International Ladies Garment Workers Union, Afl-Cio

LADIES GARMENT WORKERS (TAHARI LTD) 639 New York Coat, Suit, Dress, Rainwear and Allied Workers Union, a/w International Ladies Gar ment Workers Union, AFL-CIO 1 and Tahari, Ltd and Amalgamated Clothing and Textile Workers Union, AFL-CIO Case 2-CD-644 28 September 1984 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER The charge in this Section 10(k) proceeding was filed 24 June 1981 by the Employer alleging that the Respondent, New York Coat Suit, Dress, Rainwear and Allied Workers Union a/w Interna tional Ladies Garment Workers Union, AFL-CIO (the ILGWU), 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 employees represented by Amalgamated Clothing and Textile Workers Union AFL-CIO (ACTWU) The hearing was held on various dates between 25 August 1981 and 23 March 1982 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, 2 the Board makes the following find ings I JURISDICTION The Company a New York corporation, manu factures and sells garments to retail establishments at its facilities in New York, New York, and Rich field New Jersey, where it annually sells and ships its garments valued in excess of $50,000 directly from its New York facility to firms located outside the State of New York The parties stipulate and we find, that the Employer is engaged in com merce within the meaning of Section 2(6) and (7) of the Act and that ILGWU and ACTWU are labor organizations within the meaning of Section 2(5) of the Act 1 At the heanng in this case the caption was amended to add a/w standing for affiliated with between New York Coat Suit Dress Rainwear and Allied Workers Union and International Ladies Garment Workers Union AFL-CIO This was done to make clear that the Inter national Ladies Garment Workers Union was not named separately as a respondent 2 The ILGWU has requested oral argument in this case Although we recognize that the issues before the Board are novel and complex we be heve that the record and the excellent and extensive briefs adequately present the issues and the positions of the parties Therefore we deny the ILGWU s request II THE DISPUTE A Background and Facts of Dispute Tahari sells women's clothes It is a jobber which means that it does not directly employ the people who manufacture its products Rather, the workers are employed in contractor shops to which Tahari sends cloth to be sewn into garments according to its specifications This type of manu facturing alignment is common in the garment in d us try Prior to the events at issue in this case, Tahari sent work to three types of contractors contractors whose employees were represented by the ILGWU (ILGWU contractors), contractors whose employ ees were represented by the ACTWU (ACTWU contractors), and contractors whose employees were not represented by any labor organization (nonunion contractors) 3 Tahari s own employees (its inside' employees) were represented by Local 157, Journeymen and Production Allied Services of America and Canada (Local 157) The agreement between Tahari and Local 157 apparently con tamed a clause which allowed Tahari to send out work to contractors provided that the contractors had a collective bargaining agreement with a union 4 On 2 June 1981 the ILGWU began picketing at Tahares New York and New Jersey facilities and the employees of ILGWU contractors who had been working on Tahari s goods stopped doing the work In addition to stopping its work on Tahari goods, around 2 June the ILGWU began picketing some of the ILGWU contractors At this same time it also started to picket the nonunion contrac tors who were doing work for Tahari All of the ILGWU picket signs stated that Tahari did not have a jobber s agreement 5 with the ILGWU 3 During 1978 Tahan sent some work to Le Bell Fashion a contractor whose employees were represented by Teamsters Local No 399 This is the only mention in the record of Tahan s sending work to a contractor outside the above three categories 4 The agreement between Local 157 and Tahan was not Introduced Into evidence 5 A jobber s agreement as that term is used here is an agreement between a union and a jobber in which the jobber agrees that it will send its work only to contractors which have collective bargaining agreements with the particular union In addition to providing that the jobber will send its work only to ILGWU contractors the standard ILGWU job ber s agreement forbids the jobber from giving any work to a contractor being struck by or involved in a labor dispute with the ILGWU re quires the jobber to confine its production to only as many contractors as actually are needed to produce the garments such contractors being des ignated to and approved by the ILGWU fixes piece rates requires the jobber to pay the contractor an amount sufficient to cover the wages and benefits provided for in the contractor s collective bargaining agreement with the ILGWU plus a reasonable amount to cover the contractor s overhead and services so that the contractor will not divert payments due employees to pay for these makes the jobber liable to a limited extent for the contractor s failure to pay wages and benefits to employ Continued 272 NLRB No 102 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Also on 2 June, Tahan received two form letters from the ILGWU In the first, the ILGWU de manded that Tahan sign a jobber s agreement with it, in the second, the ILGWU disclaimed any inter est in representing Tahan s inside employees 6 On the afternoon of 2 June, Elie Tahan, Tahan s president and Jack Sragow, Tahan s director of manufacturing met with Ed Banyai the ILGWU s director of organization, at Banyai s office Al though it is not entirely clear what was said at this meeting it is apparent that Banyai told Tahan and Sragow that he wanted them to sign a jobber s agreement with the ILGWU Tahan and Sragow responded that a high percentage of Tahan s prod ucts, particularly man tailored' women's jackets, were currently being produced by ACTWU con tractors and that there were no ILGWU contrac tors capable of producing these particular goods They also mentioned Tahan s collective bargaining agreement with Local 157 Banyai requested a copy of the agreement with Local 157 and a list of the shops to which Tahan was sending work The meeting broke up with Tahan s representatives saying that they would get back to Banyai on these requests The next day Company President Tahan met with Banyai in the morning, and that afternoon Banyai presented the Tahan representatives with a letter in which the ILGWU agreed to modify its standard jobber's agreement to the extent that Tahan would be permitted to place work in ACTWU shops in situations in which the ILGWU could not supply an ILGWU contractor capable of performing the work Company President Tahan refused to sign the agreement thus modified appar ently because of a fear that the terms of the agree ment would make an arbitrator, rather than Tahan itself the party charged with deciding whether there were ILGWU shops capable of performing ees requires that the jobber keep books and records relating to the labor costs of and production by contractors and allows the ILGWU access to these books and records mandates that the jobber affix the ILGWU label to an its products made by its contractors requires the jobber to make payments into the health and welfare fund supplemental unemployment benefit fund retirement fund and health services fund of the ILGWU based on the gross payments the jobber makes to its contractors requires the jobber to provide and pay for the cost of disability benefits estab lished by New York law requires the jobber to use ILGWU trucking and establishes an impartial chairman to arbitrate disputes See Danielson v Ladies Garment Workers 494 F 2d 1230 1231-32 (2d Cir 1974) for a description of an earlier example of the type of standard jobber s agree ment introduced into evidence in this case Under the standard ILGWU jobber s agreement any work not produced by ILGWU contractors is considered nonunion whether the employees of the non ILGWU con tractor are represented by another union or not 6 Because the ILGWU disclaimed any interest in Tahan s inside em ployees the type of jobber s agreement the ILGWU sought from Tahan is called a Hazantown agreement in the garment industry See Ladies Garment Workers (Hazantown Inc ) 212 NLRB 735 (1974) However for purposes of this decision we will refer to the agreement sought by the ILGWU as a jobber s agreement certain Tahan work The ILGWU's picketing of Tahan s facilities continued after these unsuccessful 3 June meetings From 8 to 15 June, the ILGWU sought the ACTWU s aid in the ILGWU S campaign to get Tahan to sign a ILGWU s jobber s agreement This effort failed and on 15 June, the ILGWU ex tended its picketing to the ACTWU contractors doing work for Tahan On 17 June the ACTWU ordered its members employed by contractors used by Tahan to stop all work on Tahan garments This action virtually shut down Tahan In response to this action by ACTWU, Company President Tahan met with ACTWU representatives on 17 June and that same day entered into a jobber s agreement with them Tahan and the ACTWU representatives also signed a modification to the jobber s agreement This modification provided We are writing to confirm our agreement, made this date of our commitment to engage only contractors under ACTWU contract except by mutual agreement with your Union Pursuant thereto, it is mutually agreed be tween us that the exception therein provided shall apply to the International Ladies Gar ment Workers Union with whose contractors we may contract without notice We shall not engage any contractors other than under the ACTWU as to production of man tailored ladies jackets unless no ACTWU shop is available Also on 17 June ACTWU sent a letter to Samuel Nemaizer, general manager of the ILGWU This letter stated For some time the above named employer [Tahan Ltd ], a jobber who utilizes the serv ices of contractors for his sewing and finishing operations, has been employing contractors for this purpose who have been under contract with this Union, and some who have been under contract with your Union The majority of these contractors by far have been those under contract with this Union Recently your Union began picketing Tahan and van ous of it [sic] contractors (including many who are under contract with this Union) in an effort to force Tahan to sign a jobber's agree ment [a Hazantown' agreement] We joined your picketing and forced the employer to concede to our joint objective We wish to tell you that Tahan has executed an agreement with this Joint Board in which he undertakes to maintain the status quo i e, to LADIES GARMENT WORKERS (TAHARI LTD) 641 continue to use his present contractors (includ ing some under contract with your Union) and to use none who are non union except where none of our shops or your shops can be found to do his work (He has agreed to do his man tailored' coats in our shops ) By entering into this agreement with Tahan, we have not encroached upon your rights and your jurisdiction, we have simply protected both of us by maintaining the status quo We would therefore request that Our picketing of all of these factories and facilities be discontin ued as there is no further need for it (We assume you are aware that this picketing has occurred in Pennsylvania as well as in New York and New Jersey) We would be happy to discuss this matter with you if you so desire On 18 June Nemaizer replied to the ACTWU letter with a letter which stated I received your letter dated June 17, 1981, in forming me that your Joint Board has entered into an agreement with Tahan in which ac cording to your letter, Tahan has agreed to continue to use his present ACTWU and ILGWU contractors, among other things I would appreciate receiving a copy of this agreement As I believe you are aware, this Union has been picketing Tahan for a jobber's agreement since June 2, 1981, well in advance of your Union s interest in a jobber s agreement Your belated negotiation and agreement with Tahan to which this Union was never a party, took place completely without our knowledge or consent We will therefore continue to picket Tahan for a jobber s agreement with this Union, your agreement with Tahan does not satisfy our picketing objective After this exchange of letters, the ILGWU picket ing of Tahan continued On 24 June Tahan, by its attorney, Jonathan Sulds„ filed the charge in this proceeding 7 On 8 July Nemaizer sent Tahan and the ACTWU a tele gram which stated This telegram will confirm what we have ad vised you both orally and in writing that pick eting for a jobber's agreement by New York 7 The General Counsel sought an injunction pursuant to Sec 10(1) of the Act in this case This request for an injunction was denied by Judge Safaer Blyer v Ladies Garment Workers 522 F Supp 723 (S D NY 1981) Coat, Suit, Dress, Rainwear and Allied Work ers Union is not and never has been for the purpose of assigning work performed by em ployees of ACTWU contractors to employees of ILGWU contractors We only seek execu tion of a jobber s agreement under which you are contractually obligated to this Union to supply employees of ILGWU contractors with work customarily performed in ILGWU shops On 28 July Tahan and the ACTWU both signed another letter which rescinded the 17 June modifi cation of their jobber s agreement This letter stated We are writing in reference to our letter to you of June 17 1981, which sets forth certain privileges and limitations relating to our manu factunng garments in factories other than those under contract with your union At the time that that letter was written, Tahan Ltd was utilizing certain factories whose em ployees were represented by locals of the * International Ladies Garment Workers Union, and the concessions made by your union in that letter were required by us in order to allow us to meet our manufacturing needs We now find that our needs have changed and the concessions in the June 17 letter are no longer necessary particularly in view of the ILGWU s continued picketing, violence, and destruction of our goods Consequently we are acceding to your desire that in view of the changed circumstances, these formal concessions be withdrawn We agree by this letter that the referenced Letter Agreement of June 17, 1981 signed by Elie Tahan and Frank Caleca is herewith rescind ed It is understood that your union will continue to review any requests we may have for per mission to utilize factories not under contract with your union as set forth in the main agreement dated June 17 1981 which contm ues in effect between us As of the dates of the hearings in this proceed ing, the ILGWU continued to picket Tahan , B Work in Dispute The work in dispute is Tahan s garment manu factunng work for the period 17 June 1981 to 16 June 1984 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C Contentions of the Parties Tahan contends that the ILGWU s actions vio late the plain meaning of Section 8(b)(4)(D) be cause the object of the ILGWU's picketing is to cause Tahan to assign work to employees repre sented by the ILGWU rather than to employees represented by the ACTWU Tahan also argues that the work should be assigned to the ACTWU because (1) the ACTWU has entered into a job ber's agreement with Tahan and Tahan prefers that the ACTWU contractors do its work, and (2) the ACTWU contractors are capable of doing all of Tahan s work, while the ILGWU has no con tractors capable of working Tahan s man tailored garments The ILGWU contends initially that the garment industry proviso to Section 8(e) exempts the gar ment industry from the provisions of Section 8(b)(4)(D) Next, the ILGWU contends that there is no particular work" as that term is used in Sec tion 8(b)(4)(D), in dispute here The ILGWU also argues that it has never demanded any work being done by ACTWU contractors but rather has only demanded that the work traditionally done by ILGWU contractors continue to be done by them Thus, the ILGWU claims it has effectively dis claimed any work being done by ACTWU con tractors Additionally, the ILGWU contends that its picketing in support of its demand that work traditionally done by ILGWU contractors continue to be done by them has a work preservation objec live All these arguments, the ILGWU urges, man date that the Board quash the notice in this pro ceeding If the Board fails to quash the notice the ILGWU s position is that it is entitled to the work customanly performed by ILGWU contractors The ACTWU contends that the garment Indus try proviso does not exempt the ILGWU s actions from the provisions of Section 8(b)(4)(D) It argues that Congress intended the garment industry provi so as an organizing weapon to allow unions in the garment industry to alleviate depressed wages and substandard conditions The Board would not do violence to this congressional intent by applying Section 8(b)(4)(D) to the facts of this case, the ACTWU asserts because the ACTWU has a job ber's agreement with Tahan that addresses con gressional concerns The ACTWU finally claims that the factors that the Board normally considers in a 10(k) proceeding all indicate that the work in dispute here should be awarded to the ACTWU 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 there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that the parties have not agreed upon a method for the voluntary adjustment of the dis pute There is no contention here that the parties have agreed on a method for the voluntary adjustment of their dispute However, the ILGWU contends, on several different gfounds, that there is no rea sonable cause to beheye that Section 8(b)(4)(D) has been violated and that therefore the Board should quash the notice in this case We will deal with each of the ILGWU s contentions in turn The ILGWU contends that the garment industry proviso to Section 8(e) exempts the garment indus try from the provisions of Section 10(k) and Sec tion 8(b)(4)(D) The proviso states Provided further, That for the purposes of this subsection (e) and section 8(b)(4)(B) the terms 'any employer,' any person engaged in com merce or in industry affecting commerce, and any person when used in relation to the term: any other producer, processor, or man ufacturer any other employer or any other person shall not include persons in the relation of a jobber manufacturer contractor or subcontractor working on the goods or premises of, the jobber or manufacturer or per forming parts of an integrated process of pro duction in the apparel and clothing industry Provided further, That nothing in this act shall prohibit the enforcement of any agreement which is within the fOregoing exceptions As the proviso specifically mentions only Section 8(e) and Section 8(b)(4)(B), the short answer to the ILGWU s contention might be that these are the only sections of the Act from which Congress has exempted the garment industry After all expressio um° est exclusio altenus However the ILGWU rebuts this response by correctly pointing out that both the Board and the Second Circuit have exam med the legislative history of the garment industry proviso and concluded on the facts of the particu lar case presented to them, that the proviso pro tects picketing for a jobber's agreement from the provisions of Section 8(b)(7)(C), a section of the Act also not specifically mentioned in the proviso Hazantown Inc 212 NLRB 735 (1974), Danielson, 494 F 2d 1230 at 1231_32 8 In Hazantown, the company did not have a job ber's agreement with any union The union sought a jobber's agreement and expressly disclaimed any interest in representing Hazantown's inside employ 8 Danielson involved an appeal from the granting of an injunction sought pursuant to Sec 10(1) m the Hazantown case LADIES GARMENT WORKERS (TAHARI LTD) 643 ees Hazantown refused and the union picketed in support of its demand Hazantown filed a charge alleging that the union s action violated Section 8(b)(7)(C) The Board found that the union's pick ding was not recognitional or organizational in nature The only objective of the union s picketing was to have Hazantown sign a jobber s agreement and send its work to contractors who had collec tive bargaining agreements with the union rather than to nonunion contractors The Board examined the legislative history of the garment industry pro viso and held that, even though Section 8(b)(7)(C) was not explicitly mentioned in the proviso, Con gress had intended to sanction the type of picketing in which the union was engaging and therefore the picketing did not violate this particular section of the Act In its brief, the ILGWU points out that the Board has held that Section 8(b)(4)(D) encom passes competing claims between a union and a group of unrepresented employees Electrical Work ers IBEW Local 354 (F G Johnson Co) 200 NLRB 599, 600 (1972), Operating Engineers Local 18 (Luedtke Engineering), 264 NLRB 858 (1982) It argues that, if the garment industry proviso does not exempt picketing for a jobber s agreement from the provisions of Section 8(b)(4)(D) then the union in the Hazantown case would have been involved in a jurisdictional dispute (and subject to the filing of an 8(b)(4)(D) charge) when it picketed to get Ha zantown to send its work to union contractors rather than nonunion contractors The ILGWU contends that this result is contrary to the Board's decision in Hazan town which it argues holds that the picketing for the jobber s agreement there was protected by the proviso Thus, the ILGWU con cludes, Hazantown compels the quashing of the notice in this case The circumstances surrounding the development of the jobber contractor structure of the garment industry were recounted in detail by Judge Wein feld in Greenstein v National Shirt & Sportswear Assn, 178 F Supp 681, 687 (SD NY 1959) Manufacturers such as the plaintiffs produce only a portion of garments in their own shops so called inside shop the balance are manu factured away from their premises by outside sub manufacturers or contractors whose em ployees work on the manufacturers material, either cut or uncut t Presently more than 80% of the workers in this industry work in the shops of contractors This is usually referred to as the outside system of production It has its genesis in a fiercely competitive strug gle by manufacturers of garments at the turn of the century which caught the workers in the industry, at that time mostly recently ar rived immigrants, in between, depressed their wages and resulted in intolerable working con damns The defendant international union was then organized and waged an aggressive cam paign to unionize the industry and to better conditions In an effort to avoid unionization and to evade all direct responsibility to pro duction employees, manufacturers who operat ed inside shops, the then prevalent method of manufacturing and marketing of garments, abandoned their shops Instead they contracted out all or a part of the work to outside con tractors whose employees worked on materials supplied by the manufacturers and so the out side system of production came into being These contractors generally were marginal op erators without financial resources and again the worker was exploited The abandonment by a manufacturer of direct production on his own premises also brought into being the jobber The jobber had no direct dealing with employees, was not responsible to them for wages, and was uncon cerned with hours and adequate standards He also engaged contractors for the production of his garments and by this method shifted all re sponsibility for employee conditions to the contractor The jobber as a class competed with the inside manufacturer The contractors were in fierce competition with one another for the patronage of jobbers and inside manu facturers The essential basis of this intense competition was reduced labor costs The brunt of this economic rivalry was borne by the workers and reflected itself in depressed wages and substandard labor conditions The Union, as well as enlightened leaders in the in dustry sought to correct the demoralizing ef fects upon employees brought about by the jobber contractor system The problem of the industry also one of public concern, was the subject of investigations by public agencies and commissions which recommended either legislation or remedial programs See also Hazantown, 212 NLRB at 737-738, Daniel son, 494 F 2d at 1234-35 The union response to the depressed wages and working conditions outlined above was to seek job ber s agreements in which the jobber would agree to send its work only to contractors having collec tive bargaining agreements with the union In en acting the Labor Management Reporting and Dis closure Act of 1959 Congress acknowledged the effectiveness of jobber s agreements in eliminating 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the substandard wages and conditions in the gar ment industry 9 By appending the garment industry proviso to Section 8(e), Congress intended to sanc tion the use of jobber's agreements (and picketing to achieve them) to prevent the garment industry from sliding back into the era of the sweatshop Therefore where a union pickets an employer which does not have a jobber s agreement (and is capable of sending its work to nonunion contrac tors), the union s action addresses the congressional concerns about exploitation of nonunion labor in the garment industry and the picketing is protected by the garment industry proviso Thus the picket ing in the Hazantown case did not violate Section 8(b)(7)(C) and such picketing of an employer which does not have a jobber s agreement would also not violate Section 8(b)(4)(D) The instant case presents a different question however Here, the ACTWU entered into a job ber s agreement with Tahan on 17 June There is no evidence that this agreement is a sham or that the ACTWU does not enforce the provisions of the underlying collective bargaining agreements with its contractors In this situation, the jobber s agree ment between ACTWU and Tahan addresses the congressional concerns about substandard wages and depressed working conditions that led to the enactment of the garment industry proviso None theless, the ILGWU continued picketing for a job ber s agreement after 17 June This continued pick eting was no longer aimed at addressing the con cerns central to the enactment of the garment in dustry proviso Rather, the picketing's purpose became to take work from employees represented by the ACTWU contractors and place it with em ployees represented by the ILGWU 10 Therefore this continued picketing was not sanctioned by the garment industry proviso To hold otherwise would undermine the integrity of the jobber s agreement system which the ILGWU has worked so hard over the years to build up and maintain It 9 See the remarks of Senator Kennedy 105 Cong Rec 5972 (daily ed 24 Apr 1959) reprinted in 2 Leg Hist 1195 (LMRDA 1959) Senator lavas 105 Cong Rec 15951-15952 (daily ed 31 Aug 1959) reprinted in 2 Leg Hist 1384-85 and 105 Cong Rec 16428-16429 (daily ed 3 Sept 1959) reprinted in 2 Leg Hist 1446-47 (LMRDA 1959) the colloquy be tween Representative Teller and Representatives Landrum and Griffin 105 Cong Rec 14508-14509 (daily ed 13 Aug 1959) reprinted in 2 Leg Hist 1680-81 (LMRDA 1959) and the analysis by Senator Kennedy and Representative Thompson of the Landrum Griffin bill 105 Cong Rec 15222 (daily ed 20 Aug 1959) reprinted in 2 Leg Hist at 1708 (LMRDA 1959) '° The ILGWU argues that It continued picketing Tahan for a job ber s agreement even after the ACTWU and Tahan had already signed one because its jobber s agreement contains better protections than the ACTWU s Without going Into the relative merits of the jobber s agree ments it is sufficient to note the absence of any evidence that the agree ment between the ACTWU and Tahan was not a bona fide jobber s agreement Under these circumstances the ILGWU s continued picketing was not protected by the garment Industry proviso would also invite chaos and industrial strife in the garment industry Any union which wished for whatever reason to move in on a particular jobber could put up a picket line around the jobber s (and the contractor s) premises, regardless of whether the jobber had signed a jobber s agreement and was sending its work to union contractors Con gress clearly did not intend such a result when it enacted the garment industry proviso and we therefore hold that the proviso did not protect the ILGWU s picketing after 17 June The ILGWU s second contention is that there is no particular work as that term is used in Sec tion 8(b)(4)(D) in dispute in this case The ILGWU s position apparently is that the manufac ture of a single garment or a finite group of gar ments (such as 20 small beige blouses ) constitutes particular work in the garment industry context, but that the manufacture of a type of garment (such as all Tahan blouses for the period 17 June 1981 to 16 June 1984 ) does not Because the ILGWU does not seek to have any half sewn gar ments taken from employees represented by the ACTWU and given to employees represented by it but rather asks that Tahan assign in futuro work traditionally done by ILGWU contractors to em ployees represented by the ILGWU, the ILGWU claims that there is no particular work-in dispute The ILGWU s proposed definition of particular work is far too narrow and does not find support in past Board decisions For example in Longshore men ILA Local 62-B (Alaska Timber), 261 NLRB 1076 (1982) the work in dispute was the loading of products for shipment at the company s private docking facility The dispute was not over which group of employees would unload one particular ship It was over which group of employes would be assigned this type of work Analogously, here the dispute is not over which group of employees will make one particular dress or group of dresses Rather the dispute is over which group of employ ees will make all of Tahan s dresses (and skirts, blouses jackets, pants, shorts, and suits) for the period 17 June 1981 through 16 June 1984 We find that this dispute is one over particular work as that term is used in Section 8(b)(4)(D) In his 8 July 1981 telegram to Tahan, Samuel Nemaizer indicated that the ILGWU was interest ed in only the 'work customarily performed in ILGWU shops The ILGWU next claims that this telegram constituted a clear, unequivocal, and un qualified disclaimer of interest in compelling Tahan to reassign work performed by employees repre sented by the ACTWU to employees represented by the ILGWU LADIES GARMENT WORKERS (TAHARI LTD) 645 Unfortunately for the ILGWU s contention, there was never a perfect split between the Tahan work traditionally done by ILGWU contractors and the work traditionally done by ACTWU con tractors An audit performed at the request of the ILG.WU and the ACTWU by Ernst & Whinney for purposes of this litigation demonstrates that, during the time period from 1 January to 31 May 1981, ILGWU contractors produced all of Tahan s blouses and dresses most of Tahan s skirts suits and shorts and some of Tahan s pants while ACTWU contractors produced almost all of Ta han s jackets most of Tahan s pants, and some of Tahan s shorts, shirts and suits 11 Thus, even if Tahan s production had been frozen in this distn bution pattern the ILGWU s demand for the work traditionally done by its contractors (presumably the blouses dresses shorts, skirts, and suits) would have resulted in some work being taken away from ACTWU contractors Of course, it is undisputed that currently ACTWU contractors are doing all of Tahan s work pursuant to the jobber s agreement between ACTWU and Tahan To the extent that the ILGWU is claiming any work at all, there exists a dispute over that work between it and the ACTWU The ILGWU s position that it is not claiming all of the work currently done by ACTWU contractors, but rather only that work traditionally done by ILGWU contractors, thus does not mean that there is no work in dispute Should the ILGWU effectively disclaim all work currently being done by employees represented by the ACTWU the jurisdictional dispute would evap orate NLRB v Plasterers Local 79 404 U S 116 135 (1971) However, the ILGWU is still picketing in support of its demand for all Tahan work tradi tionally done by ILGWU contractors This work is currently being done by employees represented by the ACTWU The dispute has not evaporated for the ILGWU has not effectively disclaimed the work in dispute The ILGWU finally contends that the object of its picketing is solely to preserve work traditionally done by employees represented by it The ILGWU argues that, because its picketing has this work preservation objective Section 8(b)(4)(D) does not apply to its actions The ILGWU cites Longshore men ILWU Local 8 (Waterway Terminals Co ), 185 NLRB 186 (1970), in support of its contention In Waterway Terminals the employer terminated a subcontract and assigned the work previously " Evidence prepared by the ILGWU on Tahan s production for 1978 shows a somewhat similar distribution between the two sets of contrac tors with in addition nonunion contractors producing a large percent age of Tahan s dresses blouses and skirts done by the subcontractor to its own employees The union representing the subcontractor s employ ees picketed the employer for the purpose of forc ing the employer to rehire its members to do the work they had previously done The Board held that the union s picketing was not proscribed by Section 8(b)(4)(D) because the union's objective was merely to preserve—by obtaining their reem ployment—for the subcontractor's employees work that they had previously done Unlike the Waterway Terminals case, this pro ceeding does not present a situation where the employer created a dispute with the union by ter minating a group of employees whom the union represented and assigning their duties to another group of employees Id at 187 The ILGWU began this dispute by having its members cease working on Tahan s goods and by picketing Tahan in support of a jobber s agreement Although the objective of the picketing may have changed some what after it started there can be no claim that at any point the ILGWU s picketing had as its sole objective the reemployment of its members at work previously done by them If such reemployment were the ILGWU s sole objective, it would have responded to the 17 June letter from the ACTWU—in which the ACTWU stated that the ACTWU s jobber's agreement with Tahan would maintain the status quo, with some work being done by ILGWU contractors and some work being done by ACTWU contractors—by sending the em ployees it represented back to work Obviously the ILGWU did not respond in such a fashion and, therefore, its work preservation argument fails In conclusion the garment industry proviso to Section 8(e) does not exempt the ILGWU s picket ing here from the provisions of Section 8(b)(4)(D) the manufacture of garments for Tahan is particu lar work as that term is used in Section 8(b)(4)(D), the ILGWU has not effectively disclaimed the work in dispute here and the ILGWU's picketing does not have a work preservation objective Since 17 June 1981 the object of the ILGWU's actions has been to take work from employees represented by the ACTWU and give it to employees repre sented by ILGWU On the basis of the entire record we conclude that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed on method for the voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act Accord ingly, we find that this dispute is properly before the Board for determination 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E Merits of the Dispute Section 10(k) requires the Board to make an af firmative award of disputed work after giving due consideration to various factors 12 The Board has held that its determination in a jurisdictional dis pute is an act of judgment based on common sense and experience, reached by balancing the factors involved in a particular case 13 The following factors are relevant in making the determination of the dispute before us 1 Collective bargaining agreement and jobber s agreement Tahan and Local 157 Journeymen and Produc tion Allied Services of America and Canada are parties to a collective bargaining agreement that covers Tahan's inside employees This agreement evidently has a provision that allows Tahan to send out work to contractors so long as the con tracto,-s have a collective bargaining agreement with a union None of the parties claims that this agreement has any effect on the determination of the dispute here Tahan also has a jobber's agreement with the ACTWU, effective from 17 June 1981 through 16 June 1984, in which its agrees to send its work to ACTWU contractors This jobber s agreement favors an award of the work to the employees rep resented by the ACTWU as these employees are currently doing Tahan s work pursuant to this agreement 2 Employer assignment, past practice, and preference Tahan has assigned all of the disputed work to employees represented by the ACTWU since 17 June and prefers this assignment In the past Tahan assigned some of the disputed work to em ployees represented by the ILGWU and some was assigned to employees represented by the ACTWU According to the Ernst & Whinney audit, employees represented by the ACTWU pro duced the majority in both units and invoice amounts of Tahan s work during the period 1 Jan uary to 31 May 1981 According to evidence sub mitted by the ILGWU, during 1978 employees working for nonunion contractors produced the largest percentage of units for Tahan, with the em ployees represented by the ILGWU second, and employees represented by the ACTWU third, how ever, during this same period employees represent ed by the ACTWU produced the largest total in 12 NLRB v Electrical Workers IBEW Local 1212 (Columbia Broadcast ing) 364 US 573 (1961) 13 Machinists Lodge 1743 (J A Jones Contrucuon) 135 NLRB 1402 (1962) voice amount, with employees working for non union contractors second and employees represent ed by the ILGWU third Tahan s past work assignments slightly favor awarding the work to employees represented by the ACTWU, while its current assignment and preference strongly favor the same result 3 Industry practice There is testimony in the record that some of Tahan's competitors have jobber s agreements with the ILGWU There is also evidence that some of these jobbers send their man tailored garments to contractors employing employees represented by the ACTWU Although the fact that Tahan's corn petitors have jobber's agreements with the ILGWU favors the employees represented by the ILGWU, Tahan s officials have indicated that man tailored garments are the largest and most important corn ponent of Tahan s business Therefore, the industry practice would seem to favor slightly the employ ees represented by the ACTWU 4 Relative skills As noted above, Tahan s representatives have consistently contended throughout this proceeding that man tailored garments are the most important components of Tahan s product line and that only the employees represented by the ACTWU are ca pable of making this type of product For example Jack Sragow, Tahan s director of manufacturing testified at length about the particular production processes that are required to make man tailored garments He also testified that the contractors equipped to make these products employ employ ees skilled in these particular processes and that these employees are represented by the ACTWU The ILGWU has admitted that none of the con tractors employing employees represented by it is capable of making man tailored garments It also admits that some of the jobbers with which it has jobber s agreements send their man tailored work to contractors employing employees represented by the ACTWU This factor supports an award to the employees represented by the ACTWU Conclusion On the record as a whole, and after full consid eration of all relevant factors we conclude that employees who are represented by the ACTWU are entitled to perform the work in dispute We reach this conclusion relying on Tahan s assign ment and preference the current jobber s agree ment between the ACTWU and Tahan, industry practice, and the relative skills of the employees represented by the ACTWU and the ILGWU In LADIES GARMENT,NORKERS (TAHARI, LTD) 647 making this determination, we are awarding , the work to employees who are representsd by the ACTWU, but not to that Union or its members. The current determination is limited to the particu; lar controversy which gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations ,Board makes the following Determination of Dispute. 1. Employees of Tahari, Ltd., represented by Amalgamated Clothing and Textile Workers Union, AFL-CIO, are entitled to .perform, Tahari Ltd.'s garment manufacturing work for the period 17 June 1981 to 16 June 1984. 2. Newyork ,oat, Suit, Dress; Rainwear and Allied . ..Workers Union, ta/w Iiiternational Ladies Garment Workers UniOn, AFL-CIO' is not 'entitled means pros*Crieed by' 'Section 8(b)(4)(D) of the Act.-46 fekthe ''Fahiri Ltd. to ussitgli' the disputed ti 7- 0-7 Cirkt6 eniployOs repriesented by it., 3.,„WIthin 16' days from this ,date, New York Coat, Suit, Dress, Rainwear and Allied Workers Union, AFL-CIO shall notify the Regional Direc- tor in writing whether Or not it will refrain from forcing tile Employer, by means proscribed by Sec- tion 8(b)(4)(D), to assign , the disputed work in a manner inconsistent with this determination.,