Structural Steel and Bridge Painters Local Union 806 (Carabie Corporation)

National Labor Relations Board - Board Decisions

Mar 30, 2011

356 N.L.R.B. 971 (N.L.R.B. 2011)

STRUCTURAL STEEL & BRIDGE PAINTERS LOCAL 806 (CARABIE CORP.)
356 NLRB No. 123
971
Structural Steel and Bridge Painters Local Union 806
and Carabie Corp. and Kiewit Constructors,
Inc./Weeks Marine, Inc., a Joint Venture and
Building, Concrete, Excavating & Common La-
borers Local 731. Case 2–CD–1162
March 30, 2011
DECISION AND DETERMINATION OF DISPUTE
BY MEMBERS BECKER, PEARCE, AND HAYES
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act. Carabie
Corporation (the Employer or Carabie) filed a charge on
August 16, 2010,1 alleging that Structural Steel and
Bridge Painters Local Union 806 (Local 806) violated
Section 8(b)(4)(D) of the Act by threatening to engage in
proscribed activity with an object of forcing the Employ-
er not to reassign certain work from employees repre-
sented by Local 806 to employees represented by Build-
ing, Concrete, Excavating & Common Laborers Local
731 (Local 731). The hearing was held on October 28,
November 9, and December 2 before Hearing Officer
Joane Si Ian Wong. Thereafter, the Employer, Local
806, Local 731, and Kiewit Constructors, Inc./Weeks
Marine, Inc. (Kiewit/Weeks) each filed a posthearing
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire rec-
ord, the Board makes the following findings
I. JURISDICTION
The Employer, a corporation, with an office and prin-
cipal place of business in Mount Vernon, New York, is a
painting contractor specializing in industrial and com-
mercial structures, including such structures on bridges
and highways. Kiewit/Weeks is a joint venture incorpo-
rated in New York. Kiewit has an office and principal
place of business in Woodcliff, New Jersey, and Weeks
has an office and principal place of business at Cranford,
New Jersey. The parties stipulated, and we find, that the
Employer and Kiewit/Weeks are engaged in commerce
within the meaning of Section 2(6) and (7) of the Act,
and that Local 806 and Local 731 are labor organizations
within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
Kiewit/Weeks is a joint venture formed to perform the
construction and replacement of the Willis Avenue

1 All dates are in 2010, unless otherwise indicated.
Bridge in New York, New York. Kiewit/Weeks entered
into an agreement with the Employer for the Employer to
perform work on the bridge, including “protective seal-
ing of structural concrete” and “protective sealing of
structural concrete on new bridge deck.” The Employer
has a collective-bargaining agreement with Local 806.
Kiewit is a member firm of the General Contractors As-
sociation of New York (GCA), an association that nego-
tiates contracts on behalf of its members with various
unions engaged in heavy construction projects, including
Local 731.
Employees represented by Local 806 began sealing the
Willis Avenue Bridge in January. At some point in Jan-
uary, Kiewit/Weeks intervened, gave Local 806 a stop
work order, and delegated the disputed work to employ-
ees represented by Local 731. Employees represented by
Local 806 returned to perform the disputed work in Feb-
ruary, but Kiewit/Weeks again intervened on February 9,
and assigned the work to employees represented by Lo-
cal 731 “in keeping with GCA and [Kiewit/Weeks] past
practice.” Employees represented by Local 806, never-
theless, performed the disputed work again a few months
later. In August, Angelo Serse, Local 806’s business
representative, told Linda Bautista, the Employer’s chief
financial officer, that Local 806 would picket and sue the
Employer if the Employer gave the work to employees
represented by Local 731. Employees represented by
Local 806 finished the disputed work to the extent neces-
sary to open the bridge, but disputed work remained to
be completed at the time of the hearing.
B. Work in Dispute
The parties stipulated that the dispute concerns the as-
signment of certain sealing work, including deck sealing
work, at the Willis Avenue Bridge site in New York,
New York.
C. Contentions of the Parties
The parties stipulated that there are competing claims
for the work in dispute. The Employer and Local 731
contend that Local 806 threatened to engage in pro-
scribed activity and that there is no agreed-upon method
for voluntary resolution of the dispute that would bind all
parties. On the merits, Local 731 contends that Kie-
wit/Weeks is the ultimate employer, and that the disputed
work should be awarded to Local 731-represented em-
ployees based on the factors of collective-bargaining
agreements, employer preference and past practice, area
and industry practice, relative skills and training, and
economy and efficiency of operation. Local 731 also
seeks an award of areawide jurisdiction. Similarly, Kie-
wit/Weeks contends that the disputed work should be
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 972
awarded to employees represented by Local 731 based
on the same factors.
Local 806 contends that the disputed work should be
awarded to employees it represents based on the factors
of collective-bargaining agreements, area practice, em-
ployer preference and past practice, employee qualifica-
tions, economy and efficiency of operations, and safety.
The Employer contends that the disputed work should
also be awarded to employees represented by Local 806
based on the factors of employer preference and past
practice, relative skills, efficiency of the operations, and
area and industry practice.
D. Applicability of the Statute
Before the Board may proceed with determining a dis-
pute pursuant to Section 10(k) of the Act, there must be
reasonable cause to believe that Section 8(b)(4)(D) has
been violated. This standard requires finding that there is
reasonable cause to believe that there are competing
claims for the disputed work among rival groups of em-
ployees, and that 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 of voluntary adjustment of the dispute. See,
e.g., Operating Engineers Local 150 (R&D Thiel), 345
NLRB 1137, 1139 (2005). On the record, we find that
this standard has been met.
First, we find that there is reasonable cause to believe
that there are competing claims to the disputed work be-
cause all parties joined in stipulating to the existence of
competing claims. In any event, where, as here, two un-
ions have contracts and each union claims its contract
covers the same work, the Board has found competing
claims for disputed work. Operating Engineers Local 3
(Central Concrete Supply), 355 NLRB 1247, 1249
(2010).
Second, we find that there is reasonable cause to be-
lieve that Local 806 used means proscribed under Sec-
tion 8(b)(4)(D) to enforce its claim. Local 806 agent
Serse admitted telling Employer official Bautista that
Local 806 would picket and sue the Employer if the Em-
ployer gave the work to employees represented by Local
731. Threatening to picket is a proscribed means of en-
forcing a claim to disputed work. Operating Engineers
Local 137 (Eastern Concrete Materials), 355 NLRB 330,
332 (2010) (reasonable cause to believe that Operating
Engineers and Teamsters used proscribed means to en-
force their claims to the disputed work when they threat-
ened to picket and engage in job actions if employer re-
assigned the disputed work to employees represented by
laborers).
Finally, we find that there is no method for voluntary
adjustment of the dispute to which all parties have
agreed. At the hearing, evidence was introduced regard-
ing the dispute resolution procedures of the Building and
Construction Trades Council, but not all the parties are
bound to those procedures. Operating Engineers Local
150 (Nickleson Industrial Service), 342 NLRB 954, 955
(2004) (“[I]n order for an agreement to constitute an
agreed-upon method for voluntary adjustment, all parties
to the dispute must be bound to that agreement.”). Ac-
cordingly, we proceed to the merits of the dispute.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive award of disputed work after considering various
factors in light of the Board’s “[e]xperience and common
sense.” NLRB v. Electrical Workers Local 1212 (Co-
lumbia Broadcasting), 364 U.S. 573, 583 (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, 1410–1411
(1962). Based on the following factors, which we find
are relevant to determining this dispute, we conclude that
the Employer’s employees represented by Local 806 are
entitled to perform the work in dispute.
1. Certifications and collective-bargaining agreements
The Board has not certified either Local 806 or Local
731 to represent these groups of employees. As to the
factor of collective-bargaining agreements, both Local
806’s collective-bargaining agreement with the Employ-
er and Local 731’s collective-bargaining agreement with
the GCA are broad enough to cover the disputed work.
Thus, Local 806’s agreement with the Employer specifi-
cally provides for employees to perform “all coatings2 on
structural steel and bridges.” Local 731’s agreement
with GCA more generally provides for employees to
perform “[a]ll concreting in . . . bridges . . . .”
In jurisdictional disputes, the relevant collective-
bargaining agreement is the one negotiated with the em-
ployer who has ultimate control over the assignment of
the disputed work. Elevator Constructors Local 91 (Otis
Elevator Co.), 340 NLRB 94, 96 (2003). Although Lo-
cal 731 contends that Kiewit/Weeks is the employer with
ultimate control here, there is no evidence that it retained
authority to assign or control the sealing work in its sub-
contract with Carabie. Thus, Carabie is the relevant em-
ployer, and it is Carabie’s collective-bargaining agree-

2 Local 731 argues that the sealant applied at the Willis Avenue
Bridge project is not a “coating,” but rather a penetrating agent. This
issue was not litigated at the hearing, and thus is untimely. In any
event, Angelo Longo, Local 731’s shop steward, testified that “the
sealer is a coating.”
STRUCTURAL STEEL & BRIDGE PAINTERS LOCAL 806 (CARABIE CORP.) 973
ment with Local 806 that is relevant. We therefore find
that this factor favors awarding the disputed work to em-
ployees represented by Local 806. Electrical Workers
Local 71 (Capital Electrical Line Builders), 355 NLRB
140, 143 (2010) (collective-bargaining factor weighs in
favor of awarding disputed work to union representing
subcontractor’s employees where there is no evidence
that general contractor has authority to assign or control
those employees once it awards a subcontract); Elevator
Constructors Local 91 (Otis Elevator Co.), supra (collec-
tive-bargaining factor weighs in favor of awarding dis-
puted work to union with agreement with employer that
has ultimate control over assignment of the work).
2. Employer preference and past practice
Bautista and Rocco Miano, one of the Employer’s su-
pervisors, both testified that the Employer prefers assign-
ing the disputed work to employees represented by Local
806. Bautista further testified that the Employer has only
used employees represented by Local 806 to perform this
type of work in the past. Thus, we find that this factor
favors awarding the disputed work to employees repre-
sented by Local 806.
3. Area practice
Local 731 presented testimony and letters from con-
tractors indicating that employees it represents have per-
formed the disputed work for different contractors at a
variety of jobsites in the New York area.3 The evidence
establishes that employees represented by Local 806 per-
formed the disputed work for the Employer’s projects
with different general contractors on a variety of jobsites
in the New York area. Serse, Local 806’s business rep-
resentative, also testified that Local 806 has contracts
with companies other than the Employer that perform
similar spraying of protective coatings. Painters Local 8
(G. C. Zarnas & Co.), 317 NLRB 585, 586 (1995) (evi-
dence that union is signatory to contracts with 67 con-
tractors in 5 counties in Indiana is comparable to evi-
dence that employees represented by the other union per-
formed disputed work for a variety of local businesses).4

3 Local 731 also submitted evidence of prevailing wage determina-
tions from the U.S. Department of Labor, New York Department of
Labor, and the city of New York, which it wants the Board to recognize
as “authoritative statements concerning area and industry practice on
work and jurisdiction.” It is unnecessary for us to do so. This evidence
merely shows that employees represented by Local 731 perform similar
work for area employers, a fact not in dispute.
4 In support of its assertion that this factor weighs in favor of award-
ing the disputed work to employees it represents, Local 731 cites to
Laborers Local 731 (Slattery Associates), 298 NLRB 787, 790 (1990).
There, the Board found that the area practice factor favored employees
represented by the Laborers because the evidence indicated that em-
ployees represented by the Iron Workers had performed the disputed
work for only one contractor. Here, in contrast, there is evidence that
Based on the evidence presented, we find that this factor
does not favor an award of the disputed work to either
group of employees. Id.
4. Relative skills and training
Both unions presented evidence that employees they
represent are trained to perform the disputed work.
Serse, Local 806’s business representative, testified that
Local 806 provides a 3-year apprenticeship program
where, among other skills, the apprentices are taught to
perform properly the kind of spraying that was per-
formed on the Willis Avenue Bridge project. Anthony
D’Amato, Local 731’s training director, testified that he
provides a nonmandatory “concrete finishing and curing”
class, where employees are taught how to seal concrete.
Both groups of employees also receive on-the-job train-
ing. Moreover, both groups of employees have success-
fully performed the work on multiple occasions, which
establishes their ability to do the work. Laborers Local
210 (Surianello General Concrete Contractor), 351
NLRB 210, 213 (2007) (“Laborers-represented employ-
ees have successfully performed the work in dispute on a
number of occasions, thus establishing their ability to do
the work.”).
Although each union presented evidence of the other
union’s alleged performance and safety deficiencies,5 on
this record, we find that employees represented by each
union possess the relative skills and training necessary to
perform the disputed work. Accordingly, we find that
this factor does not favor awarding the disputed work to
either group of employees.
5. Economy and efficiency of operations
The Employer does not employ laborers represented
by Local 731. Both groups of employees were present
and mobilized at the jobsite to perform tasks other than
the disputed work. The employees represented by Local
731 were present at the jobsite erecting structural steel
and the “forms” within which they poured the concrete,
and employees represented by Local 806 were on the site
deleading the bridge and preparing it to be cut and
stripped.
Employees represented by Local 806, however, when
performing the disputed work, spray five times the
amount of square footage per day, per worker, as em-
ployees represented by Local 731. Local 731 argues that

Local 806 has contracts with employers other than Carabie who per-
form similar work.
5 For example, John Clenithan, project quality manager for Kie-
wit/Weeks, testified that a resident engineer from New York City com-
plained about the Employer’s application of the sealant on the Willis
Avenue Bridge project. Similarly, Miano, one of the Employer’s su-
pervisors, testified that he observed performance deficiencies in the
work of employees represented by Local 731 one day in February.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 974
work performed by employees represented by Local 806
is flawed because they used a sprayer that does not com-
ply with the sealant manufacturer’s requirements. The
manufacturer’s product description sheet for the sealant
used on the Willis Avenue Bridge project recommends
“us[ing] low pressure airless spray equipment . . . .” Alt-
hough employees represented by Local 806 did not use
an airless sprayer in their performance of the disputed
work, Local 731 did not present evidence that use of a
nonairless sprayer affected the quality of their spraying,
or that using the sprayer was otherwise incorrect.6

6 Moreover, a product description for the airless sprayer used by em-
ployees represented by Local 731 indicates that the sprayer is used “for
. . . monthly spraying in residential and light commercial applications.”
Miano, one of the Employer’s supervisors, testified that spraying the
Willis Avenue Bridge deck was not a residential or light commercial
job.
Local 731 also argues that employees it represents earn about $16
less per hour than employees represented by Local 806 and thus are
more economical. This fact, however, is not significant. “[I]t is the
Board’s practice not to rely on the differing rate of pay of employees in
determining a jurisdictional dispute.” Southwest Regional Council of
Carpenters (Standard Drywall, Inc.), 346 NLRB 478, 483 (2006) (cita-
tions omitted).
Thus, we find that this factor favors awarding the dis-
puted work to employees represented by Local 806.
Conclusion
After considering all the relevant factors, we conclude
that employees represented by Local 806 are entitled to
perform the work in dispute. We reach this conclusion
relying on the factors of collective-bargaining agree-
ments, employer preference and past practice, and econ-
omy and efficiency of operations. In making this deter-
mination, we are awarding the work to employees repre-
sented by Local 806, and not to that union or its mem-
bers. The determination 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 Carabie Corp., represented by Structural
Steel and Bridge Painters Local Union 806, are entitled
to perform sealing work, including deck sealing work, at
the Willis Avenue Bridge site in New York, New York.

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