Asbestos Workers Local Union No. 91

National Labor Relations Board - Board Decisions

Mar 24, 1986

278 N.L.R.B. 1138 (N.L.R.B. 1986)

1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Asbestos Workers Local Union No . 91 and Northern
Tier Insulations and C. B. Strain & Son, Inc.
and Orange County Insulation Corporation.
Case 3-CD-569
24 March 1986
DECISION AND DETERMINATION OF
DISPUTE
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
The charge in this Section 10(k) proceeding was
filed on 6 August 19851 by Northern Tier Insula-
tions, Inc. (NTI), alleging that Asbestos Workers
Local Union No. 91 (Local 91) had violated Sec-
tion 8(b)(4)(D) of the Act by engaging in certain
proscribed activity with the object of forcing C. B.
Strain & Son, Inc. (Strain) to assign certain work
to employees represented by Local 91 rather than
to unrepresented employees. The hearing was held
on 18 September before Hearing Officer Christo-
pher G. Roach.
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.
I. JURISDICTION
Strain, a New York corporation, is engaged as a
mechanical contractor in the construction industry
in Poughkeepsie, New York, where it annually re-
ceives supplies and materials valued in excess of
$50,000 directly from points outside the State of
New York. NTI, a New York corporation, is en-
gaged as an insulation contractor in the construc-
tion industry in Albany, New York, where in the
past 12 months it received goods and materials
valued in excess of $50,000 from points outside the
State of New York.
The parties stipulated, and we find, that Strain
and NTI are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
Local 91 is a labor organization within the meaning
of Section 2(5) of the Act. The parties also stipulat-
ed that Orange County Insulation Corporation
(Orange County) falls within the Board's jurisdic-
tion under the nonretail direct inflow standard.
I All dates refer to 1985
II. THE DISPUTE
A. Background and Facts of Dispute
Strain is a mechanical contractor in the construc-
tion industry and the general contractor for a
project at Vassar College. The project requires the
installation of foam glass insulation on underground
steam and condensate lines. Strain solicited bids
from insulation contractors for this work. Strain re-
ceived three bids; NTI's bid of $19,800 was the
lowest.2 Strain accepted it, awarded the work to
NTI, and on 23 April issued NTI a written pur-
chase order. The work was scheduled to com-
mence about 2 July using NTI's unrepresented em-
ployees.3
Additionally, Strain was itself a subcontractor
for a project at the Greercrest Retirement Commu-
nity. This project required the insulation of hot
water heating systems. Strain again solicited bids
from insulation contractors. NTI's bid was
$131,510 and Orange County's bid was $190,000.
Strain awarded the work to NTI and gave NTI an
oral purchase order. NTI prepared the required pa-
perwork, gave material samples to Strain's archi-
tect, and delivered insulation materials to the job-
site.
About 30 May, Strain's vice president Ron Weiss
was contacted by Local 91's business agent Eugene
LeClerc, who asked Weiss why Strain had not
awarded the contracts to a union contractor. Weiss
told LeClerc that NTI had submitted the lowest
bids on the two projects. Weiss also told LeClerc
that NTI's bid on the Greercrest project was
within Strain's budget, while the union contractors'
bids were over Strain's budget. According to
Weiss, LeClerc then said that a smoothly run job
was better than one with problems and LeClerc
mentioned the word "picket" at least once.4
After this conversation, LeClerc discussed the
projects with Jack Van Ross, president of Orange
County, whose insulation employees are represent-
ed by Local 91. Thereafter, Orange County rebid
on the Greercrest job; its bid was $150,000. Strain
decided to use Orange County on both the Vassar
and the Greercrest jobs. About 30 May, Strain
called NTI and canceled their agreements.5
About 25 June, Michael Dempsey, NTI's presi-
dent, and Michael Coppola, NTI's vice president,
met with LeClerc. Dempsey asked LeClerc why
Strain had canceled NTI's contracts and LeClerc
z The other bidders were Orange County and John Mansville.
a The project was finished in September
4 Weiss testified that LeClerc stated that "he would have to do what-
ever he had to do to protect his work "
5 Strain paid NTI $1000 to compensate it for precancellation expenses.
278 NLRB No. 165
ASBESTOS WORKERS LOCAL 91 (NORTHERN TIER INSULATIONS) 1139
said that the jobs were being done with union
people and consequently there was no picketing.
B. Work in Dispute
The work in dispute consists of (1) the installa-
tion of insulation for hot water heating systems at
the Greercrest Retirement Community- project in
Millpond , New York, and (2) the installation of in-
sulation for underground steam and condensate
piping at Vassar College in Poughkeepsie, New
York.
No evidence was produced at the hearing of an
agreed-upon method for the voluntary adjustment
of the instant dispute.
Based on the above-described threat and the
record as a whole , we find reasonable cause to be-
lieve that a violation of Section 8(b)(4)(D)7 has oc-
curred and that.there exists no agreed-upon method
for voluntary adjustment 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.
C. Contentions of the Parties
NTI contends that this case is properly before
the Board for determination ; that reasonable cause
exists to believe that Local 91 violated Section
8(b)(4)(D) of the Act; and that the work in dispute
should be awarded to NTI's unrepresented employ-
ees based on the factors of efficiency, employer
preference , industry and area practice , and relative
skills . Local 91 contends that it did not make any
threats to Strain and that the Board lacks authority
to choose the subcontractor to whom Strain assigns
its insulation work. 6 At the hearing, neither Strain
nor Orange County stated a position on the assign-
ment of the work in dispute.
D. Applicability of the Statute
Section 10(k) of the Act empowers the Board to
determine a dispute out of which an 8(b)(4)(D)
charge has arisen . However, before the Board pro-
ceeds 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 , and that
there is no agreed -upon method for voluntary set-
tlement of the dispute.
At the beginning of the dispute, unrepresented
employees employed by NTI had been assigned to
perform the work in dispute . Then Local 91
claimed the work for the employees it represents
and threatened to picket Strain if the work was not
given to these employees . After this threat, Strain
canceled its agreements with NTI and contracted
the work to Orange County , whose insulation em-
ployees are represented by Local 91.
On 25 June , LeClerc told NTI's president
Dempsey that the work had been taken away from
NTI and given to Orange County because Strain
was afraid of pickets.
° The Board has authority to award the work in dispute to the employ-
ees of one subcontractor rather than to the employees of a second sub-
contractor. Iron Workers Local 426 (Associated Cement), 267 NLRB 627
(1983); see also Teamsters Local 282 (Active Fire Sprinkler), 233 NLRB
1230 (1977).
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 had held that its determination
in a jurisdictional dispute ' is an act of judgment,
based on common sense and experience , reached
by balancing the factors involved in a particular
case . Machinists Lodge 1743 (J. A. Jones Construc-
tion), 135 NLRB 1402 (1962).
The following factors are relevant in making the
determination of this dispute.
1. Collective-bargaining agreements
Strains does not have a collective-bargaining
agreement with Local 91. We find that this factor
does not favor assignment of work in dispute to
either of the competing groups of employees.
2. Company preference and past practice
Strain stated at the hearing that it has no prefer-
ence which group of employees should perform the
work in dispute . Thus, we find that this factor does
not favor the assignment of the work in dispute to
either of the competing groups of employees.
3. Area practice
The evidence concerning area practice is mixed.
Certain area contractors employ unrepresented em-
ployees and other contractors employ employees
represented by unions , including Local 91. We find
that this factor does not favor assignment of the
work in dispute to either of the competing groups.
7 The charge alleges that Local 91 "threatened , restrained or coerced"
Strain and NTI in violation of Sec . 8(b)(4)(D) of the Act . Because we
find reasonable cause to believe that Local - 91 violated Sec . 8(b)(4)(D) of
the Act by threatening Strain , who was the general contractor and who
controlled the work in dispute, we find it unnecessary to decide if there
is reasonable cause to believe that Local 91 also threatened NTI, Strain's
subcontractor.
° There is no contention that Strain , which reassigned the work in dis-
pute, did not control the work. Therefore , Strain is the employer whose
labor contracts , practices , preference, etc., are at issue.
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Relative skills
The only specific skill required for installing in-
sulation, at the Vassar and Greercrest projects, is
"heat sealing." Any competent workman with the
proper instruction and the correct equipment can
perform the installation . Local 91 had a 4-year ap-
prenticeship program , part of which is 3 or 4
months of "on-the-job training" in the type of skills
needed for this work . The unrepresented employ-
ees also have the skills necessary for this type of
work, including the "heat sealing ." We find that
both groups of employees are capable of perform-
ing the insulation work. Thus, we find that the skill
factor does not favor the assignment to either of
the competing groups of employees.
5. Economy and efficiency of operation
Uncontradicted evidence shows that the unrepre-
sented employees are more versatile than the em-
ployees represented by Local 91. Unlike employees
represented by Local 91, the unrepresented em-
ployees have been cross-trained and thus can be
cross-utilized. For example, when not doing insula-
tion work, they can load and unload materials and
perform carpentry work. We therefore find that
the factor of economy and efficiency of operation
favors an award to the unrepresented employees.
Conclusions
After considering all the relevant factors, we
conclude that NTI's unrepresented employees are
entitled to perform the work in dispute . We reach
this conclusion relying on the factor of economy
and efficiency of operation . The determination 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.
1. Employees of Northern Tier Insulations, Inc.
are entitled to perform all insulation work at the
Vassar project and at the Greercrest project.
2. Asbestos Workers Local Union No. 91 is not
entitled by means proscribed by Section 8(b)(4)(D)
of the Act to force or require C . B. Strain & Son,
Inc. to assign such work to insulation workers who
are represented by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute , Asbestos Workers
Local Union No. 91 shall notify the Regional Di-
rector for Region 3 in writing whether it will re-
frain from forcing C. B. Strain & Son , Inc., by
means proscribed by Section 8(b)(4)(D), to assign
the disputed work in a manner inconsistent with
this determination.
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