Building Laborers' Local No. 310 (Safway Services)

252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 363 NLRB No. 25 Building Laborers’ Union, Local 310 and Safway Ser- vices, LLC and Indiana, Kentucky, Ohio Re- gional Council of Carpenters, Party-in-Interest. Case 08–CD–153099 October 29, 2015 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA AND MCFERRAN This is a jurisdictional dispute proceeding under Sec- tion 10(k) of the National Labor Relations Act. Employ- er Safway Services, LLC (Safway or the Employer) filed a charge on May 28, 2015,1 alleging that Building Labor- ers’ Union, Local 310 (Laborers) 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 employees represented by Laborers rather than to employees represented by Indiana, Kentucky, Ohio Regional Council of Carpenters (Carpenters). A hearing was held on August 14 before Hearing Officer Laural S. Wagner.2 No party filed posthearing briefs. The National Labor Relations Board has delegated its authority in this matter 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, we make the following findings. I. JURISDICTION The Employer and Laborers stipulated that the Em- ployer is a Delaware limited liability corporation, with a location and place of business at 5251 West 130th Street, Cleveland, Ohio, where it sells, rents, erects, and disman- tles scaffolding and associated products. During the 12 months preceding the filing of the charge, the Employer purchased and received at its Cleveland, Ohio facility goods valued in excess of $50,000 directly from points outside of the State of Ohio. The Employer and Laborers further stipulated, and we find, that the Employer is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Laborers and Carpenters are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of the Dispute The Employer is a subcontractor engaged in the busi- ness of scaffold erection and dismantling on jobsites in northeast Ohio and also the rental and sales of scaffold equipment. The Employer employs approximately 25 1 All dates are in 2015, unless otherwise indicated. 2 Representatives for Safway and Laborers appeared at the hearing. Carpenters did not enter an appearance. employees represented by Laborers. The Employer and Laborers have had a collective-bargaining relationship since Laborers was certified in 1966. The current agree- ment is in effect from May 1, 2010, through April 30, 2016.3 The contract states that “the provisions of this Agreement shall be binding upon both parties on Scaf- folding Construction work in Cuyahoga, Geauga and Lake Counties, Ohio.” The Employer is also party to the Northeast Ohio Carpenters’ Agreement 2013–2018 (Car- penters’ Agreement), but no additional details concern- ing this agreement were presented at the hearing. Repre- sentatives of the Employer testified that it has had a long- held practice of assigning the work of erecting and dis- mantling scaffolding to employees represented by Labor- ers. The Employer erected scaffolding at a project at Cleveland State University’s CIHP building in Cleve- land, Ohio. The Employer then left the jobsite while other trades used the scaffolding to complete their work on the project. The Employer assigned the work of erecting and dismantling the scaffolding at the site to employees represented by Laborers. The work dispute in this case arose when Laborers-represented employees were dismantling the scaffolding. The job steward for Laborers informed the Laborers’ business agent that the Carpenters showed up at the jobsite, claiming the scaf- fold dismantling work. On or about April 27, 2015, Carpenters’ business rep- resentative, William A. Karkoff II, sent a grievance letter to the Employer, stating that it was violating the terms of the Carpenters’ Agreement, as well as the 16 Point Juris- dictional Agreement of February 14, 2008, by using em- ployees represented by Laborers to perform the scaffold erection and dismantling work at the CIHP building. The grievance letter requested that the Employer pay the con- tractual wages and fringe benefits lost to unit employees. The letter further announced that Carpenters was submit- ting the grievance to the Joint Arbitration Board. The associate counsel for the Employer, Teresa Mueller, sent the Carpenters a letter in response, stating that the Em- ployer was not a party to the 16 Point Jurisdictional Agreement. Mueller further noted that the dispute was not subject to arbitration under the Carpenters’ Agree- ment, but rather was a jurisdictional dispute between Carpenters and Laborers stemming from a demand for the same work. The Employer’s Branch Manager, Mark Sawka, testified that the Employer was not a party to the 16 Point Jurisdictional Agreement. 3 The contract in evidence, which states that it is effective from May 1, 2010, through April 30, 2015, has an automatic renewal provision. LABORERS’ UNION LOCAL 310 (SAFWAY SERVICES, LLC) 253 On May 4, 2015, Laborers’ Business Manager Ter- rence Joyce sent a letter to Sawka, noting that, since 1966, the Laborers had exclusively represented the Em- ployer’s scaffold erecters/dismantlers in Cuyahoga, Lake, and Geauga Counties. The letter stated that Labor- ers would picket the Employer if it reassigned the scaf- fold work at the CIHP building to Carpenters-represented employees. Mueller sent Carpenters a followup letter, addressing Laborers’ threat to picket, and further empha- sizing that the work of erecting and dismantling the scaf- folding has historically been performed by Laborers- represented employees. There has been no picketing at the jobsite. B. Work in Dispute As clarified and stipulated by the parties at the hearing, the work in dispute is “certain scaffold erec- tion/dismantling work performed by Safway Services, LLC at Cleveland State University’s CIHP in Cleveland, OH.” C. Contentions of the Parties The Employer and Laborers contend that there are competing claims for the work in dispute, that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated by Laborers’ threat to picket if the work in dispute was reassigned to employees represented by Carpenters, and that the parties have not agreed on a method for voluntary adjustment of the dispute. The Employer and Laborers further contend that the work in dispute should be awarded to employees represented by Laborers based on the factors of Board certification and collective-bargaining agreements, employer preference and past practice, area and industry practice, relative skills and training, and economy and efficiency of opera- tions. As previously stated, Carpenters did not appear at the hearing or file a posthearing brief. Accordingly, the evidence and contentions of the Employer and Laborers stand uncontradicted. 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. Operating Engineers Local 150 (R&D Thiel), 345 NLRB 1137, 1139 (2005). This standard requires finding that there is reasonable cause to believe that there are competing claims for the disputed work between rival groups of employees, and that a party has used pro- scribed means to enforce its claim to that work. Addi- tionally, there must be a finding that the parties have not agreed on a method of voluntary adjustment of the dis- pute. Id. On this record, we find that this standard has been met. 1. Competing claims for work We find reasonable cause to believe that both Unions have claimed the work in dispute for the employees they respectively represent. Laborers has claimed the work by its May 4 letter to the Employer objecting to the possible reassignment of the work in dispute to Carpenters- represented employees. Furthermore, pursuant to well- established authority, the performance of this work by Laborers-represented employees evidences a claim to the work at issue. See Sheet Metal Workers Local 54 (Goodyear Tire & Rubber Co.), 203 NLRB 74, 76 (1973); Operating Engineers Local 513 (Thomas Indus- trial Coatings), 345 NLRB 990, 992 fn. 6 (2005) (same) (citing Laborers Local 79 (DNA Contracting), 338 NLRB 997, 998 fn. 6 (2003) (same)). We also find that Carpenters has claimed the disputed work by virtue of its April 27 pay-in-lieu grievance al- leging that Safway violated the Carpenters’ Agreement by using employees represented by Laborers to perform the work in dispute. The Board has long found that such pay-in-lieu grievances are essentially demands for dis- puted work. See, e.g., Laborers Local 265 (AMS Con- struction), 356 NLRB 306, 308 (2010), and Laborers (Eshbach Bros., LP), 344 NLRB 201, 202 (2005). 2. Use of proscribed means Laborers admits, and we find, that there is reasonable cause to believe that Laborers used proscribed means to enforce its claims to the work in dispute. As noted above, Laborers sent a letter to the Employer’s branch manager, Sawka, stating that Laborers would picket the Employer if it reassigned the scaffolding work in dispute to employees represented by Carpenters. The Board has long considered this type of threat to be a proscribed means of enforcing claims to disputed work. Operating Engineers Local 150 (Patten Industries), 348 NLRB 672, 674 (2006). 3. No voluntary method for adjustment of dispute The Employer and Laborers agree that there is no vol- untary adjustment procedure in place among the parties to resolve the current work dispute. Carpenters did not so stipulate but proffered no evidence or argument to the contrary. Based on the foregoing, we find that there are compet- ing claims for the work in dispute, reasonable cause to believe that Section 8(b)(4)(D) has been violated, and no agreed-upon method for the voluntary adjustment of the dispute. We accordingly find that the dispute is properly before the Board for determination. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 254 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, 577–579 (1961). The Board has held that its determination in a jurisdic- tional dispute is “an act of judgment based on com- mon sense and experience,” reached by balancing the factors involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402, 1410– 1411 (1962). The following factors are relevant in making the de- termination of dispute. 1. Certifications and collective-bargaining agreements The Employer and Laborers stipulated that, in assign- ing the work in dispute, the Employer is not failing to conform to an order or Board certification.4 As stated above, the Employer’s collective-bargaining agreement with Laborers provides that “the provisions of this Agreement shall be binding upon both parties on Scaffolding Construction work in Cuyahoga, Geauga and Lake Counties, Ohio.” The collective-bargaining agree- ment clearly covers the work in dispute. As also stated above, the grievance letter from Carpen- ters indicates that the Employer is bound by the terms of the Carpenters’ Agreement as well as the 16 Point Juris- dictional Agreement of February 14, 2008. The Employ- er acknowledged that it is a party to the former agree- ment, but denied being a party to the latter one. No evi- dence concerning either agreement was presented at the hearing. Because there was no evidence establishing that the Carpenters’ Agreement covers the work in dispute, we find that this factor favors an award of the work in dispute to employees represented by Laborers. 2. Employer preference and past practice The Employer’s representatives testified that the Em- ployer currently has assigned the disputed work to em- ployees represented by Laborers, and it prefers that this work remain with them. In addition, the Employer’s representatives testified that assignment of the disputed work to Laborers-represented employees is consistent with its past practice. Specifically, Sawka and the Em- ployer’s general foreman, Richard Gilette, testified that, in the time they have worked for the Employer, it has always assigned the scaffold erection and dismantling work within Cuyahoga, Lake, and Geauga Counties to 4 The current collective-bargaining agreement between the Employer and Laborers states that, on April 22, 1966, in Case 08–RC–006228, the Board certified Laborers as the exclusive representative of employ- ees covered by the agreement. employees represented by Laborers. The Employer’s representatives further testified that the only time that the Employer assigned this work to employees represented by Carpenters was when the job was outside of this geo- graphic area. Thus, we find that this factor favors award- ing the disputed work to employees represented by La- borers. 3. Area and industry practice The Employer presented evidence that there are four specialty scaffolding contractors in the northeast Ohio area who collectively perform most of the scaffolding work. Each of these companies, including the Employer, uses employees represented by Laborers exclusively to perform scaffold erection and dismantling work in Cuya- hoga, Lake, and Geauga Counties. In this regard, Sawka and Gilette testified that companies with which the Em- ployer competes for work, including Dependable Scaf- folding, Scaffco, and B & K Scaffold, always used La- borers-represented employees to perform scaffold erec- tion and dismantling work in this geographic area. They further testified that none of the Employer’s competitors assigned this work to employees represented by Carpen- ters. In addition, Laborers provided declarations from each of the Employer’s three competitors that support this area practice. Accordingly, we find that this factor favors an award of the work in dispute to employees rep- resented by Laborers. 4. Relative skills and training The Employer presented testimony that employees represented by Laborers possess the requisite skills and training to perform the disputed work and that they are experienced in doing so. Specifically, Sawka testified that the Employer provided extensive scaffold training and safety training. Sawka further testified that Laborers are experts in scaffolding because “all they do is build scaffold,” observing that “. . . they’re the best trained, [and] very reliable.” In contrast, the record does not include evidence on whether employees represented by Carpenters have re- ceived relevant training or possess the skills to perform the work in dispute. Sawka testified that the Employer has not had positive experiences when it used Carpenters for scaffold erecting and dismantling outside of Cuya- hoga, Lake, and Geauga Counties. Specifically, he ex- plained that employees represented by Carpenters were unqualified, unprepared, and unreliable. Gilette testified that employees represented by Carpenters were not expe- rienced in scaffold erection and dismantling because they generally perform different work. Accordingly, we find that this factor favors an assignment of the work to em- ployees represented by Laborers. LABORERS’ UNION LOCAL 310 (SAFWAY SERVICES, LLC) 255 5. Economy and efficiency of operations The Employer presented testimony that it is more effi- cient for the Employer to assign the disputed work to employees represented by Laborers. Sawka testified that employees represented by Laborers do “the most effi- cient work,” because their expertise is in the erection and dismantling of scaffolds. The evidence shows that on the rare occasion when the Employer has assigned scaffold- ing work to Carpenters-represented employees outside of Laborers’ geographic area, it has been expensive and inefficient because they do not have the necessary knowledge or experience. Accordingly, we find that this factor favors an award of the disputed work to employees represented by Laborers. Conclusion After considering all of the relevant factors, we con- clude that employees represented by Laborers are entitled to perform the work in dispute. We reach this conclusion based on the factors of Board certification and collective- bargaining agreements, employer preference and past practice, area and industry practice, relative skills and training, and economy and efficiency of operations. In making this determination, we award the work to em- ployees represented by Laborers, not to that labor organ- ization or to its members. DETERMINATION OF DISPUTE The National Labor Relations Board makes the follow- ing Determination of Dispute. Employees of Safway Services, LLC, who are repre- sented by Building Laborers’ Union, Local 310, are enti- tled to perform certain scaffold erection/dismantling work performed by Safway Services, LLC at Cleveland State University’s CIHP building in Cleveland, Ohio.