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

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.