United Brotherhood Of Carpenters And Joiners Of America, Carpenters' District Council Of Western Pennsylvania, Afl-Cio

National Labor Relations Board - Board Decisions

May 22, 1989

293 N.L.R.B. 1224 (N.L.R.B. 1989)

1224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
United Brotherhood of Carpenters and Joiners of
America , Carpenters ' District Council of West-
ern Pennsylvania , AFL-CIO and Tom Mistick
& Sons, Inc. Case 6-CD-837
May 22, 1989
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
The charge in this Section 10(k) proceeding was
filed September 1, 1987,1 by the Employer, Tom
Mistick & Sons, Inc., alleging that the Respondent,
United Brotherhood of Carpenters and Joiners of
America, Carpenters' District Council of Western
Pennsylvania, AFL-CIO, 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 em-
ployees it represents rather than to the Employer's
unrepresented employees. The hearing was held
September 20, 27, and 28 before Hearing Officer
Leone P. Paradise.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board affirms the hearing officer's rulings,
finding them free from prejudicial error. On the
entire record, the Board makes the following find-
ings.
1. JURISDICTION
The Employer, a Pennsylvania corporation, is
engaged as a contractor in the building and con-
struction industry . In the course and conduct of its
business operations , the Employer annually pur-
chases and receives materials valued in excess of
$50,000 directly from suppliers located outside the
Commonwealth of Pennsylvania . The parties stipu-
late, and we find, that the Employer is engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act. The parties stipulate , and we find,
that United Brotherhood of Carpenters and Joiners
of America , Carpenters ' District Council of West-
ern Pennsylvania , AFL-CIO (Respondent) is a
labor organization within the meaning of Section
2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer has been in the construction busi-
ness since about 1972. Prior to 1986, the Employer
I All dates refer to 1987 unless otherwise specified
performed primarily residential renovation and re-
habilitation work; however, in the fall of 1986 the
Employer began renovation work on Penn Station,
a commercial building in downtown Pittsburgh.
The Employer's employees are not represented by
any labor organization and the Employer does not
have a collective-bargaining agreement with any
union.
On November 4, 1986, about 45,000 trade union-
ists marched through downtown Pittsburgh to
demonstrate their dissatisfaction with, among other
things, the performance of work on the Penn Sta-
tion project by unrepresented employees. As a
result of the march, Pittsburgh's mayor and the Al-
legheny County commissioners requested that the
Employer meet with various building trades
unions, including the Respondent, to see if an ac-
ceptable solution to the unions' concerns could be
reached.
Approximately 14 meetings were held between
November 1986 and October 1987. At these meet-
ings, the Employer was represented by its co-
owners, Daniel and Mark Mistick, while the Re-
spondent was generally represented by Business
Representative William Waterkotte. According to
Waterkotte, the purpose of these meetings was to
discuss wage standards to be applied to various
construction projects in Pittsburgh. Daniel Mistick
testified, however, that the purpose of these meet-
ings was for the Employer to notify the unions of
proposed bids for certain jobs so that the unions
could then attempt to have their union contractors
meet these proposed bids. Both Daniel and Mark
Mistick testified that during the course of these
meetings they would mention new jobsites (specifi-
cally those listed in the notice of hearing) and that
Waterkotte would always reply by saying that all
commercial construction work within the city of
Pittsburgh belonged to the Union. Waterkotte
would continue by saying that Mistick should not
be in Pittsburgh and that if Mistick continued to
operate within the city, there would be problems
like there were at Penn Station. According to
Daniel Mistick, Waterkotte also threatened to
picket the Employer's jobsites.
On July 24 the Respondent did picket at CNG
Tower, a construction site on which the Employer
was the general contractor. At that site, all work
had been subcontracted to union shops. Even so,
the Respondent picketed carrying signs saying
"Mistick unfair to Carpenters."2
z The Employer has filed separate 8(b)(4)(B) charges against the Re-
spondent regarding this incident Our reliance here on the picketing, to
find reasonable cause to believe Sec 8 (b)(4)(D) has been violated, has no
hearing on the merits of the 8(b)(4)(B) case We note that the Board has
Continued
293 NLRB No. 138
CARPENTERS (TOM MISTICK & SONS) 1225
Shortly thereafter, the Employer filed the instant
charge.
B. Work in Dispute
The evidence indicates that the disputed work is
the carpentry work at the 12 jobsites in the Pitts-
burgh area specifically named in the notice of hear-
ing, and carpentry work at all the jobsites of the
Employer's commercial projects in the city of
Pittsburgh.3
C. Contentions of the Parties
The Respondent asserts that this 10(k) proceed-
ing is not properly before the Board because there
has been no demand made for the work in dispute.
Alternatively, the Respondent contends that if the
dispute is properly before the Board , there is not
enough evidence in the record on which the Board
can base a determination of who is entitled to do
the work.
The Employer contends that the Respondent did
make a demand to do all the work in question and
furthermore threatened to picket or cause trouble
in the event that such work was not awarded to its
members . The Employer further contends that
there is sufficient evidence in the record to show
that the work in question should be awarded to its
on previous occasions found that union conduct may be the subject of
both 8(b)(4)(B) and 8(b)(4)(D) charges See Electrical Workers IBEW
Local 3, 264 NLRB 364 (1982) See also NLRB v Operating Engineers
Local 825, 400 U S 297 , 305-306 ( 1971), in which the Court found that
because Sec 8 (b)(4)(B) and (D) serve different purposes , a Sec 8(b)(4)(B)
charge need not necessarily be dismissed simply because Sec 8 (b)(4)(D)
also potentially applies to the conduct
3 Specifically , the notice of hearing describes the work in dispute as
follows
All carpentry work within the jurisdiction of the Carpenters ' District
Council of Western Pennsylvania including temporary protective
measures , safety barricading , temporary enclosures, concrete form-
ing, metal stud walling, dry walling, case work installation, door
trimming, baseboard placement , window installation , subfloor instal-
lation, floor patching , loading and unloading materials used in car-
pentry work , installation of acoustical ceiling systems, rough carpen-
try items, layout, structural framing, shingling , cutting and mill
work, cutting moldings, and miscellaneous trim and case work and
other carpentry at all construction jobsites of Tom Mistick & Sons,
Inc located in the city of Pittsburgh and including, but not limited
to:
1 Penn Station Project
2 YMCA Project (Wood Street Commons)
3 Clark Candy Project
4 CNG Tower
5 O'Hara Place
6 1244 Sheffield
7. Ellsworth Mews Phase 1 &,2
8 Weiss Residence
9 Dunmoyle Street Residence
10 E & 0 Brewery
I I Dollar Bank
12 McGee Bldg
The Employer 's president initially testified that Nos 5 through 9 on the
list were residential rather than commercial construction , but he then
modified his testimony regarding Nos 5 and 6, indicating that those were
multifamily residential projects that the Respondent would regard as
commercial construction He further testified that a representative of the
Respondent had specifically demanded the work at Nos 7, 8, and 9
unrepresented employees, and that the award
should extend to all its commercial work in Pitts-
burgh.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the dispute pursuant to Section 10(k) of the
Act, it must find reasonable cause to believe that
Section 8(b)(4)(D) has been violated and that the
parties have not agreed to a method for voluntary
adjustment of the dispute.
On the • basis of the entire record, we conclude
that there is reasonable cause to believe that a vio-
lation of Section 8(b)(4)(D) has occurred. In so
finding, we note that there is testimony in the
record that on several occasions the Respondent's
business agent, Waterkotte, claimed that the disput-
ed work belonged to the Respondent and that
there would be trouble or picketing if it was not
assigned the work. Although Waterkotte denied
that the Respondent claimed the work or threat-
ened trouble if they were not awarded the work,
we find, without resolving credibility questions;
that there is sufficient probative evidence in the
record as a whole to establish reasonable cause to
believe that Section 8(b)(4)(D) has been violated.4
In order to invoke the provisions of Section 10(k)
of the Act, the Board is not charged with finding a
violation of the Act, but only with finding whether
there is reasonable cause to believe that Section
8(b)(4)(D) has been violated. In so doing we need
not conclusively resolve conflicts in testimony.
Electrical Workers IBEW Local 103 (Maki Electri-
cal), 227 NLRB 1745 (1977).
The parties stipulated, and we find, that there is
no agreed-on method of resolving the dispute.
Accordingly, we find that this dispute is proper-
ly before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an af-
firmative 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 bal-
ancing the factors involved in a particular case.
Machinists Lodge 1743 (J. A. Jones Construction),
135 NLRB 140 (1962).
4 Our finding of reasonable cause is also supported by the Respondent's
picketing at the CNG site, where the Employer was the general contrac-
tor, notwithstanding that all the work there, including the carpentry
work, had been subcontracted to firms with union agreements Under all
the circumstances, it is reasonable to infer that an object of that picketing
was the acquisition of the disputed work at the Employer's jobsites
1226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The following factors are relevant in making the
determination of this dispute.5
1. Relative skills
The employees of the Employer possess the req-
uisite skills to perform the work in dispute. There
is testimony indicating that the Employer, through
the Associated Builders & Contractors, offers train-
ing in beginning carpentry and various advanced
courses in construction theory and practice. The
Employer also has its own training program em-
phasizing basic job skills. Additionally, employees
receive on-the-job training by working with certain
designated carpenters while learning their skills.
There is also record testimony indicating that the
Respondent runs a comprehensive training program
for its members. Because the record shows that
both the Employer's unrepresented work force and
the Respondent's members have the requisite skills
to perform the work in dispute, we find that this
factor does not favor an award of the work to
either the Employer's unrepresented work force or
to the Respondent's members.
2. The Employer' s assignment and preference
The Employer prefers to assign and has assigned
the disputed work to its employees. This factor
favors an assignment to the employees of the Em-
ployer.
3. Efficiency and economy of operation
There is testimony indicating that it is more effi-
cient for the Employer to use its own employees
because the Employer's employees cross jurisdic-
tional lines doing work that would otherwise in-
volve carpenters, laborers, ironworkers, and other
trades. Specifically, Mark Mistick testified that at
the Penn Station site, the Employer had a crew of
six people do all the craft work associated with re-
pairing the cornices and that, in his view, the job
would ordinarily involve the work of at least five
or six different crafts. Mark Mistick also testified
that the Employer's work force generally does car-
pentry work, roofing, sheet metal work, concrete
work, electrical work, and light steel work on the
Employer's various construction projects. Further-
more, as the Employer has used its employees to
perform such work in the past, their continued per-
formance of the disputed work makes for a more
efficient operation than would be the case if the
work were awarded to other employees. This
6 The parties in effect concede that certain factors such as Board certi-
fications , collective -bargaining agreements , arbitration awards, and agree-
ments between unions and employers are not pertinent to our determina-
tion
factor favors an assignment to the employees of the
Employer.
4. Loss of jobs
An award of the disputed work to employees
represented by the Respondent would displace the
Employer's current employees. An award of the
work to the Employer's employees, however,
would not result in any loss of jobs held by em-
ployees represented by the Respondent. This factor
favors an assignment of the work to the Employ-
er's employees.6
Conclusion
After considering all the relevant factors, we
conclude that the Employer's unrepresented em-
ployees are entitled to perform the work in dispute.
We reach this conclusion relying on the Employ-
er's past practice and preference, economy and effi-
ciency of operations, and the job loss that would
otherwise result if the work were awarded to em-
ployees represented by the Respondent.
Scope of the Award
The Employer requests that the Board issue a
broad work award covering all of its commercial
jobsites within the city of Pittsburgh. The notice of
hearing, in addition to listing 12 specific jobsites,
identifies the work in dispute as including carpen-
try work at all construction jobsites of Tom Mis-
tick & Sons, Inc. located in the city of Pittsburgh.
For the reasons stated below, we find that a broad
work award covering all of the Employer's com-
mercial jobsites within the city of Pittsburgh is in-
appropriate under these circumstances.
An important factor supporting the award in
favor of the Employer's unrepresented employees
in this case is the finding that economy and effi-
ciency favor that award. Essentially the Employ-
er's argument is that his work force is more effi-
cient and economical simply because of the obliter-
ation of craft lines . Although the evidence can per-
haps support such an inference regarding the Penn
Station project and other rehabilitation and renova-
tion projects on the list, we are not convinced that
this factor would necessarily favor the Employer's
employees in all future projects of this Employer in
which there is carpentry work. If a project in-
volved a significant amount of carpentry work that
could occupy the full time of a journeyman carpen-
ter, it is not at all clear that the Employer's cross-
trained employees would necessarily perform the
work more economically and efficiently than em-
6 Member Cracraft does not rely on this factor in reaching the conclu-
sion that the work should be assigned to the Employer 's employees.
CARPENTERS (TOM MISTICK & SONS)
ployees represented by the Respondent, i.e., that if
that situation were presented to us, we would nec-
essarily award the work to the Employer's employ-
ees rather than to employees represented by the
Respondent. Because there are too many variables
that could occur on other projects, the scope of the
award is limited to the projects specifically listed in
the Section 10(k) notice.7 See Theatrical Protective
Union Local One (Twentieth Century-Fox), 255
NLRB 955, 959 (1981) (declining to extend award
to facilities of other employers because other em-
ployers had not testified and because significant
variables might occur in future disputes that were
not presented on the record of that case). The
record is simply too sketchy to warrant an award
of all carpentry work for commercial projects in
the city of Pittsburgh on which the Employer is
the successful bidder in the future.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
° Mark Robert Mistick , who was in charge of the Employer's oper-
ations at the jobsites , testified that only Nos. 7 and 8 on the 12-project list
in the 10(k) notice involved entirely new construction . But it also appears
that those were the type of small residential construction projects that
were traditionally done by nonunion contractors such as the Employer
Hence, they are included in the scope of the award
1227
1. Unrepresented employees of Tom Mistick &
Sons , Inc. are entitled to perform all carpentry
work at the following jobsites:
1. Penn Station Project
2. YMCA Project (Wood Street Commons)
3. Clark Candy Project
4. CNG Tower
5. O'Hara Place
6. 1244 Sheffield
7. Ellsworth Mews Phase 1 & 2
8. Weiss Residence
9. Dunmoyle Street Residence
10. E & 0 Brewery
11. Dollar Bank
12. McGee Bldg.
2. United Brotherhood of Carpenters and Joiners
of America , Carpenters' District Council of West-
ern Pennsylvania , AFL-CIO is not entitled by
means proscribed by Section 8(b)(4)(D ) of the Act
to force Tom Mistick & Sons, Inc. to assign the
disputed work to employees represented by it.
3. Within 10 days from this date , United Brother-
hood of Carpenters and Joiners of America, Car-
penters' District Council of Western Pennsylvania,
AFL-CIO shall notify the Regional Director for
Region 6 in writing whether it will refrain from
forcing the Employer , by means proscribed by Sec-
tion 8(b)(4)(D), to assign the disputed work in a
manner inconsistent with this determination.