Teamsters Local 107 (Reber-Friel Co.)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 518 International Brotherhood of Teamsters, Local 107 and Reber-Friel Company Metropolitan Regional Council, United Brotherhood of Carpenters and Joiners of America and Re- ber-Friel Company Laborers’ International Union of North America, Local 332 and Reber-Friel Company. Cases 4– CD–1003–2, 4–CD–1007, and 4–CD–1015 September 28, 2001 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN AND TRUESDALE The charges in this Section 10(k) proceeding were filed on June 24 and August 25, 1999, and January 18, 2000, by Reber-Friel Company (Reber-Friel or the Em- ployer), alleging that the Respondents, International Brotherhood of Teamsters Local 107 (Teamsters); Met- ropolitan Regional Council, United Brotherhood of Car- penters and Joiners (Carpenters); and Laborers’ Interna- tional Union of North America, Local 332 (Laborers), respectively, each violated Section 8(b)(4)(D) of the Na- tional Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to employees represented by one or both of the other un- ions. The hearing was held on April 19, 2000, before Hearing Officer Henry R. Protos. 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 re- cord, the Board makes the following findings. I. JURISDICTION The Employer, a Pennsylvania corporation, is a gen- eral services contractor in the trade show industry. Dur- ing the 12 months preceding the hearing in this case, the Employer purchased and received goods valued in excess of $50,000 directly from suppliers located outside Penn- sylvania. The parties have stipulated, and we find, that the Employer is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act and that the Team- sters, the Carpenters, and the Laborers are labor organi- zations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute The Employer leases out, delivers, installs, and re- moves equipment and structural and other material com- ponents required for trade show exhibitions in the Phila- delphia area. The Employer has a warehouse at its facil- ity in the city of Philadelphia, but performs much of its work for conventions and trade shows at various loca- tions in the city and in the surrounding suburban counties of Pennsylvania and New Jersey. Over a period of years before the dispute giving rise to this proceeding arose, the Employer entered into collective-bargaining agree- ments developed contractual relationships with the Teamsters and the Laborers, respectively, with respect to trade shows it serviced within the city of Philadelphia. The Employer obtained employees referred from each Union’s hiring hall to perform transportation, loading, unloading, installation, and removal of its equipment and materials. For trade shows located in the suburban coun- ties, however, with a few exceptions, the Employer used its own complement of approximately 28 warehouse em- ployees. Before 1998, these employees were not repre- sented by a union. At all relevant times, the Employer’s president, Tho- mas E. McAvinue, was also the head of an association of 13 trade show employers (including Reber-Friel), called the Philadelphia Exposition Show Contractors Associa- tion (PESCA). Until 1997, under individual agreements similar to Reber-Friel’s, most of the other PESCA em- ployers also used referrals from the Teamsters and the Laborers to service trade shows in the city of Philadel- phia. In May 1997, the Laborers sought to bring all the PESCA employers under a single multiemployer contract covering not only the city of Philadelphia but also the surrounding counties in Pennsylvania. McAvinue repre- sented the PESCA members in the ensuing negotiations, assisted by Thomas McGarvey, the director of labor rela- tions for one of PESCA’s other members, GES Exposi- tion Services. McGarvey had a professional background as an employer-side negotiator. On May 30, 1997, McAvinue signed a 3-year memorandum of understand- ing (MOU) with the Laborers on behalf of PESCA. By its terms, the MOU characterized itself as “modifications to the collective bargaining agreement” and (directly above McAvinue’s signature) specified “5-County Terri- torial Jurisdiction.” McGarvey drafted the MOU, insert- ing the boilerplate language he customarily used, which included a provision stating that the MOU was “contin- gent upon ratification by both parties.” The Laborers completed their ratification procedure within a few days, and no further issue was raised by any party concerning ratification for the following 2 years. In April 1998, the Teamsters sought an agreement with PESCA similar to that of the Laborers. On April 10, after negotiations in which McGarvey again assisted McAvinue, McAvinue and McGarvey signed a 3-year 336 NLRB No. 41 TEAMSTERS LOCAL 107 (REBER-FRIEL CO.) 519 MOU with the Teamsters, again on behalf of PESCA. The MOU with the Teamsters, also drafted primarily by McGarvey, stated that it covered “the Philadelphia 5- County Area—i.e.—Philadelphia, Montgomery, Bucks, Chester and Delaware and New Jersey—i.e.—Camden, Glouster [sic] and Burlington.” Like the Laborers’ MOU, the Teamsters’ MOU contained McGarvey’s provision requiring ratification by both parties. Like the Laborers, the Teamsters completed their ratification process within a few days, and no further issue was raised concerning ratification during the following year. Although the record is not entirely clear, it appears that all the PESCA employers implemented the two MOUs after they were executed with respect to pay and other terms of employment for employees who were referred out of the respective hiring halls. The record is clear that Reber-Friel continued to employ referrals from the Teamsters and the Laborers at trade shows in the city of Philadelphia. However, despite the multicounty work jurisdiction specified in both MOUs and the related hir- ing hall provisions, Reber-Friel continued to use its warehouse employees to perform the work at nearly all of its shows in the suburban counties outside Philadel- phia. Both unions complained about this to McAvinue with increasing vehemence. During this same time period, on September 15, 1998, after a card check and verification of employee signa- tures by a neutral arbitrator, McAvinue signed a 4-year contract recognizing the Carpenters as the bargaining representative for Reber-Friel’s warehouse employees. McAvinue signed this contract only on behalf of Reber- Friel, and did not inform the other PESCA employers of this development. Nor did he inform the Carpenters of his previous agreements with the Teamsters and the La- borers. Reber-Friel continued to assign work in the suburban counties to the warehouse employees, and the Teamsters and the Laborers continued to complain that the Em- ployer was not abiding by its agreements with them on work assignments outside Philadelphia. McAvinue testi- fied that in May 1999 he took a ratification vote by mail among PESCA’s members on the Teamsters’ and the Laborers’ MOUs. On or about May 19, 1999, McAvinue informed the Unions that both agreements had been re- jected by PESCA’s members and that they were conse- quently not in force. At the same time or shortly after- ward, McAvinue revealed that Reber-Friel had a collec- tive-bargaining agreement with the Carpenters covering its own employees. Upon learning that McAvinue was raising an issue of ratification, McGarvey—who testified as a witness for the Teamsters—wrote a heated letter to McAvinue, dated June 9, 1999, pointing out that neither McAvinue nor any other PESCA employer had objected to the MOUs or raised a ratification problem after they were signed and put into place in 1997 and 1998. McGarvey asserted that the two MOUs were in force. At the hearing, moreover, McGarvey testified that PESCA had never had any “rati- fication” process and that, notwithstanding the boiler- plate language he had used in drafting the MOUs, all the parties involved had understood, based on past practice, that the only “ratification” envisioned after the MOUs were signed was on the Unions’ side. At a meeting with McAvinue on June 24, 1999, the Teamsters representatives threatened to picket Reber- Friel if Teamster referrals were not assigned the Em- ployer’s work in the suburban counties. Reber-Friel then filed a charge against the Teamsters with the Board, al- leging a violation of Section 8(b)(4)(D) of the Act. On July 26, 1999, both the Teamsters and the Laborers pick- eted the Employer at the Philadelphia Convention Center and refused to remove their pickets until McAvinue signed new printed versions of their respective MOUs later that day. On August 12, 1999, in response to these actions, the Carpenters sent a letter to the Employer in which it threatened to establish a picket line of its own if work performed by the Reber-Friel employees repre- sented by them was reassigned to employees represented by the Teamsters. The Employer subsequently filed charges against the Carpenters and against the Laborers, in each case alleging violations of Section 8(b)(4)(D). B. Work in Dispute As noted above, the disputed work involves the setting up and dismantling of trade show exhibitions in the sub- urban counties surrounding Philadelphia.1 The Em- ployer’s charge against the Teamsters defines the work in dispute as follows: Driving, loading, unloading, helping, forklift operat- ing, freight delivery and checking for Reber-Friel Company on jobs or shows in Montgomery, Bucks, Chester and Delaware Counties in Pennsylvania and Camden, Gloucester and Burlington Counties in New Jersey.2 The Employer’s charge against the Laborers defines the work in dispute in the following terms: The unloading and loading of freight, driving of fork lifts; unloading and loading all furniture; responsibil- 1 The Employer does not dispute that employees represented by the Teamsters and the Laborers have performed and are still entitled to perform Reber-Friel’s work at trade shows held in the city. 2 The charge against the Carpenters defines the work in dispute in practically the same terms as does the charge against the Teamsters. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 520 ity for maintenance of all “empties”; erection and dismantlement of all pipe; roll up all carpet; unload- ing and distribution of all printed material; and the movement of materials from the dock/bone yard to the work area for Reber-Friel Company on jobs or shows in Montgomery, Bucks, Chester and Dela- ware Counties in Pennsylvania. Neither the charges nor the record enable us to distin- guish the work jurisdiction asserted by the Teamsters from the work jurisdiction asserted by the Laborers. However, since the unlawful actions alleged did not per- tain to any apparent dispute between the Teamsters and the Laborers, and in view of our disposition of this case, it is unnecessary for us to make such a determination.3 C. Contentions of the Parties The Employer contends that the Teamsters and the La- borers violated Section 8(b)(4)(D) by engaging in threats to picket and in actual picketing of its operations for the explicit purpose of coercing the Employer to assign the work at issue to employees represented by them and re- ferred from their hiring halls instead of to the Employer’s warehouse employees. The Employer further contends that it is entitled and obligated to assign the work in dis- pute to its warehouse employees, represented by the Car- penters, pursuant to its contract with the Carpenters. According to the Employer, the contracts it executed with the Teamsters and the Laborers were never in force and established no basis for those Unions’ claims to the work at issue, since neither contract was ratified pursuant to its own terms by PESCA’s employer members. The Employer further asserts that with a few exceptions the Teamsters and the Laborers have never performed the work in dispute. Finally, the Employer contends that its warehouse employees, in addition to always having per- formed the work at issue, are the best qualified to per- form it and are therefore entitled to retain it under the criteria the Board has established under Section 10(k) of the Act. The Carpenters, who now represent the ware- house employees, adopt the Employer’s position. The Teamsters and the Laborers contend that they per- formed the Employer’s trade show work in the suburban counties even before they entered into their respective MOUs with PESCA described above. They further con- tend that the MOUs were ratified as required, were put into force, and are fully enforceable. According to the Teamsters and the Laborers, in essence, the MOUs con- firmed that their respective work jurisdictions covered 3 Similarly, although the Laborers apparently did not assert jurisdic- tion over work the Respondent performed in New Jersey, as did the Teamsters, the discrepancy is irrelevant in view of our disposition of the case. the work at issue. They argue further, in effect, that because both MOUs were executed at a time when the Carpenters did not represent the Employer’s permanent employees and had no contractual or jurisdictional claim to the work in the suburban counties, the Employer’s voluntary action in entering into the two MOUs con- firmed or, at a minimum, established their respective jurisdictions over the disputed work. Consequently, they assert, this is not a dispute between unions over conflict- ing work jurisdictions, but a dispute between them and the Employer over work preservation for the employees they represent. Accordingly, under Teamsters Local 107 (Safeway Stores), 134 NLRB 1320 (1961), and its prog- eny, the actions the Teamsters and the Laborers took to protect their contractually established work jurisdiction did not violate Section 8(b)(4)(D) and do not fall within the scope of Section 10(k). D. Applicability of the Statute Before it may proceed with a determination of a dispute pursuant to Section 10(k), the Board must find reasonable cause to believe that the statute has been violated. Labor- ers Local 320 (Northwest Metal Fab & Pipe), 318 NLRB 917, 918 (1995). It is uncontested that the Teamsters and the Laborers engaged in conduct with the object of forcing the Employer to assign the work at issue to employees represented by them and referred from their hiring halls, rather than to the Employer’s warehouse employees repre- sented by the Carpenters. In addition, the parties have stipulated that there is no agreed-upon method for resolv- ing the dispute that would bind all parties. The only ques- tion is whether the Teamsters and the Laborers were at- tempting to protect contractually acquired work jurisdic- tion against an attempt by the Employer to reassign the work at issue within the meaning of Safeway Stores, above. Contrary to our dissenting colleague, we find that case inapplicable here. Safeway Stores involved an attempt by the charging party employer to assign work previously performed by one union’s members to other employees represented by another union in direct violation of the collective- bargaining agreement between the former union and the employer. The Board found that since the union’s pick- eting activity was intended to protect its members from losing work they had already been performing pursuant to their contract, the union was not attempting to expand its work jurisdiction but was only enforcing its contract against a signatory employer. The Board found that the union’s actions for such an object did not violate Section 8(b)(4)(D), and accordingly quashed the notice of hear- ing. The Board has followed Safeway Stores in other cases where a union was attempting, in essence, to enforce a TEAMSTERS LOCAL 107 (REBER-FRIEL CO.) 521 clear and indisputable contract claim to the work in dis- pute. E.g., T Equipment Corp., 298 NLRB 937 (1990); USCP-Wesco, Inc., 280 NLRB 818 (1986), affd. 827 F.2d 581 (9th Cir. 1987); and American Plant Protection, 210 NLRB 574 (1974). In all such cases, however, the union’s members had previously performed the work in dispute and the union was not attempting to expand its work jurisdiction. See also Longshoremen ILWU Local 8 (Waterway Terminals Co.), 185 NLRB 186 (1970), remanded 467 F.2d 1011 (9th Cir. 1972), on remand 203 NLRB 861 (1973).4 In this case, the record does not bear out the Team- sters’ and the Laborers’ claims that their members per- formed the work at issue before the events giving rise to the charges. Apart from generalized assertions, the Teamsters and the Laborers were unable to specify more than a few isolated occasions when their members were employed by the Employer outside the city of Philadel- phia, either before or after they executed their respective MOUs with PESCA.5 The record supports the Em- ployer’s contention that, with these rare exceptions, it has always used its warehouse employees to perform work in the suburban counties. The Teamsters’ and the Laborers’ jurisdictional claims therefore rest entirely on the MOUs they executed with PESCA in, respectively, 1998 and 1997, and their corollary contentions that these agree- ments were thereafter implemented by all the PESCA employers.6 4 In Waterway Terminals, in which the Board quashed a 10(k) notice of hearing, the union’s members lost the work they had previously performed, due to a corporate acquisition that resulted in their own employer’s losing the subcontract for the work to the acquiring corpo- ration. 185 NLRB at 187–188. 5 The Teamster witnesses alleged only two specific occasions—a show at “Ceasar’s” in October 1997, and a show at the Cherry Hill Hilton in August 1998—when their members performed work for Re- ber-Friel outside Philadelphia. Similarly, the Laborers’ witnesses al- leged only five specific occasions when their members performed work for Reber-Friel in the outer counties, and four of those occasions oc- curred between 1980 and 1990. McAvinue recalled that the Teamsters performed work for Reber-Friel at the Marriott on City Line Avenue, which he said was only “technically” outside Philadelphia, before April 1998, and once later at the Pennsylvania Nurserymen’s Show at Fort Washington Expo Center. In the absence of any indication that this work history amounted to more than random, isolated assignments, we find that it provides the Teamsters and the Laborers no basis to raise a valid work-preservation claim regarding work to be performed by Re- ber-Friel outside the city of Philadelphia. 6 The Teamsters introduced an earlier contract it had negotiated with Reber-Friel, dated April 1, 1994, and titled “Pennsylvania Convention Center Agreement.” The last page of this document was titled “Adden- dum to Phila. Pa. Convention Center and Philadelphia and Vicinity and 5 County Area and New Jersey Contracts.” The addendum addressed the employment of stewards. We do not agree with the Teamsters that this addendum establishes contractual recognition of the Teamsters’ work jurisdiction as extending outside the city of Philadelphia in 1994. Nor do we view the contractual documents that the Employer undisput- We recognize, like our dissenting colleague, that this case is atypical. While it is not uncommon for employees or their union representatives to assert work-preservation claims based solely on their previously having performed the work even without contractual entitlement, we are not aware of any case where work preservation claims were based entirely on a contractual claim without the employees’ having previously performed the work. Nor are we aware of any case in which an employer who in- voked the Board’s procedures to resolve a work dispute has operated in quite the same manner that this employer has. However, even recognizing that a sequence of delib- erate actions by the Employer created a contractual basis for the Teamsters and the Laborers to raise claims for the work at issue and led directly to this dispute, the pivotal fact remains that these Unions are claiming work for employees who have not previously performed it. The Teamsters’ and Laborers’ objective here was therefore not that of work preservation, but of work acquisition. In view of the competing claims on behalf of the employees who have in fact traditionally performed the work,7 there are undisputedly two groups of employees claiming the work in dispute. Moreover, the Teamsters and the Laborers could have pursued their contractual claims to the work at issue un- der Section 301 of the Act or under a griev- ance/arbitration procedure. However, they chose not to avail themselves of those noncoercive avenues of re- dress. Instead, they engaged in the coercive activity that resulted in the current proceeding.8 For these reasons, we conclude this is a matter fully appropriate for resolution under a 10(k) proceeding. We further find from the record that there is probable cause to believe the Teamsters and the Laborers acted unlaw- edly signed under the duress of the Teamsters’ and Laborers’ picketing at the Philadelphia Convention Center on July 26, 1999, as voluntarily recognizing or establishing those unions’ jurisdiction outside Philadel- phia. 7 A countervailing contractual claim to the work in dispute raised by the Carpenters indicates that the work assignment at issue is not readily amenable to a consistent resolution independent of this 10(k) proceed- ing. However, our conclusion that there are two competing groups of employees in this case does not depend on whether the employees who have historically performed the work are represented by another union or whether another bargaining agreement covering these employees exists. 8 The work award in this proceeding does not necessarily preclude the Teamsters and the Laborers from seeking noncoercive means for redress of their alleged contractual claims that does not conflict with the present award. See Carpenters Local 33 (GC of Massachusetts), 289 NLRB 1482 (1988), and Laborers Local 731 (Slattery Associates), 298 NLRB 787, 789 (1990). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 522 fully in attempting to coerce the Employer to assign the work in dispute to employees whom they represent.9 In so finding, we emphasize that we do not condone what the Employer has done. Indeed, if the rules of deci- sion established under Sections 8(b)(4)(D) and 10(k) based the outcome solely on the Employer’s own con- duct, we might have agreed with our dissenting col- league. However, the Act’s requirements and our own established criteria compel us to find a probable viola- tion. 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 any Board certification con- cerning the employees involved in this dispute. However, the Employer presented unrebutted evidence that it rec- ognized the Carpenters as the representative of its ware- house employees and entered into a collective-bargaining agreement with the Carpenters on the basis of a card check, which was certified as legitimate by a neutral arbitrator. The Teamsters’ and the Laborers’ MOUs with PESCA extended these Unions’ geographic coverage to include the territory served by the Employer’s warehouse employees. The terms of all three collective-bargaining agreements are not entirely explicit with respect to the nature of the work covered, but the parties do not dispute that all three contracts were intended to cover work of the type here at issue. Accordingly, we find that the factor of certifications and collective-bargaining agreements does not favor awarding the work in dispute to employees represented by any of the Unions. 9 Although the Carpenters may have a well-founded work- preservation claim based on their represented employees’ having his- torically performed the work in dispute, we find it unnecessary to quash the proceeding with respect to the charge against that Union, particu- larly in the absence of such a request and in view of our dismissal of that charge, explained below. Accordingly, we also find, as a technical matter, that there is probably cause to believe that the Carpenters acted unlawfully in attempting to coerce the Employer in regard to the as- signment of the work in dispute. 2. Employer preference and current assignment There is no dispute that the work in dispute is currently being performed by the Employer’s warehouse employ- ees represented by the Carpenters; or that the Employer, notwithstanding the respective 1997 and 1998 MOUs with the Teamsters and the Laborers into which it en- tered through PESCA, prefers to assign the work in dis- pute to these employees. Accordingly, we find that this factor favors awarding the work in dispute to the em- ployees represented by the Carpenters. 3. Employer past practice As found above, with a few isolated exceptions, the Employer has always used its own employees to perform trade show work in the suburban counties surrounding Philadelphia. Accordingly, we find that this factor favors awarding the work in dispute to the employees repre- sented by the Carpenters. 4. Area and industry practice Again, as found above, with a few exceptions, the Em- ployer has always used its own employees to perform trade show work in the suburban counties around Phila- delphia. On the other hand, the record indicates that after the Teamsters and the Laborers entered into their respec- tive MOUs with PESCA, at least some PESCA employ- ers other than Reber-Friel used employees referred from the Teamsters’ and the Laborers’ hiring halls to perform trade show work in the suburban counties. The record does not clearly indicate how many trade show contrac- tors operated in the Philadelphia area without being members of PESCA; nor is there any additional evidence in the record to establish clearly the industry practice with respect to work assignment in the suburban coun- ties. Accordingly, we find that the factor of industry practice does not favor awarding the work in dispute to employees represented by any of the Unions. 5. Relative skills and training There is no dispute that the Employer’s warehouse employees, represented by the Carpenters, are employed on a permanent full-time basis, in contrast to employees who are referred from the Teamsters’ and the Laborers’ hiring halls on a project-by-project basis. The Em- ployer’s president, McAvinue, testified without contra- diction that Reber-Friel’s warehouse employees have had more experience and have received particularized cross- training in the various tasks involved in servicing trade shows. This superior experience and training, according to the Employer, has given these employees a broader range of applicable skills and a higher degree of produc- tivity than employees intermittently referred from the Teamsters’ and Laborers’ hiring halls possess. There is TEAMSTERS LOCAL 107 (REBER-FRIEL CO.) 523 no other evidence in the record bearing on the relative skills or productivity of employees represented by the Carpenters, Teamsters, and Laborers. Accordingly, we find that this factor favors awarding the work in dispute to the employees represented by the Carpenters. 6. Economy and efficiency of operations The Employer’s president, McAvinue, also testified without contradiction that because its warehouse em- ployees are more skilled and productive than employees intermittently referred from the Teamsters’ and Laborers’ hiring halls, it is able to perform trade show operations in the suburban counties with fewer employees, and on a more economical basis, if it uses those employees. McAvinue also testified that Reber-Friel’s agreements with the Teamsters and the Laborers do not permit em- ployees referred from each union’s hiring hall to perform work in the other’s jurisdiction. This restriction, accord- ing to the Employer, results in a need to hire more em- ployees than would otherwise be necessary. There is no other evidence in the record bearing on the comparable efficiency of operation or economy resulting from the Employer’s using its own employees as opposed to refer- rals from the Teamsters and the Laborers. Accordingly, we find that this factor favors awarding the work in dispute to the employees represented by the Carpenters. Conclusions After considering all the relevant factors, we conclude that the employees represented by the Carpenters are entitled to perform the work in dispute. We reach this conclusion on the basis of employer preference and cur- rent assignment, employer past practice, relative skills, and economy and efficiency of operations. In making this determination, we are awarding the work in dispute to the Employer’s warehouse employees represented by the Carpenters, not to that Union or its members.10 This determination is limited to the controversy that gave rise to this proceeding. Because the work at issue is per- formed on a multisite basis, our determination applies to all similar disputes concerning work performed in the Pennsylvania and New Jersey counties surrounding Philadelphia. Standard Sign & Signal Co., 248 NLRB 1144 (1980). DETERMINATION OF DISPUTE The National Labor Relations Board makes the follow- ing Determination of Dispute. 10 In view of this determination, we will dismiss the charge against the Carpenters. 1. Employees of Reber-Friel Company, represented by Metropolitan Regional Council, United Brotherhood of Carpenters and Joiners, are entitled to perform the work of driving, unloading, loading, and checking of freight, helping, driving of fork lifts; unloading and loading all furniture; responsibility for maintenance of all “empties”; erection and dismantlement of all pipe; roll up all carpet; unloading and distribution of all printed material; and the movement of materials from the dock/bone yard to the work area for Reber-Friel in the counties surrounding the city of Philadelphia, Pennsylvania. 2. International Brotherhood of Teamsters Local 107 is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Reber-Friel Company to assign the disputed work described above to employees represented by it. 3. Laborers’ International Union of North America, Local 332 is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Reber-Friel Company to assign the disputed work described above to employees represented by it. 4. Within 14 days from this date, International Broth- erhood of Teamsters Local 107 and Laborers’ Interna- tional Union of North America, Local 332 shall each notify the Regional Director for Region 4 in writing whether it will refrain from forcing Reber-Friel Com- pany, by means proscribed by Section 8(b)(4)(D), to as- sign the disputed work in a manner inconsistent with this determination. MEMBER LIEBMAN, dissenting. This record, in my view, does not entitle the Employer to relief under Section 10(k). Congress surely did not intend to require the Board to protect an employer who foments a dispute by knowingly giving the respondent unions an unambiguous contractual basis for claiming the work at issue. As set out in the majority’s decision, Reber-Friel’s president, after negotiation with the Laborers, agreed in writing to hire referrals from the Laborers in an explicit “5-County Territorial Jurisdiction.” A year later, the same individual signed a similar contract with the Team- sters agreeing to hire referrals from the Teamsters in “the Philadelphia 5-County Area—i.e.—Philadelphia, Mont- gomery, Bucks, Chester and Delaware and new Jersey— i.e.—Camden, Glouster [sic] and Burlington.” Reber- Friel’s president made these agreements on behalf not only of Reber-Friel, but also of all the employers in PESCA, as part of a multiemployer bargaining relation- ship. The Employer does not seriously dispute that both agreements were promptly implemented in almost all respects; and neither Reber-Friel nor any other PESCA DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 524 employer raised any question concerning ratification at the time either agreement was signed. However, Reber-Friel immediately reneged on both agreements’ multicounty hiring requirements; arranged to recognize a third union in a contract directly conflict- ing with the two it had already signed; kept the third agreement secret not only from the Teamsters and the Laborers but from the other PESCA employers; and then, 1 year after the Teamsters’ agreement and 2 years after the Laborers’ agreement were respectively signed, took the position that both agreements had not been properly ratified and were not in effect. PESCA’s own chief nego- tiator wrote at the time, and testified in this proceeding, that this conduct was reprehensible. This case is an anomaly. The material facts do not neatly fit the profile of a union’s lawful use of self-help to preserve its members’ work jurisdiction, which we have recognized as an exception to the prohibition in Section 8(b)(4)(D).1 On one hand, the Teamsters and the Laborers undisputedly used coercive means to obtain work that their members had not previously performed to any significant extent.2 On the other hand, the Unions’ attempts to expand their work jurisdiction were made initially through written agreements with the Employer. The Employer freely chose to give both Unions a sub- stantial, if not conclusive, contractual basis for claiming the work in dispute. These contractual claims were not a mere byproduct of ambiguous language. They were based on a clearly stated intent to expand the geographi- cal scope of the existing units. True, the Teamsters and the Laborers could have pursued their contractual claims in a more appropriate forum and chose not to do so. Nev- ertheless, the Board’s processes should not be made available to shield the Employer from the consequences of its own, dubious actions. In Safeway Stores, Waterway Terminals, and similar cases, the Board recognized that a union’s coercive ac- tion in seeking to recover work formerly performed by employees it represents technically falls within the zone of conduct prohibited by Section 8(b)(4)(D). In those cases, however, the Board found that overriding consid- erations made the dispute inappropriate for resolution by 1 See Teamsters Local 107 (Safeway Stores), 134 NLRB 1320, 1322 (1961); and Longshoremen ILWU Local 8 (Waterway Terminals Co.), 185 NLRB 186 (1970), remanded 467 F.2d 1011 (9th Cir. 1972), on remand 203 NLRB 861 (1973). 2 I note, however, that if Reber-Friel had abided—even briefly—by the two agreements’ jurisdictional requirements at the outset, the Team- sters and the Laborers would have had an actual history of performing the work in dispute, which is often a dispositive factor in jurisdictional dispute cases. In effect, the majority’s decision rewards the Employer for never having complied with its contractual obligations concerning assignment of the work at issue. a work award under Section 10(k), and justified quashing the notice of hearing.3 Many of these cases emphasize that Section 8(b)(4)(D) was intended to protect employ- ers from being caught in the middle of jurisdictional dis- putes they had little or no role in creating, but not to pro- vide a shield for employers who by their own deliberate actions create such disputes. In particular, in Teamsters Local 578 (USCP-Wesco, Inc.), 280 NLRB 818, 820 (1986), affd. 827 F.2d 581 (9th Cir. 1987), the Board recognized that it “should look to the real nature and ori- gin of the dispute in deciding whether it is actually juris- dictional.” The Board found that the employer, Safeway, was not the “innocent” employer that Section 10(k) was intended to protect. . . . Safeway voluntarily entered into an agreement with [the respondent union], which included restrictions on subcontracting unit work. Shortly thereafter it nevertheless decided to subcontract work [elsewhere]. Safeway should not now be allowed to use the Board’s 10(k) processes to avoid its contractual obligations. Id. at 823. Accord: Safeway Stores, 134 NLRB 1323 (“the normal situation demonstrates how far removed is the instant case where the employer by his unilateral ac- tion created the dispute, by transferring work away from the only group claiming the work”).4 It is true that Sections 8(b)(4)(D) and 10(k) protect not only “innocent-victim” employers but also “interested” employers who favor a particular union. E.g., NLRB v. Plasterers Local 79, 404 U.S. 116 (1971). However, the interested employers we have protected have been em- 3 In NLRB v. Electrical Workers IBEW Local 1212, 364 U.S. 573 (1961), the Supreme Court indicated approval of the Board’s position that “jurisdictional strikes in support of contract rights do not constitute violations of Sec. 8(b)(4)(D) despite the fact that the language of that section contains no provision for special treatment of such strikes.” 364 U.S. at 577 fn. 12. 4 See also Longshoremen ILWU Local 62-B v. NLRB, 781 F.2d 919 (D.C. Cir. 1986), in which the court denied enforcement of an order in which the Board found an 8(b)(4)(D) violation, noting that “[t]he dis- pute was entirely of the employer’s making.” 981 F.2d at 925. The court also noted that the employer’s reassignment of the work in dis- pute to its own employees “does not establish that a jurisdictional dis- pute existed. Were that the rule, an employer could always create a jurisdictional dispute between employee groups by reassigning work.” Id. The court found that “[w]here, as here, the employer created the dispute, Secs. 8(b)(4)(D) and 10(k) do not apply.” Id. In the court’s view, “[t]he central problem these provisions aim to solve embodies two characteristics; first, the employer faces a jurisdictional dispute that is not of his own making and in which he has no interest; second, the dispute is between two employee groups.” Id. at 924 (emphasis added). The court also emphasized that “the Labor Board must decide whether cases that do not precisely fit the model of a jurisdictional dispute out- lined above are nevertheless sufficiently like that two-part model to warrant intervention by the Board.” Id. TEAMSTERS LOCAL 107 (REBER-FRIEL CO.) 525 ployers who through inadvertence, incompetence, bona fide changes of operation, mergers or acquisitions, con- tract ambiguities, or other circumstances beyond their control came under arguable obligation to more than one union for the same work. Neither the Supreme Court nor the Board has ever held that Sections 8(b)(4)(D) and 10(k) should protect an employer who knowingly creates and immediately disregards explicit contractual obliga- tions. As stated in USCP-Wesco, we have always re- tained the discretion to decide that an employer, by his own conduct, has forfeited such protection. This discre- tion derives not only from our interpretation of the Act, but also from the prudential concern of conserving the Board’s scarce resources. In applying Sections 8(b)(4)(D) and 10(k), we have also stressed the importance of fostering the collective- bargaining process. Our policy has always been to re- spect the mutual accommodations employers and labor organizations reach concerning terms and conditions of employment, as long as those accommodations do not prejudice the rights of employees and employers under the Act. As we stated in USCP-Wesco, Finding a jurisdictional dispute every time an em- ployer allegedly breaches a no-subcontracting clause would not promote the private settlement of such disputes through the collective-bargaining process. To hold that this dispute is a jurisdictional dispute to be decided by the Board would not allow the [re- spondent union] employees the benefit of their nego- tiated work preservation clause. 280 NLRB at 821. See also Columbia Broadcasting, 364 U.S. at 577.5 Even in cases where the Board’s primary emphasis was on the fact that the respondent union was attempting to regain work that its members had already been performing, the Board has also emphasized the im- portance of protecting the union’s contractual rights.6 To the extent that we permit unions or employers to make light of their agreements, we undermine the Act’s objec- tives of promoting stability of bargaining relationships and reducing disruption of commerce. In light of these principles, “the real nature and origin of this dispute” remove this Employer from the universe of employers whom Sections 8(b)(4)(D) and 10(k) are intended to protect. The Employer, “by his unilateral action created the dispute,” and in consequence of his own actions has forfeited his right to such protection. Accordingly, I dissent. 5 “To fail to hold as controlling . . . the contractual preemption of the work in dispute would be to encourage disregard for observance of binding obligations under collective-bargaining agreements and invite the very jurisdictional disputes Section 8(b)(4)(D) is intended to pre- vent.” 364 U.S. at 577 fn. 12, quoting Nat. Assn. of Engineers, 105 NLRB 355, 364 (1953). 6 E.g., Electrical Workers Local 103 (Buffalo Electric Constr.), 298 NLRB 937 (1990); USCP-Wesco, supra; Safeway Stores, supra; NABET (NBC), 105 NLRB 355, 364 (1953). Typically, where we find an 8(b)(4)(D) violation, the respondent union’s contractual claim (if any) is not strong enough to be dispositive.