Mid-Central Illinois District Council Of Carpenters

726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Mid-Central Illinois District Council of Carpenters and Acme Tile Company, Inc. Case 33-CD-344 September 17, 1990 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY The charge in this Section 10(k) proceeding was filed January 11, 1990, by the Employer, Acme Tile Company, Inc , alleging that the Respondent, Mid-Central Illinois District Council of Carpenters (the Carpenters), violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in pro- scribed activity with an object of forcing the Em- ployer to assign certain work to employees it rep- resents rather than to the employees of the Em- ployer who are not represented by a labor organi- zation The hearing was held January 31, 1990, before Hearing Officer D Bruce Hill The National Relations Board has delegated its authority in this proceeding to a three-member panel The Board affirms the hearing officer's rulings, finding them free from prejudicial error 1 On the entire record, the Board makes the following find- ings I JURISDICTION The parties stipulated that the Employer, an Illi- nois corporation with an office in Peoria, Illinois, is engaged in the building and construction industry, mstalling ceramic tile and related products at vari- ous jobsites During the 12 months preceding the hearing, a representative period, the Employer pur- chased and received at its Peoria, Illinois facility goods valued in excess of $50,000 directly from vendors located outside the State of Illinois We find that the Employer is engaged in commerce withm the meaning of Section 2(6) and (7) of the Act and that the Carpenters 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 is a subcontractor which had been engaged to install ceramic tile and related products at a jobsite in Springfield, Illinois, where The hearing officer referred to the Board a motion made by the Car- penters to dismiss the charge alleging a violation of Sec 8(b)(4)(D) or to quash the notice of hearing so that the Carpenters may pursue with the Employer the possibility of settlmg this matter The Employer did not join in the Carpenters' motion and there is no proposed settlement before us We find it inappropriate to dismiss the charge or quash the notice of hearing We therefore deny the Carpenters' motion a new Hardee's restaurant was being constructed The work on the site began in early January 1990 and has been completed, although the Employer has other contracts to perform similar work at other new Hardee's restaurants m Springfield The tile helpers assist the tilesetter by hauling material and cleaning, grouting, and polishing the tile The Employer assigned the work to its two full-time tile helpers who have been employed by the Em- ployer for a number of years, moving from project to project The Employer previously had a collec- tive-bargaining agreement with the Tile, Marble, Terrazzo, Fimshers and Shopmen International Union (Marble Polishers) covering the tile helpers The Marble Polishers allegedly merged with the Carpenters in 1988, and the Employer has no cur- rent collective-bargaining agreement with the Car- penters 2 On January 8, 1990, when the Employer was performing work at the Springfield jobsite at issue, two representatives of the Carpenters separately approached Mazzuckelh, the Employer's president, and requested that he sign a contract with the Car- penters After Mazzuckelli refused the second re- quest, the Carpenters placed one picket at the site with a sign stating that the Employer had not signed a contract with the Carpenters, and the Car- penters employed at the site left the job Later that day, Carpenters District Council Representative Burnett telephoned Mazzuckelh and informed him that "we have a problem" and that he wanted Mazzuckelli to sign a contract for the helpers Mazzuckelli stated that he could not sign a con- tract but wanted to get the issue resolved any way he could Burnett replied that "that is very easy Get them scabs off the job and hire my people you can't do anything you want [in Spring- field] I will break your a—along with a lot of other guys We are going to have our people do this work" The next day the general superintend- ent of the project instructed Mazzuckelli that the Employer's work was to be performed at night when the Carpenters would not be picketing the job That night the Carpenters set up a picket line of 30-50 pickets at the jobsite, with signs stating that the Employer was unfair to the Carpenters and had not signed a contract B Work in Dispute The disputed work involves the cleaning, grout- ing, and polishing of all tile, handling all sand, cement, lime, tile, and all other similar materials 2 Although counsel for the Employer noted in his opening statement that litigation concerning the propriety of the merger was currently pending before the Federal district court in Las Vegas, Nevada, the record contains no evidence concerning that case 299 NLRB No 111 CARPENTERS MID-CENTRAL ILLINOIS DISTRICT COUNCIL (ACME TILE) 727 that may be used in the installation, repair, and maintenance of tile at the Hardee's restaurant on Ninth Street in Springfield, Illinois C Contentions of the Parties The Employer contends that the disputed work should be awarded to its unrepresented employees based on all the factors considered by the Board in jurisdictional disputes The Employer requests a broad award of the work to encompass the loca- tions in Springfield and any other future locations The Carpenters contends that this matter is not a jurisdictional dispute but rather a representational or recogmtional issue between the Carpenters and the Employer 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 be satisfied that reasonable cause exists to believe that Section 8(b)(4)(D) has been violated and that the parties have not agreed upon a method for the voluntary settlement of their dis- pute As indicated above, on January 8, Carpenters representatives initially made two requests that the Employer sign a contract with the Carpenters When the Employer refused, the Carpenters placed a picket at the jobsite and the carpenters employed there left Later that day, when the Employer denied another request made by telephone by Car- penters Representative Burnett, Burnett demanded that the Employer's employees be removed from the job and replaced by employees represented by the Carpenters, threatened to "break [the Employ- ees] a—," and warned that the Carpenters would have their own people do the work The following evening, the Carpenters placed pickets at the job- site protesting that the Employer was unfair to the Carpenters Based on Burnett's demands to the Employer concerning the assignment of the work, we conclude that there is reasonable cause to be- lieve that an object of the threat made by Burnett and the picketing by the Carpenters was to force the Employer to assign the disputed work to em- ployees represented by the Carpenters The Carpenters asserts that it sought to represent the Employer's employees rather than to have them replaced by other individuals represented by the Carpenters It contends that its activity was solely in furtherance of a recognitional or represen- tational objective,3 and therefore that no compet- 3 The Carpenters filed an unfair labor practice charge against the Em- ployer in Case 33-CA-8664 alleging that the Employer has violated Sec 8(aX5) of the Act, as well as a representation petition in Case 33-RC- 3441 An appeal of the Regional Office's dismissal of the unfair labor mg claims for the work and no jurisdictional dis- pute exist 4 Even assuming that the Carpenters had a representational object with respect to the Em- ployer's employees, we nonetheless have found that there is reasonable cause to believe that an object of the Carpenter's conduct was to require the Employer to assign the disputed work to em- ployees it represents, in violation of Section 8(b)(4)(D) The Board has held that "[o]ne pro- scnbed object is sufficient to bring a union's con- duct within the ambit of Section 8(b)(4)(D) 995 No party contends and there is no evidence in the record that there exists an agreed-on method for the voluntary resolution of this dispute within the meaning of Section 10(k) of the Act Accord- ingly, we find that the dispute is properly 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 considenng 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 the dispute 1 Certifications and collective-bargaimng agreements The record does not indicate that the Carpenters has been certified by the Board as the collective- bargaining agent of the Employer's employees In fact, the Carpenters has filed a petition m Case 33- RC-3441, which is currently pending Although the Employer previously had a collective-bargain- ing agreement with the Marble Polishers, now al- legedly an affiliate of the Carpenters, there is no evidence of a current collective-bargaining agree- practice charge is pending m the General Counsel's Office of Appeals The representation proceeding is being held in abeyance pending the res- olution of the unfair labor practice case Our determination in the present proceeding is not intended to affect the outcome of the other pending matters involving these parties * Although the unrepresented employees of the Employer have not made a formal claim for the disputed work, we nonetheless find that competing claims exist The Board has held that the fact that employees are performing disputed work is evidence that they claim that work Op- eratmg Engineers Local 926 (Poirot Exhibitors Service), 254 NLRB 994 (1981) 'Cement Masons Local 577 (Rocky Mountain Prestress), 233 NLRB 923, 924 (1977), Plumbers Local 195 (Warren Petroleum Ca), 260 NLRB 1149, 1150 (1982), Millwnghts Local 1026 (Intercounty Construction), 266 NLRB 1049, 1052 (1983) 728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ment between the Employer and the Carpenters covering work within the territorial jurisdiction of the Mid-Central Illinois District Council Accord- ingly, this factor is not helpful in determining the dispute 2 Company preference and past practice Mazzuckelli testified that he is satisfied with the work performed by the Employer's employees The Employer has consistently assigned these em- ployees to perform its work on various projects in- cluding the Hardee's restaurant projects during the past 6 years, with one employee, who has been em- ployed by the Employer for 13 years, having worked on approximately 40 such projects and the other, who has been employed for 4 years, having worked on approximately 25 Five or six of the projects performed during the past year were lo- cated in the midcentral region of Illinois Although the Employer assigned work to employees repre- sented by the Marble Polishers when its employees were represented by that Umon, 6 the Employer has more recently assigned the disputed work to its unrepresented employees 7 Therefore, we find that while evidence bearing on past practice is incon- clusive, employer preference favors an award of the work in dispute to the Employer's unrepresent- ( ed employees 3 Area and industry practice The record in this proceeding provides little evi- dence of the area and industry practice in the as- signment of tile helper work, with Mazzuckelh tes- tifying only as to the Employer's practice of as- signing the work, including similar projects in the same geographical area, to its own employees We therefore find that this factor is not helpful in de- termmmg the dispute 4 Relative skills Mazzuckelh testified that the Employer's two current employees have worked for the Employer for 13 and 4 years, respectively As noted above, these employees have performed their duties on nu- merous projects at Hardee's restaurants such as the one at issue here, and the Employer has been satis- fied with their work The Carpenters did not assert or present any evidence that employees represented by it possess skills equal or superior to those of the 6 As noted, according to the record, the Marble Polishers may have merged with the Carpenters, and the Employer asserts that the validity of the merger is being hugated in Federal district court We repeat that our determination of this jurisdictional dispute is not intended to affect the outcome of the pending unfair labor practice and representation proceedings Employer's employees This factor favors an award of the disputed work to the Employer's employees 5 Economy and efficiency of operations The Employer maintains that it is more econom- ic and efficient to use its own employees than to use employees represented by the Carpenters Maz- zuckelli testified that the Employer's employees work on projects throughout Illinois and part of Missouri He further testified that if the Employer had not used its employees at the Hardee's restau- rant project, it would not have been able to employ them elsewhere because it did not have any other jobs at that time We find that this factor favors an award of the disputed work to the Em- ployer's employees Conclusions After considering all the relevant factors, we conclude that the Employer's unrepresented em- ployees are entitled to perform the work in the dis- pute We reach this conclusion relying on the fac- tors of employer preference, relative skills, and economy and efficiency of operations Scope of the Award The Employer seeks a broad award of the dis- puted work, covering locations in Springfield and other future locations The Board has held that it will restnct the scope of its determination to a spe- cific jobsite unless there is evidence that similar dis- putes may occur in the future 8 There is no evi- dence that the Carpenters has claimed similar work to be performed by the Employer in the future Further, the evidence does not show a proclivity by the Carpenters to engage in similar prohibited 8(b)(4)(D) conduct on an areawide scope with re- spect to similar work by the Employer According- ly, the present determination is limited to the par- ticular controversy that gave rise to this proceed- ing 9 DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute 1 Employees of Acme Tile Company, Inc are entitled to perform the cleaning, grouting, and po- lishing of all tile, handling all sand, cement, lime, tile, and all other similar materials that may be used in the installation, repair, and maintenance of tile at the Hardee's restaurant on Ninth Street in Springfield, Illinois See Painters Local 636 (Plaza Chu), 214 NLRB 912, 915 (1974) 9 See Iron Workers Local 350 (Cornell & Co), 271 NLRB 1182 (1984) CARPENTERS MID-CENTRAL ILLINOIS DISTRICT COUNCIL (ACME TILE) 729 2 Mid-Central Illinois Distnct Council of Car- penters is not entitled by means proscnbed by Sec- tion 8(b)(4)(D) of the Act to force Acme Tile Company, Inc to assign the disputed work to em- ployees represented by it 3 Within 10 days from this date, Mid-Central Il- linois Distnct Council of Carpenters shall notify the Regional Director for Region 33 m wntmg whether it will refrain from forcing the Employer, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination