International Brotherhood of Painters, Local No. 1955

National Labor Relations Board - Board Decisions

Jul 9, 1971

192 N.L.R.B. 41 (N.L.R.B. 1971)

INTERNATIONAL BROTHERHOOD OF PAINTERS , LOCAL NO. 1955 41
International Brotherhood of Painters and Allied
Trades, Dry Wall Finishers, Local No. 1955 and
Brett Construction Company and Machine Drywall
Applicators.Case 4-CD-242
July 9, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
This` is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by Brett Construction Company r
alleging that International Brotherhood of Painters
and Allied Trades, Dry Wail Finishers, Local No.
1955,2' violated Section 8(b)(4)(D) of the Act. A duly
scheduled hearing was held before Hearing Officer
Alfred''Vitareili of the National Labor Relations
Board on January 27 and February 3 and 10, All
parties- were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce
evidence bearing on the issue.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National "t abor Relations, Board has 'delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings made by the
Hearing Officer at the hearing and finds that they are
free from prejudicial error. They, are hereby affirmed.
Briefs filed by Brett, Machine Drywall Applicators,
and the Repondent Union have been duly considered.
Upon the entire record in this case, the Board makes
the following-findings:
1. THE BUSINESS OF THE COMPANIES
that Brett is engaged in interstate - comerce and is
subject to the Board's jurisdiction. -
It was - also stipulated that Machine Drywall
Applicators 3 is a New Jersey partnership consisting of
two brothers, Willard Charles'Niessner and Roland
Niessner. It is engaged in the business of installing
and finishing drywall and maintains its principal
office in Blackwood, New Jersey.
Altman Bros., Inc .4 is a Pennsylvania corporation
engaged in drywall installation' with- its principal
office located in Glenside, Pennsylvania. Altman
annually purchases materials valued in excess -of
$50,000 directly from points outside `the Common-
wealth of Pennsylvania.'
The Korman Corporation 5 is a Pennsylvania
corporation with its principal office in Jenkintown,
Pennsylvania, engaged 'in the development _ and
construction business. During the past year-its gross
volume of business totaled in excess!Of `$1 million.
During the same period; it purchased and 'received'
materials valued in excess of $50,000 frompoints
outside the Commonwealth of Pennsylvania` This
Company is engaged in interstate commerce within
the meaning of the Act, as amended.` At all times
material herein, the Korman Corporation: has been
the owner of the construction site used-'for the
construction of the apartment buildings in Black-
wood, New Jersey, to be known as- Cherrywood
Apartments.
We find, in accordance with the foregoing, that
since Brett, which was affected 'by the Respondent
Union's conduct, is admittedly,engaged in commerce,
it will effectuate the purpose of the Act to assert
jurisdiction herein.6
H. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that the
Respondent Union is a labor organization-within the
meaning of Section 2(5) of the Act.
The parties , stipulated that Brett is a New Jersey
corporation engaged in the general contracting
business. Its gross volume of business annually totals
in excess of $ 1 million and it is presently under
contract with the Korman , Corporation to construct
Cherrywood Apartments ' at a cost in excess of $1
million . In the construction of these apartments,
located ,, in Blackwood, New Jersey,, Brett has pur-
chased and received materials and supplies valued in
excess of $50,Q00 from points outside the State of New
Jersey, which materials and supplies will be used in
the construction of these apartments. It was conceded
I Herein called Brett.
2 Herein called the Respondent Union.
3 Herein called the Employer.
d Herein called Altman.
5 Herein called Korman.
III. THE DISPUTE
A. Background and Facts
In June - 1970 Korman engaged Brett, which has no
contract with the Respondent Union, , as its- .general
contractor to construct 100, apartment units, to be
known as Cherrywood Apartments , on its - land in
Blackwood, New Jersey . On October 20, 1970, Brett
contracted with the Employer, which has no contrac-
tual relationship with any union, as its subcontractor
to install and finish the drywall in the 100-units.-
e Sheet Metal International, Local 28, AFL-CIO (Nu-Fiberglass Duct
Corporation), 159 NLRB 1423 , 1425; Local-173, Woo4`lftre a&d-'Metal
Lather's International Unror, AFL-CIO (Newark & Essex Plastering Co.),
121 NLRB 1094, 1097.
192 NLRB No. 10
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Apparently the Employer began the work, utilizing
nonunion drywall finishers, sometime in September.
On November 20 Joseph Fiorelli, the Respondent
Union's business agent, visited the Cherrywood
Apartments project and talked with Edward Butcher,
the superintendent, and,Charles Niessner, one of the
Employer's partners . Niessner asked Fiorelli what he
was doing at the project and Fiorelli replied, that this
was "his" territory, that Niessner could not do the job,
and that it was an, "Altman and Korman job."
Butcher then said that it was a Brett job. Fiorelli
stated that he was ,going to shut down all of Altman's
jobs , During , the conversation Fiorelli asked Niessner
to use men from the Union, to which Niessner replied
"not & chance."
The Repsondent Union began picketing the Cherry-
wood Apartments project on November 23. During
the picketing some of the pickets informed Butcher
that the picketing, was to obtain the work of installing
and finishing; --the drywall, for members of the
Respondent, Union. The, picketing resulted in the
failure of-numerous suppliers to make deliveries of
supplies necessary to continue the work on the project
and alsp, resulted in employees of various subcontrac-
tors not reporting for work. The picketing continued-
until December 28, 1970, was resumed on January 7,
197 and, continued thereafter until January. 14 when
a temporary:, injunction forbidding the picketing was
obtained.
B. The Work in Dispute
The dispute in this` proceeding involves the work of
installing and finishing drywall at the Cherry wood
Apartments project in Blackwood, New Jersey.
C. The Contentions of the Parties
The Respondent Union contends that Brett is the
alter Lego of Altman and,- since' it has a contract
requiring Altman to employ members of the Respon-
dent Union, the subcontracting by Brett of the work
to the Employer, who does not employ members of
the Union, constituted a breach of . the Altman
contract. The Respondent Union argues that its
picketing was therefore directed " a_t Brett because- of
the alleged breach of contract and was not in
derogation of Section 8(b)(4)(D) of the-Act.
The Employer and Brett both contend thatthe work'
assignment here in dispute , is-, that made by the
Employer to its employees and not ' the assignment of
the work from Brett to the Employer. They assert that,
since the Employer is not involved in the contractual
dispute between Brett and the .Respondent Union,
picketing with an object of disrupting the Employer's
assignment of the work to its employees isinviolation
of Section 8(b)(4)(D) of the-Act. -Inn the alternative
Brett contends that it is .not the alter .ego:of , Altman
and therefore Altman's contract with the, It pondent
Union is not binding upon - it and there was no
contractual obligation to _ employ members of the
Respondent Union. As a second alternative Brett
contends that the contract between Altman and the
Respondent Union does -not- cover the geographical
area in which the work is being performed.
D. Applicability of the Statute
Before the Board proceeds with a determination of a
dispute it must `first ' be satisfied , that ` there , is
reasonable ' cause to believe that Section 8(b)(4)(D)
has been violated.
The record in this proceeding is clear that, from
November 24 to December 28, x1970, and. again-from
January 7 to January 14,1971, the Respondent ,Union
picketed with an'object of^forcing the Employer, tp
assign `the work of installing and finishing drywall at
the Cherrywood Apartments project in Blackwood,
New, Jersey, to its members rather than, to the
nonunion employees then, being employed by the
Employer. Under these circumstances we conclude
that there is reasonable, cause ,to believe that a
violation of Section 8(b)(4)(D?),hasoccurred and that
the dispute is, properly before the Board for determi
nation pursuant to Section 10(k) of the Act.'
E. Merits of the Dispute
Section 1.0(k) of the Act "requires , that, the Board
make an affirmative assignment of disputed,*ork
after giving due consideration `to various factors. In
this case there is no evidence that there are relevant
Board certifications , Joint Board awards, or that the
Employer herein has a contractual relationship with
the Respondent Union. Nor ' does ' the Respondent
Union contend that the employees now doing the
work ` are less capable to perform 'the ' work "than its
members or that there -exists any, area or 'industry
,practice which would favor assignment of'the work to
its, members . Nor does the Respondent Union suggest
that such` factors as efficiency or economy-support its
claim to 'the work. On the contrary its 'sole contention,
as indicated above, is that Brett is the alter ego of
Altman and that it was therefore entitled to ` enforce
the contract with Altman , requiring the_mtdization' of
Respondent Union's members , against' Brett by
picketing the Cherrywood Apartments project. ° ""
The issue here, however, is not the assignment of the
general contractor, Brett , to the subcontractor, the
Employer, but the assignment {of the work in dispute,
INTERNATIONAL BROTHERHOOD OF PAINTERS, LOCAL NO.1955
the installation and finishing of -drywall, by the
Employer to its nonunion employees. Thus any
contract which may have existed between Brett and
the Respondent Union is not relevant to this
proceeding,- for ,ft would not pertain to the work in
dispute."
We can therefore find no factor which would
support an assignment of_ the work to employees
represented- by the Respondent Union. Conversely
the'record shows that there, have been no complaints
regarding .the` work of the employees of the Employer,
which gives rise to the inference that their continued
employment is consistent with the efficient operation
of''the Einployer.'s business. All these circumstances
support the continued assignment of the work to the
Employer's employees After assessment of all the
relevant factors it is our considered judgment that the
employees now employed by the Employer have a
superior claim to the disputed work herein.
On the basis of the entire record, therefore, we shall
determine; the existing' jurisdictional controversy by
awarding, to', the employees employed the the Employ-
er, who are not currently represented by any union,
the work of installing and finishing drywall at the
Cherrywood Apartments project in Blackwood, New
Jersey. The present determination is limited to the
particular controversy which gave rise to this proceed-
ing.
DETERMINATION OF DISPUTE
43
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 dispute:
1. Employees employed by the Employer, Ma-
chine Drywall Applicators, are entitled to perform the
work of installing and finishing drywall at the
Cherrywood Apartments, Blackwood, New Jersey.
2. International Brotherhood of Painters and
Allied Trades, Dry Wall Finishers, Local No. 1955, is
not entitled, by means proscribed by Section
8(b)(4)(D) of the Act, to force or require Machine
Drywall Applicators to assign, any such disputed work
to drywall finishers who are represented by that labor
organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, International-Brother-
hood of Painters and , Allied Trades, Dry Wall
Finishers, Local No. 1955, shall notify the Regional
Director for Region 4, in writing, whether it will
refrain from forcing or requiring the Employer, by
means proscribed in Section 8(b)(4)(D), to assign the
work ',in dispute to employees represented by that
labor organization rather - than to' the employees
employed by the Employer.
T International Union of Operating Engineers, Local No. 450, AFL-CIO
(Hydrocarbon Construction Company), 190 NLRB No. 20.