Carpenters Local Union No. 1298

National Labor Relations Board - Board Decisions

Jul 18, 1975

219 N.L.R.B. 320 (N.L.R.B. 1975)

320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carpenters Local Union No. 1298 and Tempco Con-
tracting & Supply, Inc. Case 19-CD-243
July 18, 1975
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS , KENNEDY, AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Tempco Contracting & Supply,
Inc., herein called the Employer, alleging that Car-
penters Local Union No. 1298, herein called the
Union or the Carpenters, had violated Section
8(b)(4)(D) of the Act by engaging in certain pro-
scribed activity with an object of forcing or requiring
the Employer to assign certain work to employees
represented by the Union, rather than to unrepre-
sented employees employed by the Employer. A
hearing was held before Hearing Officer Philip P.
McLeod on April 8 and 9, 1975.' The Employer and
the Union appeared at the hearing and were afforded
full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing
on the issues . Thereafter, briefs were filed by the Em-
ployer and Union.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. The rulings are hereby af-
firmed.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer, an Idaho corporation, is engaged
in the manufacture, distribution, and installation of
insulation materials used in the building and con-
struction industry, with its principal office and place
of business located in Boise, Idaho. During the past
calendar or fiscal year, the Employer purchased and
received materials valued in excess of $50,000 which
were shipped to it directly from points outside the
State of Idaho; during the same period, it provided
services directly to customers located outside the
State of Idaho valued in excess of $50,000. We find
that the Employer is engaged in a business affecting
1 All dates are in 1975 unless otherwise noted.
commerce within the meaning of Section 2(6) and (7)
of the Act and that it would effectuate the policies of
the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION
We find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts
The work in dispute is the installation and applica-
tion of styrofoam cold storage insulation of deraspan
sheet finish board having a prior application of vapor
barrier foil. This work was subcontracted to the Em-
ployer by Dorsey Construction Co., a general con-
tractor which is constructing a plant for Dairymen's
Creamery Association at Caldwell, Idaho. The Em-
ployer used its own employees who are not repre-
sented by any union for this work, whereas the
Union claims that only its members are entitled to
the work, which shall be referred to herein as cold
storage insulation.
The Employer is comprised of a manufacturing di-
vision and a construction division. There are seven
employees in the manufacturing division which ware-
houses and fabricates insulation materials and sells
such materials. The 11 employees in the construction
division work on jobsites installing insulation materi-
als when the Employer is engaged as a subcontractor
to perform such work. Four of these 11 employees
primarily do mechanical insulation work consisting
of insulating pipes and air ducts relating to the heat-
ing, plumbing, and air-conditioning industry; their
work is not in dispute and they are represented by
another union (a local of Asbestos Workers' Union)
not involved in the instant dispute. The remaining
seven employees are engaged in cold storage insula-
tion, including the work in dispute herein, which is
primarily required by the food processing and pack-
ing industry.
The process of cold storage insulation begins with
the application of foil vapor barriers to masonry or
concrete walls after the structural walls of a building
have been completed. The foil is applied to walls that
have been treated with a glue -like asphalt emulsion.
Then, two or three layers of styrofoam material is
applied to the foil with a mastic-type glue to form a
more secure or secondary vapor barrier. Wood nailer
strips which are fabricated at the Employer's plant
are then nailed or bolted into the walls to hold the
final installation of the deraspan sheet finish board.
The object of all this insulation is to maintain a de-
CARPENTERS LOCAL UNION NO. 1298 321
sired freezing or low temperature in the refrigeration
room under construction, free of moisture leaks.
The Employer began its cold storage insulation
work at the Caldwell, Idaho, creamery in November
1974, using its own nonrepresented employees. On
Friday, December 27, 1974, Edward Foust, the
Union's business representative, visited the jobsite,
asked the Employer's employees if they were mem-
bers of the Carpenters, and was told that they were
not members. Later that afternoon, Foust called the
Employer's office to speak to Robert Tallman, its
president, who was not in. He left a message that
there were labor problems at the creamery job be-
cause of the nonunion employees at the jobsite and
for Tallman to call him. Tallman did not return the
call until Monday, December 30. There is testimony
that, at that time, Foust told Tallman that the job
would be picketed unless the employees on the job
were laid off and replaced by Carpenters members
dispatched by the Carpenters hiring hall. To avoid a
work stoppage, Tallman assigned his men to another
project for a few days and filed an unfair labor prac-
tice charge. The cold storage insulation work was
completed in mid-March 1975 by the Employer's em-
ployees.
Assuming the existence of a contract between the
Employer and the Union, as claimed by the Union,
and that the Employer breached this agreement by
not resorting to its exclusive hiring hall provisions,
such alleged breach of contract cannot serve as a
defense to the Union's conduct herein in attempting
to force a reassignment of the disputed work to its
members'
And, contrary to the Union's contention, Section
8(b)(4)(D) encompasses competing claims for disput-
ed work between a union and a group of unrepre-
sented employees as well as claims between compet-
ing unions.4
We therefore find that there is reasonable or prob-
able cause to believe that the Union violated Section
8(b)(4)(D) of the Act and that the dispute is properly
before the Board for determination under Section
10(k) of the Act .5
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work af-
ter giving due consideration to various relevant fac-
tors.
B. Contentions of the Parties
In its brief, the Union moves to quash the notice of
hearing on the grounds that ( 1) no jurisdictional dis-
pute exists because (a) the Employer breached a pro-
vision of an existing contract between the parties and
(b) there is no other union claiming the disputed
work; and (2) there is no evidence in the record of
any conduct on its part disclosing an objective pro-
scribed by Section 8(b)(4)(D) of the Act.
The Employer argues that the Board should find
that a jurisdictional dispute exists and that the dis-
puted work should be assigned to its own unrepre-
sented employees.
C. Applicability of the Statute
Before the Board may proceed to a determination
of 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.
As previously indicated, Tallman testified that on
December 30, 1974, Foust threatened to picket the
jobsite unless the Employer's nonunion employees
were laid off and the work was assigned to Carpen-
ters members from the Union's hiring hall. Although
Foust denied that he made any "threats," we need
not resolve any conflicts in testimony in this 10(k)
proceeding.'
1. Certification and collective-bargaining
agreements
The Union has not been certified by the Board to
perform the work in dispute. While the Union's as-
serted contract with the Employer covers "insula-
tion" work, it does not specify the cold storage insu-
lation work in dispute herein, but refers to drywall
and acoustical materials, as well as "weatherstripping
and insulation." As indicated hereinafter, except for
a single occasion in 1971, the Employer has never
used Carpenters members for the work in dispute.
2. Skills and efficiency
The degree of skill necessary to perform the dis-
puted work is possessed by the Employer's own em-
ployees, who receive closely supervised on-the-job
training for a 6-month period before they are permit-
ted to work without such supervision. The Employer,
2 Locals 138, 138A, 138B, 138C, and 138D, International Union of Operat-
ing Engineers, AFL-CIO (Cafasso Lathing & Plastering, Inc.) 149 NLRB
156, 158-159 (1964).
I Sheet Metal Workers International Association Local Union No 28. AFL-
CIO (Diesel Construction , a division of Carl A. Morse, Inc.), 194 NLRB 79, 81
(1971).
Local Union 354, International Brotherhood of Electrical Workers, AFL-
CIO (F. G Johnson Company, Incorporated), 200 NLRB 599, 600 (1972)
5 The Union's motion to quash the notice of hearing is accordingly de-
nied
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as well as its customers , appears satisfied with the
work performance of those employees . It is not
shown that carpenter-members of the Union have
any superior skill to that of the Employer' s own em-
ployees in performing the work in dispute.
It also appears that it is more efficient for the Em-
ployer to use its own employees herein since they are
assigned to work in the manufacturing division dur-
ing slack periods of cold storage insulation work.
3. Area and past practice
Except for one occasion in September 1971, the
Employer has never used carpenter -members for the
work in dispute. The testimony of the Union's repre-
sentatives indicated an unfamiliarity with the appli-
cation of deraspan sheet finish board used in cold
storage insulation in their respective jurisdictional
areas.
Conclusion
Upon the entire record in this proceeding and after
full consideration of all the relevant factors, we con-
clude that the employees of the Employer are entitled
to the work in question and we shall determine the
dispute in their favor . In making this determination,
we award the work to employees of the Employer
who are unrepresented . Our present determination is
limited to the dispute which gave rise to this proceed-
ing.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended , and upon the foregoing
findings and the entire record in this case, the Na-
tional Labor Relations Board hereby makes the fol-
lowing Determination of Dispute:
1. Employees of Tempco Contracting & Supply,
Inc., who are currently unrepresented , are entitled to
perform the installation and application of styrofoam
cold storage insulation of deraspan sheet finish board
having a prior application of vapor barrier foil at the
Dairymen's Creamery Association plantsite, Cald-
well, Idaho.
2. Carpenters Local Union No. 1298 is not enti-
tled by means proscribed by Section 8(b)(4)(D) of
the Act to force or require Tempco Contracting &
Supply, Inc., to assign the above work to its mem-
bers.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Carpenters Local
Union No. 1298 shall notify the Regional Director
for Region 19, in writing , whether or not it will re-
frain from forcing or requiring Tempco Contracting
& Supply, Inc., by means proscribed by Section
8(b)(4)(D) of the Act, to assign the disputed work to
its members rather than to employees employed by
Tempco Contracting & Supply, Inc., who are unrep-
resented.