CONSTRUCTION AND GENERAL LABORERS. LOCAL 449
Construction and General Laborers, Local Union
No. 449, Connecticut Laborers District Council,
Laborers International Union of North America,
AFL-CIO and Modern Acoustics, Inc. and
Local 210, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO
Local 210, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO and Modern
Acoustics, Inc. and Construction and General
Laborers, Local Union No. 449, Connecticut
Laborers District Council, Laborers Interna-
tional Union of North America, AFL-CIO
Construction and General Laborers, Local Union
No. 449, Connecticut Laborers District Council,
Laborers International Union of North America,
AFL-CIO and M. Gerber Construction Co.,
Inc. and Local 210, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO.
Cases 39-CD-5, 39-CD-6, and 39-CD-7
March 12, 1982
DECISION AND DETERMINATION OF
DISPUTES
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Modern Acoustics, Inc.,' here-
inafter Modern, and M. Gerber Construction Co.,
Inc., 2 hereinafter Gerber, alleging that Construc-
tion and General Laborers, Local Union No. 449,
Connecticut Laborers District Council, Laborers
International Union of North America, AFL-CIO,3
hereinafter Laborers, and Local 210, United Broth-
erhood of Carpenters and Joiners of America,
AFL-CIO, 4 hereinafter Carpenters, each violated
Section 8(b)(4)(D) of the Act. Duly scheduled
hearings were held before Hearing Officer Mary L.
Davidson on March 21, 1981, in Case 39-CD-5; on
April 17, 1981, in Case 39-CD-6; and on June 12,
1981, in Case 39-CD-7. The Laborers appeared at
the March 21, 1981, hearing in Case 39-CD-5, the
Carpenters appeared at the April 17, 1981, hearing
in Case 39-CD-6, and the Laborers and Carpenters
appeared at the June 12, 1981, hearing in Case 39-
CD-7. All parties were afforded full opportunity to
be heard, to examine and cross-examine witnesses,
and to adduce evidence bearing upon the issues.
Thereafter, Modern filed briefs in Cases 39-CD-5
and 39-CD-6, and Gerber and the Laborers filed
briefs in Case 39-CD-7.
'Cases 39 C)5 and 1) CD)-h
2 Case 39-CD 7
3Cases 31-CD 5 and 19-CD-7
'Case 39- C)
260 NLRB No. 112
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the
Hearing Officer and finds that they are free from
prejudicial error. The rulings are hereby affirmed.
In its brief submitted in Cases 39-CD-5 and 39-
CD-6, Modern requests that these cases be consoli-
dated so as to avoid piecemeal litigation and unnec-
essary delay. We agree that Cases 39-CD-5 and
39-CD-6 should be consolidated for the reasons
stated, and we also are of the opinion that Case 39-
CD-7 should be consolidated therewith. Thus, the
Unions involved are common to all three cases,
and the work in dispute is fundamentally the same
as well. We therefore consolidate Cases 39-CD-5,-
6, and-7, so as to avoid a fragmented consideration
of what are clearly interrelated issues.
Upon the entire record in this case, the Board
makes the following findings:
I. THE BUSINESS OF THE EMPLOYERS
Modern, a Connecticut corporation with its prin-
cipal place of business in Norwalk, Connecticut, is
engaged in the installation of interior work, includ-
ing acoustic tiles, interior walls, and carpentry. At
all times material herein, Modern has been per-
forming interior carpentry work at Stamford Town
Center, Stamford, Connecticut, pursuant to a con-
tract with Whiting Turner Construction Co.,
valued in excess of $100,000. During the past 12
months, Modern purchased and received goods
valued in excess of $50,000, directly from suppliers
located outside the State of Connecticut. During
that same period, Modern performed services
valued in excess of $100,000 for contractors who
were themselves directly engaged in interstate
commerce. The parties stipulated, and we find, that
Modern is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act, and that it
will effectuate the policies of the Act to assert ju-
risdiction herein.
Gerber, a New York corporation with its princi-
pal place of business in New York, New York, is
engaged in the installation of interior work, includ-
ing interior walls and carpentry, and related work
in the construction industry. At all times material
herein, Gerber has been engaged in performing
interior carpentry work at Bloomingdale's
department store in Stamford, Connecticut, such
work valued in excess of $50,000. During the past
6-month period, Gerber purchased goods and mate-
rials valued in excess of $50,000 which it received
directly from suppliers located outside the State of
Connecticut. During the same period, Gerber per-
883
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formed services valued in excess of $50,000 for cus-
tomers who are themselves directly engaged in in-
terstate commerce. The parties stipulated, and we
find, that Gerber is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the La-
borers and Carpenters are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employers involved herein are each per-
forming interior carpentry construction work,
Modern working at the Stamford Town Center, 5
and Gerber performing the interior renovation of
the Bloomingdale facility, 6 which is located ap-
proximately 200 yards west of the Town Center.
At all times material herein, both Modern and
Gerber have employed employees who are repre-
sented by the Carpenters, and both Employers
have entered into collective-bargaining agreements
with that Union. Neither Modern nor Gerber em-
ploys any employees who are represented by the
Laborers. In general terms, the disputes herein con-
cern whether individuals represented by the Car-
penters, or whether individuals represented by the
Laborers, are to transport, from the point of
delivery to the site of actual construction, the ma-
terials7 used by Modern and Gerber in their interi-
or construction work.
The Employers herein assigned the work in dis-
pute to their employees represented by the Carpen-
ters. Subsequently, the Laborers submitted the dis-
pute to the Impartial Jurisdictional Disputes Board,
hereinafter IJDB, which, on April 10, 1981, issued
an award 8 which states, in relevant part, that:
Unloading, handling and distribution of sub-
stantial amounts of packed acoustical ceiling
board to stockpile or stockpiles in the approxi-
mate area of installation on various floors as
designated by the contractor shall be assigned
to laborers. Handling from stockpile or stock-
piles to point of installation shall be assigned
to carpenters.
s Modern Acoustics is the interior carpentry subcontractor at J C
Penney, and the general contractor on the job is Whiting Turner Con-
struction C,. Inic
6 Gerber is the interior carpentry subcontractor on the hloomingdale
job The record does nol reflect the identity, if any, of a general contrac-
tor on that job
7 The materials inv oved in Cases 3q CD 5 and 39 CD h are acoustical
tiles; Case 39 CD 7 insvolves sheetrock, studs, and tracks
This award applies to Cases 39 CD-5 and 39-CD-h6
With respect to Case 39-CD-7, on May 7, 1981,
the Laborers and Carpenters reached agreement
under the auspices of the IJDB, which agreement
states that:
The unloading, handling and distribution of
sheetrock from trailer trucks to stockpiles at
the approximate point of installation as desig-
nated by the responsible contractor shall be as-
signed to laborers.
Such agreement also directed the contractor "to
proceed with work on this basis." The record fur-
ther reflects that all the parties herein have agreed
to be bound by proceedings of the IJDB. Thus,
Modern and Gerber each executed a collective-bar-
gaining agreement with the Carpenters, which con-
tract clearly states that,
This agreement covers all employees perform-
ing carpenter work, coming under the work
jurisdiction claims of the [Union], and by deci-
sions and agreements of record rendered, af-
fecting the building industry, by the National
Joint Board for the Settlement of Jurisdictional
Disputes affecting the building and construc-
tion industry....
In the interest of promoting industrial peace
and harmony in the construction industry, the
Employer agrees to cooperate in the settle-
ment of jurisdictional disputes. 9
Although the Laborers collective-bargaining agree-
ment which appears in evidence does not refer to
the IJDB, it is clear from the record that the La-
borers participated in the adjudicatory process of
the IJDB and considered itself bound thereby. '
B. The Work in Dispute
The work in dispute in Cases 39-CD-5 and 39-
CD-6 involves the unloading and handling of
equipment and materials necessary for Modern to
install acoustical ceilings and metal stud and
drywall construction at the J. C. Penney site locat-
ed in the Stamford Town Center.
Art 13, sec 1. No party contends that the IJDB is not the valid suc-
cessor of the National Joint Board.
10 In addition, it is well settled that, in the absence of evidence to the
contrary, the Boiard %will take administrative notice of the fact that, as
both the Laborers and Carpenters are members of the Building and Con-
struction Trades Department, AFL-CIO. they are signatory to the agree-
ment creating the 1JDB and are bound to abide by its rules and proce-
dures for the settlement of jurisdictional disputes. Finally. absent affirma-
five evidencc that a labor orgainization has withdrawn from the BCTD,
the Board presumes their continued membership See Local Union Vo. 70.
International .4slciuriaon oij Bridge.
5
truclural and Ornamental Iron Work-
erS. 4L C(IO (I: W: Oswens and .4lisociate. In)., 205 NL RB 1171. 1173
(1973) II is thus clear that all parties were bound to an agreed-upon pro-
cedurc at the time the unfair labor practice charges herein 'were filed. and
thereafter
884
CONSTRUCTION AN[) GENERAL LAH()ORERS, LOCAL 449
The work in dispute in Case 39-CD-7 involves
the unloading, handling, and distribution of sheet-
rock necessary for Gerber to perform remodeling
work at Bloomingdale's department store site ap-
proximately 200 yards west of the Stamford Town
Center.
C. Contentions of the Parties
The Laborers contends that the unloading and
stockpiling of materials should be assigned to indi-
viduals represented by it based on area and indus-
try practice, as well as on the basis of the April 10,
1981, IJDB award, and the May 7, 1981, IJDB-
sponsored agreement.
The Carpenters contends that the work in dis-
pute should be assigned to individuals represented
by it based upon area and industry practice, as well
as on its respective collective-bargaining agree-
ments with the Employers herein.
Both Modern and Gerber have assigned the
work in dispute to their respective employees rep-
resented by the Carpenters, and contend that such
assignments should stand, based on past area and
industry practice, economic considerations, and
their respective collective-bargaining agreements
with the Carpenters.
Insofar as the proceeding herein is concerned,
the Laborers has consistently argued that the
notice of hearing should be quashed, although its
rationale in support of that position has been fluid.
Thus, in Cases 39-CD-5 and 39-CD-6, the Labor-
ers disclaimed the work in dispute. Nevertheless,
the Laborers participated in the IJDB proceeding
which culminated in the April 10, 1981, award
which was arguably favorable to it. In Case 39-
CD-7, the Laborers again moved that the notice of
hearing in that case be quashed, but for the reason
that the unions involved had entered into an agree-
ment for the assignment of the work in dispute,
under the auspices of the IJDB, and that by virtue
of this agreement there no longer existed any issues
to be resolved.
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.
The record in Case 39-CD-5 reflects that, subse-
quent to Modern's assignment of the work in dis-
pute to its employees represented by the Carpen-
ters,"' and commencing during the last week in
" As alluded to above, all of Modern's employees herein are represenlt-
ed by the Carpenters. and it emplo,s no indix duals represented bs the
Laborers
January 1981, and lasting into February, the Labor-
ers engaged in strike activity with an object of se-
curing the work in dispute for the individuals it
represents." The record further reflects, however,
that the only companies employing individuals rep-
resented by the Laborers at that site are a masonry
subcontractor, and Whiting Turner Construction
Co., Inc., hereinafter Whiting Turner, the general
contractor for the job. 13
On March 18, 1981, the Carpenters business
agent, John Cunningham, sent a letter to Modern 4
advising that the Carpenters would "continue to
press its claim" for the work in dispute, and that
"if your company removes such work from our
members, or takes any action to prevent them from
doing it, our members will strike or resort to such
other economic measures as are necessary to
uphold their rights." Thereafter, and as noted
above, the IJDB, on April 10, 1981, issued an
award as to the work in dispute herein.
At the Bloomingdale site, where Gerber was en-
gaged in interior renovation work, Gerber had as-
signed the work of unloading and handling of
sheetrock to its employees represented by the Car-
penters. On or about May 15, 1981, Gerber's ex-
ecutive vice president, Jack Altes, spoke by tele-
phone with a Mr. Deluca, a representative of the
Laborers. They discussed the issue of who was to
unload sheetrock, Deluca taking the position that
the work should be assigned to employees repre-
sented by the Laborers, and Altes relating that
John Cunningham of the Carpenters was taking the
position that the unloading should be performed by
employees represented by his Union. Deluca re-
plied that unless the matter was resolved to his
own satisfaction, the Laborers would go on strike
and there would be picketing at Bloomingdale's the
next day. Some days later the Laborers renewed
the threat to picket, and on Friday, May 22, 1981,
did actually picket the site, and laborers did not
report to work. '5
Based on the foregoing, and on the record as a
whole, we find that an object of the Laborers
threats and picketing in Cases 39-CD-5 and 39-
12 John Cunningham. the Carpenters general business representative,
tcstified that the Labohrers business agent stated that the Laborers were
striking because the carpenters were doing laborers' work This evidence
was uncontroverted
L On FebruarN 2. 191., Whiting Turner sent a telegram to Modern.
stating that Modern swas in violation of its subcontract by its "failure to
work in harmony with the other trades." Thereafter, on February 6.
1981. the Laborers. by letter to Whiting Turner. informed that company
it aas in 'iolation of the collective-bargaining agreement which requires
that all subcontractors doing Laborers vork be covered by a Laborers
collectie-bargaiiting agreement The letter concluded hy stating that
unless Whiting 'Turner instructed ModernI to sign a contract ss ith the La-
hborers. thnat it s ould proceed to arbitration.
'his ecldence '.as proffered with respect to Case 3c CD-6
:' This tldeulCltCe as proffered lith respect to Case 39 CD 7
885X
DECISIONS OF NATIONAL. LABOR REI ATIONS BOARD
CD-7, and that an object of the Carpenters threat
in Case 39-CD-6, was to force or require the Em-
ployers herein to assign the disputed work to em-
ployees represented by their respective Unions.
Therefore, with respect to each of the cases herein,
we conclude that reasonable cause exists to believe
that a violation of Section 8(b)(4)(D) of the Act
has occurred.
As noted above, the Laborers at one time con-
tended that the notices of hearing in Cases 39-CD-
5 and 39-CD-6 should be quashed for the reason
that it disclaimed the work in dispute. The record
plainly shows, however, that the Laborers pursued
its claim before the IJDB, and that the IJDB there-
after issued the April 10, 1981, document awarding
the work, in part, to the Laborers. Based upon
these facts, we find that the Laborers acted in a
fashion inconsistent with its disclaimer, and that
such disclaimer cannot, therefore, form the basis
for quashing the notices of hearing in Cases 39-
CD-5 and 39-CD-6.
We also find without merit the Laborers conten-
tion that the dispute in Case 39-CD-7 has been re-
solved by virtue of the May 7 agreement reached
under the auspices of the IJDB. Thus, although the
record reflects that the Carpenters and the Em-
ployers herein are contractually bound to submit
such disputes to the IJDB, and that the Laborers
participated in the proceedings of and agreed to
the disposition of the IJDB, which resulted in an
award and an agreement,' 6 the evidence also shows
that since June 1, 1981, the IJDB has been inoper-
ative, has ceased hearing such disputes, and is not
now a viable organization in a position to adminis-
ter or police either the award or the agreement. In
these circumstances, we do not view these disposi-
tions as determinative of any of the cases now
before us.7" Accordingly, we hold that the disputes
's The award relates to Cases 39 CD-5 and 39 CD-6; the agreement
relates to 39 CD- 7
?7 See, generally, Millwrights Local Union No. 1862, United Brotherhood
of Carpenters and Joiners of America (Jelco, Inc.), 184 NLRB 547, 548
(1970). wherein the predecessor of the IJDB, the National Joint Board,
ceased operation subsequent to the issuance of an award
Our dissenting colleague argues that we should vwithdra\v from dis-
putes which have been adjudicated regardless of whether the IJDB exists
to police or administer its awards. He further posits that there is no indi-
cation in these cases that the parties have not abided, or will not abide,
by these awards. noting also that none of them has sought to involve
either the review or policing mechanisms of the IJDB First, the adjudi-
cation of a dispute which cannot be enforced does not further a dispute's
resolution or promote industrial stability. That is the situation we face in
the instant matters Second, since the parties continued to press for a res-
olution of the dispute before us in spite of the IJDB's actions, and the last
hearing of these cases occurred after the dissolution of the IJDB. the par-
ties themselves have indicated that they consider the dispute to be unre-
solved and ongoing. Accordingly, we would be remiss in our statutory
duties if we did not, under the circumstances here, find that the inoper-
ative status of the IJDB made its outstanding awards useless as a means
of adjusting the parties' work dispute
are properly before the Board for determination
under Section 10(k) of the Act. 18
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of the disputed work
after giving due consideration to various relevant
factors.
1. Employers' assignment and preference
Both Employers herein assigned the disputed
work to their respective employees represented by
the Carpenters. The record indicates that both Em-
ployers maintain a preference for this assignment;
and, in the case of Gerber, the record also shows
that it has generally been Gerber's past practice to
assign the work in dispute herein to its employees
represented by the Carpenters. These factors sup-
port an award of the work to the Carpenters-repre-
sented employees of both Employers herein.
2. Work and skills involved
As discussed above, the work herein involves the
unloading, handling, and distribution of packed
acoustical ceiling board,' 9 and sheetrock, 20 from
the point of delivery to the areas where the actual
interior carpentry is being performed. The record
reflects that both types of materials are relatively
fragile and are susceptible to being damaged if not
handled carefully. Although the Carpenters argues
that the individuals performing the actual construc-
tion work,21 and who therefore utilize these materi-
als, would be more likely to handle such materials
with greater care, we note that none of the parties
presented evidence, statistical or otherwise, reflec-
tive of the degree of damage inflicted by employ-
ees performing such work and represented by
either Union. Accordingly, we find the Carpenters
contention with respect to this factor to be specula-
tive, and inconclusive as to affecting our determi-
nation herein.
3. Collective-bargaining agreements
At all material times, the Carpenters and the Em-
ployers herein have been signatory to the collec-
tive-bargaining agreement between the Independ-
ent Contractors in western Connecticut and that
union. That contract specifies that employees rep-
resented by the Carpenters shall perform the "han-
dling and distribution of sheetrock from point of
"s See. generally, Millwrighir Local union o'o 1862 (Jelco, Inc.), suprc;
and Local No. 42. Laborer% International Union of orth America. 4AFL-
(C10 (R B. Cl, vlaund Coompanun. 184 NLRB 686 (1970)
" Cases 39 CD-5 and 39 -CD h.
2' Case 39-CD 7
: Such individuals would he enmployees represented hb the Carpenters.
886
CONSTRUCTION AND GENERAL LABORERS, LOCAL 449
delivery," 22 as well as "the unloading [and] distri-
bution of hardwood flooring, rugs, floor tile, metal
partitions, acoustic tile trim and runners, roofing
and siding . . . 2 3
The Laborers also provided a copy of its con-
tract with the Associated General Contractors of
Connecticut. The record reflects, however, that
neither of the Employers herein is signatory to
such contract. The record further shows that the
general contractor at the J. C. Penney site, Whiting
Turner, is signatory to this agreement, 2 4 and that it
employs individuals represented by the Laborers.
The record does not reflect, however, the identity
of the general contractor, if any, at the Blooming-
dale site, or whether there is a collective-bargain-
ing agreement extant between the Laborers and
that general contractor. 2 5 The Laborers contract
claims "unloading, handling and distributing of all
materials . . . from the point of delivery to
stockpiles and from stockpiles to approximate point
of installation." 26
With respect to the situation in Cases 39-CD-5
and 39-CD-6, the record reflects that the Laborers
initially sought to enforce its claim to the work in
dispute by virtue of article II, section 7 of its col-
lective-bargaining agreement, which states, in rele-
vant part, that "the Employer [Whiting Turner]
further agrees to refrain from doing business with
any subcontractor for work to be done at the site
of a construction project covered by this Agree-
ment, except where such contractor subscribed and
agrees in writing to be bound by this Agreement
and complies with all the terms and conditions of
this agreement." There is evidence that the Labor-
ers sought, through arbitration, to enforce this
clause with respect to Whiting Turner's subcon-
tract with Modern, but the record does not indi-
cate whether any such proceeding took place.
As is apparent from a review of the collective-
bargaining agreements, each Union has defined its
own trade jurisdiction to cover the work in dis-
pute, 27 so that the collective-bargaining agreements,
on their face, do not favor an award of the work to
individuals represented by one Union or the other.
What is of significance, however, is that the Em-
ployers herein, the entities with the authority to
assign the work, do not employ any employees rep-
27 Art 13, "Trade Jurisdiction," sec I
"2Id at sec 4
" Cases 39-CD-5 and 39-CD-6.
'sCase 39-CD-7.
s Appendix "A," "TENDERS" This section defines "Tending" as the
"preparation of materials and the handling and conveying of materials to
be used by mechanics of other crafts "
21 The Carpenters contract, as set out above. refers to "acoustic tile
trim," rather than to the acoustic tile mentioned in the stipulated disputed
work. No party, however, has taken issue with this apparent discrepancy.
nor is there any record evidence that the "acoustic tile" discussed In the
record is significantly distinguishable from "acoustic tile trim."
resented by the Laborers nor have they entered
into any collective-bargaining agreement with that
Union. Indeed, as alluded to above, the Laborers
only contractual claim to the work in dispute arises
by virtue of a clause requiring, in essence, the gen-
eral contractor to "police" the trade jurisdiction
decisions of its subcontractors. 2 Accordingly, and
based upon all of the above, we find that the only
collective-bargaining agreement with any applica-
bility to the disputes herein is that in existence be-
tween the Employers and the Carpenters, and
which we therefore find favors an award of the
work in dispute to employees represented by that
union.
4. Efficiency and economy of operations
As noted above, neither Modern nor Gerber em-
ploys any employee represented by the Laborers.
Thus, in order for Laborers-represented individuals
to perform the work in dispute, it would be neces-
sary for the Employers to hire such individuals on
an ad hoc basis for those times when delivery of
materials would be expected at the jobsite. This
would present a number of potential difficulties:
thus, the delivery truck would have to arrive on
schedule so as to minimize downtime, and, if the
truck did not arrive, the Laborers contract would
require "Reporting Time Pay" even though no
work would have been performed. The other
option would be for the Employers to utilize La-
borers-represented employees employed by the
general contractor, and then be backcharged by the
general contractor for the use of those employees.
The record does not reflect whether, in a back-
charge situation, the Employers would be subject
to the "Reporting Time Pay" contractual provi-
sions in the event of nondelivery; but it seems logi-
cal to assume that, at the very least, the Employ-
ers' utilization of the general contractor's labor
force would be subject to its availability, and
would thus be at the sufferance of the general con-
tractor. We emphasize in this regard that the
record in Case 39-CD-7 does not reflect whether
there is a general contractor at the Bloomingdale
site, and whether it employs employees represented
by the Laborers.
As to the current arrangement, the Employers
assign as many employees represented by the Car-
penters as are necessary to unload a particular
truck at a given time. Thus, the unloading condi-
tions are not unchanging, and the number of indi-
"' We express no opinion as to whether such clause is lawful within the
meaning of Sec 8(e) of the Act, and reiterate that there is no indication
in the record in Case 39-CD-7. as to whether the Laborers has a collet-
ise-bargaining agreement with any company performing work at rhe
Bloomingdale site.
X87
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
viduals assigned would depend on the size of the
shipment, the traffic at the loading dock, and the
urgency of need for the materials to be unloaded.
In sum, assigning the work to their own employees
allows the Employers maximum flexibility both as
to number of employees assigned and the duration
of assignment.
Accordingly, we find, based on all of the above,
that the factor of efficiency and economy of oper-
ations favors an award of the work in dispute to
employees represented by the Carpenters.
5. Industry and area practice
The record herein clearly reflects a mixed prac-
tice both as to the industry, and as to the area, of
southern Connecticut. Accordingly, a consideration
of these factors does not favor an award of the
work in dispute to individuals represented by either
the Carpenters or the Laborers.
6. Awards by Impartial Jurisdictional Disputes
Board
In addition to the April 10 award, and the May 7
agreement, a number of IJDB decisions were
placed in evidence during the course of the hear-
ings in these cases. Some of these other decisions
considered comparable or identical work to that
now in dispute. All of these awards, however, ap-
plied only to the job in question and are thus not
applicable herein;2 9 and, as discussed at length,
supra, the IJDB is not now operative, adding to the
questionable status of the precedential value of
these decisions.
With respect to the April 10, 1981, IJDB award
of the disputed work, as well as the May 7, 1981,
agreement under the auspices of the IJDB, we are
of the opinion that neither disposition should be
given controlling weight herein.30 Thus, the record
does not indicate what evidence was presented in
the proceeding which formed the basis for the
award or the agreement. In addition, neither docu-
ment indicates what evidence formed the basis
therefor, and only states that it was predicated
upon "particular facts and evidence before it re-
garding this dispute .. ." Since neither the
award nor the agreement offers any explanation as
to what facts and evidence each relied upon, we
are unable to evaluate the dispositions according to
29 It should also be noted that none of the IJDB awards ill evidence
reflect whether, unlike the situation herein, the Employer had ctollective-
bargaining agreements with both of the Unions inlvosled
30 Although, as discussed above, we do not find either the award or
the agreement to be sufficient bases to quash the notices of hearing by
virtue of the hiatus ill IJDB operations, it is nonetheless necessary to con-
sider whether such IJDB dispositions have any precedential value for our
substantive inquir conllcerning an asward of the work ill dispute
our own standards to determine the degree of def-
erence to which each might be entitled.
Accordingly, upon consideration of this factor,
we find that the evidence before us does not favor
an award of the work in dispute to individuals rep-
resented by either Union.
Conclusions
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we be-
lieve that the employees of the Employers who are
currently represented by the Carpenters, rather
than individuals represented by the Laborers,
should be assigned the work in dispute. We reach
this conclusion relying upon the Employers' assign-
ment of the disputed work to its own employees,3 '
the current collective-bargaining agreements,3 2 the
fact the employees represented by the Carpenters
possess the requisite skills to perform the work, and
that such an assignment will promote efficiency
and economy of operations. Accordingly, we shall
determine the disputes before us by awarding the
work of unloading and handling of equipment and
materials necessary for Modern to install acoustical
ceilings and metal stud and drywall construction 33
at the J. C. Penney Stamford Town Plaza jobsite,
and the unloading, handling and distribution of
sheetrock3 4 at the Bloomingdale jobsite, to employ-
ees represented by the Carpenters, but not to this
Union or its members.3 5
DETERMINATION OF DISPUTES
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of
the foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
hereby makes the following determination of dis-
putes:
1. Employees of Modern Acoustics, Inc., who
are currently represented by Local 210, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, are entitled to perform the work of un-
loading and handling of equipment and materials
necessary for Modern to install acoustical ceilings
and metal stud and drywall construction at the J.
C. Penney, Stamford Town Plaza jobsite, in Stam-
ford, Connecticut.
" We also rehl on evidence as to Gerber's past practice of assigning
such wsork to its enlployees represented by the Carpenters
32 As discussed above. the Employers herein do not have collective-
bargaining agreements with the L aborers
' Cases 39 CD 5 anid 3i CD-6
Case 3)-CD-7
iS The record does niot support a countywide asward as requested by
Modern Accordingly. the present determination is limited to the work in
cotntroversy being performed by the Employers at the J C Penney's
Stanlfird 1 ow n Plaza site and the Bloomingdale's site. respectively
888
CONSTRUCTION AND GENERAL LABORERS, LOCAL 449
2. Employees of M. Gerber Construction Co.,
Inc., who are currently represented by Local 210,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, are entitled to perform the
work of unloading, handling, and distribution of
sheetrock necessary for Gerber to perform remod-
eling work at the Bloomingdale jobsite in Stam-
ford, Connecticut.
3. Construction and General Laborers, Local
No. 449, Connecticut Laborers District Council,
Laborers International Union of North America,
AFL-CIO, is not entitled, by means proscribed by
Section 8(b)(4)(D) of the Act, to force or require
Modern Acoustics, Inc., to assign the work de-
scribed in paragraph I, above, or to force or re-
quire M. Gerber Construction Co., Inc., to perform
the work described in paragraph 2, above, to indi-
viduals represented by that labor organization.
5. Within 10 days from the date of this Decision
and Determination of Disputes, Construction and
General Laborers, Local No. 449, Connecticut La-
borers District Council, Laborers International
Union of North America, AFL-CIO, shall notify
the Officer-in-Charge for Subregion 39, in writing,
whether or not it will refrain from forcing or re-
quiring Modern Acoustics, Inc., and M. Gerber
Construction Co., Inc., the Employers herein, by
means proscribed by Section 8(b)(4)(D) of the Act,
to assign the work in dispute to individuals repre-
sented by Local 449, rather than to employees rep-
resented by Local 210, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO.
MEMBER FANNING, dissenting:
Contrary to my colleagues, I would not deter-
mine these disputes and would quash the notices of
hearing herein. Thus, as recognized by the major-
ity, the IJDB issued an award of the work in dis-
pute with respect to Cases 39-CD-5 and 39-CD-6;
and, with respect to Case 39-CD-7, an agreement
was reached by the contesting Unions, under the
auspices of the IJDB, resolving the issue of which
individuals should perform the work in dispute
therein.
Although the Carpenters and the Employers
have, at various points throughout these proceed-
ings, stated that they do not consider themselves
bound by the IJDB, the record is clear that the
Employers and the Carpenters are contractually
bound to abide by the dispute-settling mechanism
of the IJDB. The Laborers, as members of the
Building and Construction Trades Department of
the AFL-CIO, is likewise bound, and has through-
out this proceeding invoked the IJDB dispute-set-
tling mechanism and stated its willingness to abide
thereby.
It is, therefore, clear that the methods for
voluntary adjustment of which Section 10(k) of the
Act speaks were agreed to by all parties herein;
and despite the protestations of the Employers and
the Carpenters, it has long ago been decided that a
party which binds itself to the dispute-settling
process of the IJDB cannot disengage itself there-
from in the hopes of invoking this Board's determi-
nation of the dispute. Thus, Section 10(k) of the
Act requires only a showing that there exists a
method of voluntary adjustment of the dispute,
and, consequently, no corollary requirement that
the parties must also show that such method will
be activated and will, in fact, resolve the dispute.
See, generally, United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting In-
dustry of the United States and Canada, Local Union
NYo. 447, AFL-CIO (Capitol Air Conditioning, Inc.),
224 NLRB 985, 988 (1976).
The only issue before us, then, and given the
facts herein, is whether the present hiatus in the
operation of the IJDB requires the Board to over-
ride an IJDB award of, and an IJDB agreement as
to, the work in dispute. In my view, the National
Labor Relations Act clearly requires us to with-
draw from disputes which have already been adju-
dicated, as, indeed, is the case herein. My col-
leagues, however, argue that the IJDB is not now
a viable organization in a position to administer or
police either the award or the agreement. This is
beside the point. Thus, the award and the agree-
ment were a fait accompli prior to the hiatus in
IJDB operations, and there is no record evidence
that any party herein, at any time, sought to invoke
either the review or policing mechanisms of the
IJDB, or in any way claims that its due process
rights are somehow circumscribed by this hiatus.
Thus, for example, the record reflects that on
May 11, 1981, James E. Davis, assistant to the gen-
eral president of the Carpenters International
union, forwarded instructions to the local union in-
volved herein as to how the IJDB agreement was
to be implemented. Nor has there been any subse-
quent indication that any party has acted in deroga-
tion of either the award or the agreement. For the
Board to now decree that these dispositions have no
force and effect because some party might at some
time in the future fail to abide by these dispositions
and therefore might request review or the policing
thereof, is to concern ourselves with contingencies
that may never occur. What is, however, most dis-
heartening to me is that the majority decision will
effectively disrupt resolutions that were apparently
workable ones, and, which, given the rigors of
industrial life, were more than likely reached with
no small degree of effort. By the majority's action
889
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein, this Board will only deter any future at-
tempts by other unions and employers to settle
their differences, because they will now know that
this Board does not believe them capable of resolv-
ing such problems on their own. Finally, by deny-
ing resolutions such as the ones herein the defer-
ence they deserve, we encourage "holdouts"-par-
ties who will refuse to reach agreement or abide by
IJDB awards because they hope to receive more
favorable treatment from us. This does not aid in
the speedy resolution of jurisdictional disputes, and
also serves to undermine the instruction of Section
10(k) of the Act, which empowers us to hear and
determine such disputes unless there is evidence
that the parties have adjusted them, or have an
agreed-upon method for their adjustment. This
record clearly reflects that both these conditions
have been met.
In view of the clear congressional policy to en-
courage the voluntary adjustment of jurisdictional
disputes, I would adhere to this Board's policy of
insisting that parties who have such an agreed-
upon method be required to resolve their disputes
through that method and honor decisions arrived
at thereunder. Accordingly, I would quash these
notices of hearing. 36
'" See. generally. rln dissent in .tlilwrightr Locai Union No. 1862 (Jcko.
Inc), 184 Nl.RB 547, 549 (1970)
890
