge was filed 14 October 1987 by Reardon-Underhill Joint Venture, the Employer, alleging that the Respond- ent, United Brotherhood of Carpenters and Joiners of America, Local No. 424, violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to em- ployees it represents rather than to employees rep- resented by Bricklayers and Allied Craftsmen, Local No. 52. The hearing was held 16 November 1987 before Hearing Officer Don C. Firenze. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board affirms the hearing officer's rulings, finding them free from prejudicial error. On the entire record, the Board makes the following find- ings. 1. JURISDICTION The Employer is a Massachusetts partnership en- gaged in the business of installing insulation and fire safing at its facility in Canton, Massachusetts, where it annually purchases goods in excess of $50,000 from points located outside the State of Massachusetts. The parties stipulate, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Carpenters and the Bricklayers are labor orga- nizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute Turner Construction Company, general contrac- tor for a building being erected at 75 State Street in Boston, Massachusetts, subcontracted the erec- tion of the granite outer walls to Blaesing Granite. Blaesing, in turn, subcontracted the insulation of these walls to Reardon-Underhill Joint Venture. The insulation work is in dispute. Reardon-Underhill is a joint venture between the Reardon Company and the A. F. Underhill Com- pany. The latter is a party to a multiemployer col- lective-bargaining agreement with the Carpenters covering the Respondent's jurisdiction. Reardon- Underhill is not party to the contract but Ted Brodie, president of A. F. Underhill and treasurer of Reardon-Underhill, testified that Reardon-Un- derhill is observing the terms and conditions of A. F. Underhill's agreement with the Carpenters on the State Street project. Article I of this agree- ment covers "all insulation whether nailed; glued or blown." Ed Slavin, Reardon-Underhill's construction su- pervisor, testified that the Bricklayers' business agent, Carmen D'Olimpio, told him the insulation work belonged to the bricklayers and threatened a picket line or walkout, Slavin could not remember which, if the bricklayers were not assigned the work. D'Olimpio admits talking with Slavin but testified he said only that Blaesing was in violation of its agreement with the Bricklayers, and that he would do whatever was necessary to secure the Bricklayers' rights under the agreement with Blaes- ing. Brodie testified that after he explained to Kirt Fordyce, the Carpenters' business agent, that he was under pressure to assign the insulation work to the bricklayers, Fordyce threatened to strike if the Employer reassigned the insulation work to the bricklayers. B. Work in Dispute The disputed work involves the installation of in- sulation to a metal panel using welded pins for use at the Turner Construction Company project at 75 State Street, Boston, Massachusetts, at the Hingham, Massachusetts facility of Blaesing Gran- ite C. Contentions of the Parties The Employer contends that the disputed work should be awarded to employees represented by the Carpenters based on its preference and past practice , skills, area and industry practice , efficien- cy of operations , prior Joint Board determinations, and its collective -bargaining agreement with the Carpenters. Respondent Carpenters essentially agrees with the Employer , stressing the collective -bargaining agreement and industry practice. The Bricklayers ' position is that there is no juris- dictional dispute in this case . It argues that under its collective -bargaining agreement with Blaesing, the subcontracting of the work in dispute was un- lawful , and that Blaesing should have retained the work and assigned it to the Bricklayers . It has filed 287 NLRB No. 140 CARPENTERS LOCAL 424 (REARDON-UNDERHILL) 1297 a grievance under its agreement with Blaesing which is now in binding arbitration The Bricklay- ers maintains that if the arbitrator rules that Rear- don-Underhill was properly awarded the contract, it will not dispute the assignment of the insulation work to the Carpenters D. Applicability of the Statute Before the Board may proceed with a determina- tion of a dispute pursuant to 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 dis- pute. It is undisputed that the business agent for the Carpenters threatened to picket if the Employer capitulated to the Bricklayers' pressure to assign its members the insulation work. Thus we find reason- able cause to believe that a violation of Section 8(b)(4)(D) has occurred. The parties stipulated that there exists no agreed method for voluntary adjust- ment of the dispute within the meaning of Section 10(k) of the Act Accordingly, we find that the dis- pute is properly before the Board for determina- tion. E. Merits of the Dispute Section 10(k) requires the Board to make an af- firmative award of disputed work after considering various factors. NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U.S. 573 (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 bal- ancing the factors involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the determination of this dispute.' 1. Collective-bargaining agreement Reardon-Underhill is not a party to a collective- bargaining agreement with the Carpenters although Brodie testified that A. F. Underhill is a party to such an agreement. He further testified Reardon- Underhill is observing the terms and conditions of A. F. Underhill's agreement with the Carpenters on the State Street project which includes "all in- sulation whether nailed, glued or blown." The Em- ployer has no bargaining relationship with the Bricklayers. Because the Employer involved on this particular project does not have a signed 1 The Bricklayers participated in the hearing on the issue of probable cause but not on the work assignment issue agreement with any union, we conclude that this factor does not favor an award of the disputed work to either group of employees. 2. Company preference and past practice The Employer has assigned the work in dispute to employees represented by the Carpenters Fur- ther, Brodie testified that it has been his Company's consistent practice to assign building insulation work to employees represented by the Carpenters. We find that this factor favors an award of the work to employees represented by the Carpenters. 3. Area and industry practice Earl Graham, a superintendent for Blaesing Granite, testified that he has been involved in over 20 similar projects around the country, and each time installation of the insulation was performed by employees represented by the Carpenters. Graham further testified that before awarding the work to Reardon-Underhill, Blaesing contacted contractors, subcontractors, and competitors in the local area to find out who performed insulation work in the Boston area and determined from its investigation that it was proper to award the work to employees represented by the Carpenters. Kirt Fordyce, busi- ness agent for Carpenters Local 424, testified that in the Boston area on similar projects, employees represented by the Carpenters have performed in- sulation work. The Carpenters introduced decisions of the National Joint Appeals Board from 1970 and 1971 awarding employees it represents similar work. Accordingly, we find the factor of area and industry practice favors an award of the work to employees represented by the Carpenters. 4. Relative skills Brodie testified that employees represented by the Carpenters have the requisite skills to perform the insulation work. No evidence was adduced demonstrating the skills of Bricklayer-represented employees. We find this factor favors awarding the work to employees represented by the Carpenters. 5. Economy and efficiency of operations Brodie testified that the work involved is an as- sembly line type of operation and that if there is a delay on one line, men can be reassigned to an- other project. The Employer employs carpenters on other projects but does not employ bricklayers. Accordingly, we find that this factor favors award- ing the work to employees represented by the Car- penters. 1298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Conclusions After considering all the relevant factors, we conclude that employees represented by the Car- penters are entitled to perform the work in dispute. We reach this conclusion relying on company pref- erence and past practice, area and industry prac- tice, skills, and economy and efficiency of oper- ations In making this determination, we are award- ing the work to employees represented by the Car- penters, not to that Union or its members. The de- termination is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. Employees represented by United Brotherhood of Carpenters and Joiners of America, Local No. 424, are entitled to perform the work of installing insulation to a metal panel using welding pins for the Turner Construction Company project at 75 State Street, Boston, Massachusetts, at the Hingham, Massachusetts facility of Blaesing Gran- ite.