United Brotherhood Of Carpenters And Joiners Of America, Local No. 424

National Labor Relations Board - Board Decisions

Feb 29, 1988

287 N.L.R.B. 1296 (N.L.R.B. 1988)

1296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
United Brotherhood of Carpenters and Joiners of
America, Local No. 424 and Reardon -Underhill
Joint Venture and Bricklayers and Allied
Craftsmen , Local No. 52 . Case 1-CD-818
29 February 1988
DECISION AND DETERMINATION OF
DISPUTE
By CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
The charge in this Section 10(k) proceeding was
filed 2 October 1987, and an amended charge was
filed 14 October 1987 by Reardon-Underhill Joint
Venture, the Employer, alleging that the Respond-
ent, United Brotherhood of Carpenters and Joiners
of America, Local No. 424, 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 employees rep-
resented by Bricklayers and Allied Craftsmen,
Local No. 52. The hearing was held 16 November
1987 before Hearing Officer Don C. Firenze.
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 is a Massachusetts partnership en-
gaged in the business of installing insulation and
fire safing at its facility in Canton, Massachusetts,
where it annually purchases goods in excess of
$50,000 from points located outside the State of
Massachusetts. The parties stipulate, and we find,
that the Employer is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and
that Carpenters and the Bricklayers are labor orga-
nizations within the meaning of Section 2(5) of the
Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Turner Construction Company, general contrac-
tor for a building being erected at 75 State Street
in Boston, Massachusetts, subcontracted the erec-
tion of the granite outer walls to Blaesing Granite.
Blaesing, in turn, subcontracted the insulation of
these walls to Reardon-Underhill Joint Venture.
The insulation work is in dispute.
Reardon-Underhill is a joint venture between the
Reardon Company and the A. F. Underhill Com-
pany. The latter is a party to a multiemployer col-
lective-bargaining agreement with the Carpenters
covering the Respondent's jurisdiction. Reardon-
Underhill is not party to the contract but Ted
Brodie, president of A. F. Underhill and treasurer
of Reardon-Underhill, testified that Reardon-Un-
derhill is observing the terms and conditions of
A. F. Underhill's agreement with the Carpenters
on the State Street project. Article I of this agree-
ment covers "all insulation whether nailed; glued
or blown."
Ed Slavin, Reardon-Underhill's construction su-
pervisor, testified that the Bricklayers' business
agent, Carmen D'Olimpio, told him the insulation
work belonged to the bricklayers and threatened a
picket line or walkout, Slavin could not remember
which, if the bricklayers were not assigned the
work. D'Olimpio admits talking with Slavin but
testified he said only that Blaesing was in violation
of its agreement with the Bricklayers, and that he
would do whatever was necessary to secure the
Bricklayers' rights under the agreement with Blaes-
ing. Brodie testified that after he explained to Kirt
Fordyce, the Carpenters' business agent, that he
was under pressure to assign the insulation work to
the bricklayers, Fordyce threatened to strike if the
Employer reassigned the insulation work to the
bricklayers.
B. Work in Dispute
The disputed work involves the installation of in-
sulation to a metal panel using welded pins for use
at the Turner Construction Company project at 75
State Street, Boston, Massachusetts, at the
Hingham, Massachusetts facility of Blaesing Gran-
ite
C. Contentions of the Parties
The Employer contends that the disputed work
should be awarded to employees represented by
the Carpenters based on its preference and past
practice , skills, area and industry practice , efficien-
cy of operations , prior Joint Board determinations,
and its collective -bargaining agreement with the
Carpenters.
Respondent Carpenters essentially agrees with
the Employer , stressing the collective -bargaining
agreement and industry practice.
The Bricklayers ' position is that there is no juris-
dictional dispute in this case . It argues that under
its collective -bargaining agreement with Blaesing,
the subcontracting of the work in dispute was un-
lawful , and that Blaesing should have retained the
work and assigned it to the Bricklayers . It has filed
287 NLRB No. 140
CARPENTERS LOCAL 424 (REARDON-UNDERHILL) 1297
a grievance under its agreement with Blaesing
which is now in binding arbitration The Bricklay-
ers maintains that if the arbitrator rules that Rear-
don-Underhill was properly awarded the contract,
it will not dispute the assignment of the insulation
work to the Carpenters
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of a dispute pursuant to Section 10(k) of the
Act, it must be satisfied that there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated and that the parties have not agreed upon
a method for the voluntary adjustment of the dis-
pute.
It is undisputed that the business agent for the
Carpenters threatened to picket if the Employer
capitulated to the Bricklayers' pressure to assign its
members the insulation work. Thus we find reason-
able cause to believe that a violation of Section
8(b)(4)(D) has occurred. The parties stipulated that
there exists no agreed method for voluntary adjust-
ment of the dispute within the meaning of Section
10(k) of the Act Accordingly, we find that the dis-
pute is properly before the Board for determina-
tion.
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 1402 (1962).
The following factors are relevant in making the
determination of this dispute.'
1. Collective-bargaining agreement
Reardon-Underhill is not a party to a collective-
bargaining agreement with the Carpenters although
Brodie testified that A. F. Underhill is a party to
such an agreement. He further testified Reardon-
Underhill is observing the terms and conditions of
A. F. Underhill's agreement with the Carpenters
on the State Street project which includes "all in-
sulation whether nailed, glued or blown." The Em-
ployer has no bargaining relationship with the
Bricklayers. Because the Employer involved on
this particular project does not have a signed
1 The Bricklayers participated in the hearing on the issue of probable
cause but not on the work assignment issue
agreement with any union, we conclude that this
factor does not favor an award of the disputed
work to either group of employees.
2. Company preference and past practice
The Employer has assigned the work in dispute
to employees represented by the Carpenters Fur-
ther, Brodie testified that it has been his Company's
consistent practice to assign building insulation
work to employees represented by the Carpenters.
We find that this factor favors an award of the
work to employees represented by the Carpenters.
3. Area and industry practice
Earl Graham, a superintendent for Blaesing
Granite, testified that he has been involved in over
20 similar projects around the country, and each
time installation of the insulation was performed by
employees represented by the Carpenters. Graham
further testified that before awarding the work to
Reardon-Underhill, Blaesing contacted contractors,
subcontractors, and competitors in the local area to
find out who performed insulation work in the
Boston area and determined from its investigation
that it was proper to award the work to employees
represented by the Carpenters. Kirt Fordyce, busi-
ness agent for Carpenters Local 424, testified that
in the Boston area on similar projects, employees
represented by the Carpenters have performed in-
sulation work. The Carpenters introduced decisions
of the National Joint Appeals Board from 1970 and
1971 awarding employees it represents similar
work. Accordingly, we find the factor of area and
industry practice favors an award of the work to
employees represented by the Carpenters.
4. Relative skills
Brodie testified that employees represented by
the Carpenters have the requisite skills to perform
the insulation work. No evidence was adduced
demonstrating the skills of Bricklayer-represented
employees. We find this factor favors awarding the
work to employees represented by the Carpenters.
5. Economy and efficiency of operations
Brodie testified that the work involved is an as-
sembly line type of operation and that if there is a
delay on one line, men can be reassigned to an-
other project. The Employer employs carpenters
on other projects but does not employ bricklayers.
Accordingly, we find that this factor favors award-
ing the work to employees represented by the Car-
penters.
1298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Conclusions
After considering all the relevant factors, we
conclude that employees represented by the Car-
penters are entitled to perform the work in dispute.
We reach this conclusion relying on company pref-
erence and past practice, area and industry prac-
tice, skills, and economy and efficiency of oper-
ations In making this determination, we are award-
ing the work to employees represented by the Car-
penters, not to that Union or its members. The de-
termination is limited to the controversy that gave
rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
Employees represented by United Brotherhood
of Carpenters and Joiners of America, Local No.
424, are entitled to perform the work of installing
insulation to a metal panel using welding pins for
the Turner Construction Company project at 75
State Street, Boston, Massachusetts, at the
Hingham, Massachusetts facility of Blaesing Gran-
ite.