Laborers Local 79 (DNA Contracting)

National Labor Relations Board - Board Decisions

Apr 25, 2003

338 N.L.R.B. 997 (N.L.R.B. 2003)

LABORERS LOCAL 79 (DNA CONTRACTING) 997
Local 79, Construction and General Building Labor-
ers, Liuna and DNA Contracting, LLC and Lo-
cal 1, New York, International Union of Brick-
layers and Allied Craftsmen. Case 2–CD–1053
April 25, 2003
DECISION AND DETERMINATION OF DISPUTE
BY MEMBERS LIEBMAN, SCHAUMBER, AND ACOSTA
The charge in this Section 10(k) proceeding was filed
on May 28, 2002,1 by DNA Contracting, LLC (the Em-
ployer or DNA). The charge alleges that Local 79, Con-
struction and General Building Laborers, LIUNA (Local
79) 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 that Local 79 represents rather than to em-
ployees represented by Local 1, New York, International
Union of Bricklayers and Allied Craftsmen (Local 1 or
Bricklayers). The hearing was held on July 8 before
Hearing Officer Wilfredo Perez.
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.
I. JURISDICTION
DNA is a New Jersey Limited Liability Corporation
with a warehouse and principal place of business in
Newark, New Jersey. It provides waterproofing, build-
ing facade restoration, and related services for commer-
cial customers in New York, New York. Annually, in
the course and conduct of its business operations, DNA
provides services valued in excess of $1 million to its
customers in New York, New York, to customers di-
rectly engaged in interstate commerce. We find that
DNA is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
At the hearing, the parties stipulated, and we find, that
Local 1 and Local 79 are labor organizations within the
meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
The 761 Seventh Avenue Condominium Association
owns a 21-story residential and commercial building at
150 West 51st Street, New York, New York.2 The build-
ing is managed by a Master Board, which oversees the
building’s operation. Goodstein Management Corpora-

1 All dates herein refer to 2002 unless otherwise specified.
2 The following factual account is based on the uncontradicted testi-
mony of the Employer’s witnesses.
tion is the building’s property manager. Michael Tajeri
is Goodstein’s executive agent managing the building.
In May, the Master Board and DNA entered into a
contract for the performance of exterior restoration and
renovation work. Goodstein oversees this project and
acts as the construction manager for the Master Board.
DNA has a collective-bargaining relationship with Local
1 through a master labor agreement between Local 1 and
the Building Restoration Contractors Association, of
which DNA is a member. Frank Bitonti is DNA’s vice
president and principal. DNA began mobilizing at the
building in mid-May.
On May 24, Local 79 Business Agents John Mastrione
and Kenny Robinson approached Tajeri at the jobsite and
presented Tajeri with their business cards. The two in-
formed Tajeri that the job was not a union job. He was
told by one of them, “My friend, this is going to be a
problem. There’s going to be a problem for your build-
ing. There’s going to be picketing.” When Tajeri asked
what this had to do with him, they said that they had
been calling DNA to sign a contract with them, and that
DNA refused to answer their call. At the end of the con-
versation, the business agents told Tajeri that they were
“going to give [him] 48 hours to get DNA to sign a con-
tract with Local 79 before they start their activities and
organization in front of the building.” 3
On May 28, Mastrione and Robinson again spoke to
Tajeri in the street near the building. They said that they
hadn’t heard anything about any contract having been
signed by DNA, and warned that their offices were work-
ing on starting the pickets in front of the building. On
May 30, the Local 79 business agents and others showed
up with a 12- to 14-foot tall inflatable rat.4 They also
screamed, blew whistles, and honked the horns of sports
utility vehicles in front of the building and in the street.
These picketing and protest activities continued until
mid-June. The inflatable rat was displayed at the build-
ing on at least eight occasions.
After June 3, Tajeri shut down the 150 West 51st
Street project because of the activities of Local 79. On
June 7, DNA Vice President Bitonti spoke with Mas-
trione by telephone, and they discussed the possibility
that DNA might hire a couple of Local 79’s laborers.
Mastrione refused, stating that he wanted DNA to sign an
agreement. On June 10, the two met at the offices of Lo-
3 This was not the first such incident involving these parties. In
1998, Local 79 claimed work being performed by members of Local 1
for DNA. An unfair labor practice charge was filed, but a subsequent
disclaimer by Local 79 led to a non-Board settlement.
4 In the building trades, a “rat” sometimes refers to a nonunion con-
tractor. See, e.g., Sheet Metal Workers Local 19 (Delcard Associates),
316 NLRB 426, 437–438 (1995).
338 NLRB No. 153
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 998
cal 79. Bitonti explained that he did not feel that Local
79 was appropriate for the work. He expressed his con-
cerns about breaking the contract with Local 1 and cited
some of the advantages of Local 1. Mastrione responded
that Local 79 had training schools, people in school and
training, and people who could hang scaffolding. He
then stated “that Local 79 was interested and going after
the restoration work . . . and that they felt that the demo-
lition was theirs, that the cleaning was theirs, blowing of
brick and mixing of mortar was their work.”
On June 13, Local 79’s counsel sent to Jamie Rucker,
a field agent for the Board’s Region 2, a letter disclaim-
ing interest in the work being done at the jobsite. The
next day, Bitonti called Mastrione and informed him that
DNA would not be signing a contract with Local 79 be-
cause of the disclaimer. Mastrione told Bitonti “that he
[knew] nothing about the [disclaimer] letter being sent,
and that [Bitonti] would find out how much interest
[Mastrione] had in the project come Monday morning
. . . [and] that [Bitonti] was making a mistake.”
On Monday, June 17, Mastrione and Robinson spoke
with Tajeri in the building’s lobby. They said that DNA
had not signed a contract with Local 79, and threatened
that there would be picketing if the contract was not
signed. That same day, Local 79 again displayed the rat
at the site in the presence of Mastrione and Robinson.
After June 17, Local 79 would intermittently put the rat
up in the morning for a couple of hours and then take it
down by lunchtime or 2 p.m. Bitonti last saw Local 79
picketers at the site on June 19, but he also testified that
while on vacation he received reports of picketing by
Local 79 after June 19.
B. Work in Dispute
The dispute concerns the assignment of demolition
work, brick and window cleaning, and the cleaning of
mortar droppings related to facade restoration at 150
West 51st Street, New York, New York.5
C. Contentions of the Parties
The Employer and Local 1 assert that Local 79’s pick-
eting and threats to picket had a jurisdictional objective
because they were designed to force a change in the as-
signment of the work in dispute, thereby violating Sec-
tion 8(b)(4)(D) of the Act. Both contend that the work in
dispute should be awarded to employees represented by
Local 1 based on the relevant factors discussed below.
In addition, the Employer and Local 1 argue that the
award should cover the entire New York City area be-

5 The work entails the cutting of brick and its replacement, corner
reconstruction, lintel replacement, waterproofing of steel underskins,
steel replacement, parapet replacement, caulking, pointing, roof re-
placement, scaffolding erection, and general cleanup.
cause of Local 79’s alleged past practice of unlawfully
seeking to force DNA to reassign work.
Local 79 contends that the Board lacks jurisdiction in
this case because there is no reasonable cause to believe
that a violation of Section 8(b)(4)(D) has occurred. It
argues that its conduct had a representational rather than
jurisdictional objective and that in any event, it twice
disclaimed interest in the work in dispute. Accordingly,
Local 79 has moved to quash the notice of a 10(k) hear-
ing.
DNA and Local 1 oppose the motion to quash. They
argue that Local 79’s first disclaimer is invalid because
of post disclaimer threats and picketing by Mastrione,
Robinson, and other members of Local 79, and that its
second disclaimer, made at the hearing, is also invalid.
D. Applicability of the Statute
Before the Board may proceed with a determination of
a dispute pursuant to Section 10(k) of the Act, it must be
satisfied that (1) there are competing claims for the work;
(2) there is reasonable cause to believe that Section
8(b)(4)(D) has been violated; and (3) the parties have not
agreed on a method for the voluntary adjustment of the
dispute. Carpenters Local 275 (Lymo Construction Co.),
334 NLRB 422, 423 (2001); Teamsters Local 259 (Globe
Newspaper Co.), 327 NLRB 619, 622 (1999); Laborers
Local 113 (Super Excavators), 327 NLRB 113, 114
(1998). We find that all these conditions have been met.
1. There are competing claims to the work
Local 79 has repeatedly claimed the disputed work and
demanded that DNA sign a contract. For example, on
June 10, Mastrione claimed that Local 79 was interested
in the restoration work and insisted that the “demolition
was theirs, that the cleaning was theirs, blowing of brick
and mixing of mortar was their work.” Local 1 also ex-
plicitly claimed the work at the hearing and in its briefs.6
We reject Local 79’s assertion that it has effectively
disclaimed the work. To be effective, a disclaimer must
be a clear, unequivocal, and an unqualified disclaimer of
all interest in the work in question. Operating Engineers
Local 150 (Interior Development), 308 NLRB 1005,
1006 (1992). Conduct inconsistent with a disclaimer
militates against its effectiveness. Thus, an otherwise
clear and unequivocal disclaimer may be rendered inef-
fective by subsequent union conduct manifesting a con-
tinuing jurisdictional claim. Operating Engineers Local
542 (James Julian, Inc.), 247 NLRB 1113, 1115 (1980);
cf. Laborers District Council of Baltimore (Potts &
6 In any event, members of Local 1 are already performing the dis-
puted work. The performance of work by a group of employees is
evidence of a claim for the work by those employees, even absent a
specific claim. J.P. Patti Co., 332 NLRB 832 at fn. 6 (2000).
LABORERS LOCAL 79 (DNA CONTRACTING) 999
Callahan), 265 NLRB 628, 629 (1982). Such is the case
here.
Although Local 79’s June 13 disclaimer was not
equivocal on its face, we find that it was nullified by Lo-
cal 79’s post disclaimer conduct. DNA’s witnesses testi-
fied, without contradiction, that Mastrione and Robinson
made threats and, with others, picketed the jobsite after
the June 13 disclaimer. These post disclaimer activities at
the site invalidated the June 13 disclaimer. Operating
Engineers Local 524, supra; Bricklayers Local 2 (Decora
Inc.), 152 NLRB 278 (1965).
We also find that Local 79’s second disclaimer, made
at the hearing, was materially undermined by the invalid-
ity of the June 13 disclaimer. Operating Engineers Local
825 (Harms Construction), 273 NLRB 833, 835–836
(1984). Accordingly, we reject Local 79’s contention
that it effectively disclaimed interest in the disputed
work.
2. There is reasonable cause to believe that
Section 8(b)(4)(D) has been violated
a. The dispute is jurisdictional
A dispute within the meaning of Section 8(b)(4)(D)
requires a choice between two competing groups: “There
must, in short, be either an attempt to take a work as-
signment away from another group, or to obtain the as-
signment rather than have it given to the other group.”
Laborers Local 1 (DEL Construction), 285 NLRB 593,
595 (1987), quoting Food & Commercial Workers Local
1222 (FedMart Stores), 262 NLRB 817, 819 (1982).
DNA and Local 1 contend that this dispute is jurisdic-
tional because it is over which of two groups of work-
ers—members of Local 1 or members of Local 79—
should be performing the disputed work. Local 79
counters that the dispute is over which union should rep-
resent the workers currently employed by DNA, not over
which group of employees should perform the disputed
work, and thus is representational and not jurisdictional.
In this regard, Local 79 relies on Carpenters Local 275
(Lymo Construction Co.), supra.
We agree with the Employer and Local 1 that the dis-
pute is jurisdictional. Local 79 expressly claimed the
disputed work as “its work.” It also demanded that DNA
sign a contract, even though employees represented by
Local 1 were already performing the work under a col-
lective-bargaining agreement between DNA and Local 1.
The contract that Local 79 wanted DNA to sign con-
tained a union-security clause requiring all employees
performing covered work to be members of Local 79 as a
condition of employment. Had DNA signed that con-
tract, Local 79 could have insisted that DNA fire any
current employees who resisted joining Local 79, thus
effectively taking the disputed work away from employ-
ees represented by Local 1 and giving it to employees
represented by Local 79. In nearly identical circum-
stances, the Board has found disputes to be jurisdictional,
even though the unions attempting to acquire the dis-
puted work framed their demands in representational
terms. Parkersburg Building Trades Council, 119
NLRB 1384 (1958);7 Hod Carriers’ Local 1149 (Lang
Bros.), 125 NLRB 753 (1959). In those cases, the Board
found disputes to be jurisdictional where unions sought
to perform work under union-security contracts and other
unions were already performing the work under contract.
Lymo Construction, cited by Local 79, is distinguish-
able. In that case, employees represented by the Sheet
Metal Workers began performing roofing work under a
collective-bargaining agreement. Soon after, the Carpen-
ters claimed the metal siding work at the site. Although
both unions continued to claim the metal siding work, the
employer executed a contract with the Carpenters, and
then used a composite crew from both unions at the site
until the completion of the job. Neither union objected
to the performance of the metal siding work by the em-
ployer’s current employees. The Board found that dis-
pute to be representational because it was over which
union would represent the single group of employees
currently performing the metal siding work. 334 NLRB
at 424.
By contrast, this is not a dispute about which of two
competing unions will represent a single group of work-
ers currently performing work. Local 79 wants its mem-
bers to replace those currently doing the work at the site.
Mastrione explicitly told Bitonti that the disputed work
belonged to Local 79. Thus, unlike Lymo Construction,
this case involves an attempt by one group of employees
to take a work assignment away from another group of
employees. For that reason, this dispute is jurisdictional,
not representational.
b. Local 79 used proscribed means to enforce its
claim to the disputed work
As discussed above, Local 79 repeatedly picketed and
threatened to picket in support of its demand for the dis-

7 Member Schaumber agrees that Local 79’s contention that the dis-
pute in this case was solely representational must be rejected. In addi-
tion, however, he wishes to point out that Local 79’s assertion that the
dispute “was over which union should represent the workers employed
by DNA, the Bricklayers or Local 79” raises a different set of concerns.
If Local 79 had indeed signed a collective-bargaining agreement with
DNA covering the very unit employees already represented by Local 1,
thus resulting in DNA repudiating its agreement with Local 1, a ques-
tion would be raised as to whether both DNA and Local 79 had violated
the Act. See Finix & Scisson, Inc., 207 NLRB 752 (1973), enfd. mem.
506 F.2d 1404 (7th Cir. 1974).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1000
puted work. Thus, we find that Local 79 used proscribed
means to enforce its claim to the work.
3. There is no agreed-upon method for the voluntary
adjustment of the dispute
There is no agreed-upon method that would bind all of
the parties to a voluntary adjustment of the dispute.
Because there are competing claims to the work, there
is reasonable cause to believe that Section 8(b)(4)(D) has
been violated, and the parties have not agreed on a
method for the voluntary adjustment of the dispute, we
find that this dispute is properly before the Board for
determination. Therefore, Local 79’s motion to quash
the notice of 10(k) hearing is denied.
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 Local 1212 (Co-
lumbia 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 ex-
perience, reached by balancing the factors involved in a
particular case. Machinists Lodge 1743 (J.A. Jones Con-
struction), 135 NLRB 1402, 1410 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Collective-bargaining agreements
Local 79 has never had a collective-bargaining agree-
ment with the Employer. By contrast, DNA has had a
series of collective-bargaining agreements with Local 1
since 1995, when DNA began its operations. The most
current agreement is through the Building Restoration
Contractors Association, Inc. (BRCA), an employer as-
sociation of which DNA is a member. The Pointers,
Cleaners & Caulkers Collective-Bargaining Agreement
between Local 1 and the BRCA provides that the con-
tract encompasses:

work done on the exteriors and/or interiors of buildings
and masonry structures, using all equipment to com-
plete the task including the following: pointing, clean-
ing, caulking, repairing, cutting, patching, reinstalling
of replacement materials, waterproofing, reconstruct-
ing, renovation and restoration of masonry, using rig-
ging, steam jennys and air compressors, and related
power tools and hand tools, . . . swing scaffolds and
scaffolding, the rigging and assembling of suspension
systems, the use of welding and cutting equipment . . . .

Accordingly, this factor favors awarding the work in
dispute to the employees represented by Local 1.
2. Employer preference and current assignment
The Employer assigned the disputed work to employ-
ees represented by Local 1 and prefers that it continue to
be performed by those employees. This factor favors
awarding the disputed work to employees represented by
Local 1.
3. Employer’s past practice
The record shows that the Employer has assigned work
similar to the disputed work to crews composed of em-
ployees represented by Local 1 at other projects in New
York City since July 1, 1997. Accordingly, this factor
favors an award of the disputed work to the employees
represented by Local 1.
4. Area and industry practice
The area and industry practice has not been demon-
strated. No evidence was offered concerning the prac-
tices of any employer other than DNA. We find that this
factor does not favor either group of employees.
5. Relative skills and training
Both the Employer and Local 1 argue that DNA’s pro-
ject is a standard restoration job involving brick removal
and replacement, waterproofing, steel work and demoli-
tion work, which Local 1 tradesmen are particularly
trained and skilled to perform. Both provided testimony
that all Local 1 members working for DNA undergo a
four-year apprenticeship program covering all aspects of
the trade, including waterproofing. Local 79 offered no
evidence regarding its members’ training or skills. We
find that this factor favors an award of the disputed work
to employees represented by Local 1.
6. Economy and efficiency of operations
The record reflects that it is more economical and effi-
cient for the Employer to continue to use employees rep-
resented by Local 1 rather than employees represented by
Local 79.
Local 1 and the Employer argue that on projects such
as this, Local 1’s members work as a self-contained unit
without the help of other building trades. Members of
Local 1 perform the entire spectrum of tasks at Local 1
worksites, from setup to cleanup. Bitonti testified that
projects like this require teamwork, which Local 1 teams
have developed through years of working together and
knowing how the other members of the team perform
their work. Local 79 gave no testimony on this issue.
The Employer and Local 1 also contend that members
of Local 1 are trained, proficient, and experienced in the
use of tools specific to the type of work being performed
at this worksite, particularly dowel hammers and large
and small hand-held grinders. The grinders, which have
metal blades with diamond bits, are used to cutout the
LABORERS LOCAL 79 (DNA CONTRACTING) 1001
mortar joints between the bricks. The dowel hammers are
percussion, pneumatic electric hammers used to break
out the bricks in the middle of the removed mortar. Ac-
cording to Bitonti’s uncontroverted testimony, employ-
ees using the smaller hand-held grinders must carefully
avoid chipping or damaging the brick face, while those
using the large hand-held grinders must do isolated cut-
outs without disturbing the entire facade. Employees
using the pneumatic hammers must use “a certain fi-
nesse” to avoid breaking out too much brick at one time.
Using experienced Local 1 operators of these tools would
avoid needless damages to the brick face. Moreover, mis-
takes by employees operating these tools could result in
injuries or death to themselves and other employees and
damage to the building and adjacent properties (for ex-
ample cars parked below the scaffolding). Because of
their experience with these tools, Local 1 members are
less likely to make such mistakes. Local 79 provided no
evidence related to the ability of its members to use these
specialized tools efficiently and safely. Accordingly, we
find that this factor favors an award of the disputed work
to employees represented by Local 1.
Conclusion
After considering all the relevant factors, we conclude
that DNA employees represented by Local 1 are entitled
to perform the work in dispute. We reach this conclusion
relying on the relevant collective-bargaining agreements,
employer preference and current assignment, employer
past practice, relative skills and training, and economy
and efficiency of operations. In making this determina-
tion, we are awarding the disputed work to employees
represented by Local 1, not to that union or its members.
Scope of Award
Local 1 and DNA contend that a broad order covering
all of New York City is necessary to avoid similar juris-
dictional disputes in the future. We find no merit in that
contention.
There are two requirements for a broad, area-wide
award. First, there must be evidence that the disputed
work has been a continuous source of controversy in the
relevant geographic area and that similar disputes may
recur. Second, there must be evidence demonstrating
that the charged party has a proclivity to engage in
unlawful conduct in order to obtain work similar to the
work in dispute. Bricklayers (Sesco, Inc.), 303 NLRB
401, 403 (1991).
Neither Local 1 nor DNA introduced any testimony or
evidence concerning either of these issues. On this re-
cord, the only other such dispute between Local 79 and
Local 1 was in 1998 and ended with Local 79 disclaim-
ing the work. The record thus does not support specula-
tion by Local 1 and DNA that there is a strong likelihood
of repetition. Accordingly, we shall limit the present
determination to the particular 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 DNA Contracting, LLC, represented
by Local 1, New York, International Union of Bricklay-
ers and Allied Craftsmen, are entitled to perform demoli-
tion work, brick and window cleaning, and the cleaning
of mortar droppings at the facade restoration project at
150 West 51st Street, New York, New York.
2. Local 79, Construction and General Building La-
borers, LIUNA is not entitled by means proscribed by
Section 8(b)(4)(D) of the Act to force DNA Contracting,
LLC to assign the disputed work to employees repre-
sented by it.
3. Within 10 days from this date, Local 79, Construc-
tion and General Building Laborers, LIUNA shall notify
the Regional Director for Region 2 in writing whether it
will refrain from forcing DNA Contracting, LLC, by
means proscribed by Section 8(b)(4)(D), to assign the
disputed work in a manner inconsistent with this deter-
mination.