Prate Installation, Inc.

CARPENTERS (PRATE INSTALLATIONS, INC.) 543 Chicago and Northeast Illinois District Council of Carpenters and Prate Installations, Inc. and United Union of Roofers, Waterproofers, and Allied Workers, Local 11. Case 13–CD–664 March 31, 2004 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER This is a work jurisdiction dispute proceeding under Section 10(k) of the Act. The charge was filed on Sep- tember 24, 2002,1 by Prate Installations, Inc. (Prate or the Employer), alleging that the Respondent, Chicago and Northeast Illinois District Council of Carpenters (Carpenters) 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 employees it represents rather than to employees represented by the United Union of Roofers, Water- proofers and Allied Workers, Local 11 (Roofers). The hearing was held on October 17 and 18 before Hearing Officer Christopher Lee and on November 6, 7, and 18 through 22, before Hearing Officer William M. Belkov. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board affirms the hearing officers’ rulings, find- ing them free from prejudicial error. On the entire re- cord, the Board makes the following findings. I. JURISDICTION The Employer, whose principal place of business is Wauconda, Illinois, is engaged in the installation of roof- ing, exterior sheet metal, building insulation, siding, and gutters. The parties stipulate, and we find, that the Em- ployer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Carpenters and Roofers are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute Since the early 1980s, the Employer has been signa- tory to consent agreements with the Carpenters and Roofers. For most of this time, the Employer assigned all types of roofing work, including new installation, tear-off and reroofing2 of asphalt shingles, cedar, and 1 Except where specifically indicated, all dates refer to 2002. 2 “Tear-off work” is defined as the removal of existing roofing mate- rials down to the roofing decking and the application of new roofing materials on any roofing surface. “Re-roofing work” is described as the application of a new roof over an existing roof. According to the Roof- ers, neither work is limited to steep-sloped roofs. slate on steep slope roofs, and all work on flat roofs to employees represented by the Roofers. The Employer’s Carpenter-represented employees were primarily em- ployed on new residential construction installing asphalt shingles and cedar shakes on steeply sloped roofs. How- ever, occasionally the Employer used composite crews of Roofers and Carpenters represented employees to per- form the shingling and tear-off work at various sites throughout Illinois and southern Wisconsin. In 2000, the Carpenters’ Trust Funds conducted an au- dit of the Employer’s records regarding the Employer’s contractual payment of contributions to the Trust Funds for each Carpenter-represented employee. A controversy arose between the parties regarding the accuracy of the audit and the amount owed by the Employer. On Octo- ber 19, 2001, the Trust Funds sued the Employer in Fed- eral district court claiming a delinquency of $2.5 million. While the suit was pending, in March 2002, the Carpen- ters struck the Employer and picketed all of its jobsites. The strike lasted for 4 months and resulted in the Em- ployer’s losing a significant amount of business and lay- ing off approximately 50 percent of its employees. In July, the Employer filed a countersuit against the Trust Funds and a suit against the Carpenters. As a result, the Trust Funds and the Employer entered into settlement negotiations, during which the Trust Funds demanded that the Employer assign all shingling and tear-off work exclusively to the Carpenters. The Employer refused, but ultimately, as a part of the settlement agreement, agreed to assign its tear-off work exclusively to the Car- penters. On July 15, the Court approved the parties’ set- tlement agreement, and the strike and picketing by the Carpenters ceased immediately. Soon after the strike and picketing ceased, the Em- ployer’s employees began to complain of harassment by Carpenters’ representatives who showed up at its various jobsites. The harassment assertedly included verbal abuse, false and derogatory statements about the Em- ployer, and statements to the effect that the Carpenters were going to put the Employer out of business. Em- ployees represented by the Roofers were singled out and confronted by the Carpenters’ representative who de- manded that they stop their work and show their union identification. On August 8, the Employer’s owner, Michael Prate, met with Carpenters’ President Earl Oliver, who claimed the work in dispute as the exclusive jurisdiction of the Carpenters and told Prate that the Employer was not to deal with the Roofers.3 Oliver also accused the Em- 3 As noted below, the work in dispute is shingling work at eight sites. 341 NLRB No. 73 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 544 ployer of cheating and not abiding by the terms of the settlement agreement. On September 17, the Carpenters filed an unfair labor practice charge against the Employer that alleged a re- fusal to supply information—the names of seven em- ployees who were working at one of the Employer’s job- sites on August 30—in violation of Section 8(a)(5). On September 24, the Carpenters went on strike and began picketing six to eight of the Employer’s different jobsites each day. The picketing ceased after 2 days when the Employer filed the instant 8(b)(4)(D) charge. Subsequently, in a meeting on October 9, Carpenters’ President Oliver again claimed the disputed work and accused Employer owner Prate of violating the settle- ment agreement by assigning employees represented by the Roofers to do shingling work, thus implicitly con- tending that the Carpenters had exclusive jurisdiction over the work in dispute. B. Work in Dispute As described in the notice of hearing, the work in dis- pute is shingling work—the installing of underlayment, shingles, and ice and watershields—at eight specified new construction sites: Lakemoor Farms at Route 12 and Route 120, Lake- moor, Illinois; The Lindens at Route 88 and Orchard Road, Algonquin, Illinois; Algonquin Lakes at Route 62 and Sand Bloom, Algonquin, Illinois; Natures Pointe at Waterford and Caredon, Aurora, Illinois; Pheasant Ridge at Drauden Road and Theodore, Joliet, Illinois; Ashcroft at Route 25 and Plainfield Road, Oswego, Illinois; Windsor Pointe at Route 56 and Ga- lena Road, Sugar Grove, Illinois; and Farmington Lakes at Route 30 and Route 34, Oswego, Illinois. C. Contentions of the Parties The Employer and the Roofers contend that there is reasonable cause to believe that the Carpenters violated Section 8(b)(4)(D) of the Act and that there is no agreed- on voluntary method of resolution to which all parties to this dispute are bound. They contend that the Board must therefore make a determination of the merits of the dispute. Both the Employer and the Roofers contend that the disputed work should be awarded to employees rep- resented by the Roofers, based on the Employer’s collec- tive-bargaining agreement with the Roofers, the Em- ployer’s preference, area practice, economy and effi- ciency of operations, and skills and training. The Em- ployer further contends that the Carpenters’ persistent efforts to have the disputed work assigned exclusively to the Carpenters, suggest that disputes are likely to reoccur wherever the Employer works. Therefore, the Employer contends that a broad award is warranted. The Carpenters contends that the dispute involves a work preservation issue and does not fall within the scope of Section 10(k) of the Act. It also argues that the Trust Fund litigation and strike were merely to collect the Employer’s delinquent fund contributions. The Car- penters further contends that the 2-day strike in Septem- ber was a lawful unfair labor practice strike because the Employer refused to identify the employees who were performing shingling and tear-off work at a jobsite in Wauconda, Illinois. This work, the Carpenters claims, falls within its exclusive jurisdiction. Finally, the Carpenters asserts that the work in dispute should be awarded to employees it represents based on industry practice; the Employer’s past practice; safety, skill, and efficiency; and its collective-bargaining agree- ment, which contains a description of shingling work. D. Applicability of the Statute Before the Board can proceed with a determination of a dispute under Section 10(k) of the Act, it must be satis- fied that: (1) there are competing claims for the work; (2) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated; and (3) the parties have not agreed on a method for the voluntary adjustment of the dispute. We find that there are competing claims for the work. The parties stipulated that both the Carpenters and Roof- ers have claimed the work in dispute, and the record shows that they both continue to do so.4 We reject the Carpenters’ contention that this is a work preservation dispute that does not fall within the scope of Section 10(k) of the Act. It is well established that for such a work preservation defense to prevail, the Carpen- ters must show that the employees it represents have pre- viously performed the work in dispute and that it is not attempting to expand its work jurisdiction. Stage Em- ployees IATSE Local 39 (Shepard Exposition Service), 337 NLRB 721, 723 (2002). The Carpenters have failed to make the latter showing. The record reveals that Roofers-represented employees have performed the work in dispute, i.e., the installation of shingles, underlayment, and ice and water shields. The record also establishes that Carpenters-represented employees have performed at least that part of the disputed work consisting of the in- stallation of asphalt shingles and cedar shakes. Although the record does not specifically address whether the Em- ployer has likewise assigned underlayment and ice and 4 We do not rely on the testimony regarding the settlement negotia- tions to prove that the Carpenters claimed the disputed work, nor do we rely on the settlement agreement in finding reasonable cause to believe that the Carpenters violated Sec. 8(b)(4)(D). We therefore find it un- necessary to reach the merits of the Carpenters’ motion to strike the testimony regarding the settlement negotiations. CARPENTERS (PRATT INSTALLATIONS, INC.) 545 water shield work to Carpenters-represented employees, no one contends that it has not. Instead, the more general testimony is that the Employer has variously assigned shingling work to crews of Roofers-represented employ- ees, to crews of Carpenters-represented employees, and to composite crews. Thus, even assuming that Carpen- ters-represented employees have performed all aspects of the work in dispute, they have never performed it exclu- sively. The dispute arose when the Carpenters claimed all of the disputed work, including that previously per- formed by employees represented by the Roofers. As such, the Carpenters’ objective here was not that of work preservation, but of work acquisition. Stage Employees IATSE Local 39, supra at 723. We also find reasonable cause to believe that a viola- tion of Section 8(b)(4)(D) has occurred. Thus, the record establishes that the Carpenters, after filing an unfair labor practice charge, engaged in a 2-day strike with picketing against the Employer at six to eight different jobsites each day where the Employer’s Roofers-represented em- ployees were primarily performing the work in dispute. The Carpenters asserts that the picketing of the job- sites, as the Carpenters’ picket signs indicated, was be- cause of the Employer’s alleged unfair labor practice. But even assuming that the picketing had a lawful objec- tive, it is well settled that a union may violate Section 8(b)(4)(D) if one object of the conduct is prohibited. Electrical Workers Local 134 (Pepper Construction), 339 NLRB 123, 124 (2003). We find that an object of the Carpenters’ picketing was to obtain exclusively the disputed work that was being performed by employees represented by the Roofers. Thus, the picketing took place precisely at those jobsites at which the Employer was employing Roofers-represented employees. More- over, Michael Prate testified that on August 8, Carpen- ters’ President Oliver made another demand for the work in dispute and demanded that Prate not deal with the Roofers. Prate also testified that on October 9, Oliver claimed that the Employer’s use of Roofers-represented employees to perform the work in dispute violated the settlement agreement. On both occasions, Oliver as- serted, either explicitly or implicitly, that the Carpenters had exclusive jurisdiction over the disputed work. These demands and assertions, coming so close in time to the September picketing, further indicate that the picketing had a jurisdictional object. Finally, as stipulated by the parties, no method for the voluntary adjustment of the dispute has been agreed on. Accordingly, we find that the dispute is properly before the Board for determination.5 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 making the de- termination of this dispute. 1. Certifications and collective-bargaining agreements The parties stipulated that there are no Board orders or certifications determining the collective-bargaining rep- resentative of the employees performing the work in dis- pute. The Employer has been signatory for approxi- mately 20 years to consent agreements with the Roofers and Carpenters. The only roofing work covered by the Carpenters’ agreement refers to the installation of new shingles and related tasks. The Roofers’ agreement cov- ers a greater number of roofing services, including the work in dispute. However, because there is some over- lap of the identified shingling tasks, including at least part of the work in dispute, this factor does not favor either group of employees. 2. Employer assignment and preference The Employer currently assigns the disputed work to its employees represented by the Roofers and prefers that the work in dispute continue to be performed by them. This factor accordingly favors awarding the disputed work to employees represented by the Roofers. 3. Employer past practice Until recently, the Employer’s historic practice has been to sometimes use composite crews of Carpenters and Roofers and other times to use crews of either Roof- ers or Carpenters to perform the disputed work. We find that this factor does not favor an award to either group of employees. 4. Area and industry practice The record evidence does not indicate the area and in- dustry practice of assigning work similar to that in dis- pute. Accordingly, we find that this factor does not favor an award to either group of employees. 5 We therefore deny the Carpenters’ motion to squash the notice of hearing. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 546 5. Relative skills and training Both unions offer training programs applying to the skills necessary to perform the disputed work. The re- cord shows that the Roofers’ apprenticeship training pro- gram is a 4-year program that covers all aspects of roof- ing including shingling and the various roofing products, materials, and systems. The Carpenters’ program, how- ever, only provides brief training on how to shingle as- phalt and cedar shakes and shingles. Accordingly, this factor favors awarding the work in dispute to employees represented by the Roofers. 6. Economy and efficiency of operations The Employer and the Roofers also assert that using Roofers to perform the disputed work is more economi- cal and efficient than using Carpenters because the Roof- ers alone can do the entire job from start to finish.6 Fur- ther, the Employer and the Roofers contend that because roofers can perform all aspects of roofing services, they are less affected by rain and bad weather when working on combination roofs. The Employer further asserts that being able to assign the work in dispute to roofers has a positive effect on both its work scheduling and project costs because the Roofers have a larger pool of qualified roofers to draw from and it is easier to obtain highly qualified roofers immediately from the Roofers. In con- trast, the Carpenters have a limited number of carpenters who can perform shingling work and they are not always readily available. Also, the Carpenters’ apprenticeship program requires apprentices to attend during the work- day, which interferes with work scheduling and produc- tion. By contrast, the Roofers-represented employees attend their apprenticeship training on the weekends and at night, and thus do not have to miss work in order to attend training classes. We find that this factor favors awarding the disputed work to the employees represented by the Roofers. Conclusions After considering all the relevant factors, we conclude that employees represented by the Roofers are entitled to perform the work in dispute. We reach this conclusion relying on the Employer’s preference, economy and effi- ciency of operations, and skills and training. In making this determination, we are awarding the work to employ- ees represented by the Roofers, not to that Union or its members.7 6 The Employer and Roofers also argue that in some situations even with a composite crew, the carpenters would be idle while the roofers performed certain roofing tasks, particularly on combination flat and steeply sloping roofs. 7 This award does not affect the reroofing and tear-off work, which the Employer has traditionally performed at times with composite Scope of the Award The Employer has requested that the Board issue a broad award that encompasses the geographical areas in which the Employer performs roofing services. We find no merit in that request. Normally, 10(k) awards are limited to the jobsites where the unlawful 8(b)(4)(D) conduct occurred or was threatened. Electrical Workers Local 363 (U.S. Informa- tion Systems), 326 NLRB 1382, 1385 (1998). There are two prerequisites for a broader award: (1) evidence that the disputed work has been a continuous source of con- troversy in the relevant geographic area and that similar disputes may recur; and (2) evidence demonstrating the offending union’s proclivity to engage in further unlaw- ful conduct in order to obtain work similar to that in dis- pute. Id. See also Electrical Workers Local 98 (Swartley Bros. Engineers), 337 NLRB 1270, 1272–1273 fn. 7 (2002); Operating Engineers Local 150 (Foley Construc- tion), 316 NLRB 360, 363 (1995). Here, while the dis- pute covered six to eight of the Employer’s jobsites, it is the first substantiated controversy arising over the dis- puted work. Thus, the record does not indicate that the disputed work has been a continuous source of contro- versy and will continue to be so. Nor is there evidence that the Carpenters Union is likely to engage in unlawful conduct at future jobsites in pursuit of work similar to that in dispute. Accordingly, the award is limited to the at the jobsites that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the follow- ing Determination of Dispute. 1. Employees of Prate Installations, Inc. represented by United Union of Roofers, Waterproofers, and Allied Workers, Local 11 are entitled to perform shingling work—the installing of underlayment, shingles, and ice and watershields—at new construction sites located at: Lakemoor Farms at Route 12 and Route 120, Lake- moor, Illinois; The Lindens at Route 88 and Orchard Road, Algonquin, Illinois; Algonquin Lakes at Route 62 and Sand Bloom, Algonquin, Illinois; Natures Pointe at Waterford and Caredon, Aurora, Illinois; Pheasant Ridge at Drauden Road and Theodore, Joliet, Illinois; Ashcroft at Route 25 and Plainfield Road, Oswego, Illinois; Windsor Pointe at Route 56 and Ga- lena Road, Sugar Grove, Illinois; and Farmington Lakes at Route 30 and Route 34, Oswego, Illinois. crews and is not in dispute. Nor is it intended to take away the tear-off work that the Employer has agreed to assign exclusively to the Carpen- ters pursuant to the Employer’s and Trust Funds’ settlement agreement. CARPENTERS (PRATT INSTALLATIONS, INC.) 547 2. Chicago and Northeast Illinois District Council of Carpenters is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Prate Installations, Inc., to assign the disputed work to employees represented by it. 3. Within 14 days from this date, Chicago and North- east Illinois District Council of Carpenters shall notify the Regional Director for Region 13 in writing whether it will refrain from forcing the Employer by means pro- scribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination.