Southwest Regional Council of Carpenters

National Labor Relations Board - Board Decisions

May 19, 2003

339 N.L.R.B. 56 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 56
Southwest Regional Council of Carpenters and As-
sociated General Contractors of Southern Ne-
vada and International Union of Painters and
Allied Trades, Local Union 159. Case 28–CD–
257
May 19, 2003
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND ACOSTA
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act (the
Act). The charge was filed on August 26, 2002, by
Associated General Contractors of Southern Nevada,
and alleges that Southwest Regional Council of Carpen-
ters (Carpenters) violated Section 8(b)(4)(D) of the Act
by engaging in proscribed activity with an object of
forcing Benly, Inc. (the Employer) to assign certain
work to employees it represents rather than to employ-
ees represented by International Union of Painters and
Allied Trades Local Union 159 (Painters). The hearing
was held on September 19, 2002, before Hearing Offi-
cer Barbara Beaubrun.
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
The Employer is engaged in the business of installing
architectural-grade millwork. During the 12-month
period preceding the hearing, the Employer purchased
and received goods valued in excess of $50,000 directly
from points located outside Nevada. Accordingly, we
find that the Employer is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. We
further find that Carpenters and Painters are labor or-
ganizations within the meaning of Section 2(5) of the
Act.1
II. THE DISPUTE
A. Background and Facts of the Dispute
The Employer has separate collective-bargaining
agreements with Carpenters and Painters. The work in
dispute is the preparation of wood and fiberglass rein-
forced gympsum (GRG) products for painting, fre-
quently described as “touchup” or “preparation” at the

1 Painters did not participate in the hearing. Evidence as to, among
other facts, Painters’ labor organization status was adduced from the
testimony of the Employer’s witnesses.
Mandalay Bay Convention Center in Las Vegas, Ne-
vada.
The Employer initially hired only employees repre-
sented by Carpenters to do the installation work, includ-
ing touchup and preparation. It later hired employees
represented by Painters to do faux finishing work on the
GRG products. However, at one point, the Employer
also hired Painters to perform touchup and preparation
work, and thus, had a composite crew doing that work.
On July 22, 2002, Painters sent a letter to the Em-
ployer claiming not only the right to perform the faux
finishing work, but also the exclusive right to perform
all touchup and preparation work. On July 25, 2002,
Carpenters sent a letter to the Employer claiming that
the employees it represents should be assigned to per-
form all of the disputed work. Specifically, the letter
stated that, if the Employer did not continue to assign
all the touchup and preparation work to employees rep-
resented by Carpenters it would take “appropriate ac-
tion to protect” its jurisdiction and that it would “be-
hoove” the Employer to inform Painters that the work
had been assigned to Carpenters-represented employ-
ees.
On about August 12, 2002, the Employer’s represen-
tative, Emanuel Grimaldo, received a telephone call
from a Carpenters representative informing him that
Carpenters was very unhappy that Painters was per-
forming touchup and preparation work and that he ex-
pected all of that work to be assigned to Carpenters by
the end of the week. Carpenters’ representative further
stated that if Carpenters’ demands were not met, it
would take whatever actions it needed to ensure that its
work was protected. A few days later, the Employer
assigned all of the touchup and preparation work to
employees represented by Carpenters and laid off the
employees represented by Painters.
On August 21, 2002, Painters filed a grievance claim-
ing that the layoff of the employees it represented and
the assignment of touchup and preparation work to
Carpenters-represented employees violated the collec-
tive-bargaining agreement, which culminated in a deci-
sion and order by the Joint Trade Board of the Painters
and Decorators Joint Committee, Inc. The Joint Com-
mittee found that the Employer had violated its collec-
tive-bargaining agreement with Painters by assigning
the touchup and preparation work to Carpenters. Hav-
ing learned of Painters’ grievance, Carpenters sent a
letter to the Employer on August 23, 2002, stating:
“Please be advised that if you attempt to reassign the
work, we will picket the job site to stop its reassign-
ment and to get it back if the reassignment goes
through.”
339 NLRB No. 8
SOUTHWEST REGIONAL COUNCIL OF CARPENTERS 57
B. Work in Dispute
The disputed work consists of the assignment of the
touch up and preparation of glass-reinforced gypsum
(GRG) and wood products at the Mandalay Bay Con-
vention Center in Las Vegas, Nevada.
C. Contentions of the Parties
The Employer contends that there is reasonable cause
to believe that Section 8(b)(4)(D) of the Act has been
violated. It argues that the disputed work should be
awarded to employees represented by Carpenters on the
basis of collective-bargaining agreements, employer
preference and current practice, employer past practice,
area and industry practice, and economy and efficiency
of operations.
Carpenters did not submit a brief in this case. At the
hearing, Carpenters contended that the work in dispute
should be awarded to employees it represents based on
area and industry practice.
Although Painters was not represented at the hearing,
its letter of July 22, 2002, and its later grievance con-
tend that the disputed work should be awarded to em-
ployees it represents on the basis of its collective-
bargaining agreement with the Employer.
D. Applicability of the Statute
Before the Board may proceed with the determination
of a 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. This
requires a finding that: (1) there are competing claims
to the disputed work between rival group of employees,
and (2) a labor organization has used proscribed means
to enforce its claim to the work in dispute. The Board
must also find that the parties have not agreed on a
method for the voluntary adjustment of the dispute.2
Here, the record shows that there is no agreed on
method for voluntary adjustment of the dispute. We
further find that there is reasonable cause to believe that
Section 8(b)(4)(D) has been violated. The record shows
that both Unions claim the work in dispute. Specifi-
cally, Painters, in its July 22, 2002 letter, and later in
the August 21, 2002 grievance, claimed the work in
dispute, as did Carpenters in its July 25, 2002 letter to
the Employer.
Further, we find that Carpenters used proscribed
means to further its claim. Specifically, Carpenters on
August 23, 2002, stated:

2 Teamsters Local 259 (Globe Newspaper Co.), 327 NLRB 619, 622
(1999); Laborers Local 113 (Super Excavators), 327 NLRB 113, 114
(1998); Laborers’ District Council of West Virginia (Michel, Inc.), 325
NLRB 1058, 1059 (1998).
We have been informed that the Painters have filed
a grievance effectively demanding that you reas-
sign the finishing work located at the Mandalay
Bay Convention Center from employees repre-
sented by this Union to employees represented by
the Painters. Please be advised that if you attempt
to reassign the work we will picket the job site to
stop its reassignment and to get it back if the reas-
signment goes through.
It is well settled that the threat to cause a work stoppage
or engage in other economic reprisals to support a claim
for disputed work provides reasonable cause to believe
that Section 8(b)(4)(D) has been violated. See, e.g.,
Operating Engineers Local 150 (Diamond Coring Co.),
331 NLRB 1055 (2000); Teamsters Local 179 (USF
Holland, Inc.), 334 NLRB 362, 363 (2001).
Accordingly, we find that this dispute is properly be-
fore 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 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 deciding this
dispute.
1. Certification and collective-bargaining agreements
Neither Painters nor Carpenters have been certified to
represent any of the Employer’s employees. The record
does establish, however, that each union has a collec-
tive-bargaining agreement with the Employer. There is
no evidence that either Painters’ agreement or Carpen-
ters’ specifically refers to the disputed work.
Accordingly, we find that the factors of certification
and collective-bargaining agreements do not favor
awarding the disputed work to either group of employ-
ees.
2. Employer preference and current assignment
The Employer assigned the disputed work to employ-
ees represented by Carpenters. However, at one point,
it also hired employees represented by Painters and
assigned some of the disputed work to them as a com-
posite crew. Later, it reassigned the disputed work to
employees represented by Carpenters. The Employer
contends that it continues to prefer that the disputed
work be assigned to Carpenters-represented employees.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 58
Accordingly, these factors favor awarding the dis-
puted work to employees represented by Carpenters.
3. Employer past practice
The Employer’s predominant past practice has been
to assign touchup and preparation work to Carpenters-
represented employees. According to one Carpenters’
witness, the only deviation from this practice occurred
2 years ago when the Employer was involved in the
construction of the Mandalay Bay Hotel & Casino.
That witness testified that the Employer had hired em-
ployees represented by Painters to perform a substantial
amount of the faux finishing work, and during periods
when there was a “lull or slow down in the amount of
faux finishing,” those painters were assigned to perform
some light touch up work only. Painters presented no
evidence that employees it represents have typically
performed the work in dispute for the Employer. Thus,
the factor of Employer past practice favors the award of
the disputed work to employees represented by Carpen-
ters.
4. Area practice
Carpenters presented evidence that Las Vegas area
companies assign the disputed work to employees rep-
resented by Carpenters. Specifically, three witnesses
testified that they had extensive experience in perform-
ing and supervising the type of work in dispute and that
the disputed work is predominantly assigned to em-
ployees represented by Carpenters. Carpenters also
introduced letters from several companies in the Las
Vegas area that perform the same type of work as the
Employer, stating that touchup and preparation work is
commonly assigned to employees represented by
Carpenters.
There is no evidence that employees whom Painters
represent perform the type of disputed work at other
area companies.
Accordingly, this factor favors an award of the work
in dispute to employees represented by Carpenters.
5. Relative skills
The record evidence fails to establish that specific
skills are needed to perform the disputed work. Ac-
cordingly, this factor does not favor employees repre-
sented by either union.
6. Economy and efficiency of operations
The Employer’s project manager testified that using
employees represented by Carpenters to perform the
disputed work improves the economy and efficiency of
operations because they can be cross-utilized to per-
form all the tasks which must be performed in installing
the products. Specifically, when a particular task is not
necessary at the moment, Carpenters-represented em-
ployees can be quickly reassigned to perform the task
the Employer needs at that time. In contrast, the wit-
ness testified, that the employees represented by Paint-
ers have historically been used for only one task—faux
finishing (or, if light touch up and preparation is in-
cluded, at most two tasks). Thus, the Employer con-
tends that, if the disputed work was assigned only to
Painters-represented employees, not only would the
painters frequently be idle, when not performing the
faux finish work, but the Employer would frequently
need to hire additional employees represented by Car-
penters to perform various tasks that Painters-
represented employees are unable or unauthorized to
perform.
Accordingly, we find that this factor favors awarding
the disputed work to employees represented by Carpen-
ters.
7. Job loss
Painters contended in its grievance that, by assigning
the work to employees represented by Carpenters, 53
painters were laid off.
Assignment of the disputed work to Painters would
have a direct adverse impact upon the employment
status of employees represented by Carpenters since the
latter group of employees are now doing the work and
would have to be laid off. The record evidence does
not reflect the exact amount of job loss. Accordingly,
we find that this factor does not favor either group of
employees.
8. Arbitration awards
As indicated above, Painters obtained a Joint Com-
mittee decision holding that the Employer had violated
the collective-bargaining agreement with it regarding
the disputed work. However, Carpenters did not par-
ticipate in that Joint Committee hearing, nor did it agree
to be bound by the Joint Committee’s decision. Fur-
thermore, there is no evidence that the Joint Committee
considered the factors on which the Board relies when
it resolves jurisdictional disputes. See, e.g., Bachman
Co., 337 NLRB 421 (2002); Electrical Workers Local
104 (Standard Sign & Signal Co.), 248 NLRB 1144
(1980); Automotive Trades District Lodge 190 (Sea-
Land Service), 322 NLRB 830, 832 (1997).
Accordingly, we find that the arbitration award does
not favor employees represented by either Union.
Conclusion
After considering all the relevant factors, we con-
clude that employees represented by Carpenters are
entitled to perform the work in dispute. We reach this
conclusion based on the factors of employer preference,

SOUTHWEST REGIONAL COUNCIL OF CARPENTERS 59
employer past practice, area practice, and economy and
efficiency of operation.
In making this determination, we are awarding the
work to employees represented by Carpenters, not to
that union or its members. This determination is lim-
ited to the controversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute:
Employees of Benly, Inc., who are represented by
Southwest Regional Council of Carpenters (Carpenters)
are entitled to the work at the Mandalay Bay Conven-
tion Center, Las Vegas, Nevada, of the touchup and
preparation of glass-reinforced gypsum (GRG) and
wood product work.