Bricklayers Local 20 (Altounian Builders, Inc.)

National Labor Relations Board - Board Decisions

Apr 30, 2003

338 N.L.R.B. 1100 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1100
International Union of Bricklayers and Allied Craft-
workers, Bricklayers Local No. 20, AFL–CIO
and Altounian Builders, Inc. and Chicago and
Northeast District Council of Carpenters,
United Brotherhood of Carpenters and Joiners
of America, Carpenters Local No. 250. Case 13–
CD–637–1
April 30, 2003
DECISION AND ORDER QUASHING
NOTICE OF HEARING
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act. The
charge was filed on February 28, 2002, by Altounian
Builders (the Employer). The charge alleges that the
Respondent, International Union of Bricklayers and Al-
lied Craftworkers, Bricklayers Local 20, AFL–CIO
(Bricklayers), violated Section 8(b)(4)(D) by engaging in
proscribed activity with the object of forcing the Em-
ployer to assign certain work to the employees it repre-
sents rather than to those represented by Chicago and
Northeast District Council of Carpenters, United Broth-
erhood of Carpenters and Joiners of America, Carpenters
Local 250 (Carpenters). The hearing was held on March
21, 2002, before Hearing Officer David Huffman-
Gottschling.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
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
FINDINGS OF FACT
I. JURISDICTION
The Employer is an Illinois corporation engaged in
general contracting construction work. It annually pur-
chases and receives goods and materials valued in excess
of $50,000 directly from suppliers located outside the
State of Illinois. 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 the Brick-
layers and the Carpenters are labor organizations within
the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Both the Bricklayers and the Carpenters have collec-
tive-bargaining agreements with the Employer. In Feb-
ruary 2002, the Employer began the installation of pre-
cast, aerated autoclave concrete (PAAC) on its Allendale
School project site in Lake Villa, Illinois. As it had on
two previous projects, the Employer assigned the PAAC
work to employees represented by the Carpenters.
Shortly thereafter, the Bricklayers’ business manager,
Joe Gagliardo, contacted the Employer’s vice president,
Todd Altounian, and asked him to reconsider using em-
ployees represented by the Carpenters for the job because
such work fell under the Bricklayers’ jurisdiction. Al-
tounian conceded that PAAC work could fall under the
Bricklayers’ jurisdiction, but stated that he felt that em-
ployees represented by the Carpenters were better suited
to perform the work. Gagliardo again asked Altounian to
reconsider, but the parties did not discuss what steps the
Bricklayers would take if the work was not reassigned.
Later in the conversation, Altounian asked Gagliardo if
the Bricklayers could provide sufficient manpower to
perform the work if it was reassigned, and Gagliardo
responded that he would need some time prior to starting
the job to procure sufficient workers as the Bricklayers
were currently at full employment. Shortly after the
conversation ended, the Bricklayers faxed information to
Altounian on the Bricklayers’ proficiency in PAAC pro-
jects.
The following day, Gagliardo called Altounian and
asked if he had reviewed the information faxed the pre-
vious day. Altounian replied that he had, but felt that the
employees represented by the Carpenters were doing a
fine job and that the Employer intended to allow them to
continue with the work. Gagliardo then stated that he
would submit the dispute to the joint arbitration board,
which is the authority specified in the parties’ contract to
resolve such disputes, and seek lost wage and benefit
damages. Altounian testified that he then asked
Gagliardo if “you demand that I stop work and you close
my job down” and Gagliardo replied, “yes.” Altounian
subsequently testified that, in his mind, he equated pur-
suit of a grievance with shutting down the job. He ex-
plained that this was because of his earlier conversation
with Gagliardo about reassigning the work, and the pos-
sible delays of the project while the Bricklayers found a
sufficient number of qualified employees. Altounian
further testified, on cross-examination, that he later be-
came aware that the Bricklayers sought primarily an
award of damages and conceded that the words “shut my
job down” were his own and not those of Gagliardo.1
After the meetings, the Bricklayers sent the Employer
a letter stating that it intended to file a grievance over the
disputed work but would not picket the Employer’s job

1 On cross-examination, Altounian used the words “shut down,”
rather than the words “close down.”
338 NLRB No. 169
BRICKLAYERS LOCAL 20 (ALTOUNIAN BUILDERS, INC.) 1101
to obtain the work. The Bricklayers did not picket or
engage in other proscribed conduct, but did subsequently
file a grievance, which resulted in an award of monetary
damages. Employees represented by the Carpenters con-
tinued to perform the PAAC work, which was scheduled
to be completed in April of 2002.
B. The Work in Dispute
The parties stipulated that the disputed work involves
the installation of PAAC at the Employer’s Allendale
School project.
C. Contentions of the Parties
The Bricklayers contends that the Board should quash
the notice of hearing because there is no reasonable cause
to believe that the conversation between its representa-
tive and Altounian constituted a violation of Section
8(b)(4)(D). The Bricklayers further argues that Al-
tounian mistakenly equated its seeking to enforce the
contract through the grievance procedure with a threat to
shut the job down. The Bricklayers asserts that the only
action it took to acquire the disputed work was to file and
pursue a grievance. It argues that, if the Board reaches
the merits of the case, the Board should assign the dis-
puted work to the employees it represents based on the
terms of their collective-bargaining agreement with the
Employer, industry practice, and the relative skills of the
employees it represents.
The Carpenters and the Employer contend that the
Bricklayers’ threat to file a grievance and shut down the
Employer’s job constitute sufficient evidence of a viola-
tion of Section 8(b)(4)(D) to warrant a decision on the
merits. On the merits, the Carpenters and the Employer
argue that the work should be awarded to the employees
represented by the Carpenters based on the Employer’s
preference and past practice, industry practice, and econ-
omy and efficiency.
D. Applicability of the Statute
In resolving disputes under Section 10(k) of the Act,
the Board must, as an initial matter, determine whether
there is reasonable cause to believe that Section
8(b)(4)(D) of the Act has been violated. This requires a
finding that a party has used proscribed means, such as
coercion, threats, or picketing, to force an employer to
assign work to one group of employees rather than an-
other. On the record before us, we are unable to make
such a finding.
The only action taken by the Bricklayers in furtherance
of its claim to the work in dispute was to file a grievance
under its collective-bargaining agreement with the Em-
ployer. Contrary to the Carpenters’ contention, however,
the mere filing of an arguably meritorious grievance is
not unlawful coercion within the meaning of Section
8(b)(4)(D). See Teamsters Local 222 (Geneva Rock
Products), 322 NLRB 810, 810–811 (1996). See also
Iron Workers Local 401 (William Watts, Inc.), 317
NLRB 671, 672 fn. 3 (1995) (neither union’s letters to
employer threatening to file grievance nor filing of
grievance itself constituted unlawful threat under Sec.
8(b)(4)(D)). Thus, the Bricklayers’ statements of its in-
tention to file a grievance and its filing and pursuit of
that grievance do not establish reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated.
The only other record evidence cited by the Carpenters
in support of its “reasonable cause” argument is Todd
Altounian’s testimony that Business Manager Gagliardo
answered in the affirmative when Altounian asked if the
Bricklayers intended that its grievance close down the
Allendale School project. We find this evidence insuffi-
cient to satisfy the “reasonable cause” standard.
Altounian’s testimony must be viewed in its entirety.
Altounian initially testified that he asked Gagliardo
whether “you demand that I stop work and you close my
job down” and Gagliardo answered in the affirmative.
Altounian, however, later testified that he equated pursuit
of a grievance with shutting down the job because of his
earlier conversation with Gagliardo about the possibility
of reassigning the work and the delays to the project
while the Bricklayers found a sufficient number of quali-
fied employees. Significantly, he also conceded that the
words “shut down my job” were his and that he was not
certain whether Gagliardo made a threat or he assumed
it.
Altounian’s subjective interpretation of this conversa-
tion cannot determine whether Gagliardo threatened pro-
scribed activity. Rather, the Board must look to the
“specific language used and surrounding conduct and
events.” Teamsters Local 82 (Champion Exposition),
292 NLRB 794, 795 (1989) (citing Carpenters District
Council (Apollo Dry Wall), 211 NLRB 291 fn. 1 (1974)).
Here, it is undisputed that Gagliardo himself never
threatened that the Bricklayers would shut down the Em-
ployer’s job. Indeed, Altounian conceded that these
words were his own and acknowledged that his inference
of a threat might well have been a leap. Altounian’s
equivocal testimony about Gagliardo’s response does not
provide a sufficient basis to attribute an actual threat to
the Bricklayers, in the absence of any other evidence
even hinting that the Bricklayers intended to use pro-
scribed means to enforce a claim to the work. The only
subsequent action taken by the Bricklayers to pursue its
claim was the filing of a grievance.2 Consequently, we

2 The grievance resulted in an arbitration award in favor of the
Bricklayers. The Carpenters seek to reopen the record to introduce
evidence that, following the close of the Sec. 10(k) hearing, the Brick-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1102
find that Altounian’s testimony, viewed in context, does
not establish reasonable cause to believe that a violation
of the Act occurred. See, e.g., Teamsters Local 82, 292
NLRB at 795 (ambiguous testimony by employer’s wit-
ness insufficient to establish reasonable cause); Sheet
Metal Workers Local 38 (Corbesco), 295 NLRB 1069,
1070–71 (1989) (statements by union business agent too
vague and insubstantial to establish reasonable cause).
Our dissenting colleague argues that Altounian
“sought a confirmation of the fact that a Bricklayers vic-
tory on the grievance would result in a shut down of the
job” and that “Gagliardo gave that confirmation.” The
“shut down” as the dissent explains, is one that might
result if the Bricklayers prevailed and needed time in
which to find and refer the necessary Bricklayers em-
ployees to take over the work. He then concludes that
“the shut down of a job caused by union action, is pro-
scribed by Section 8(b)(4)(D).” Surely, the kind of “un-
ion action” at issue here—needing time to find employ-
ees—is not the kind of threat, restraint, or coercion pro-
scribed by the Act. That prevailing on the grievance
might, as a practical matter, entail a temporary cessation
of work, does not mean that a “shut down” was the ob-
ject of the union’s grievance. Our colleague cites no
supporting authority, and we know of nothing on point.
Under these circumstances, we find that there is no
reasonable cause to believe Section 8(b)(4)(D) has been
violated. Therefore, we find that we are without author-
ity to determine the merits of this dispute. Accordingly,
we shall quash the notice of hearing.
ORDER
The notice of hearing is quashed.

CHAIRMAN BATTISTA, dissenting.
Contrary to my colleagues, I would not quash the no-
tice of hearing, and I would reach the merits of the 10(k)
dispute.

layers demanded that the Employer comply with its arbitration award
and, in response, the Carpenters notified the Employer that, if the work
were reassigned, it would take necessary action, including picketing, to
preserve the work. The Carpenters contends that this threat establishes
reasonable cause. We reject this argument. Sec. 10(k) provides that
“[w]henever it is charged that any person has engaged in an unfair labor
practice within the meaning of paragraph (4)(D) of Sec. 8(b), the Board
is empowered and directed to hear and determine the dispute.” No
charge has been filed against the Carpenters, a party who is not charged
with violating the Act. Cf. Laborers (Vernon Construction), 298
NLRB 797, 798 fn. 4 (1990) (unfair labor practice charges filed against
Carpenters—which merely filed grievance—and Laborers—which
threatened to strike if work was reassigned; Board held that had notice
of hearing issued only against Carpenters, Board would have quashed
the notice). Accordingly, we deny the Carpenters’ motion. Because we
have denied the Carpenters’ motion, we find it unnecessary to rule on
the motion filed by the Bricklayers to strike the Carpenters’ motion to
reopen the record and supporting argument.
In order to reach a determination on the merits of a ju-
risdictional dispute issue, the Board need not determine
that a violation of Section 8(b)(4)(D) of the Act in fact
occurred, but only that there is reasonable cause to be-
lieve that the charged party has violated the Act. In the
instant case, I believe that the evidence shows that there
is such reasonable cause.
The Employer’s vice president, Todd Altounian, testi-
fied that he asked the Bricklayers if its grievance was
intended to shut down the Allendale School jobsite, and
the Bricklayers’ representative replied with an unequivo-
cal “yes.” This conversation must be understood in the
context of an earlier conversation. In that earlier conver-
sation, Gagliardo told Altounian that, if the Bricklayers
prevailed in their grievance, the Bricklayers would need
an indefinite period of time in which to find and refer the
necessary Bricklayers employees. Accordingly, there
would be an indefinite period in which no work was per-
formed, and the Employer’s project would be shut down.
Thus, Altounian’s subsequent question sought a confir-
mation of the fact that a Bricklayers victory on the griev-
ance would result in a shut down of the job. Gagliardo
gave that confirmation.
Clearly, the shutdown of a job, caused by union action,
is proscribed by Section 8(b)(4)(D). At the very least,
the argument in favor of an 8(b)(4)(D) violation in the
instant case is not unreasonable. Thus I would not quash
the 10(k) notice.
Unlike my colleagues, I would not characterize the de-
lay in operations, affirmed by the Bricklayers, as a “tem-
porary cessation of work.” An indefinite period of cessa-
tion is not a temporary period of cessation. As stated
above, the Bricklayers Union was currently at full em-
ployment and did not, or could not, quantify the amount
of time it would need to acquire the necessary labor to
complete the project. In essence, then, the Employer’s
operations would cease for an amount of time to be de-
termined exclusively by the Bricklayers.
My colleagues say that Altounian acknowledged that
he only inferred a threat from his conversation with
Gagliardo. However, this case does not turn on whether
there was a threat, inferred or otherwise. Rather, it turns
on the fact that a shut down of the job was said to be the
consequence of the Union’s action. And, that action was
not the grievance filing itself, but rather the fact that a
Bricklayers victor on the grievance, coupled with a
Bricklayers inability to produce employees, would result
in a shut down of the job. Surely, the shutdown of a job,
whether threatened or not, is a serious economic blow to
an employer. And yet, that was the very prospect faced
by Altounian. In these circumstances, Altounian could
BRICKLAYERS LOCAL 20 (ALTOUNIAN BUILDERS, INC.) 1103
reasonably perceive a shutdown as a real prospect of
economic loss.
I agree with my colleagues that the filing of a griev-
ance, or the threat to do so, is not proscribed by Section
8(b)(4)(D). However, where, as here, success on the
grievance will result in a shutdown of the job, and the
union confirms that this is so, there is at least an arguable
basis for finding an 8(b)(4)(D) threat and at this juncture
of the proceeding that is our only mandate.
Finally, I am not basing my view on Altounian’s sub-
jective understanding of Gagliardo’s affirmative re-
sponse to Altounian’s question. Rather, I am evaluating
the reasonable understanding of the two conversations
between the two men. Accordingly, I would find that
there is reasonable cause to believe that the Act has been
violated.
On the merits of the work dispute, after considering all
the relevant factors, I would award the work to employ-
ees represented by the Carpenters based on the factors of
employer preference and assignment, employer past
practice and economy and efficiency of operations. Car-
penters Local 210 (Turner Construction Co.), 327 NLRB
1 (1998).