International Brotherhood of Painters, Local No. 1955

INTERNATIONAL BROTHERHOOD OF PAINTERS, LOCAL NO. 1955 41 International Brotherhood of Painters and Allied Trades, Dry Wall Finishers, Local No. 1955 and Brett Construction Company and Machine Drywall Applicators.Case 4-CD-242 July 9, 1971 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY This` is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by Brett Construction Company r alleging that International Brotherhood of Painters and Allied Trades, Dry Wail Finishers, Local No. 1955,2' violated Section 8(b)(4)(D) of the Act. A duly scheduled hearing was held before Hearing Officer Alfred''Vitareili of the National Labor Relations Board on January 27 and February 3 and 10, All parties- were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issue. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National "t abor Relations, Board has 'delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings made by the Hearing Officer at the hearing and finds that they are free from prejudicial error. They, are hereby affirmed. Briefs filed by Brett, Machine Drywall Applicators, and the Repondent Union have been duly considered. Upon the entire record in this case, the Board makes the following-findings: 1. THE BUSINESS OF THE COMPANIES that Brett is engaged in interstate - comerce and is subject to the Board's jurisdiction. - It was - also stipulated that Machine Drywall Applicators 3 is a New Jersey partnership consisting of two brothers, Willard Charles'Niessner and Roland Niessner. It is engaged in the business of installing and finishing drywall and maintains its principal office in Blackwood, New Jersey. Altman Bros., Inc .4 is a Pennsylvania corporation engaged in drywall installation' with- its principal office located in Glenside, Pennsylvania. Altman annually purchases materials valued in excess -of $50,000 directly from points outside `the Common- wealth of Pennsylvania.' The Korman Corporation 5 is a Pennsylvania corporation with its principal office in Jenkintown, Pennsylvania, engaged 'in the development _ and construction business. During the past year-its gross volume of business totaled in excess!Of `$1 million. During the same period; it purchased and 'received' materials valued in excess of $50,000 frompoints outside the Commonwealth of Pennsylvania` This Company is engaged in interstate commerce within the meaning of the Act, as amended.` At all times material herein, the Korman Corporation: has been the owner of the construction site used-'for the construction of the apartment buildings in Black- wood, New Jersey, to be known as- Cherrywood Apartments. We find, in accordance with the foregoing, that since Brett, which was affected 'by the Respondent Union's conduct, is admittedly,engaged in commerce, it will effectuate the purpose of the Act to assert jurisdiction herein.6 H. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that the Respondent Union is a labor organization-within the meaning of Section 2(5) of the Act. The parties , stipulated that Brett is a New Jersey corporation engaged in the general contracting business. Its gross volume of business annually totals in excess of $ 1 million and it is presently under contract with the Korman , Corporation to construct Cherrywood Apartments ' at a cost in excess of $1 million. In the construction of these apartments, located,,in Blackwood, New Jersey,, Brett has pur- chased and received materials and supplies valued in excess of $50,Q00 from points outside the State of New Jersey, which materials and supplies will be used in the construction of these apartments. It was conceded I Herein called Brett. 2 Herein called the Respondent Union. 3 Herein called the Employer. d Herein called Altman. 5 Herein called Korman. III. THE DISPUTE A. Background and Facts In June - 1970 Korman engaged Brett, which has no contract with the Respondent Union, ,as its-.general contractor to construct 100, apartment units, to be known as Cherrywood Apartments, on its- land in Blackwood, New Jersey. On October 20, 1970, Brett contracted with the Employer, which has no contrac- tual relationship with any union, as its subcontractor to install and finish the drywall in the 100-units.- e Sheet Metal International, Local 28, AFL-CIO (Nu-Fiberglass Duct Corporation), 159 NLRB 1423, 1425; Local-173, Woo4`lftre a&d-'Metal Lather's International Unror, AFL-CIO (Newark & Essex Plastering Co.), 121 NLRB 1094, 1097. 192 NLRB No. 10 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Apparently the Employer began the work, utilizing nonunion drywall finishers, sometime in September. On November 20 Joseph Fiorelli, the Respondent Union's business agent, visited the Cherrywood Apartments project and talked with Edward Butcher, the superintendent, and,Charles Niessner, one of the Employer's partners. Niessner asked Fiorelli what he was doing at the project and Fiorelli replied, that this was "his" territory, that Niessner could not do the job, and that it was an, "Altman and Korman job." Butcher then said that it was a Brett job. Fiorelli stated that he was ,going to shut down all of Altman's jobs, During, the conversation Fiorelli asked Niessner to use men from the Union, to which Niessner replied "not & chance." The Repsondent Union began picketing the Cherry- wood Apartments project on November 23. During the picketing some of the pickets informed Butcher that the picketing, was to obtain the work of installing and finishing; --the drywall, for members of the Respondent, Union. The, picketing resulted in the failure of-numerous suppliers to make deliveries of supplies necessary to continue the work on the project and alsp, resulted in employees of various subcontrac- tors not reporting for work. The picketing continued- until December 28, 1970, was resumed on January 7, 197 and, continued thereafter until January. 14 when a temporary:, injunction forbidding the picketing was obtained. B. The Work in Dispute The dispute in this` proceeding involves the work of installing and finishing drywall at the Cherry wood Apartments project in Blackwood, New Jersey. C. The Contentions of the Parties The Respondent Union contends that Brett is the alter Lego of Altman and,- since' it has a contract requiring Altman to employ members of the Respon- dent Union, the subcontracting by Brett of the work to the Employer, who does not employ members of the Union, constituted a breach of . the Altman contract. The Respondent Union argues that its picketing was therefore directed" a_t Brett because- of the alleged breach of contract and was not in derogation of Section 8(b)(4)(D) of the-Act. The Employer and Brett both contend thatthe work' assignment here in dispute , is-, that made by the Employer to its employees and not 'the assignment of the work from Brett to the Employer. They assert that, since the Employer is not involved in the contractual dispute between Brett and the .Respondent Union, picketing with an object of disrupting the Employer's assignment of the work to its employees isinviolation of Section 8(b)(4)(D) of the-Act. -Inn the alternative Brett contends that it is .not the alter .ego:of,Altman and therefore Altman's contract with the, It pondent Union is not binding upon- it and there was no contractual obligation to _ employ members of the Respondent Union. As a second alternative Brett contends that the contract between Altman and the Respondent Union does -not- cover the geographical area in which the work is being performed. D. Applicability of the Statute Before the Board proceeds with a determination of a dispute it must `first ' be satisfied , that `there , is reasonable ' cause to believe that Section 8(b)(4)(D) has been violated. The record in this proceeding is clear that, from November 24 to December 28, x1970, and. again-from January 7 to January 14,1971, the Respondent ,Union picketed with an'object of^forcing the Employer, tp assign `the work of installing and finishing drywall at the Cherrywood Apartments project in Blackwood, New, Jersey, to its members rather than, to the nonunion employees then, being employed by the Employer. Under these circumstances we conclude that there is reasonable, cause ,to believe that a violation of Section 8(b)(4)(D?),hasoccurred and that the dispute is, properly before the Board for determi nation pursuant to Section 10(k) of the Act.' E. Merits of the Dispute Section 1.0(k) of the Act "requires , that, the Board make an affirmative assignment of disputed,*ork after giving due consideration `to various factors. In this case there is no evidence that there are relevant Board certifications, Joint Board awards, or that the Employer herein has a contractual relationship with the Respondent Union. Nor ' does' the Respondent Union contend that the employees now doing the work ` are less capable to perform 'the ' work "than its members or that there -exists any, area or 'industry ,practice which would favor assignment of'the work to its, members. Nor does the Respondent Union suggest that such` factors as efficiency or economy-support its claim to 'the work. On the contrary its 'sole contention, as indicated above, is that Brett is the alter ego of Altman and that it was therefore entitled to` enforce the contract with Altman, requiring the_mtdization' of Respondent Union's members, against' Brett by picketing the Cherrywood Apartments project. ° "" The issue here, however, is not the assignment of the general contractor, Brett, to the subcontractor, the Employer, but the assignment {of the work in dispute, INTERNATIONAL BROTHERHOOD OF PAINTERS, LOCAL NO.1955 the installation and finishing of -drywall, by the Employer to its nonunion employees. Thus any contract which may have existed between Brett and the Respondent Union is not relevant to this proceeding,- for ,ft would not pertain to the work in dispute." We can therefore find no factor which would support an assignment of_ the work to employees represented- by the Respondent Union. Conversely the'record shows that there, have been no complaints regarding .the` work of the employees of the Employer, which gives rise to the inference that their continued employment is consistent with the efficient operation of''the Einployer.'s business. All these circumstances support the continued assignment of the work to the Employer's employees After assessment of all the relevant factors it is our considered judgment that the employees now employed by the Employer have a superior claim to the disputed work herein. On the basis of the entire record, therefore, we shall determine; the existing' jurisdictional controversy by awarding, to', the employees employed the the Employ- er, who are not currently represented by any union, the work of installing and finishing drywall at the Cherrywood Apartments project in Blackwood, New Jersey. The present determination is limited to the particular controversy which gave rise to this proceed- ing. DETERMINATION OF DISPUTE 43 Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceeding, the- National Labor Relations Board hereby makes the following determination of dispute: 1. Employees employed by the Employer, Ma- chine Drywall Applicators, are entitled to perform the work of installing and finishing drywall at the Cherrywood Apartments, Blackwood, New Jersey. 2. International Brotherhood of Painters and Allied Trades, Dry Wall Finishers, Local No. 1955, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Machine Drywall Applicators to assign, any such disputed work to drywall finishers who are represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, International-Brother- hood of Painters and , Allied Trades, Dry Wall Finishers, Local No. 1955, shall notify the Regional Director for Region 4, in writing, whether it will refrain from forcing or requiring the Employer, by means proscribed in Section 8(b)(4)(D), to assign the work ',in dispute to employees represented by that labor organization rather - than to' the employees employed by the Employer. T International Union of Operating Engineers, Local No. 450, AFL-CIO (Hydrocarbon Construction Company), 190 NLRB No. 20.