Chicago Regional Council of Carpenters

National Labor Relations Board - Board Decisions

Aug 31, 2009

354 N.L.R.B. 522 (N.L.R.B. 2009)

354 NLRB No. 73
1
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Chicago Regional Council of Carpenters and Com-
plete Thermal Systems, Inc. and Operative Plas-
terers’ and Cement Masons’ International Asso-
ciation of America, Local Union No. 599 Case
30–CD–170
August 31, 2009
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act (the Act).
Complete Thermal Systems, Inc. (the Employer), filed
charges on March 4, 2009, alleging that the Chicago Re-
gional Council of Carpenters (Carpenters) violated Sec-
tion 8(b)(4)(D) of the Act by engaging in proscribed ac-
tivity with an object of forcing the Employer to assign
certain work to employees it represents rather than to
employees represented by Operative Plasterers’ and Ce-
ment Masons’ International Association of America,
Local Union No. 599 (Plasterers). The hearing was held
on March 18 and 24, 2009, before Hearing Officer An-
drew S. Gollin. Thereafter, the Carpenters and the Plas-
terers each filed a posthearing brief.
The National Labor Relations Board affirms the hear-
ing officer’s rulings, finding them free from prejudicial
error. On the entire record, we make the following find-
ings.1
I. JURISDICTION
The parties stipulated that the Employer, a Wisconsin
corporation, is a contractor in the construction industry
and performs work in the areas of insulation, fireproof-
ing, plastering, and exterior insulation finishing systems
out of its facility in Hartland, Wisconsin. They also
stipulated that during the past calendar year, a representa-

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Snell Island SNF LLC v. NLRB, 568 F.3d 410 (2d Cir. 2009); New
Process Steel v. NLRB, 564 F.3d 840 (7th Cir. 2009), petition for cert.
filed 77 U.S.L.W. 3670 (U.S. May 22, 2009) (No. 08-1457); Northeast-
ern Land Services v. NLRB, 560 F.3d 36 (1st Cir. 2009), rehearing
denied No. 08-1878 (May 20, 2009). But see Laurel Baye Healthcare
of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009), petitions
for rehearing denied Nos. 08-1162, 08-1214 (July 1, 2009).
tive period, the Employer purchased and received goods
valued in excess of $50,000 directly from suppliers lo-
cated outside the State of Wisconsin. The parties further
stipulated, and we find, that the Employer is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act and that the Carpenters and the Plasterers are
labor organizations within the meaning of Section 2(5) of
the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer is a construction contractor performing
work in the areas of insulation, fireproofing, plastering,
and exterior insulation finish systems (EIFS). The Em-
ployer is signatory to the 2007–2010 Insulators’ Agree-
ment with Carpenters2 and is also party to a collective-
bargaining agreement between Plasterers and the South-
eastern Wisconsin Drywall and Plastering Contractors
Association effective June 1, 2008, through May 31,
2012.
The Employer employs 12 carpenters and 6 plasterers,
according to Kurt Schmidt, the Employer’s owner and
president. Schmidt testified that he normally assigns
insulation, soundproofing, and fireproofing work to car-
penters. He normally assigns plaster systems and EIFS
work to plasterers. Plaster systems include veneer plas-
ter and plaster over metal lath, while EIFS consists of
thin-coat plaster that also utilizes some insulation. Most
of the work assigned to plasterers is done on the exterior
of buildings. Schmidt testified that, over the past decade,
about 27 to 30 percent of the Employer’s work has been
insulation, about 40 to 50 percent has been fireproofing,
and about 30 percent has been plaster systems and EIFS.3
In October 2008, the Employer was hired to install
fireproofing material at the St. Catherine’s Hospital pro-
ject in Pleasant Prairie, Wisconsin.4 Specifically, the
Employer was contracted with to spray a product called
Cafco Blaze-Shield II onto the structural steel and the
roof deck. Blaze-Shield II is a dry, fibrous product that

2 The Employer is also signatory to the 2007–2010 Insulators’
Agreement with the Northern Wisconsin Regional Council of Carpen-
ters.
3 Schmidt testified that plaster work and EIFS work (identified as
“work done by plasterers”) was about 30 percent of the Employer’s
work. He also testified that plaster work, EIFS work, batt insulation,
and rigid insulation together made up 50 percent of the Employer’s
work. Thus, we infer that batt and rigid insulation constituted 20 per-
cent of the Employer’s work (i.e., 50 percent minus 30 percent). Addi-
tionally, Schmidt testified that blown-in insulation was about 7 to 10
percent of the Employer’s work. Thus, adding 20 percent and 7 to 10
percent, we find that total insulation work (batt, rigid, and blown-in)
constituted 27 to 30 percent of the Employer’s work.
4 This is the only work the Employer was contracted to perform on
the St. Catherine jobsite.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
is conveyed through a hose, mixed with water at the noz-
zle on the hose end, and sprayed through the nozzle onto
the structure being fireproofed, according to Schmidt.
Blaze-Shield II is typically applied by a three-person
crew. One person loads the material into the hopper of a
“Boss” or “Krendl” machine, another moves the hose
through which the material flows from the machine to
the spray nozzle, and a third operates the nozzle and
sprays the material. Schmidt testified that the equipment
and process used to apply Blaze-Shield II are the same
equipment and process that his carpenters use to apply
cellulose or fiberglass insulation in attics or to spray cel-
lulose insulation in walls. Schmidt testified that he had
five carpenters and no plasterers at the St. Catherine’s
jobsite. He estimated that the work would be completed
in October 2009.
Plasterers Business Agent Randall Hink testified that
he first discovered the Employer using workers other
than plasterers to do fireproofing work in the summer of
2006 on a Northwestern Mutual Life job. At that time,
Hink found two carpenters doing fireproofing work, and
he signed them up as Plasterers.5 In October 2008, Hink
learned that the Employer intended to use carpenters to
do fireproofing at an Oak Creek Power Plant project.
Hink testified that he met with Schmidt, Carpenters offi-
cials, and Milwaukee Building Trades Council leaders
and was assured that plasterers would perform the fire-
proofing work.6 Finally, in February 2009, Hink learned
that the Employer was using carpenters to do fireproof-
ing at the St. Catherine Hospital project. After attempt-
ing to contact Schmidt, Hink filed a jurisdictional com-
plaint, on February 20, 2009,7 with the Plan for Settle-
ment of Jurisdictional Disputes in the Construction In-
dustry (the Plan) regarding the Employer’s fireproofing
work on the St. Catherine’s Hospital project.
On March 4, Carpenters Business Representative Keith
Jutkins sent a letter to Schmidt, threatening to strike if
the Employer reassigned any portion of the fireproofing
work to Plasterers. On March 6, Richard Resnick, the
administrator and counsel of the Plan, notified the parties
that arbitrator Walter Kardy had been selected to hear the
jurisdictional dispute. On March 11, Schmidt sent a let-
ter to Kardy requesting that the arbitration be cancelled
or postponed because he had been informed that Carpen-
ters had not agreed to be bound by any determination
made under the Plan. On March 12, Douglas McCarron,

5 Hink testified that the two were subsequently let go. It is not clear
from the record whether they ever performed fireproofing work for the
Employer.
6 Hink testified that he never followed up on the job. Schmidt testi-
fied that he used carpenters to perform the work.
7 All dates herein are in 2009, unless otherwise indicated.
President of the United Brotherhood of Carpenters and
Joiners of America (UBCJA), notified Resnick by letter
that the UBCJA objected to the arbitration, because
UBCJA was not stipulated to the Plan and because the
Employer’s collective-bargaining agreement with Car-
penters did not contain any provision regarding stipula-
tion to the Plan.
Arbitrator Kardy held a hearing on the jurisdictional
dispute on March 12. Plasterers and the UBCJA partici-
pated in the hearing. On March 14, Arbitrator Kardy
issued a decision awarding the fireproofing work to Plas-
terers. He described the work awarded as “manning the
spraying wand or lance of a machine used in the applica-
tion of cementitious fireproofing material.” In his deci-
sion, he noted that Carpenters were not stipulated to the
Plan “[either] through the BCTD [or] an applicable local
or regional or project agreement.”
B. Work in Dispute
The parties stipulated that the work in dispute is the
Employer’s fireproofing work at the St. Catherine’s Hos-
pital jobsite in Pleasant Prairie, Wisconsin. However,
Plasterers business agent Hink testified, and Plasterers’
brief reiterates, that Plasterers claims only the work of
the person who operates the nozzle and sprays the mate-
rial, not the work related to cutting open the bags, plac-
ing them in the hopper, or operating the hose.
C. Contentions of the Parties
Plasterers concedes that there are competing claims for
the work in dispute and that there is reasonable cause to
believe that Section 8(b)(4)(D) has been violated. It con-
tends, however, that the work dispute is not properly
before the Board because the parties have an agreed-
upon method for voluntary adjustment of the dispute, as
Carpenters as well as Plasterers vigorously participated
in the arbitration of the dispute under the Plan. Assum-
ing arguendo that the Board has jurisdiction under Sec-
tion 10(k) to resolve the dispute, Plasterers contends that
the work in dispute should be assigned to employees
represented by Plasterers based on the factors of collec-
tive-bargaining agreements, area and industry practice,
relative skills, and economy and efficiency of operations.
Plasterers further contends that the Board should take
Arbitrator Kardy’s award into account.
Carpenters contends that there are competing claims
for the disputed fireproofing work, reasonable cause to
believe that 8(b)(4)(D) has been violated, and no agreed-
upon method for voluntary adjustment of the dispute. As
to the latter, Carpenters asserts that it is not bound to the
jurisdiction of the Plan and did not waive its right to ob-
ject to the jurisdiction of the Plan by the UBCJA’s par-
ticipation in the arbitration before Arbitrator Kardy.
CHICAGO REGIONAL COUNCIL OF CARPENTERS 3
Carpenters contends that the work in dispute should be
assigned to employees represented by Carpenters based
on the factors of employer preference and past practice,
economy and efficiency of operation, relative skills, and
collective-bargaining agreements.
The Employer filed no brief, but Schmidt testified at
the hearing that the Employer prefers to continue to as-
sign the work in dispute to its carpenter employees.
D. Applicability of the Statute
The Board may proceed with determining a dispute
pursuant to Section 10(k) of the Act only if there is rea-
sonable cause to believe that Section 8(b)(4)(D) has been
violated. This standard requires finding that there is rea-
sonable cause to believe that: (1) there are competing
claims for the disputed work among rival groups of em-
ployees; and (2) a party has used proscribed means to
enforce its claim to the work in dispute. Additionally,
there must be a finding that the parties have not agreed
on a method for the voluntary adjustment of the dispute.8
On this record, we find that this standard has been met.
1. Competing claims for work
The parties stipulated, and we find, that there are com-
peting claims for the work. Carpenters claimed the work
in dispute for the employees it represents, and these em-
ployees have been performing the work. Plasterers
claimed the work by filing a jurisdictional complaint
with the Plan over the work on February 20.
2. Use of proscribed means
We also find that there is reasonable cause to believe
that Section 8(b)(4)(D) has been violated. As described
above, Carpenters Business Representative Jutkins sent a
letter on March 4 to the Employer’s president, Schmidt,
threatening to strike if the Employer reassigned any por-
tion of the fireproofing work to Plasterers. Plasterers
does not dispute Carpenters’ contention that Jutkins’
letter constitutes reasonable cause to believe that Carpen-
ters engaged in proscribed activity by threatening to
strike. Moreover, no evidence was presented that Car-
penters’ threat to strike was not genuine.9
3. No voluntary method for adjustment of dispute
We further find that there is no agreed-upon method
for the voluntary adjustment of the dispute. It is well
settled that all parties to a dispute must be bound if an

8 Operating Engineers Local 150 (R&D Thiel), 345 NLRB 1137,
1139 (2005).
9 See Southwest Regional Council of Carpenters (Standard Dry-
wall), 348 NLRB 1250, 1254 (2006) (absent affirmative evidence that a
threat to take proscribed action is a sham or the product of collusion,
the Board will find that it amounts to proscribed conduct under Sec.
8(b)(4)(D)).
agreement is to constitute an agreed method of voluntary
adjustment.10 In the present case, Plasterers and the Em-
ployer are bound to the Plan for resolution of jurisdic-
tional disputes under article X, section 3 of their collec-
tive-bargaining agreement, but Carpenters is not bound
to the Plan. Carpenters’ collective-bargaining agreement
with the Employer addresses jurisdictional disputes in
article XI but provides only that, in the event of a juris-
dictional dispute, there shall be no work stoppage and
that “the International Presidents of the Trades involved
shall settle the jurisdictional dispute.” Thus, Carpenters
is not bound to the Plan through its collective-bargaining
agreement.11
Moreover, although Carpenters’ parent, the UBCJA,
participated in the hearing before Arbitrator Kardy, it at
all times objected to the arbitration on the bases that the
UBCJA had not stipulated to the Plan and the Em-
ployer’s collective-bargaining agreement with Carpenters
did not contain any provision regarding stipulation to the
Plan. Indeed, in his decision, Arbitrator Kardy expressly
noted that Carpenters was not stipulated to the Plan.
Accordingly, 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 affirma-
tive 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 balancing the factors in-
volved 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
There is no evidence of Board certifications concern-
ing the employees involved in this dispute.
As indicated above, the Employer is subject to collec-
tive-bargaining agreements with both Carpenters and

10 Operating Engineers Local 150 (R&D Thiel), 345 NLRB at 1140;
Retail Clerks International Association (Food Employers Council), 125
NLRB 984, 999 fn. 5 (1959) (arbitration procedure is ineffective unless
all parties having an interest in the outcome of the work assignment
dispute agree to be bound).
11 Electrical Workers Local 357 (Western Diversified Electric), 344
NLRB 1239, 1240 (2005) (IBEW local not bound by the Plan, where its
collective-bargaining agreement with the employer made no reference
to the Plan); Laborers Local 242 (Johnson Gunite), 310 NLRB 1335,
1337 (1993) (no agreed-upon method for resolution of jurisdictional
dispute, where the two unions’ collective-bargaining agreements man-
dated different methods of resolution).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Plasterers. Carpenters’ agreement with the Employer,
the “2007–2010 Complete Thermal Systems Insulators’
Agreement,” does not specifically mention fireproofing.
However, section 1.1 of article I, “Recognition and Prior
Agreements,” states: “The coverage of this Agreement
shall be all bargaining unit work historically covered by
this Agreement and normally performed by insulators
over which the Employer has control.” Carpenters’
Business Representative Thomas Doleschy testified that,
based on his experience negotiating the Insulators’
Agreement since 1995 with the Employer and two other
companies, “fireproofing was part of what we did.” Ad-
ditionally, Schmidt testified that, since its inception, the
Employer has assigned fireproofing work to Carpenters.
Plasterers’ collective-bargaining agreement with the
Employer specifically lists fireproofing as one of the
types of work performed by the bargaining unit under the
contract’s recognition clause, article II. Section 1(a) of
that article states, in pertinent part:
All interior or exterior plastering, cement, stucco, stone,
imitation, dryvit, sto, R-Wall, Sure-Wall and all other
Outsulation materials, and all similar materials pertain-
ing to the plastering industry or any patent material
when cast, the setting of same, fireproofing, and also
comer beads when stuck must be done by practical
Plasterers of the O.P.&C.M.I.A.
Although the language of Carpenters’ collective-
bargaining agreement arguably covers the work in dis-
pute, the language of Plasterers’ agreement specifically
claims such work. Accordingly, we find that the factor
of collective-bargaining agreements slightly favors an
award of the work in dispute to employees represented
by Plasterers. See Laborers Michigan District Council
(Walter Toebe Construction Co.), 353 NLRB No. 114,
slip op. at 3 (2009).
2. Employer preference
Schmidt testified that the Employer preferred to assign
the disputed work to employees represented by Carpen-
ters. Accordingly, this factor favors awarding that work
to employees represented by Carpenters.
3. Employer practice (past and current)
The Employer’s past practice is to assign fireproofing
work to employees represented by Carpenters, and it did
so on the St. Catherine’s Hospital project.
Schmidt testified that carpenters performed fireproof-
ing work at the companies for which he had worked from
1985 to 1995.12 Some of these carpenters came with

12 Schmidt additionally testified that these companies—Milwaukee
Insulation and Thermal Masters—have ceased operations.
Schmidt and started the Employer in 1995. Thereafter,
the Employer regularly assigned fireproofing work to its
carpenter employees. Schmidt acknowledged that on
about 10 of its approximately 380 fireproofing jobs since
1995, the Employer used plasterers to install some fire-
proofing material.13 However, according to Schmidt, this
was when the Employer had more fireproofing work than
its carpenter employees could do, and not enough work
for its plasterers. In these instances, Schmidt assigned
plasterers to do fireproofing work rather than lay them
off because, if he had laid them off, he would later have
had to hire and train new plasterers.
Accordingly, considering the foregoing, we find that the
factor of current and past practice favors an award of the
work in dispute to employees represented by Carpenters.
4. Area and industry practice
Schmidt testified that the Employer currently has two
jobs, in addition to St. Catherine’s, where it is using its
carpenters to perform fireproofing work.
According to the testimony of Plasterers Business
Agent Hink, and documentary evidence he presented, 16
of the 29 plastering contractors with which Plasterers has
contracts perform fireproofing work.14 Except for the
Employer, all of the signatory contractors that do fire-
proofing use plasterers to perform the fireproofing work.
Hink further testified that, based on conversations with
Plasterers business agents in five locations across Wis-
consin, Hink did not know of any other union contractor
involved in fireproofing in the state of Wisconsin that did
not use Plasterers to perform fireproofing work.
Carpenters Business Representative Doleschy testified
that, of the three insulating contractors with which Car-
penters has collective-bargaining agreements, the Em-
ployer is the only one that performs fireproofing.
Accordingly, we find that the factor of area and indus-
try practice favors an award of the work in dispute to
employees represented by Plasterers.
5. Relative Skills
Carpenters presented evidence that the Employer’s
carpenter employees possess the necessary skills for ap-
plying the fireproofing material due to years of on-the-
job training they have received while employed with the
Employer. Schmidt testified that it takes from 1 to 2
years to become proficient in applying the fireproofing
material because proper installation requires applying the
correct thickness of the material to each structure. The

13 By “fireproofing,” Schmidt meant any of the three jobs involved,
not necessarily the one in dispute here. Schmidt testified that none of
these 10 instances occurred in the last 5 years.
14 Seven of these contractors perform only fireproofing work. The
other nine perform both fireproofing and plastering work.
CHICAGO REGIONAL COUNCIL OF CARPENTERS 5
Employer’s carpenters use gauges to check thickness of
the fireproofing material applied. Schmidt testified,
however, that “a guy who’s good . . . can pretty much
spray all day and then go back and check his thicknesses
and he’s gonna be right there. Just from doing it over
and over, you get the feel for how . . . quick you can
move the material along to get the certain thicknesses.”
Moreover, the Employer’s carpenters install insulation as
well as fireproofing material. Because the same ma-
chines are used both for blowing insulation and applying
fireproofing material, the Employer’s carpenters are
skilled in operating the equipment used for fireproofing.
Plasterers Business Agent Hink testified, as indicated
above, that Plasterers provided 15 contractors with plas-
terers to do fireproofing work. Additionally, in Hink’s
four-county area, half of the 82 plasterers performed
fireproofing work.15 He has been unable to provide a
plasterer to do fireproofing when requested by a contrac-
tor only two or three times in his 12 years as a business
agent. He testified that Schmidt never asked him to pro-
vide plasterers to do fireproofing.16 Plasterers introduced
documentary evidence showing that the Plasterers’ ap-
prenticeship program, which is certified by the Wiscon-
sin Department of Workforce Development (WDWD),
includes training in fireproofing and lists fireproofing as
one of the tasks done by plasterers. Carpenters’ appren-
ticeship program certified by WDWD does not include
fireproofing in its list of tasks done by carpenters, nor
does it provide training in fireproofing.
The record shows that employees represented by both
unions have the skills and training necessary to perform
the work in question. Accordingly, we find that this fac-
tor does not favor an award to either group of employees.
See, e.g. Operating Engineers (R&D Thiel), supra at
1141.
6. Economy and efficiency of operations
Schmidt testified that the economy and efficiency of
the Employer’s operations would be negatively affected
if it were required to use plasterers to perform fireproof-
ing work. He asserts that he would have to train his plas-
terers to do fireproofing, and it would take 1 to 2 years
for them to become good at it. Schmidt further testified
that the Employer would suffer financially if required to
use plasterers to perform fireproofing work, because
Plasterers’ wage and benefit package is more costly than
Carpenters’ wage and benefit package. The Employer
bid the St. Catherine’s Hospital project using Carpenters

15 Hink’s area included the counties of Milwaukee, Waukesha,
Washington, and Ozaukee.
16 Although Schmidt testified that he had one plasterer perform fire-
proofing work that was deficient, he admitted that he never told Plas-
terers that he wanted plasterers who were trained in fireproofing.
wages. Thus, being required to use plasterers to perform
the work would have a negative financial effect on the
Employer.
Plasterers contends that the Employer can efficiently
use plasterers to perform the disputed work. Noting that
fireproofing is the largest part of the Employer’s work
and that insulating is the smallest, Plasterers asserts that
it is not plausible that the Employer’s total work is driven
by the need to efficiently use carpenters who perform the
insulating. Nothing precludes the Employer from con-
tinuing to use carpenters to work in the three-person
teams with a plasterer, who would operate the nozzle
applying the fireproofing material. Plasterers contends
that the Employer’s refusal to ask Hink for plasterers
qualified to do fireproofing is merely an effort to under-
cut Plasterers’ wages, rather than achieve any particular
operating efficiency.
Initially, the fact that Plasterers’ contractual wage and
benefit package is more costly than Carpenters’ wage
and benefit package is not relevant to our analysis.
Southwest Regional Council of Carpenters (Standard
Drywall), 346 NLRB 478, 483 (2006). “[I]t is the
Board’s practice not to rely on the differing rate of pay of
employees in determining a jurisdictional dispute.” Id.,
quoting Painters Local 91 (Frank M. Burson, Inc.), 265
NLRB 1685, 1686 (1982).
Nor are we persuaded by Schmidt’s testimony that it
would cost the Employer substantially more than was
contemplated when bidding for the St. Catherine job, if it
was required to use plasters for the disputed fireproofing
work. There is “scant evidence” to support Schmidt’s
claim. See, generally, Mine Workers (Energy West), 304
NLRB 107, 109–110 (1991). To the contrary, Plasterers
represents employees qualified to perform the Em-
ployer’s fireproofing work, and it asserts it can provide
the Employer with plasterers with that experience. In
these circumstances, we find that this factor does not
favor awarding the work in dispute to either group of
employees. See generally Machinists Lodge 776 (Lock-
heed Martin), 352 NLRB 402, 404 (2008).
7. Job loss
The Board will consider job loss when making an
award of the work in dispute. See, e.g., Bakery Workers
Local 6 (Bachman Co.), 337 NLRB 407, 410 (2002);
Iron Workers Local 40 (Unique Rigging), 317 NLRB
231, 233 (1995). Schmidt testified that if the Employer
were required to use plasterers to perform fireproofing
work, he would have to lay off some of his carpenters,
because he does not have enough insulation work to keep
them going full time. We therefore find that the factor of
job loss favors awarding the work in dispute to employ-
ees represented by Carpenters.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
CONCLUSIONS
After considering all the relevant factors, we conclude
that employees represented by Carpenters are entitled to
perform the work in dispute. We reach this conclusion
relying on the factors of employer preference, employer
practice, and job loss. Thus, there are three factors in
favor of an award to Carpenters-represented employees.
Among those factors is employer preference, which, un-
der well-settled precedent, is entitled to substantial
weight. See Iron Workers Local 1 (Goebel Forming),
340 NLRB 1158, 1163 (2003).17 Consequently, we find
that these factors outweigh the factors that favor an
award of the work to Plasterers-represented employees—
area practice and collective-bargaining agreements, the

17 In a few cases, the Board, under unusual circumstances, has de-
clined to accord substantial weight to the factor of employer preference.
Those cases differ significantly from the present case. In Graphic
Communications International Union, Local 508M (Jos. Berning Print-
ing Co.), 331 NLRB 846 (2000), the Board discounted the employer’s
preference because it was not based on any of the traditional factors
that the Board uses in making an award of disputed work but, rather,
was based on the employer’s decision to place a newly hired employee
in what it perceived to be a “stronger, better union.” The Board found
that, “under these unique circumstances,” the employer’s preference did
not support an award of the disputed work to the union that the em-
ployer preferred. In the present case, by contrast, the Employer’s pref-
erence that fireproofing work be done by employees represented by
Carpenters is based on its past practice of having such employees per-
form fireproofing work and by the job loss resulting if that work were
assigned to other employees.
In Upholstery Division Local 3-U, United Steelworkers (Greyhound
Exposition Services), 302 NLRB 416 (1991), the Board declined to give
substantial weight to the employer’s preference for assignment of the
disputed work, because the employer’s stated preference was at odds
with both its long-established practice and its current assignment of the
work. In the present case, the Employer’s preference that the work be
performed by employees represented by Carpenters is consistent with
its established practice and its current assignment of the work.
In Ironworkers, Local 380 (Stobeck Masonry), 267 NLRB 284
(1983), the Board acknowledged the well-settled principle that em-
ployer preference is normally accorded considerable weight, but noted
that such weight was not warranted in the particular circumstances of
that case. First, the dispute there was over a new production process
that was unlike work the preferred employees previously had per-
formed. Second, “employer preference” was the only factor that fa-
vored the employer’s preferred employee work force. Here, con-
versely, the Employer’s preference concerns an established work proc-
ess and is accompanied by other factors that favor the award of work to
the Employer’s Carpenter-represented employees.
Additionally, in District No. 15, Machinists (Hudson General
Corp.), 326 NLRB 62, 67–68 (1998), where the Board awarded the
work in dispute to Machinist-represented employees based on the fac-
tors of employer preference, past practice, and economy and efficiency,
then-Member Liebman dissented. She found that only employer pref-
erence supported an award to Machinist-represented employees and
that, under Board precedent, employer preference is not controlling
when unsupported by other factors. In contrast to Hudson General,
however, the Employer’s preference in the present case is supported by
other factors—employer practice and job loss.
latter of which favors Plasterers only slightly.18 In mak-
ing this determination, we are awarding the work to em-
ployees represented by the Chicago Regional Council of
Carpenters, not to that Union or its members. The deter-
mination is limited to the controversy that gave rise to
this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of Complete Thermal Systems, Inc., repre-
sented by the Chicago Regional Council of Carpenters,
are entitled to perform fireproofing work at the St. Cath-
erine’s Hospital project, Pleasant Prairie, Wisconsin.
Dated, Washington, D.C. August 31, 2009
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

18 Carpenters Local No. 171 (Knowlton Construction), 207 NLRB
406, 409 (1973), cited by Plasterers, does not require a different result.
There, the Board awarded the disputed work to carpenters, based on
area practice and relative experience, where the employer’s assignment
of the work to laborers was supported only by their lower wage scale.
Here, our award is based not only on the Employer’s preference and
assignment, but also on its long-established practice in the area and on
the fact that some carpenters would be laid off if the disputed work
were reassigned to plasterers.