Prate Installation, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 2004

341 N.L.R.B. 543 (N.L.R.B. 2004)

CARPENTERS (PRATE INSTALLATIONS, INC.) 543
Chicago and Northeast Illinois District Council of
Carpenters and Prate Installations, Inc. and
United Union of Roofers, Waterproofers, and
Allied Workers, Local 11. Case 13–CD–664
March 31, 2004
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
This is a work jurisdiction dispute proceeding under
Section 10(k) of the Act. The charge was filed on Sep-
tember 24, 2002,1 by Prate Installations, Inc. (Prate or
the Employer), alleging that the Respondent, Chicago
and Northeast Illinois District Council of Carpenters
(Carpenters) 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 United Union of Roofers, Water-
proofers and Allied Workers, Local 11 (Roofers). The
hearing was held on October 17 and 18 before Hearing
Officer Christopher Lee and on November 6, 7, and 18
through 22, before Hearing Officer William M. Belkov.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board affirms the hearing officers’ rulings, find-
ing them free from prejudicial error. On the entire re-
cord, the Board makes the following findings.
I. JURISDICTION
The Employer, whose principal place of business is
Wauconda, Illinois, is engaged in the installation of roof-
ing, exterior sheet metal, building insulation, siding, and
gutters. The parties stipulate, and we find, that the Em-
ployer is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that the Carpenters
and Roofers are labor organizations within the meaning
of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Since the early 1980s, the Employer has been signa-
tory to consent agreements with the Carpenters and
Roofers. For most of this time, the Employer assigned
all types of roofing work, including new installation,
tear-off and reroofing2 of asphalt shingles, cedar, and

1 Except where specifically indicated, all dates refer to 2002.
2 “Tear-off work” is defined as the removal of existing roofing mate-
rials down to the roofing decking and the application of new roofing
materials on any roofing surface. “Re-roofing work” is described as the
application of a new roof over an existing roof. According to the Roof-
ers, neither work is limited to steep-sloped roofs.
slate on steep slope roofs, and all work on flat roofs to
employees represented by the Roofers. The Employer’s
Carpenter-represented employees were primarily em-
ployed on new residential construction installing asphalt
shingles and cedar shakes on steeply sloped roofs. How-
ever, occasionally the Employer used composite crews of
Roofers and Carpenters represented employees to per-
form the shingling and tear-off work at various sites
throughout Illinois and southern Wisconsin.
In 2000, the Carpenters’ Trust Funds conducted an au-
dit of the Employer’s records regarding the Employer’s
contractual payment of contributions to the Trust Funds
for each Carpenter-represented employee. A controversy
arose between the parties regarding the accuracy of the
audit and the amount owed by the Employer. On Octo-
ber 19, 2001, the Trust Funds sued the Employer in Fed-
eral district court claiming a delinquency of $2.5 million.
While the suit was pending, in March 2002, the Carpen-
ters struck the Employer and picketed all of its jobsites.
The strike lasted for 4 months and resulted in the Em-
ployer’s losing a significant amount of business and lay-
ing off approximately 50 percent of its employees. In
July, the Employer filed a countersuit against the Trust
Funds and a suit against the Carpenters. As a result, the
Trust Funds and the Employer entered into settlement
negotiations, during which the Trust Funds demanded
that the Employer assign all shingling and tear-off work
exclusively to the Carpenters. The Employer refused,
but ultimately, as a part of the settlement agreement,
agreed to assign its tear-off work exclusively to the Car-
penters. On July 15, the Court approved the parties’ set-
tlement agreement, and the strike and picketing by the
Carpenters ceased immediately.
Soon after the strike and picketing ceased, the Em-
ployer’s employees began to complain of harassment by
Carpenters’ representatives who showed up at its various
jobsites. The harassment assertedly included verbal
abuse, false and derogatory statements about the Em-
ployer, and statements to the effect that the Carpenters
were going to put the Employer out of business. Em-
ployees represented by the Roofers were singled out and
confronted by the Carpenters’ representative who de-
manded that they stop their work and show their union
identification.
On August 8, the Employer’s owner, Michael Prate,
met with Carpenters’ President Earl Oliver, who claimed
the work in dispute as the exclusive jurisdiction of the
Carpenters and told Prate that the Employer was not to
deal with the Roofers.3 Oliver also accused the Em-
3 As noted below, the work in dispute is shingling work at eight
sites.
341 NLRB No. 73
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 544
ployer of cheating and not abiding by the terms of the
settlement agreement.
On September 17, the Carpenters filed an unfair labor
practice charge against the Employer that alleged a re-
fusal to supply information—the names of seven em-
ployees who were working at one of the Employer’s job-
sites on August 30—in violation of Section 8(a)(5). On
September 24, the Carpenters went on strike and began
picketing six to eight of the Employer’s different jobsites
each day. The picketing ceased after 2 days when the
Employer filed the instant 8(b)(4)(D) charge.
Subsequently, in a meeting on October 9, Carpenters’
President Oliver again claimed the disputed work and
accused Employer owner Prate of violating the settle-
ment agreement by assigning employees represented by
the Roofers to do shingling work, thus implicitly con-
tending that the Carpenters had exclusive jurisdiction
over the work in dispute.
B. Work in Dispute
As described in the notice of hearing, the work in dis-
pute is shingling work—the installing of underlayment,
shingles, and ice and watershields—at eight specified
new construction sites:
Lakemoor Farms at Route 12 and Route 120, Lake-
moor, Illinois; The Lindens at Route 88 and Orchard
Road, Algonquin, Illinois; Algonquin Lakes at Route
62 and Sand Bloom, Algonquin, Illinois; Natures
Pointe at Waterford and Caredon, Aurora, Illinois;
Pheasant Ridge at Drauden Road and Theodore, Joliet,
Illinois; Ashcroft at Route 25 and Plainfield Road,
Oswego, Illinois; Windsor Pointe at Route 56 and Ga-
lena Road, Sugar Grove, Illinois; and Farmington
Lakes at Route 30 and Route 34, Oswego, Illinois.
C. Contentions of the Parties
The Employer and the Roofers contend that there is
reasonable cause to believe that the Carpenters violated
Section 8(b)(4)(D) of the Act and that there is no agreed-
on voluntary method of resolution to which all parties to
this dispute are bound. They contend that the Board
must therefore make a determination of the merits of the
dispute. Both the Employer and the Roofers contend that
the disputed work should be awarded to employees rep-
resented by the Roofers, based on the Employer’s collec-
tive-bargaining agreement with the Roofers, the Em-
ployer’s preference, area practice, economy and effi-
ciency of operations, and skills and training. The Em-
ployer further contends that the Carpenters’ persistent
efforts to have the disputed work assigned exclusively to
the Carpenters, suggest that disputes are likely to reoccur
wherever the Employer works. Therefore, the Employer
contends that a broad award is warranted.
The Carpenters contends that the dispute involves a
work preservation issue and does not fall within the
scope of Section 10(k) of the Act. It also argues that the
Trust Fund litigation and strike were merely to collect
the Employer’s delinquent fund contributions. The Car-
penters further contends that the 2-day strike in Septem-
ber was a lawful unfair labor practice strike because the
Employer refused to identify the employees who were
performing shingling and tear-off work at a jobsite in
Wauconda, Illinois. This work, the Carpenters claims,
falls within its exclusive jurisdiction.
Finally, the Carpenters asserts that the work in dispute
should be awarded to employees it represents based on
industry practice; the Employer’s past practice; safety,
skill, and efficiency; and its collective-bargaining agree-
ment, which contains a description of shingling work.
D. Applicability of the Statute
Before the Board can proceed with a determination of
a dispute under Section 10(k) of the Act, it must be satis-
fied 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.
We find that there are competing claims for the work.
The parties stipulated that both the Carpenters and Roof-
ers have claimed the work in dispute, and the record
shows that they both continue to do so.4
We reject the Carpenters’ contention that this is a work
preservation dispute that does not fall within the scope of
Section 10(k) of the Act. It is well established that for
such a work preservation defense to prevail, the Carpen-
ters must show that the employees it represents have pre-
viously performed the work in dispute and that it is not
attempting to expand its work jurisdiction. Stage Em-
ployees IATSE Local 39 (Shepard Exposition Service),
337 NLRB 721, 723 (2002). The Carpenters have failed
to make the latter showing. The record reveals that
Roofers-represented employees have performed the work
in dispute, i.e., the installation of shingles, underlayment,
and ice and water shields. The record also establishes
that Carpenters-represented employees have performed at
least that part of the disputed work consisting of the in-
stallation of asphalt shingles and cedar shakes. Although
the record does not specifically address whether the Em-
ployer has likewise assigned underlayment and ice and

4 We do not rely on the testimony regarding the settlement negotia-
tions to prove that the Carpenters claimed the disputed work, nor do we
rely on the settlement agreement in finding reasonable cause to believe
that the Carpenters violated Sec. 8(b)(4)(D). We therefore find it un-
necessary to reach the merits of the Carpenters’ motion to strike the
testimony regarding the settlement negotiations.

CARPENTERS (PRATT INSTALLATIONS, INC.) 545

water shield work to Carpenters-represented employees,
no one contends that it has not. Instead, the more general
testimony is that the Employer has variously assigned
shingling work to crews of Roofers-represented employ-
ees, to crews of Carpenters-represented employees, and
to composite crews. Thus, even assuming that Carpen-
ters-represented employees have performed all aspects of
the work in dispute, they have never performed it exclu-
sively. The dispute arose when the Carpenters claimed
all of the disputed work, including that previously per-
formed by employees represented by the Roofers. As
such, the Carpenters’ objective here was not that of work
preservation, but of work acquisition. Stage Employees
IATSE Local 39, supra at 723.
We also find reasonable cause to believe that a viola-
tion of Section 8(b)(4)(D) has occurred. Thus, the record
establishes that the Carpenters, after filing an unfair labor
practice charge, engaged in a 2-day strike with picketing
against the Employer at six to eight different jobsites
each day where the Employer’s Roofers-represented em-
ployees were primarily performing the work in dispute.
The Carpenters asserts that the picketing of the job-
sites, as the Carpenters’ picket signs indicated, was be-
cause of the Employer’s alleged unfair labor practice.
But even assuming that the picketing had a lawful objec-
tive, it is well settled that a union may violate Section
8(b)(4)(D) if one object of the conduct is prohibited.
Electrical Workers Local 134 (Pepper Construction),
339 NLRB 123, 124 (2003). We find that an object of
the Carpenters’ picketing was to obtain exclusively the
disputed work that was being performed by employees
represented by the Roofers. Thus, the picketing took
place precisely at those jobsites at which the Employer
was employing Roofers-represented employees. More-
over, Michael Prate testified that on August 8, Carpen-
ters’ President Oliver made another demand for the work
in dispute and demanded that Prate not deal with the
Roofers. Prate also testified that on October 9, Oliver
claimed that the Employer’s use of Roofers-represented
employees to perform the work in dispute violated the
settlement agreement. On both occasions, Oliver as-
serted, either explicitly or implicitly, that the Carpenters
had exclusive jurisdiction over the disputed work. These
demands and assertions, coming so close in time to the
September picketing, further indicate that the picketing
had a jurisdictional object.
Finally, as stipulated by the parties, no method for the
voluntary adjustment of the dispute has been agreed on.
Accordingly, we find that the dispute is properly before
the Board for determination.5
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
Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Certifications and collective-bargaining agreements
The parties stipulated that there are no Board orders or
certifications determining the collective-bargaining rep-
resentative of the employees performing the work in dis-
pute. The Employer has been signatory for approxi-
mately 20 years to consent agreements with the Roofers
and Carpenters. The only roofing work covered by the
Carpenters’ agreement refers to the installation of new
shingles and related tasks. The Roofers’ agreement cov-
ers a greater number of roofing services, including the
work in dispute. However, because there is some over-
lap of the identified shingling tasks, including at least
part of the work in dispute, this factor does not favor
either group of employees.
2. Employer assignment and preference
The Employer currently assigns the disputed work to
its employees represented by the Roofers and prefers that
the work in dispute continue to be performed by them.
This factor accordingly favors awarding the disputed
work to employees represented by the Roofers.
3. Employer past practice
Until recently, the Employer’s historic practice has
been to sometimes use composite crews of Carpenters
and Roofers and other times to use crews of either Roof-
ers or Carpenters to perform the disputed work. We find
that this factor does not favor an award to either group of
employees.
4. Area and industry practice
The record evidence does not indicate the area and in-
dustry practice of assigning work similar to that in dis-
pute. Accordingly, we find that this factor does not favor
an award to either group of employees.
5 We therefore deny the Carpenters’ motion to squash the notice of
hearing.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 546
5. Relative skills and training
Both unions offer training programs applying to the
skills necessary to perform the disputed work. The re-
cord shows that the Roofers’ apprenticeship training pro-
gram is a 4-year program that covers all aspects of roof-
ing including shingling and the various roofing products,
materials, and systems. The Carpenters’ program, how-
ever, only provides brief training on how to shingle as-
phalt and cedar shakes and shingles. Accordingly, this
factor favors awarding the work in dispute to employees
represented by the Roofers.
6. Economy and efficiency of operations
The Employer and the Roofers also assert that using
Roofers to perform the disputed work is more economi-
cal and efficient than using Carpenters because the Roof-
ers alone can do the entire job from start to finish.6 Fur-
ther, the Employer and the Roofers contend that because
roofers can perform all aspects of roofing services, they
are less affected by rain and bad weather when working
on combination roofs. The Employer further asserts that
being able to assign the work in dispute to roofers has a
positive effect on both its work scheduling and project
costs because the Roofers have a larger pool of qualified
roofers to draw from and it is easier to obtain highly
qualified roofers immediately from the Roofers. In con-
trast, the Carpenters have a limited number of carpenters
who can perform shingling work and they are not always
readily available. Also, the Carpenters’ apprenticeship
program requires apprentices to attend during the work-
day, which interferes with work scheduling and produc-
tion. By contrast, the Roofers-represented employees
attend their apprenticeship training on the weekends and
at night, and thus do not have to miss work in order to
attend training classes. We find that this factor favors
awarding the disputed work to the employees represented
by the Roofers.
Conclusions
After considering all the relevant factors, we conclude
that employees represented by the Roofers are entitled to
perform the work in dispute. We reach this conclusion
relying on the Employer’s preference, economy and effi-
ciency of operations, and skills and training. In making
this determination, we are awarding the work to employ-
ees represented by the Roofers, not to that Union or its
members.7

6 The Employer and Roofers also argue that in some situations even
with a composite crew, the carpenters would be idle while the roofers
performed certain roofing tasks, particularly on combination flat and
steeply sloping roofs.
7 This award does not affect the reroofing and tear-off work, which
the Employer has traditionally performed at times with composite
Scope of the Award
The Employer has requested that the Board issue a
broad award that encompasses the geographical areas in
which the Employer performs roofing services. We find
no merit in that request.
Normally, 10(k) awards are limited to the jobsites
where the unlawful 8(b)(4)(D) conduct occurred or was
threatened. Electrical Workers Local 363 (U.S. Informa-
tion Systems), 326 NLRB 1382, 1385 (1998). There are
two prerequisites for a broader award: (1) evidence that
the disputed work has been a continuous source of con-
troversy in the relevant geographic area and that similar
disputes may recur; and (2) evidence demonstrating the
offending union’s proclivity to engage in further unlaw-
ful conduct in order to obtain work similar to that in dis-
pute. Id. See also Electrical Workers Local 98 (Swartley
Bros. Engineers), 337 NLRB 1270, 1272–1273 fn. 7
(2002); Operating Engineers Local 150 (Foley Construc-
tion), 316 NLRB 360, 363 (1995). Here, while the dis-
pute covered six to eight of the Employer’s jobsites, it is
the first substantiated controversy arising over the dis-
puted work. Thus, the record does not indicate that the
disputed work has been a continuous source of contro-
versy and will continue to be so. Nor is there evidence
that the Carpenters Union is likely to engage in unlawful
conduct at future jobsites in pursuit of work similar to
that in dispute. Accordingly, the award is limited to the
at the jobsites that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
1. Employees of Prate Installations, Inc. represented
by United Union of Roofers, Waterproofers, and Allied
Workers, Local 11 are entitled to perform shingling
work—the installing of underlayment, shingles, and ice
and watershields—at new construction sites located at:
Lakemoor Farms at Route 12 and Route 120, Lake-
moor, Illinois; The Lindens at Route 88 and Orchard
Road, Algonquin, Illinois; Algonquin Lakes at Route
62 and Sand Bloom, Algonquin, Illinois; Natures
Pointe at Waterford and Caredon, Aurora, Illinois;
Pheasant Ridge at Drauden Road and Theodore, Joliet,
Illinois; Ashcroft at Route 25 and Plainfield Road,
Oswego, Illinois; Windsor Pointe at Route 56 and Ga-
lena Road, Sugar Grove, Illinois; and Farmington
Lakes at Route 30 and Route 34, Oswego, Illinois.

crews and is not in dispute. Nor is it intended to take away the tear-off
work that the Employer has agreed to assign exclusively to the Carpen-
ters pursuant to the Employer’s and Trust Funds’ settlement agreement.

CARPENTERS (PRATT INSTALLATIONS, INC.) 547

2. Chicago and Northeast Illinois District Council of
Carpenters is not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force Prate Installations, Inc., to
assign the disputed work to employees represented by it.
3. Within 14 days from this date, Chicago and North-
east Illinois District Council of Carpenters shall notify
the Regional Director for Region 13 in writing whether it
will refrain from forcing the Employer by means pro-
scribed by Section 8(b)(4)(D), to assign the disputed
work in a manner inconsistent with this determination.