Ohio Regional Council Carpenters (Competitive Interiors, Inc.)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 348 NLRB No. 14 266 Ohio and Vicinity Regional Council of Carpenters and Competitive Interiors, Inc. and Laborers’ International Union of North America, Local 1015. Case 8–CD–497 September 26, 2006 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND KIRSANOW This is a jurisdictional dispute proceeding under Sec- tion 10(k) of the National Labor Relations Act (the Act). The charge in this proceeding was filed February 13, 2006, by Competitive Interiors, Inc. (Employer), alleging that the Charged Party, Ohio and Vicinity Council of Carpenters (Carpenters), violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to em- ployees it represents rather than to employees repre- sented by Laborers’ International Union of North Amer- ica, Local 1015 (Laborers). The hearing was held on February 24, 2006, before Hearing Officer Mary Bednar. At the hearing, Laborers moved to quash the proceed- ing.1 The Carpenters, the Employer, and the Laborers filed posthearing briefs. 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, an Ohio corporation, provides carpen- try services in the construction industry from its facility in Ravenna, Ohio, where it annually provides services to retail and government establishments, has an annual gross revenue of $10 million, and derives approximately $100,000 annually directly from entities located outside the State of Ohio. The parties stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Car- 1 The hearing officer denied the motion to quash. As the Board ob- served in Longshoremen ILWU (General Ore), 124 NLRB 626, 629 (1959), “[t]he primary function of the hearing officer . . . in a nonadver- sary proceeding is to insure that the record contains a full statement of pertinent facts as may be necessary for the determination of the dispute by the Board.” See Carpenters Local 558 (Joyce Bros. Storage), 331 NLRB 1022, 1023 (2000). Accordingly, we find that the hearing offi- cer erred in ruling on the motion because the issues it raised are appro- priately resolved only on a full record after a complete Sec. 10(k) hear- ing. We further find, however, that her ruling did not prejudice any party because its effect was to allow the parties to complete the hearing and to develop a record. Electrical Workers Local 357 (Western Diver- sified Electric), 344 NLRB 1239, 1240 fn. 3 (2005). penters and Laborers are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute This dispute evolved as a result of the filing of a griev- ance by Laborers over “tending” work in connection with the delivery and distribution of interior building materi- als at the construction site of a Target store in Massillon, Ohio. The Employer was a contractor at the site from April or May 2004 through August or September 2005, engaged in the installation of unfinished materials, such as drywall, and finished goods such as cabinetry, ceiling tile, and doors. For several years, the Employer has maintained collective-bargaining agreements with both Carpenters and Laborers, the most recent of which are effective from May 1, 2005, through April 30, 2009, and from May 1, 2005, through April 30, 2008, respectively. The Carpenters agreement covers, among other work, “the handling of rough lumber and drywall from the nearest point of distribution [and] the handling from the delivery truck of fixtures, display cases, finished lumber, metal and plastic trim erected by carpenters.” The La- borers agreement covers “unloading, handling and dis- tributing of all materials, fixtures, furnishings and appli- ances from point of delivery to stockpiles and from stockpiles to approximate point of installation.” In keeping with its general practice, the Employer as- signed its laborers at the site the work of moving unfin- ished materials, including drywall, from the point of de- livery to general stockpiles and to substockpiles in the approximate area of installation, and it assigned its car- penters the work of moving the unfinished materials from the substockpiles to the point of installation. The Employer generally assigned its carpenters at the site the job of handling finished materials. Foreman David Dort testified that carpenters handled all finished materials from the point of delivery to the point of installation, with the limited exception of certain crated wainscoting material and possibly crated cabinets, which laborers moved by tow motors from the point of delivery to the approximate point of installation in the kitchen area of the snack bar. On May 11, 2005,2 Laborers Business Agent Jacob Croston visited the Target jobsite and saw carpenters and carpenter apprentices conveying materials to installation sites. Croston filed a grievance, claiming that work as Laborers’ “tending” work. On May 16, Jack Walden, the Employer’s director of construction, responded to the grievance and denied that the Employer’s assignment of 2 Except where otherwise stated, all dates refer to 2005. CARPENTERS OHIO REGIONAL COUNCIL (COMPETITIVE INTERIORS) 267 work violated the “tending” provisions of its collective- bargaining agreement with Laborers. On June 9, Labor- ers demanded arbitration through the American Arbitra- tion Association, claiming remuneration for the hours of work that Laborers asserted should have been assigned to employees it represents.3 The arbitration was postponed from September to February 23, 2006, because new counsel was designated for Laborers. In the interim, in a January 25, 2006 letter to the Employer, Carpenters claimed the handling of all unfinished material from the point of a designated stockpile to the point of installation and the handling of all finished material from the point of delivery to the point of installation. The same day, Paul Cunningham, the Employer’s president, advised Carpen- ters orally and in writing that the Employer would con- tinue to assign the disputed work to its carpenters. On February 8, 2006, with arbitration imminent, then- Carpenters Business Manager Frank Reynolds sent a letter to the Employer threatening that Carpenters would “pull its members off your projects and/or picket your jobsites” if the work was reassigned to laborers. The Employer filed an 8(b)(4)(D) charge and took legal ac- tion to temporarily enjoin the arbitration.4 Cunningham testified that even though he did not expect the Carpen- ters to follow through on their threat to picket because he planned to continue assigning this work to carpenters, he did not know what Carpenters would do if the work was reassigned. At the hearing, the parties stipulated that both Carpen- ters and Laborers claim the disputed work. Laborers Business Agent Croston expressed his view, as stated in the grievance, that handling unfinished material from stockpile to the point of installation, and finished mate- rial from delivery to the point of installation, is laborers’ work, although he acknowledged seeing carpenters do this work. Current Carpenters Business Agent Richard Croasmun testified that although he believed the dispute would have been resolved short of picketing, a decision to picket would be made by a higher ranking official of the Union. B. Work in Dispute The parties stipulated at the hearing that the disputed work involves the handling of all unfinished material from the point of an Employer-designated stockpile to the point of installation, and the handling of all finished 3 The arbitration demand is not in evidence. 4 The U.S. District Court for the Northern District of Ohio granted the Employer a temporary restraining order on February 17, 2006, and a preliminary injunction on March 3, 2006. An appeal is pending in the U.S. Court of Appeals for the Sixth Circuit. material from point of delivery to point of installation, at the Target jobsite in Massillon, Ohio. C. Contentions of the Parties The Employer contends that there is reasonable cause to believe that Carpenters violated Section 8(b)(4)(D) of the Act by threatening to picket and pull employees it represents off the Employer’s jobsites if the Employer reassigns the disputed work to employees represented by Laborers. It argues that there is no voluntary method of resolving the dispute that is binding on all parties. The Employer contends that the work in dispute should be awarded to employees represented by Carpenters based on the collective-bargaining agreement with Carpenters, employer preference, its current assignment of the work to carpenters and its past practice, industry and area prac- tice, relative skills and training, and economy and effi- ciency of operations. Finally, the Employer contends that the Board should issue a broad award. Carpenters similarly contends that there is no volun- tary method to resolve the dispute that is binding on all parties and that employees it represents are entitled to continue performing the disputed work based on its col- lective-bargaining agreement with the Employer, the Employer’s preference, current assignment, past practice, area and industry practice, the relative skills and training that it provides its members, and economy and efficiency of operations. Laborers contends that there is no reasonable cause to believe that the Act has been violated because Carpen- ters’ threat to take proscribed action was the product of collusion between the Employer and Carpenters, or was a sham because the work at the Target site was completed in August or September 2005—well before Carpenters’ February 2006 threat to picket. Although Laborers stipu- lated at the hearing that no voluntary method exists of resolving the dispute that is binding on all parties, it now contends that such a method of resolution does exist,5 and therefore that the Board does not have jurisdiction of this matter. In the alternative, Laborers also contends that, assuming the dispute is ripe for Board determina- tion, the work should be awarded to employees it repre- sents on the basis of its collective-bargaining agreement with the Employer, the Employer’s prior and current practice, area and industry practice, efficiency of opera- tions, and relative skills and training. 5 Laborers relies on the district court’s rationale for enjoining the ar- bitration, i.e., that Laborers Local 1015 and Carpenters Local 69 were bound by the East Central Ohio Building and Construction Trade Council’s constitution and bylaws, which contain an internal dispute mechanism, and that the Employer was a third-party beneficiary of “that agreement.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 268 The Employer and Carpenters take issue with Labor- ers’ contention that the threat to picket was a sham and that any ostensible dispute is the result of collusion be- tween the Employer and Carpenters. D. Applicability of the Statute The Board may proceed with a determination of a dis- pute under Section 10(k) of the Act only if there is rea- sonable cause to believe that Section 8(b)(4)(D) has been violated. This standard requires finding that there is rea- sonable cause to believe that (1) there are competing claims to the disputed work; and (2) that a party has used proscribed means to enforce its claim to the work in dis- pute. Additionally, there must be a finding that the par- ties have not agreed on a method for the voluntary ad- justment of the dispute. See, e.g., Operating Engineers Local 150 (R&D Thiel), 345 NLRB 1137, 1139 (2005). 1. Competing claims to the work Even apart from the parties’ stipulation that there are competing claims to the work in dispute, the record es- tablishes that both Unions had claimed the work of han- dling unfinished materials from substockpile to point of installation and finished materials from point of delivery to point of installation at the Target jobsite, and that both Unions continue to claim such work. The Employer’s carpenters performed the disputed work at the Target jobsite, and they were performing similar work at other sites, including the Aultman Hospital jobsite, at the time of the hearing. The performance of disputed work is tantamount to claiming it. See Operating Engineers Lo- cal 542 (Caldwell Tanks), 338 NLRB 507, 509 (2002) (performance of work is evidence of a union’s claim to that work, even absent an explicit claim); Longshoremen ILWU Local 14 (Sierra Pacific Industries), 314 NLRB 834, 836 (1994), affd. mem. 85 F.3d 646, 652 (D.C. Cir. 1996); Operating Engineers, Local 926 (Georgia World), 254 NLRB 994, 996 (1981) (same). Further, Laborers filed a grievance over the disputed work at the Target jobsite,6 and it continues to assert in this proceeding that 6 In its brief, the Employer refers to the grievance as “the Laborers’ pay-in-lieu grievance and arbitration demand.” The arbitration demand is not in evidence, but the step 2 grievance letter states in part: After talking with the superintend[ent] on the Massillon Tar- get Store project on May 9, 2005 I discovered that [the Employer] is not complying with the tending clause of carpenters in the La- borers’ Local 1015 Building Agreement. Additionally, I spoke to Jack Walden in the main office of [the Employer] and informed him of this issue and he also has refused to correct this matter. We are filing this grievance to assure that the tending of car- penters and other building and construction crafts all remain la- borers’ jurisdiction under Article I Geographical Area and Work Jurisdiction, section nine (9), paragraph two (2). Further, the Board has held that pay-in-lieu grievances (or arbitration demands in furtherance of such grievances) constitute claims to the such work should be assigned to employees it repre- sents.7 We find that there are competing claims to the disputed work. 2. Use of proscribed means We further find that there is reasonable cause to be- lieve that Carpenters has used proscribed means to en- force its claim. As stated, the record discloses that, in the face of the impending arbitration of the Laborers’ griev- ance claiming the disputed work at the Target store in Massillon, Carpenters threatened to engage in strike ac- tivity and picketing against the Employer if the work was taken from employees it represents. Laborers argues that the threat was a sham because it postdated the comple- tion of the work at the Target store, and because Carpen- ters had not picketed a signatory in the past and consid- ered the Employer to be a model employer. Despite the fact that Carpenters completed the work at the Target jobsite before it threatened to engage in pro- scribed conduct, we find that the “reasonable cause” standard is met here because the controversy over the disputed work was ongoing. A “live” grievance in which Laborers specifically claimed the disputed work was proceeding to arbitration at the time Carpenters threat- ened picketing. Where Laborers was itself continuing to claim the completed work, it cannot persuasively argue that the completion of the work renders Carpenters’ threat in support of its rival claim a sham. Moreover, the fact that the Employer’s carpenters were continuing to perform at other jobsites work similar to the work in dis- pute, and that such work at any particular site is inher- ently of limited duration, supports our exercise of juris- diction under Section 10(k) notwithstanding the unusual fact that the work in dispute had been completed at the time of the Carpenters’ threat. Cf. Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 514–515 (1911) (re- jecting mootness argument where limited duration of ICC’s order made it “capable of repetition, yet evading review”). Additionally, the Board has long held that completion of disputed work at the site that gave rise to the contro- versy is not a basis for quashing a 10(k) proceeding where there is no evidence that similar disputes are unlikely to recur. Operating Engineers Local 150 (Mar- tin Cement), 284 NLRB 858, 860 fn. 4 (1987); Southwest Regional Council Carpenters (Standard Drywall, Inc.), 346 NLRB 478, 481 (2006). work in dispute because they require an employer to pay twice for work performed. Laborers (Eshbach Bros. LP), 344 NLRB 201, 202 (2005). 7 The record does not indicate that Laborers has made any specific claim for the type of work here in dispute at any project other than at the Target project in Massillon, and as more generally asserted in testi- mony in this proceeding. CARPENTERS OHIO REGIONAL COUNCIL (COMPETITIVE INTERIORS) 269 We also find no merit to the Laborers’ contention that the threat of proscribed conduct was a sham because Carpenters had no history of picketing employers with whom it had collective-bargaining relationships, and we reject the Laborers’ contention that the Employer and Carpenters engaged in collusion, and that the threat to picket was a maneuver to bring the dispute before the Board. “In the absence of affirmative evidence that a threat to take proscribed action was a sham or the prod- uct of collusion, the Board will find reasonable cause to believe that the statute has been violated.” Operating Engineers Local 150 (R&D Thiel), supra, slip op. at 4. Laborers has failed to present any affirmative evidence in support of its claims of sham and collusion. 3. No voluntary method for adjustment of dispute We also find that there is no voluntary method of re- solving this dispute that is binding on all parties. Labor- ers stipulated at the hearing that there was no such method of resolving the dispute. It now claims that there is, arguing that it and the Carpenters are bound by the internal dispute resolution mechanism in article XII of the East Central Ohio Building and Construction Trade Council’s constitution and bylaws, and that the Employer is also bound because it is a “third-party beneficiary” of that mechanism. If Laborers’ argument had merit, then employers would automatically be bound by all internal dispute resolution mechanisms to which the competing unions are parties. The Board, with Supreme Court ap- proval, has rejected this position by holding that employ- ers are not bound by such mechanisms if they are not parties to the agreements establishing them. See NLRB v. Plasterers Local 79 (Texas State Tile & Terrazzo), 404 U.S. 116, 126 (1971). In the absence of evidence that the Employer has bound itself to article XII of the East Cen- tral Ohio Building and Construction Trade Council’s constitution and bylaws, we find that there is no volun- tary method of resolving this dispute that is binding on all parties. Accordingly, we find that this dispute is properly be- fore the Board for determination. E. Merits of the Dispute Section 10(k) requires the Board to make an affirma- tive award of disputed work after considering various factors. NLRB v. Electrical Workers Local 1212 (Co- lumbia 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 ex- perience, reached by balancing the factors involved 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 The parties stipulated that the work in dispute is not covered by any Board certification or order. The Car- penters’ collective-bargaining agreement refers to the “handling of raw lumber and drywall from the nearest point of distribution [and] the handling from the delivery truck of fixtures, display cases, finished lumber, metal and plastic trim erected by the carpenters.” The Labor- ers’ collective-bargaining agreement refers to the “tend- ing” of materials and specifies “preparation of materials and the handling, and conveying of materials to be used by mechanics and other crafts” and the “unloading, han- dling, and distributing of all materials, fixtures, furnish- ings and appliances from point of delivery to stockpiles and from stockpiles to approximate point of installation.” Each union’s jurisdictional language is unchanged from past agreements. Inasmuch as both agreements arguably cover the disputed work, we find that this factor does not favor an award to employees represented by either union. 2. Employer preference and past practice Company President Cunningham stated that his prefer- ence is that employees represented by Carpenters per- form the disputed work and that the Employer has as- signed the work of the kind in dispute to its carpenters since 1989 when he started business. David Dort, who has served as the Employer’s foreman on 12 projects, including the Target project in Massillon, stated that he has never seen laborers move drywall or other unfinished material from the closest stockpile to the point of instal- lation. He testified that, consistent with their contract, laborers transported drywall from delivery trucks to gen- eral stockpiles and from there to substockpiles closer to the point of installation. From that point, carpenters load the drywall onto A-frame carts and move it to the point of installation, where they measure, mark, cut, and then hang it. Dort also testified that finished products were handled from point of delivery to approximate area of installation by carpenters, with the exception of FRP (used for wainscoting) and perhaps cabinets, which were delivered in crates and transported by laborers from point of delivery to approximate area of installation. Cunning- ham and Dort both testified that the Employer relies on carpenters to handle finished materials from the point of delivery because they have the expertise to inspect for damage and to know when a marred product can still be installed or how to repair certain kinds of damage to fin- ished materials. Curtis Mayle, a laborer, testified that he has handled unfinished materials from the point of delivery to the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 270 point of installation at construction sites, but it is not clear from his testimony whether he was working for the Employer at those sites. The Employer prefers that its carpenters perform the work in dispute. It has consistently assigned to carpen- ters the handling of unfinished products from substock- pile to point of installation. The Employer’s general practice with respect to finished materials at the Target store, with limited exceptions, was that carpenters han- dled these materials from the point of delivery either to a stockpile or to the approximate area of installation. The Employer’s preference and past practice militate in favor of an award of the work to employees represented by Carpenters. 3. Area and industry practice Cunningham, Dort, and Carpenters Business Agent Croasmun consistently testified that, in their experience, interior installation contractors in the geographic region (Akron and Canton, Ohio) use carpenters to perform work of the kind in dispute here. Cunningham said that allowing laborers to perform that work would make him the only contractor he knows of in the area to do so. La- borers’ witnesses generally acknowledged that carpenters perform work of the kind in dispute, although laborers used to do it 30 years ago and as recently as 10 years ago. Laborers introduced into evidence a one-line, signed statement of a contractor working on the Glen Oaks High School project in the geographic region as of February 21, 2006, which states, “Kurt V. James [h]as been supling [sic] carpenters with material and cleaning up.” Even assuming that James is a laborer, the state- ment is too vague to aid in resolving this dispute. This factor favors awarding the work in dispute to employees represented by Carpenters. 4. Relative skills and training Carpenters introduced training material that describes lessons on the proper handling of drywall and other un- finished materials, as well as finished materials. Labor- ers submitted into evidence a training brochure, but it mentions only lumber and does not specifically reference the range of materials that the Employer’s employees install. With respect to the handling of finished materi- als, there is testimony concerning only one incident 7 years earlier in which a laborer damaged ceiling tile. The Employer and Carpenters assert that because carpenters are trained to recognize damage, particularly to finished materials, and whether those materials must be returned or may be repaired or used in spite of the damage, car- penters’ relative skills and training support an award of the work to employees represented by that union. They acknowledge, however, that laborers could spot damage to finished materials and report it to a foreman. The record establishes that employees represented by both Unions possess the skills to handle unfinished mate- rials. Carpenters are trained to repair finished material and determine whether it can be used irrespective of damage, but the Employer and Carpenters acknowledge that laborers are capable of identifying damage to fin- ished materials at the point of delivery. On balance, we find that this factor does not favor an award to employees represented by either union. 5. Economy and efficiency of operations Cunningham testified that when carpenters load dry- wall onto carts at stockpiles near the point of installation and transport it to the point of installation, they get a much needed break from the physically taxing work of hanging drywall. He testified that after loading drywall (approximately 15 sheets) onto an A-frame cart and mov- ing it to the point of installation, carpenters measure, mark, and cut the drywall while it is still on the cart. Cunningham also testified that on average, a team of carpenters and apprentices will install four carts of dry- wall during an 8-hour shift. Cunningham testified it would be a waste of time and money to have laborers waiting to reload the A-frame carts with drywall. A laborer testified that laborers remove pieces of dis- carded drywall while carpenters are performing installa- tion work. He also testified that laborers use radios and can be summoned from another area of the jobsite to reload the A-frame carts and deliver drywall to the point of installation. The parties did not present evidence or arguments about the efficiencies related to the handling of finished materials. Although Laborers presented evi- dence that, were the work in dispute assigned to Labor- ers-represented employees, those employees would not be idle during the time that the carpenters are installing drywall, Laborers did not show that assigning the work in dispute to Carpenters-represented employees results in downtime for laborers. And Carpenters presented evi- dence that loading and moving drywall provides carpen- ters with a needed working break or productive change of pace from hanging drywall. Thus, the evidence weighs in favor of finding that awarding the work in dispute to employees represented by Carpenters somewhat en- hances the efficiency of the Employer’s operation, at least with respect to unfinished materials. We therefore find that this factor favors awarding the work in dispute to employees represented by Carpenters. 6. Joint Board determinations Laborers introduced into evidence a 1976 Joint Board Decision, which it asserts governs the assignment of the CARPENTERS OHIO REGIONAL COUNCIL (COMPETITIVE INTERIORS) 271 disputed work. The decision, which was rendered in Massachusetts, awards work of the kind in dispute here to employees represented by Laborers. Because it did not involve the Employer or the local and regional un- ions that are parties to this jurisdictional dispute, we re- ject the Laborers’ assertion that that decision governs the assignment of the disputed work. Conclusions After considering all the relevant factors, we conclude that employees represented by Carpenters are entitled to perform the work in dispute. We reach this conclusion relying on employer preference, employer past practice, area practice, and economy and efficiency of operations. In making this determination, we are awarding the work to employees represented by Carpenters, not to that Un- ion or its members. The determination is limited to the controversy that gave rise to this proceeding. F. Scope of the Award The Employer requests a broad award that covers the assignment of the disputed work in the areas where the Employer does business and the geographic jurisdictions of Carpenters and Laborers overlap. The Board customarily declines to grant a broad, area- wide award in cases where the charged party represents the employees to whom the work is awarded and to whom the employer contemplates continuing to assign the work. See Southwest Regional Council Carpenters (Standard Drywall, Inc.), supra, slip op. at 6; Bricklayers (W. R. Weis Co.), 336 NLRB 699, 702 (2001); Plumbers Local 562 (Grossman Contracting), 329 NLRB 516, 528 (1999). Here, Carpenters is the charged party, and the Employer contemplates continuing to assign Carpenters- represented employees the work. Accordingly, the con- duct of the Carpenters does not warrant a broad award. DETERMINATION OF DISPUTE The National Labor Relations Board makes the follow- ing Determination of Dispute. Employees of Competitive Interiors, Inc. represented by Ohio and Vicinity Regional Council of Carpenters are entitled to perform the handling of all unfinished material from the point of an employer-designated stockpile to the point of installation, and the handling of all finished ma- terial from point of delivery to point of installation, at the Target jobsite in Massillon, Ohio.