Carpenters St. Louis Council (Dooley Construction)

National Labor Relations Board - Board Decisions

Dec 13, 1990

300 N.L.R.B. 878 (N.L.R.B. 1990)

878
300 NLRB No. 112
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1990. 2 Dooley was the only witness who testified at the hearing.
Carpenters District Council of Greater St. Louis
and James T. Dooley, d/b/a Dooley Con-
struction. Case 14–CD–831
December 13, 1990
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
The charge in this Section 10(k) proceeding was
filed on July 20, 1990, by the Employer, James T.
Dooley, d/b/a Dooley Construction, alleging that the
Respondent, Carpenters District Council of Greater St.
Louis, the Union, violated Section 8(b)(4)(D) of the
National Labor Relations Act by engaging in pro-
scribed activity with an object of forcing the Employer
to assign certain work to employees it represents rather
than to the Employer’s employees. The hearing was
held on August 15, 1990, before Hearing Officer Mi-
chael T. Jamison. Thereafter, the Employer filed a
posthearing brief.
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
record, the Board makes the following findings.
I. JURISDICTION
James T. Dooley, a sole proprietor doing business
under the name Dooley Construction, is a construction
industry general contractor having its principal place of
business in Northbrook, Illinois. During the 12-month
period ending July 31, 1990,1 the Employer purchased
and received goods, materials, and products valued in
excess of $50,000, which were transported to its prin-
cipal place of business directly from points located
outside the State of Illinois. The Employer is presently
under contract to perform more than $50,000 worth of
services at locations outside the State of Illinois. The
parties stipulate, and we find, that the Employer is en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
On July 12, 1990, the Employer commenced work
under a contract with the McDonnell Douglas Corpora-
tion for the installation of anechoic absorbers at
McDonnell Douglas’ St. Louis, Missouri facility. An-
echoic absorbers are composed of specially treated
foam rubber absorbing material and are attached to the
floors, walls, and ceilings of chambers used to perform
various scientific tests. The anechoic absorbers in-
crease the accuracy of scientific measurements taken in
a test chamber by insulating the chamber from external
vibration and noise. The test chamber that the Em-
ployer contracted to insulate will be used by McDon-
nell Douglas to test missile guidance systems pursuant
to classified defense contracts between McDonnell
Douglas and the U.S. Department of Defense. Because
the test chamber is located in a secure area within the
McDonnell Douglas facility, workers installing the an-
echoic absorbers must have security clearances. The
Employer’s contract with McDonnell Douglas speci-
fied that the work must be completed by the end of
August 1990.
Dooley assigned the work of installing the anechoic
absorbers to himself and three of his employees, one
of whom was Dooley’s son. Dooley and his son are
members of Local 58, Chicago District Council of Car-
penters; a third employee is a member of Carpenters
Local 250, also located in Illinois; and the fourth, a la-
borer, is not a member of any labor organization. The
actual installation work is performed by Dooley, his
son, and the other Carpenters member; the laborer only
unpacks the material that the others install. The Em-
ployer does not have a contract with any labor organi-
zation.
Dooley testified that,2 after he and his men began
installing the anechoic absorbers on July 12, he was
approached by a member of the Union working for an-
other contractor at the McDonnell Douglas facility,
who asked if Dooley ‘‘was union.’’ Subsequently, this
individual advised Dooley to call Union Business
Agent Patrick Sweeney. Dooley placed the call that
same day, and was asked by Sweeney whether he was
a member of the Carpenters. Dooley advised Sweeney
that he and his installers were members of Locals 58
and 250, briefly described the work he was doing, and,
in response to Sweeney’s inquiry, stated that he did
not have a collective-bargaining agreement with the
Union or with any Illinois affiliate of the Carpenters
Union.
Sweeney then advised Dooley that he would have to
come to the Union’s district council hall and sign an
agreement with the Union, after which he would be re-
quired to hire three union members to install the an-
echoic absorbers and could retain one of his employees
as a supervisor. Dooley refused to displace his employ-
ees, stating that they had been with him a long time
and that the work was specialty work which the
Union’s members would not know how to perform.
Sweeney subsequently requested a face-to-face
meeting at the McDonnell Douglas construction gate at
2 p.m. on July 12. At that meeting, Sweeney again de-
manded that Dooley sign an agreement with the Union
879CARPENTERS ST. LOUIS COUNCIL (DOOLEY CONSTRUCTION)
3 Accordingly, we need not pass on the Employer’s contention that the filing
of internal union charges, prior to any Board determination, constituted coer-
cion within the meaning of Sec. 8(b)(4).
and Dooley again refused. During the course of this
conversation, McDonnell Douglas representative Mike
Wellman approached Dooley and Sweeney and asked
Sweeney if he intended to cause Dooley any problems
or to stop the job. Sweeney replied that he had said
nothing about stopping the job or pickets, that
Wellman should not put words in his mouth, that the
Union’s dispute was with Dooley and not with
McDonnell Douglas and that Sweeney intended to file
internal union charges against Dooley. Wellman subse-
quently denied Sweeney’s request to inspect the
Dooley site for the purpose of determining whether the
Dooley employees had indeed left the premises.
On Friday, July 13, at approximately 11 a.m.,
Dooley observed a picket at McDonnell Douglas’ main
employee entrance. Dooley was not able to read the
picket sign at the time, but testified that the picketer
had an umbrella with ‘‘District Council of St. Louis’’
written on it. On Dooley’s arrival at the jobsite,
McDonnell Douglas representative Wellman imme-
diately advised Dooley that the picket was disrupting
the Company’s operations and that McDonnell Doug-
las could not have pickets. Dooley then pulled his men
from the job. In subsequent telephone conversations,
Sweeney repeated his demand that Dooley sign an
agreement with the Union, and Dooley again stated
that he would not terminate his employees and hire
members of the Union as the proposed agreement
would have required.
Dooley testified that the picketing continued the
next Monday, July 16, and that the picketer carried a
sign stating ‘‘Information. Dooley Construction does
not have a contract with Carpenters District Council of
Greater St. Louis.’’ The picketing ended on July 16,
after Dooley again advised Sweeney that his men were
no longer at the site. Although Dooley was subse-
quently allowed to complete the installation work with-
out further picketing, Sweeney filed internal union
charges against Dooley. A hearing was held on those
charges on July 31, at which Dooley was advised that
he could either sign an agreement with the Union,
which would allow him to use one of his employees
together with three union members, or he could sign
an International agreement, which would only require
that he hire two union members.
B. Work in Dispute
The disputed work consists of all work related to the
installation of anechoic absorbers at the Employer’s
McDonnell Douglas, St. Louis, Missouri jobsite.
C. Contentions of the Parties
The Employer contends that there is reasonable
cause to believe that the Union violated Section
8(b)(4)(D) of the Act by picketing for the purpose of
forcing the assignment of the installation work to em-
ployees represented by the Union. The Employer notes
that the parties stipulated that there is no agreed-on
method to voluntarily resolve this dispute. On the mer-
its, the Employer contends that the work should be
awarded to its unrepresented employees and not em-
ployees represented by the Union on the basis of em-
ployer preference and past practice, economy and effi-
ciency of operations, and the specialized nature of the
skills involved.
The Union contends that there is no reasonable
cause to believe that Section 8(b)(4)(D) of the Act has
been violated. Although the Union did not file a brief,
it took the position at the hearing that the Union’s only
object was to cause the Employer to enter into a col-
lective-bargaining agreement, that the Union did not
claim the work involved, and that its picketing was for
the purpose of advising the public that the Employer
did not have a contract with the Union. According to
the Union, this case at best raises issues under Section
8(b)(7)(C) of the Act, but that no violation of that pro-
vision has occurred inasmuch as the Union only pick-
eted for 1-1/2 days.
D. Applicability of the Statute
Before the Board may proceed with a determination
of the dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated and that
the parties have not agreed on a method for the vol-
untary adjustment of the dispute.
As set forth above, on July 13, the Union’s business
agent informed Dooley that he could not use his own
employees to install anechoic absorbers at the McDon-
nell Douglas facility and demanded that Dooley sign a
collective-bargaining agreement, one clause of which
would have required Dooley to use individuals who
were represented by the Union instead of his current
employees to perform the installation work. When
Dooley refused to comply, the Union began picketing
outside the main entrance to the McDonnell Douglas
facility.
We find that there is reasonable cause to believe that
one purpose of the Union’s picketing was to force the
Employer to assign the installation work to individuals
who were represented by the Union.3 The Union’s
claim that it did not violate Section 8(b)(4)(D) because
its picketing was solely for recognitional purposes is
without merit. We find no evidence in the record to
suggest that the Union sought to represent the employ-
ees of the Employer who were performing the installa-
tion work at the time the dispute arose; rather, it ap-
pears that the Union sought to have some or all of
those employees displaced in favor of employees rep-
880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
resented by the Union. See Directors Guild (Universal
Studios), 276 NLRB 626 (1985). As further evidence
that the picketing was not for recognitional purposes,
we note that the Union’s picket was stationed at the
main entrance to the McDonnell Douglas facility,
which is used by McDonnell Douglas employees, rath-
er than the construction entrance used by employees of
the Employer.
We also find without merit the Union’s claim that
no jurisdictional dispute exists because the Union
sought to enter into a collective-bargaining agreement
with the Employer and the assignment of work to em-
ployees it represents would have been merely a con-
sequence of the Employer’s agreement to the contract
terms. The Board has held that a jurisdictional dispute
exists, within the meaning of Sections 8(b)(4)(D) and
10(k), when a union pickets for the purpose of obtain-
ing an employer’s agreement to a contract that assigns
to employees represented by that union work already
assigned to other employees at the time of the contract
demand and picketing. Operating Engineers Local 825
(Building Contractors Assn.), 118 NLRB 978, 983–984
(1957).
The Union also claims that no jurisdictional dispute
exists because the picketing was for the purpose of ad-
vising the public that the Employer did not have a con-
tract with the Union. We find no merit to this conten-
tion. Even assuming, arguendo, that the picketing had
an informational objective, it is well settled that, as
long as one object of picketing is to force an employer
to assign particular work to employees represented by
a union, rather than to the employer’s employees, the
picketing comes within the scope of Section
8(b)(4)(D). Millwrights Local 1026 (Intercounty Con-
struction), 266 NLRB 1049, 1051–1052 (1983). See
also Teamsters Local 50 (Schnabel Foundation), 295
NLRB 68 (1989). As indicated above, we have found
that the Union’s picketing had such an object. Finally,
the parties stipulated at the hearing that there is no
agreed-on method for voluntary resolution of the dis-
pute.
Based on the foregoing, we find reasonable cause to
believe that a violation of Section 8(b)(4)(D) has oc-
curred and that there exists no agreed-on 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 determina-
tion.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative 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 of 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. Certification and collective-bargaining
agreements
The parties have stipulated that there is no collec-
tive-bargaining agreement provision, Board certifi-
cation, or arbitration decision awarding the disputed
work.
We find that this factor does not favor an award of
the work to either group of employees.
2. Employer preference and past practice
The Employer prefers to use its own employees to
install anechoic absorbers. Dooley, who as noted above
was the only witness at the hearing, testified that he
has installed anechoic absorbers in McDonnell Douglas
test chambers since 1972 or 1974, and that he has al-
ways assigned the work to his own employees. Dooley
further testified that, when he installs anechoic absorb-
ers in the Chicago area, the Chicago area Carpenters
Union does not claim the work. Although Dooley testi-
fied that there are approximately five other anechoic
absorber installers nationwide, no evidence was pre-
sented concerning their work assignment practices.
We find that the factors of employer preference and
past practice favor an award of the work to the Em-
ployer’s employees.
3. Relative skills
Dooley testified that only five employers install an-
echoic absorbers nationwide and that the work requires
special skills and experience not possessed by most
employees represented by the Union. In this regard,
Dooley testified that he had received special training
from an anechoic absorber manufacturer in the tech-
niques and equipment used to properly align the mate-
rials within the narrow tolerances required. Dooley fur-
ther testified that this work requires different tools and
techniques than are used in other installation work and
that a new employee requires 3 to 4 months of close
supervision before he can work independently in this
area. Finally, Dooley testified that a Chicago-area Car-
penters official indicated that he could not supply
qualified workers for this type of installation work and
that the Union’s business agent did not appear to un-
derstand what the work involved. Accordingly, we find
that the factor of relative skills favors an award of the
disputed work to the Employer’s employees.
4. Economy and efficiency of operations
Dooley testified that his employees were all experi-
enced in the installation of anechoic absorbers and, as
881CARPENTERS ST. LOUIS COUNCIL (DOOLEY CONSTRUCTION)
4 We note that Dooley testified that Sweeney had stated to him that security
clearances could be obtained in as little as 1 hour. However, Dooley also stat-
ed that in his experience this was not possible, and the Union introduced no
evidence to rebut this testimony.
5 In its posthearing brief, the Employer requests that we order the Union to
cease all internal union disciplinary proceedings against Dooley arising out of
this dispute. In view of our finding that reasonable cause exists to believe that
the Union violated Sec. 8(b)(4)(D) based on its picketing, and since it is not
the Board’s function in a 10(k) proceeding to determine whether a violation
has actually occurred, we decline the Employer’s request.
stated above, that a new employee would require close
supervision during his or her first few months on the
job. Further, Dooley testified that, because the work is
performed in a sensitive area, access is limited to indi-
viduals holding proper security clearances. While all of
Dooley’s employees have the required clearances,
Dooley testified that it takes approximately 1 month to
process the paperwork for security clearances for new
employees.4 Accordingly, we find that the efficiency
factor favors an award of the disputed work to the Em-
ployer’s employees.
Conclusion
After considering all of the relevant factors, we con-
clude that the Employer’s unrepresented employees are
entitled to perform the work in dispute. We reach this
conclusion relying on the factors of employer pref-
erence and past practice, relative skills, and economy
and efficiency of operations. This determination is lim-
ited to the controversy that gave rise to this pro-
ceeding.5
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. The unrepresented employees of James T.
Dooley, d/b/a Dooley Construction are entitled to per-
form all work related to the installation of anechoic ab-
sorbers at the Employer’s McDonnell Douglas, St.
Louis, Missouri jobsite.
2. Carpenters District Council of Greater St. Louis
is not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force James T. Dooley, d/b/a
Dooley Construction to assign the disputed work to
employees represented by it.
3. Within 14 days from this date, Carpenters District
Council of Greater St. Louis shall notify the Regional
Director for Region 14 in writing whether it will re-
frain from forcing the Employer, by means prohibited
by Section 8(b)(4)(D), to assign the disputed work in
a manner inconsistent with this determination.