Carpenters Local Union No. 1298

320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carpenters Local Union No. 1298 and Tempco Con- tracting & Supply, Inc. Case 19-CD-243 July 18, 1975 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Tempco Contracting & Supply, Inc., herein called the Employer, alleging that Car- penters Local Union No. 1298, herein called the Union or the Carpenters, had violated Section 8(b)(4)(D) of the Act by engaging in certain pro- scribed activity with an object of forcing or requiring the Employer to assign certain work to employees represented by the Union, rather than to unrepre- sented employees employed by the Employer. A hearing was held before Hearing Officer Philip P. McLeod on April 8 and 9, 1975.' The Employer and the Union appeared at the hearing and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing on the issues. Thereafter, briefs were filed by the Em- ployer and Union. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. The rulings are hereby af- firmed. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The Employer, an Idaho corporation, is engaged in the manufacture, distribution, and installation of insulation materials used in the building and con- struction industry, with its principal office and place of business located in Boise, Idaho. During the past calendar or fiscal year, the Employer purchased and received materials valued in excess of $50,000 which were shipped to it directly from points outside the State of Idaho; during the same period, it provided services directly to customers located outside the State of Idaho valued in excess of $50,000. We find that the Employer is engaged in a business affecting 1 All dates are in 1975 unless otherwise noted. commerce within the meaning of Section 2(6) and (7) of the Act and that it would effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION We find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts The work in dispute is the installation and applica- tion of styrofoam cold storage insulation of deraspan sheet finish board having a prior application of vapor barrier foil. This work was subcontracted to the Em- ployer by Dorsey Construction Co., a general con- tractor which is constructing a plant for Dairymen's Creamery Association at Caldwell, Idaho. The Em- ployer used its own employees who are not repre- sented by any union for this work, whereas the Union claims that only its members are entitled to the work, which shall be referred to herein as cold storage insulation. The Employer is comprised of a manufacturing di- vision and a construction division. There are seven employees in the manufacturing division which ware- houses and fabricates insulation materials and sells such materials. The 11 employees in the construction division work on jobsites installing insulation materi- als when the Employer is engaged as a subcontractor to perform such work. Four of these 11 employees primarily do mechanical insulation work consisting of insulating pipes and air ducts relating to the heat- ing, plumbing, and air-conditioning industry; their work is not in dispute and they are represented by another union (a local of Asbestos Workers' Union) not involved in the instant dispute. The remaining seven employees are engaged in cold storage insula- tion, including the work in dispute herein, which is primarily required by the food processing and pack- ing industry. The process of cold storage insulation begins with the application of foil vapor barriers to masonry or concrete walls after the structural walls of a building have been completed. The foil is applied to walls that have been treated with a glue -like asphalt emulsion. Then, two or three layers of styrofoam material is applied to the foil with a mastic-type glue to form a more secure or secondary vapor barrier. Wood nailer strips which are fabricated at the Employer's plant are then nailed or bolted into the walls to hold the final installation of the deraspan sheet finish board. The object of all this insulation is to maintain a de- CARPENTERS LOCAL UNION NO. 1298 321 sired freezing or low temperature in the refrigeration room under construction, free of moisture leaks. The Employer began its cold storage insulation work at the Caldwell, Idaho, creamery in November 1974, using its own nonrepresented employees. On Friday, December 27, 1974, Edward Foust, the Union's business representative, visited the jobsite, asked the Employer's employees if they were mem- bers of the Carpenters, and was told that they were not members. Later that afternoon, Foust called the Employer's office to speak to Robert Tallman, its president, who was not in. He left a message that there were labor problems at the creamery job be- cause of the nonunion employees at the jobsite and for Tallman to call him. Tallman did not return the call until Monday, December 30. There is testimony that, at that time, Foust told Tallman that the job would be picketed unless the employees on the job were laid off and replaced by Carpenters members dispatched by the Carpenters hiring hall. To avoid a work stoppage, Tallman assigned his men to another project for a few days and filed an unfair labor prac- tice charge. The cold storage insulation work was completed in mid-March 1975 by the Employer's em- ployees. Assuming the existence of a contract between the Employer and the Union, as claimed by the Union, and that the Employer breached this agreement by not resorting to its exclusive hiring hall provisions, such alleged breach of contract cannot serve as a defense to the Union's conduct herein in attempting to force a reassignment of the disputed work to its members' And, contrary to the Union's contention, Section 8(b)(4)(D) encompasses competing claims for disput- ed work between a union and a group of unrepre- sented employees as well as claims between compet- ing unions.4 We therefore find that there is reasonable or prob- able cause to believe that the Union violated Section 8(b)(4)(D) of the Act and that the dispute is properly before the Board for determination under Section 10(k) of the Act .5 E. Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work af- ter giving due consideration to various relevant fac- tors. B. Contentions of the Parties In its brief, the Union moves to quash the notice of hearing on the grounds that ( 1) no jurisdictional dis- pute exists because (a) the Employer breached a pro- vision of an existing contract between the parties and (b) there is no other union claiming the disputed work; and (2) there is no evidence in the record of any conduct on its part disclosing an objective pro- scribed by Section 8(b)(4)(D) of the Act. The Employer argues that the Board should find that a jurisdictional dispute exists and that the dis- puted work should be assigned to its own unrepre- sented employees. C. Applicability of the Statute Before the Board may proceed to a determination of 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. As previously indicated, Tallman testified that on December 30, 1974, Foust threatened to picket the jobsite unless the Employer's nonunion employees were laid off and the work was assigned to Carpen- ters members from the Union's hiring hall. Although Foust denied that he made any "threats," we need not resolve any conflicts in testimony in this 10(k) proceeding.' 1. Certification and collective-bargaining agreements The Union has not been certified by the Board to perform the work in dispute. While the Union's as- serted contract with the Employer covers "insula- tion" work, it does not specify the cold storage insu- lation work in dispute herein, but refers to drywall and acoustical materials, as well as "weatherstripping and insulation." As indicated hereinafter, except for a single occasion in 1971, the Employer has never used Carpenters members for the work in dispute. 2. Skills and efficiency The degree of skill necessary to perform the dis- puted work is possessed by the Employer's own em- ployees, who receive closely supervised on-the-job training for a 6-month period before they are permit- ted to work without such supervision. The Employer, 2 Locals 138, 138A, 138B, 138C, and 138D, International Union of Operat- ing Engineers, AFL-CIO (Cafasso Lathing & Plastering, Inc.) 149 NLRB 156, 158-159 (1964). I Sheet Metal Workers International Association Local Union No 28. AFL- CIO (Diesel Construction, a division of Carl A. Morse, Inc.), 194 NLRB 79, 81 (1971). Local Union 354, International Brotherhood of Electrical Workers, AFL- CIO (F. G Johnson Company, Incorporated), 200 NLRB 599, 600 (1972) 5 The Union's motion to quash the notice of hearing is accordingly de- nied 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as well as its customers , appears satisfied with the work performance of those employees . It is not shown that carpenter-members of the Union have any superior skill to that of the Employer' s own em- ployees in performing the work in dispute. It also appears that it is more efficient for the Em- ployer to use its own employees herein since they are assigned to work in the manufacturing division dur- ing slack periods of cold storage insulation work. 3. Area and past practice Except for one occasion in September 1971, the Employer has never used carpenter -members for the work in dispute. The testimony of the Union's repre- sentatives indicated an unfamiliarity with the appli- cation of deraspan sheet finish board used in cold storage insulation in their respective jurisdictional areas. Conclusion Upon the entire record in this proceeding and after full consideration of all the relevant factors, we con- clude that the employees of the Employer are entitled to the work in question and we shall determine the dispute in their favor . In making this determination, we award the work to employees of the Employer who are unrepresented. Our present determination is limited to the dispute which gave rise to this proceed- ing. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the foregoing findings and the entire record in this case, the Na- tional Labor Relations Board hereby makes the fol- lowing Determination of Dispute: 1. Employees of Tempco Contracting & Supply, Inc., who are currently unrepresented, are entitled to perform the installation and application of styrofoam cold storage insulation of deraspan sheet finish board having a prior application of vapor barrier foil at the Dairymen's Creamery Association plantsite, Cald- well, Idaho. 2. Carpenters Local Union No. 1298 is not enti- tled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Tempco Contracting & Supply, Inc., to assign the above work to its mem- bers. 3. Within 10 days from the date of this Decision and Determination of Dispute, Carpenters Local Union No. 1298 shall notify the Regional Director for Region 19, in writing, whether or not it will re- frain from forcing or requiring Tempco Contracting & Supply, Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work to its members rather than to employees employed by Tempco Contracting & Supply, Inc., who are unrep- resented.