Electrical Workers Local 98 (NFF Construction)

National Labor Relations Board - Board Decisions

Nov 15, 2000

332 N.L.R.B. 1262 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1262
International Brotherhood of Electrical Workers Lo-
cal 98, AFL–CIO and NFF Construction, Inc.

Metropolitan Regional Council of Philadelphia and
Vicinity, United Brotherhood of Carpenters and
Joiners of America and NFF Construction, Inc.
Cases 4–CD–1022 and 4–CD–1024
November 15, 2000
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND HURTGEN
A charge in this Section 10(k) proceeding was filed on
April 21, 20001 by NFF Construction, Inc. (the Em-
ployer) alleging that the Respondent, International
Brotherhood of Electrical Workers Local 98, AFL–CIO
(Local 98), 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 employees it represents rather than to employees
represented by the Metropolitan Regional Council of
Philadelphia and Vicinity, United Brotherhood of Car-
penters and Joiners of America (the Carpenters). Subse-
quently, on May 8 the Employer also filed a charge
against the Carpenters alleging that the Carpenters vio-
lated 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 employ-
ees it represents rather than to employees represented by
Local 98. The cases were consolidated and a hearing was
held on July 6 before Hearing Officer Anne C. Ritter-
spach.
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
The Employer, a New Jersey corporation with an of-
fice located at 619 Church Street, Pleasantville, New
Jersey, is engaged in the business of general and carpen-
try contracting in the construction industry. Over the past
12 months the Employer provided services outside of the
State of New Jersey with a value in excess of $50,000.
We find that the Employer is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act and
that Local 98 and the Carpenters are labor organizations
within the meaning of Section 2(5) of the Act.

1 All dates hereafter are in 2000.
II. THE DISPUTE
A. Background and Facts of Dispute
The work dispute in this case was located at the con-
struction sites of two Philadelphia hotels: the Ritz Carl-
ton Hotel, 1400 South Penn Square, and the Hilton Gar-
den Inn, 11th and Arch Streets. These construction pro-
jects occurred simultaneously, and the Employer con-
tracted to do the unloading and installation of furnishings
at both sites. The furnishings, referred to as “furniture,
fixtures, and equipment” or “FF&E,” include all items
required to outfit a hotel room that are not built into the
room itself, such as beds, dressers, lamps, nightstands,
minibars, and televisions. The Arden Group, owner of
the Ritz Carlton, contracted with the Employer to do the
FF&E work on that hotel, and Switzenbaum Realty Capi-
tal, owner of the Hilton Garden, contracted with the Em-
ployer to do the FF&E work on that project.
The Employer assigned the FF&E work on both the
Ritz Carlton and Hilton projects to its employees repre-
sented by the Carpenters. The work consisted of loading
the items from the warehouse onto trucks, unloading
them at the hotels, and setting up the rooms. The ship-
ments were a mixture of various furnishings (e.g., beds,
dressers, televisions, and lamps) that were grouped and
loaded for installation on one floor or wing at a time. The
work was done in two shifts; the night shift loaded and
unloaded the trucks, while the day shift installed the fur-
nishings in the rooms.
In early April, John Dougherty, president of Local 98,
contacted Frank B. Lundy III, vice president of NFF
Construction, and asked that the work of installing mi-
crowaves, minibars, and televisions for the Hilton Gar-
dens be given to employees represented by Local 98.
Lundy replied that the televisions had not been assigned
to NFF, but that NFF was assigning the minibars and
microwaves to the Carpenters. Dougherty told Lundy he
would do what he had to do and implied that his next call
would be to the Hilton’s owner. Within the next few days
Sam Switzenbaum, who represented the owner of the
Hilton, met with Lundy and asked Lundy to see what he
could do about assigning the work to Local 98. Lundy
then spoke with Edward Coryell, executive secretary-
treasurer/business manager of the Carpenters, about the
possibility of assigning the minibars and microwaves to
Local 98 because of pressure from that union. In both a
conversation and follow-up letter, Coryell informed
Lundy that such an assignment was unacceptable and
would result in an initiation of picket lines by the Car-
penters against all of the Employer’s projects. Lundy did
not reassign any FF&E work on the Hilton project to
Local 98.
332 NLRB No. 121
ELECTRICAL WORKERS LOCAL 98 (NFF CONSTRUCTION) 1263
On a date unstated in the record, Lundy, upon the re-
quest of Bill Corazo, the business agent for Local 98, met
with representatives from Local 98 regarding FF&E
work at the Ritz Carlton. At the meeting Corazo re-
quested that the televisions, lamps, and minibars be as-
signed to Local 98. He also stated that there would be
problems on the dock regarding the minibars. Lundy
explained that the Employer had a contract with the Car-
penters and would continue to assign the work to them.
On April 21 Local 98 set up a picket line at the Ritz
Carlton Hotel that shut down all work at the site. Picket-
ers carried signs stating that the Employer was destroy-
ing building industry standards and paying its workers
substandard wages and benefits. There is no evidence
that Local 98 ever inquired about rates paid by the Em-
ployer or that the Carpenters had any complaints that the
Employer was not paying contractual rates. When John
Spitz, vice president of construction and development for
the Arden Group, went out to the picket line to find out
what could be done to end the strike, Corazo informed
Spitz that Local 98 wanted to install the televisions,
minibars, and swing lamps at the Ritz, all of which were
being done by the Carpenters.
In an effort to allow the Ritz Carlton project to con-
tinue, Coryell suggested that Lundy hire members of
Local 98 to install the swing arm lamps. On May 2
Lundy reassigned the installation of the swing arm lamps
to Local 98. Both hotel projects have since been com-
pleted.
B. Work in Dispute
The disputed work involves the installation of televi-
sions, minibars, and swing arm lamps at the Ritz Carlton,
and the installation of minibars and microwaves at the
Hilton Garden Inn.
C. Contentions of the Parties
Although the Employer did not file a posthearing brief
in this case, it is clear from the evidence presented by the
Employer at the hearing that the Employer contends the
work in dispute should be assigned to employees repre-
sented by the Carpenters based on the terms of the
collective-bargaining agreement, the Employer’s practice
and preference, and on economy and efficiency.
The Carpenters also did not file a posthearing brief. At
the hearing the Carpenters took the position that all
FF&E work should have been assigned to its members
since that type of work has traditionally been performed
by the Carpenters. The Carpenters also contend that
without the threat of picketing they would not have
agreed to the assignment of the swing arm lamps to Lo-
cal 98.
Local 98 failed to appear at the hearing or file any
brief in this case.
D. Applicability of the Statute
Before the Board may proceed with a determination
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 on a method for the voluntary adjustment of the
dispute. The Employer has charged that both Local 98
and the Carpenters have violated Section 8(b)(4)(D).
The facts in this case indicate that sometime after the
assignment of the FF&E work on the Hilton project to
the Carpenters, Dougherty contacted Lundy and asked
Lundy to assign the installation of minibars and micro-
waves to members of Local 98. During a meeting with
Local 98 representatives at which Lundy said that the
FF&E work at the Ritz was awarded to the Carpenters
under their contract, Corazo told Lundy that there would
be problems on the docks regarding the minibars. On
April 21 Local 98 engaged in picketing at the Ritz Carl-
ton. We find that there was reasonable cause to believe
that Local 98’s conduct in these incidents was designed
to force an assignment of the FF&E work to its members.
We also find that it appears that the Carpenters en-
gaged in threatening and coercive behavior to retain the
assignment of the work in dispute. A letter from Coryell
to Lundy declared that the disputed work must remain
with the Carpenters or they would initiate picket lines not
only at the situs of the disputed work but at all of the
Employer’s projects.
Accordingly, we find reasonable cause to believe that
both the Carpenters and Local 98 have violated Section
8(b)(4)(D). There is no evidence or contention that there
is any agreed upon method for voluntary adjustment of
the dispute within the meaning of Section 10(k) of the
Act. Therefore we find that the dispute is properly before
the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive 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 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1264
1. Certification and collective-bargaining agreement
The evidence shows that the Employer is not failing to
conform to a Board order or certification determining the
bargaining representative for the employees performing
the work in dispute. The Employer is a signatory to a
national collective-bargaining agreement with the United
Brotherhood of Carpenters and Joiners of America which
provides that the Employer will be bound by a collective-
bargaining agreement between the Carpenters and the
Furniture Handlers and Installers Association, a division
of Interior Finish Contractors Association of Delaware
Valley. This agreement in part mandates the assignment
of all FF&E work to employees represented by the Car-
penters. In bidding on a job in the Philadelphia area the
Employer relies on current wage and benefit rates under
the contract. The Employer and Local 98 have no collec-
tive-bargaining agreement. Consequently, this factor
favors an award of the disputed work to employees rep-
resented by the Carpenters.
2. Employer preference and past practice
The Employer clearly prefers that the work be per-
formed by the Carpenters. The evidence shows that the
Employer has never used electricians on any of its prior
projects in the Philadelphia area to perform the type of
work in dispute. Furthermore, Lundy testified that he
ordinarily would not assign FF&E work to electricians
but felt that in this case he had no choice. Therefore this
factor favors an award of the disputed work to employees
represented by the Carpenters.
3. Area and industry practice
The evidence demonstrates that within the past few
years there have been several hotel projects in the Phila-
delphia area in which the Carpenters have been assigned
and performed FF&E work that consisted of installation
of minibars, televisions, and lamps.2 Thus, this factor
favors an award of the work in dispute to the employees
represented by the Carpenters.
4. Relative skills
The work in dispute in this case consisted of unloading
and distributing televisions, minibars, microwaves, and
swing arm lamps and plugging them into wall outlets.
Additionally, the swing arm lamps had to be bolted to the
wall, the wire fed through a decorative tube that also had
to be placed on the wall, and a snap-on plug placed at the
end of the wire. There is no wiring, cutting, or taping of
wiring involved in the installation of any of the above-
mentioned furnishings. Based on the record, we infer that
there is no special skill involved in the FF&E work in

2 See Electrical Workers Local 98 (AIMM,Inc.), 331 NLRB No. 156
(2000).
dispute in this case. Accordingly, this factor does not
favor an award of the work to either employee group.
5. Economy and efficiency of operations
The FF&E is loaded onto the trucks so that entire
rooms in a designated wing or floor can be set up when a
particular shipment is unloaded. Televisions, minibars,
swing arm lamps, and microwaves are mixed in with
other FF&E (e.g., beds and dressers). If Local 98 em-
ployees were awarded the work in dispute it would be
necessary for the Employer to hire two employee crews
to work simultaneously: a Local 98 crew to perform the
disputed work and a Carpenter crew to unload, distribute,
and install the remainder of FF&E. The evidence indi-
cates that there would not be enough work to keep Local
98 employee crews occupied for an entire 8-hour shift.
Furthermore, up until May 2, the Carpenter employees
performed the disputed work as part of their broader as-
signment to unload, distribute, and install FF&E. Conse-
quently, this factor favors an award of the work to em-
ployees represented by the Carpenters.
Conclusions
After considering all the relevant factors, we conclude
that employees represented by the Carpenters are entitled
to perform the work in dispute. We reach this conclusion
relying on the terms of the collective-bargaining agree-
ment between the Employer and the Carpenters, the Em-
ployer’s preference and past practice, area and industry
practice, and the economy and efficiency of the Em-
ployer’s operation resulting from its assignment of FF&E
work to the Carpenters.
In making this determination, we are awarding the
work to employees represented by the Carpenters, not to
that union or its members. The determination is limited
to the controversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
1. Employees of NFF Construction, Inc. represented
by Metropolitan Regional Council of Philadelphia and
Vicinity, United Brotherhood of Carpenters and Joiners
of America are entitled to perform the work of unloading
and installing minibars and microwaves at the Hilton
Garden Inn, 11th and Arch Street, Philadelphia, Pennsyl-
vania, and the unloading and installing of televisions,
minibars, and swing arm lamps at the Ritz Carlton Hotel,
1400 South Penn Square, Philadelphia, Pennsylvania.
2. International Brotherhood of Electrical Workers Lo-
cal 98, AFL–CIO is not entitled by means proscribed by
Section 8(b)(4)(D) of the Act to force NFF Construction,
Inc. to assign the disputed work to employees repre-
sented by it.
ELECTRICAL WORKERS LOCAL 98 (NFF CONSTRUCTION) 1265
3. Within 14 days from this date, International Broth-
erhood of Electrical Workers Local 98 shall notify the
Regional Director for Region 4 in writing whether it will
refrain from forcing NFF Construction, Inc. by means
proscribed by Section 8(b)(4)(D) to assign the disputed
work in a manner inconsistent with this determination.