J.P. Patti Co.

National Labor Relations Board - Board Decisions

Oct 13, 2000

332 N.L.R.B. 830 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 830
J.P. Patti Co. and Carpenters Union Local No. 1006,
a/w United Brotherhood of Carpenters, AFL–
CIO and Sheet Metal Workers Local Union No.
27 and Newmet Corporation. Case 22–CD–685
October 13, 2000
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND HURTGEN
The charge in this Section 10(k) proceeding was filed
by J.P. Patti Co. (Patti), alleging that the Respondent,
Carpenters Local Union No. 1006, a/w United Brother-
hood of Carpenters, AFL–CIO (Carpenters), violated
Section 8(b)(4)(D) of the National Labor Relations Act
by engaging in proscribed activity with an object of forc-
ing Patti to assign certain work to employees it repre-
sents rather than to employees represented by Sheet
Metal Workers Local No. 27 (Sheet Metal Workers). The
hearing was held on November 4, 1996, before Hearing
Officer Nancy Wilson.
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,1 the Board makes the following findings.
I. JURISDICTION
Patti, a New Jersey corporation, with an office and
place of business in Saddle Brook, New Jersey, is en-
gaged in the installation of commercial and industrial
roofing. During the previous 12 months, Patti derived
gross revenue in excess of $50,000 from the performance
of services directly for customers located outside New
Jersey and purchased goods and materials valued in ex-
cess of $5000 directly from points outside New Jersey.
The parties stipulated, and we find, that Patti is engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
Thomas Nuckel, president of Newmet Corporation,
testified that Newmet is a New Jersey corporation with
an office in Paterson, New Jersey, and is engaged in the
installation of metal siding and metal roofing. During
the preceding 12 months, Newmet derived gross revenue
in excess of $1 million by performing services directly
for employers located in New Jersey, including at least
$50,000 from Patti. We find that Newmet is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.

1 We grant the Charging Party’s unopposed request to correct the
transcript of the hearing as set forth at pp. 1–2 of its brief.
The parties stipulated, and we find, that the Carpenters
and the Sheet Metal Workers are labor organizations
within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Patti is a contractor engaged in the installation of
commercial and industrial roofing. Patti’s principal
place of business is in Saddle Brook, New Jersey, but it
performs work throughout the State of New Jersey and
the northeast United States. Patti is signatory to labor
agreements with the New Jersey State Council of Car-
penters and with Carpenters Local 15. It is also signa-
tory to a labor agreement with Sheet Metal Workers Lo-
cal 25. Patti is not directly signatory to a contract with
Sheet Metal Workers Local 27. However, Patti’s agree-
ment with Sheet Metal Workers Local 25 contains a pro-
vision under which Patti has agreed that whenever it per-
forms work outside the jurisdiction of Local 25, it will
abide by the local agreement negotiated by the Sheet
Metal Workers local which has jurisdiction over that
area. Patti’s contract with Local 25 also contains a union
signatory subcontracting clause that precludes Patti from
subcontracting covered jobsite work to any subcontractor
that does not agree to abide by the contract.
In 1996, Patti bid on and was awarded a contract to
perform roofing work on a high school being built for the
South Brunswick, New Jersey Board of Education at a
site which is within the territorial jurisdiction of Sheet
Metal Workers Local 27. Patti subcontracted the dis-
puted metal roofing portion of the work to Newmet Cor-
poration. Newmet is signatory to collective-bargaining
agreements with the Carpenters but not with Sheet Metal
Workers Local 27.
On July 26, 1996,2 Thomas Kohler, business represen-
tative of Sheet Metal Workers Local 27, telephoned Nick
Timpone, vice president of Newmet, to inquire whether
reports he had heard to the effect that Newmet was going
to be the subcontractor for the metal roofing work on the
South Brunswick high school job were true. Timpone
confirmed that it was. At that point, depending on whose
testimony is the more accurate, Kohler asked either that
Newmet assign the disputed work to the Sheet Metal
Workers or that it consider subcontracting the work to a
sheet metal roofing contractor.3 Timpone replied that
2 All dates refer to 1996.
3 There is conflicting testimony in the record on this point. Timpone
testified that Kohler asked him to assign the work to the Sheet Metal
Workers. Kohler testified that he asked Timpone if Newmet would be
interested in subcontracting the work to a sheet metal roofing contrac-
tor. Both men agree that Timpone responded that Newmet “was
signed” with the Carpenters and would not agree to Kohler’s request,
332 NLRB No. 69
J.P. PATTI CO. 831
Newmet was already “signed” with the Carpenters, and
refused Kohler’s request.
In a letter dated July 30, Sheet Metal Workers Local
27 informed Patti that Kohler had filed a grievance
against Patti with the Local Joint Adjustment Board for
the Sheet Metal Industry of Central and Southern New
Jersey (LJAB), claiming a violation of the signatory sub-
contracting clause in Patti’s contract with Sheet Metal
Workers Local 25. Patti informed the LJAB that it was
not a party to a contract with Local 27 and therefore that
the LJAB lacked authority to decide Local 27’s claim.
The LJAB nonetheless later informed Patti that it had
held a hearing on the claim on August 13, had found that
Patti violated the signatory subcontracting clause, and
had assessed damages against Patti in the amount of
$200,000.
About October 2, Carpenters Local 1006 Business
Agent William Schlueter was contacted by Newmet
President Thomas Nuckel, who informed him that the
metal roofing work was about to begin, but that there
was going to be a problem with Carpenters performing
the work. Schlueter informed Patti, both by telephone
and in writing, that the Carpenters would picket the job-
site if they were not allowed to perform the disputed
work. According to Schlueter, however, the Carpenters
began performing the disputed work around the begin-
ning of October and were still performing it at the time
of the hearing.
B. Work in Dispute
The disputed work involves the construction and in-
stallation of metal roofing work being performed by
Newmet at a school being built in Monmouth Junction,
New Jersey, for the South Brunswick, New Jersey Board
of Education.
C. Contentions of the Parties
Patti, Newmet, and the Carpenters all contend (either
explicitly or implicitly) that this is a traditional jurisdic-
tional dispute, that there is reasonable cause to believe
that the Carpenters violated Section 8(b)(4)(D) of the
Act, and that no agreed-upon method exists for voluntary
adjustment of the dispute. Patti and the Carpenters argue
that the disputed work should be awarded to employees
represented by the Carpenters on the basis of employer
preference and past practice, relevant collective-
bargaining agreements, industry practice, relative skills,
and economy and efficiency of operations. Newmet did
not file a brief, but argued at the hearing that the work

however it was phrased. They also agree that Kohler did not threaten
Timpone with picketing or work stoppages.
should be awarded to employees represented by the Car-
penters on the basis of its past practice.
The Sheet Metal Workers contends that there is no ju-
risdictional dispute here because, under the Board’s deci-
sion in Capitol Drilling,4 the Sheet Metal Workers did
not make a claim to the work in question and never
threatened either Patti or Newmet in order to acquire that
work. Rather, it contends, it simply has a contractual
dispute with Patti arising from Patti’s failure to abide by
the terms of the union signatory subcontracting clause in
its agreement with Sheet Metal Workers Local 25. Ac-
cordingly, the Sheet Metal Workers has moved that the
Board quash the notice of hearing. Should the Board
find that a jurisdictional dispute exists, however, the
Sheet Metal Workers argues that the work should be
awarded to employees it represents, apparently on the
basis of area practice.
D. Applicability of the Statute
In Capitol Drilling, the Board held that in the con-
struction industry, a union’s effort to enforce a lawful
union signatory subcontracting clause against a general
contractor through a grievance, arbitration, or court ac-
tion does not constitute a claim to the subcontractor for
the work. The Board, however, distinguished those cases
in which a union does more than peacefully pursue a
contractual grievance against a general contractor. The
Board found that a true jurisdictional dispute arises when
a union seeking enforcement of a contractual claim not
only pursues its contractual remedies against the em-
ployer with which it has an agreement, but also makes a
claim for the work directly to the subcontractor that has
assigned the work. In such circumstances, the Board
stated that it would find truly competing claims and the
use of threat of coercion to enforce a claim by the repre-
sentative of either group of employees would be suffi-
cient to trigger an 8(b)(4)(D) allegation and consequent
10(k) proceeding. Electrical Workers IBEW Local 363
(U.S. Information Systems), 326 NLRB 1382 (1998);
Capitol Drilling, 318 NLRB at 811–812.5
The Sheet Metal Workers contends that, under Capitol
Drilling, no jurisdictional dispute should be found to
exist here. It argues that it did not claim the work from
4 Laborers (Capitol Drilling Supplies), 318 NLRB 809 (1995).
5 Chairman Truesdale notes that he dissented in Capitol Drilling.
See 318 NLRB at 812–813. He agrees with his colleagues, however,
that the circumstances of this case are distinguishable and that the hold-
ing from which he dissented in Capitol Drilling is not applicable here.
Member Hurtgen has previously stated his reservations regarding the
Board’s holding in Capitol Drilling. See, e.g., his concurring opinion
in Laborers Local 113 (Super Excavators), 327 NLRB 113 (1998).
However, inasmuch as the instant case is distinguishable from Capitol
Drilling, it is unnecessary for him to pass on the Board’s holding in
Capitol Drilling.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 832
Newmet, and that it merely filed a grievance against Patti
for breach of the union signatory subcontracting clause in
Patti’s contract with Sheet Metal Workers Local 25. As
there is no contention that it threatened or otherwise co-
erced anyone, the Sheet Metal Workers contends that
Section 10(k) should not be found to apply here, and that
the notice of hearing should be quashed.
We disagree. As we have noted, the record does not
establish exactly what Kohler said to Timpone on July
26. According to Timpone, Kohler asked him to assign
the work to the Sheet Metal Workers. According to
Kohler, he asked only if Newmet would be interested in
subcontracting the metal roofing work to a sheet metal
roofing contractor. However, in 10(k) proceedings, a
conflict in testimony does not prevent the Board from
finding evidence of reasonable cause and proceeding
with a determination of the dispute. Sheet Metal Work-
ers Local 107 (Lathrop Co.), 276 NLRB 1200, 1202 fn. 3
(1985). We find that the testimony of Timpone is suffi-
cient to establish reasonable cause to believe that Sheet
Metal Workers made a claim for the disputed work di-
rectly to Newmet. Further, as described above, Carpen-
ters Business Agent Schlueter threatened Patti that the
Carpenters would picket Patti’s jobsite unless the dis-
puted work was assigned to the Carpenters.6 Therefore,
we find that there are competing claims to Newmet for
the work, and that a true jurisdictional dispute exists.7
We therefore find reasonable cause to believe that a
violation of Section 8(b)(4)(D) has occurred and that
there exists no agreed-upon method for voluntary ad-
justment of the dispute within the meaning of Section
10(k) of the Act.8 Accordingly, we find that the dispute
is properly before the Board for determination, and we
deny the Sheet Metal Workers’ motion to quash the no-
tice of hearing.

6 According to Schlueter, employees represented by Carpenters are
currently performing the disputed work. Performance of work by a
group of employees is evidence of a claim for the work by those em-
ployees, even in the absence of an explicit claim. Longshoremen ILWU
Local 14 (Sierra Pacific Industries), 314 NLRB 834, 836 (1994).
7 Capitol Drilling, 318 NLRB at 811–812.
As we explain below, we find that the disputed work should be
awarded to employees represented by the Carpenters. Our award does
not preclude the Sheet Metal Workers from pursuing its grievance
seeking damages against Patti for violation of the signatory subcon-
tracting clause, provided that it does not continue to claim the work
from Newmet or engage in threats or other coercion. Id. at 810 fn. 4,
citing Carpenters Local 33 (AGC of Massachusetts), 289 NLRB 1482,
1484 (1988).
8 All parties except the Sheet Metal Workers stipulated that no such
agreed-upon method exists. The Sheet Metal Workers declined to join
in the stipulation, but presented no evidence that such a method exists.
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.
1. Collective-bargaining agreements
Newmet is signatory to an agreement with the New
Jersey State Council of Carpenters, which requires
Newmet to abide by the terms and conditions of all col-
lective-bargaining agreements between Carpenters local
unions and district councils and the Building Contractors
Association of New Jersey (BCANJ). Newmet is also
signatory to an agreement between BCANJ, the Hudson
County Contractors Association, and Hudson County
Carpenters, Millwrights, and Lathers Local Union No. 6.
That agreement also requires Newmet to abide by the
terms and conditions of employment in effect in the terri-
tories of all Carpenters locals in New Jersey, and it ar-
guably asserts jurisdiction over metal roofing work.
Newmet has no collective-bargaining relationship or con-
tract with Sheet Metal Workers Local 27. Accordingly,
we find that this factor supports an award of the disputed
work to employees represented by the Carpenters.9
2. Company preference and past practice
Both Nuckel and Timpone testified that, during its 10-
year existence, Newmet has consistently assigned metal
roofing work to employees represented by carpenters
unions,10 and that they prefer to continue to do so. We
find that this factor supports an award of the disputed
work to employees represented by the Carpenters.
3. Area and industry practice
The record reflects that contractors in New Jersey as-
sign metal roofing work to both carpenters and sheet
metal workers. Thus, Charles Volpe, Patti’s CEO, testi-
9 Patti has collective-bargaining agreements with Sheet Metal Work-
ers Local 25, the New Jersey State Council of Carpenters, and Carpen-
ters Local 15. However, it is the subcontractor’s labor agreements, not
those of the general contractor, that are relevant to a 10(k) award. See
Carpenters Local 1207 (Carlton, Inc.), 313 NLRB 71, 72 fn. 6 (1993).
10 The record contains evidence of one exception to this past prac-
tice, a job on which Newmet employed a mixed crew of carpenters and
sheet metal workers (not from Local 27) that was worked out by busi-
ness agents of the two unions. Nuckel, however, testified that the use
of that composite crew was not his preference.
J.P. PATTI CO. 833
fied that when it does such work itself, rather than sub-
contracting it, it almost always uses carpenters rather
than sheet metal workers. He also testified that the in-
dustry practice in New Jersey is to use carpenters. As
noted above, Nuckel and Timpone testified that Newmet
assigns such work to carpenters. Schlueter testified that,
in the jurisdiction of Carpenters Local 1006, carpenters
do metal roofing work. Kohler, however, testified that
metal roofing work in Sheet Metal Workers Local 27’s
territorial jurisdiction has been done by sheet metal
workers. We find that this factor does not support an
award of the disputed work to employees represented by
either union.
4. Relative skills
The record does not indicate that either carpenters or
sheet metal workers possess skills or specialized training
that members of the other trade lack. Members of both
trades perform metal roofing work. We find this to be a
neutral factor.
5. Economy and efficiency of operations
The record contains no evidence that would support a
finding that Newmet would experience greater economy
and efficiency of operations by using one group of em-
ployees rather than the other. Accordingly, we find that
this factor is inconclusive.
6. Joint board determinations
The LJAB found that Patti had violated the signatory
subcontracting clause of its collective-bargaining agree-
ment with Sheet Metal Workers Local 25 by subcontract-
ing the disputed work to Newmet, which has no contract
with the Sheet Metal Workers. The minutes of the LJAB
proceedings, however, indicate that the LJAB was con-
cerned only with the alleged contract violation. It did not
purport to make an award of the disputed work and, ex-
cept for the collective-bargaining agreement with Sheet
Metal Workers Local 25, there is no evidence that it con-
sidered any of the factors the Board considers in making
an award in a 10(k) proceeding. Accordingly, we find
that the LJAB’s decision does not favor an award of the
work to either group of employees.11
Conclusion
After considering all the relevant factors, we conclude
that employees represented by Carpenters Union Local
No. 1006, a/w United Brotherhood of Carpenters, AFL–
CIO are entitled to perform the work in dispute. We
reach this conclusion relying on the relevant collective-
bargaining agreements, and Newmet’s preference and
past practice. In making this determination, we are
awarding the work to employees represented by Carpen-
ters Local 1006, 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.
Employees of Newmet Corporation represented by
Carpenters Union Local No. 1006, a/w United Brother-
hood of Carpenters, AFL–CIO are entitled to perform the
construction and installation of metal roofing work at a
school being built in Monmouth Junction, New Jersey,
for the South Brunswick, New Jersey Board of Educa-
tion.

11 See Operating Engineers Local 318 (Kenneth E. Foeste Masonry),
322 NLRB 709, 713–714 (1996).