United Brotherhood of Carpenters and Joiners of America (Carpenters), Performance Contracting, Inc.

372 NLRB No. 84 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be in- cluded in the bound volumes. United Brotherhood of Carpenters and Joiners of America and Performance Contracting, Inc. and Sheet Metal, Air, Rail and Transportation Work- ers, Local Union 2 and Sheet Metal, Air, Rail and Transportation Workers, Local Union 48. Case 10–CD–299205 May 4, 2023 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND WILCOX This is a jurisdictional dispute proceeding under Section 10(k) of the National Labor Relations Act (the Act). Per- formance Contracting, Inc. (the Employer) filed a charge on July 12, 2022, alleging that the Respondent, United Brotherhood of Carpenters and Joiners of America (Car- penters), violated Section 8(b)(4)(D) of the Act by threat- ening to engage in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to employees represented by Sheet Metal, Air, Rail and Transportation Workers (SMART), Local Union 2 and/or Local Union 48.1 A hearing was held on August 4, before Hearing Officer Joseph W. Webb. Thereafter, the Employer, Carpenters, and SMART filed post-hearing 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, finding them free from prejudicial error. On the entire record, the Board makes the following findings. I. JURISDICTION The Employer is a corporation with an office and place of business in Lenexa, Kansas. The parties stipulated that during the fiscal year ending September 30, 2021, the Em- ployer sold, shipped, and/or provided goods and/or ser- vices valued in excess of $50,000 directly to entities lo- cated outside the State of Kansas. The parties further stip- ulated, and we find, that the Employer is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 1 All dates are in 2022 unless otherwise noted. Further, unless otherwise noted, all references to SMART indicate both locals collectively, which were jointly represented at the hearing. 2 In September 2019, the Employer sold its metal shop operations in Kansas City, the branch of its company covered by the Local 2 agree- ment, to another company, O Metals Group (OMG). The last work Local 2-represented employees performed for the Employer was in October 2019. On March 11, the Employer notified Local 2 that it was The parties also stipulated, and we find, that Carpenters and SMART Locals 2 and 48 are each labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute The Employer is a construction contractor in various specialty trades, including, but not limited to, acoustical ceilings, drywall, and metal stud framing. The Employer is party to an international collective-bargaining agree- ment with Carpenters and is bound by a local agreement, the UBC Southern District District-wide Market Recovery for Panel Construction Collective-Bargaining Agreement with Carpenters, effective February 1, 2021, to February 1, 2024, and covering Carpenters’ Southern District, in- cluding Alabama. The Employer and SMART Local 2, which is based in Kansas City, Missouri, were parties to a collective-bar- gaining agreement effective July 1, 2019, to June 30, 2022, covering certain counties in Kansas and Missouri. The Employer has never used Local 2-represented em- ployees to perform the work in dispute, which involves certain sheet-metal work at a construction jobsite located at 5400 Prosperity Drive in Huntsville, Alabama (the “Fa- cebook jobsite”).2 The Employer has never had a collective-bargaining agreement with SMART Local 48, based in Birmingham, Alabama, and has never used Local 48-represented em- ployees to perform the work in dispute. Local 48 claims that it is a beneficiary of Local 2’s agreement with the Em- ployer. Under Articles 7 and 8 of that agreement, at least two Local 2-represented employees should be assigned to the Facebook jobsite; all other sheet-metal workers on the project should be obtained from the local with geograph- ical jurisdiction and must be compensated consistent with that local’s established wage scale.3 Since at least 2018, the Employer has used Carpenters for the type of work in dispute—installing prefabricated insulated metal panels (IMPs), including architectural metal/siding installation, related supports, tracks and flashing, caulking, and all related work—at various loca- tions. The Employer’s general manager, Steve Kerber, testified without contradiction that the Employer began IMP work at the Facebook jobsite in the fall of 2018 with non-represented employees. Upon its February 1, 2021 terminating their collective-bargaining agreement upon its expiration on June 30. That same day, Local 2 characterized OMG as the Employer’s “perfectly clear successor” in a letter to OMG’s owner. The Employer does not argue here that its sale ended its obligation to SMART regarding the work in dispute. 3 The relevant provisions (the “travel and local compensation provi- sions”) are at Art. 7, Sec. 1 and Art. 8, Sec. 11 of Local 2’s now-expired collective-bargaining agreement. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 execution of a local agreement with Carpenters, the Em- ployer continued using non-represented employees pursu- ant to Article 7 of that local agreement, which provides, in relevant part: “If the Union is unable to provide qualified labor satisfactory to the Employer within 48 hours of the Employer’s request, [the] Employer may staff the project with any source of labor, with no further obligation to the Union.” Kerber also testified without contradiction that, on May 1, Carpenters organized the employees perform- ing the IMP work at the Facebook jobsite. On or around May 24, SMART Local 48’s Business Representative Kevin Walden visited the Facebook jobsite and found em- ployees performing IMP work who had not been referred by Local 48 and, according to his testimony, were “doing work that [Local 48] normally do[es].” On or about June 22, Local 48 filed a grievance alleging that the Employer was improperly using “non bargaining unit members” to perform the IMP work and that those individuals had not been requested or furnished through Local 48’s referral hall, in accord with Local 2’s collec- tive-bargaining agreement. On June 30, SMART Local 2’s collective-bargaining agreement with the Employer expired. That same day, Lo- cal 2 filed a grievance alleging that the Employer was im- properly using “non bargaining unit members” to perform the IMP work, that those individuals were not requested or referred from Local 2, and that they were “not being covered by terms and conditions of the Local 2 collective bargaining agreement” with the Employer, i.e., its travel and local compensation provisions.4 In an accompanying letter, Local 2 requested that the grievance be moved di- rectly to a Local Joint-Adjustment Board (LJAB) hearing pursuant to the Local 2 agreement, which, as noted above, expired that day. The letter stated that “[a]t least 2 em- ployees represented by SMART Local 2 should be work- ing on this project with the rest obtained from SMART Local 48.” Also on June 30, Local 2 submitted the dispute to the Sheet Metal and Air Conditioning Contractors Na- tional Association, Inc. Local Joint Adjustment Board in Kansas City (SMACNA-KC Board).5 4 The hearing officer found that Local 2 sent its grievance on June 22, but the grievance and accompanying letter in evidence are dated June 30. The discrepancy does not affect our disposition of this case. 5 There is no evidence that either the Employer or Carpenters is a member of the SMACNA-KC Board or was at the relevant times. 6 SMART Local 2 also amended its grievance by revising the Articles of its collective-bargaining agreement that the Employer allegedly vio- lated. This amendment was not substantive, however. 7 According to the hearing officer, the Region did not serve SMART with the Notice of Hearing or include it on the pre-hearing conference email because it did not file a Notice of Appearance. The hearing officer notified SMART of the proceedings on July 25. Thereafter, SMART attended the Thursday, July 28, pre-hearing conference, obtained By letter dated July 1, Carpenters notified the Employer that it knew about SMART’s grievances claiming the work being performed by Carpenters-represented employ- ees at the Facebook jobsite, that it would protect Carpen- ters’ right to continue performing this work, and that it would “strike and picket” the Employer to ensure the Em- ployer did not reassign the work to SMART. On or about July 12, the Employer denied SMART’s grievances, demanded that they be withdrawn, and filed the instant Section 8(b)(4)(D) charge against Carpenters. On or about July 14, Local 48 representative Walden returned to the Facebook jobsite and spoke to workers do- ing the disputed work. He left the site with the impression that one of the individuals performing the work in dispute was represented by Carpenters and that Carpenters-repre- sented employees were making less than Local 48’s estab- lished wage scale while working in Local 48’s geographic jurisdiction. The next day, SMART Local 48 substan- tively amended its grievance to allege only an area pre- vailing-wage claim, specifically that the Employer was not compensating the individuals performing the work in dispute “according to the standards of SMART Local 48.”6 By letter dated July 18, the Employer’s General Man- ager notified Carpenters in writing that the Employer was assigning construction work at the Facebook jobsite, in- cluding the work in dispute, to Carpenters-represented employees. The SMACNA-KC Board hearing was held on July 29. SMART Local 2 contended that the Employer violated the travel and local compensation provisions of Local 2’s ex- pired contract at the Facebook jobsite. Local 2 also sought “restitution in the amount of $1,003,080 for lost wages and travel for 2 members to be paid to the Apprentice & Jour- neyman Training Fund of SMART Local 2.” That same day, the SMACNA-KC Board could not reach a unani- mous decision and advised the parties that the matter was “being jointly appealed” to SMACNA’s National Joint Adjustment Board. As of the August 4 hearing in this case, neither SMART Local 48 nor Local 2 had withdrawn its grievances.7 subpoenas duces tecum from the Board on Friday, July 29, and over- nighted them to the Employer and Carpenters on Monday, August 1. Carpenters was served with the subpoenas on August 3 and the Employer was served on August 4, the day of the hearing. The subpoena served on Carpenters sought membership records of the personnel installing IMP at the Facebook jobsite along with records of any communications with the Employer related to the Facebook jobsite. The subpoena served on the Employer sought various payroll records from the Employer along with records of any communications with Carpenters related to the Fa- cebook jobsite. At the start of the hearing, the Employer and Carpenters orally peti- tioned to revoke the respective subpoenas. The hearing officer deferred a ruling until the end of the hearing when he granted the petitions to UNITED BROTHERHOOD OF CARPENTERS 3 B. Work in Dispute The parties stipulate, and we find, that the work in dis- pute is the installation of prefabricated IMPs, including ar- chitectural metal/siding installation, related supports, tracks and flashing, caulking and all related work, at a con- struction jobsite of the Employer located at 5400 Prosper- ity Drive in Huntsville, Alabama 35810. C. Contentions of the Parties SMART contends that the notice of hearing should be quashed because it has not claimed the work in dispute. According to SMART, it did not seek to have the work in dispute reassigned from Carpenters-represented employ- ees to SMART-represented employees but rather filed contractual grievances against the Employer to enforce an area prevailing-wage claim. However, SMART argues that, if the Board finds reasonable cause to believe that Section 8(b)(4)(D) has been violated, the Board should overturn the hearing officer’s revocation of SMART’s subpoenas duces tecum, enforce the subpoenas, and direct the hearing officer to re-open the hearing. SMART con- tends that the subpoenaed payroll and communications records would prove when the work really was awarded to Carpenters, as well as whether the award was the product of collusive efforts between the Employer and Carpenters to create a sham jurisdictional dispute in the hopes of trig- gering a Section 10(k) hearing. SMART makes no argu- ment on the merits of the dispute. The Employer and Carpenters contend that the Board is authorized to determine the merits of this jurisdictional dispute. They argue that there are competing claims for the work in dispute, and that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated in light of Carpenters’ threats to strike and picket against the Em- ployer if the disputed work were to be reassigned to SMART-represented employees. They further contend that there is no agreed-upon method for voluntary adjust- ment of the dispute. As to the merits of the dispute, both the Employer and Carpenters contend that the disputed work should be awarded to employees represented by Car- penters based on Carpenters’ collective-bargaining agree- ment; employer preference, current assignment, and past revoke “in light of the amount of information provided,” and the fact “that SMART … did not seek to expedite service of [the] subpoenas [by e-mail] to ensure that they were served in … the most timely manner possible.” In his report, he reiterated his revocation decision “[i]n light of SMART’s inexplicably late issuance and service of the subpoenas on the parties, and the lack of significant relevance of the documents sought.” 8 See Southwest Regional Council of Carpenters (Performance Con- tracting, Inc.), 371 NLRB No. 87 (2022). There, the Board awarded dis- puted panel-installation work to Carpenters after SMART Local 105 filed a grievance alleging the Employer improperly assigned the work to Carpenters-represented employees at a Los Angeles jobsite, although practice; area and industry practice; relative skills and training; and economy and efficiency of operations. The Employer also contends that the hearing officer’s decision to revoke the subpoenas should be affirmed, most pertinently because Carpenters organized the Employer’s employees several weeks before any SMART representa- tives visited the Facebook jobsite and nearly two months before the Employer received any grievances from Locals 48 and 2, and that the records sought would not tend to prove or disprove SMART’s collusion theory. In addition, the Employer and Carpenters request a broad order awarding the work to Carpenters-represented employees. The Employer notes two instances in which SMART Local 105 has claimed IMP work that the Em- ployer had assigned to Carpenters-represented employees based on the Employer’s now-expired agreement with Lo- cal 2.8 Noting that this is the third such dispute to arise within one year, the Employer and Carpenters contend that the conduct and statements of both unions suggest that they will each continue to assert their right to perform any similar work which may arise in the future. Thus, there is a likelihood of future disruptions as a result of their con- tinuing, conflicting claims. 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 reason- able cause to believe that Section 8(b)(4)(D) has been vi- olated. This standard requires a finding that there is rea- sonable cause to believe that there are competing claims to the disputed work and that a party has used proscribed means to enforce its claim to the work. Additionally, there must be a finding that the parties have not agreed on a method for the voluntary adjustment of the dispute. See, e.g., Operating Engineers Local 150 (R&D Thiel), 345 NLRB 1137, 1139 (2005). We find that these require- ments have been met. 1. Competing claims for work We find that there is reasonable cause to believe that both Carpenters and SMART have claimed the work in dispute for the employees they respectively represent. Local 105 had no collective-bargaining agreement with the Employer, and the Employer was not a member of the area sheet-metal contractors’ association. As here, Local 105 relied on the Local 2 agreement as a basis for its claim. Id., slip op. at 2 fn. 3. Similarly, the Employer cites undisputed testimonial and documentary evidence that SMART Local 105 had also filed a grievance seeking backpay, wages, and benefits for similar panel installation work that the Employer had assigned to Car- penters’ members at a second Los Angeles-area jobsite. When Carpen- ters filed an “impediment to job progress” complaint under the Plan for the Settlement of Jurisdictional Disputes in the Constructional Industry, which had jurisdiction over that dispute, the Plan Administrator directed SMART, in a November 19, 2021 letter, to cease filing such grievances. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Carpenters claimed the work by its July 1 letter objecting to any assignment of the disputed work to SMART- represented employees, and by the fact that Carpenters - represented employees have been performing the work. See Sheet Metal Workers, Local 54 (Goodyear Tire & Rubber Co.), 203 NLRB 74, 76 (1973) (“[Its] performance of the work indicates that [it] claim[s] the work in dis- pute.”); see also Operating Engineers Local 513 (Thomas Industrial Coatings), 345 NLRB 990, 992 fn. 6 (2005) (same) (citing Laborers Local 79 (DNA Contracting), 338 NLRB 997, 998 fn. 6 (2003)). And, as discussed below, contrary to SMART’s arguments, Locals 2 and 48 have failed to effectively disclaim the work because they have not made “clear, unequivocal, and unqualified dis- claimer[s] of all interest in the work in question.” DNA Contracting, 338 NLRB at 998 (citing Operating Engi- neers Local 150 (Interior Development), 308 NLRB 1005, 1006 (1992)); Laborers Local 113 (Super Excavators, Inc.), 338 NLRB 472, 475 (2002) (citing Operating Engi- neers Local 150 (Austin Co.), 296 NLRB 938, 939 (1989)). SMART concedes that Local 2’s grievance was a claim to the disputed work because Local 2 prosecuted it, in part, as a pay-in-lieu grievance at the July 29 hearing of the SMACNA-KC Board by demanding that the Employer “pay damages to Local 2 instead of to the employees who performed the work.” Specifically, Local 2 asserted, at the hearing, that at least two Local 2-represented employees should have been working on the Facebook jobsite since June 2020, and demanded “restitution in the amount of $1,003,080 for lost wages and travel for 2 members to be paid to the Apprentice & Journeyman Training Fund of SMART Local 2.” The Board has long held that a pay-in- lieu grievance, like Local 2’s grievance, is essentially a demand for the disputed work.9 SMART contends, however, that Local 2 disclaimed the work because “Local 2 has not and will not be progressing this grievance,” to the National Joint Adjustment Board and thus “the grievance will end without a decision.” We are not persuaded by this argument. Although Local 2 contends that it will not continue processing the grievance, there is no evidence that it has actually withdrawn the grievance. And continued maintenance of the grievance is inconsistent with any assertion of a disclaimed interest 9 Operating Engineers Local 18 (Donley’s, Inc.), 360 NLRB 903, 906 (2014); Laborers (Eshbach Bros., LP), 344 NLRB 201, 202 (2005). 10 See Washington & Northern Idaho District Council of Laborers (Skanska USA Building, Inc.), 366 NLRB No. 161, slip op. at 3 (2018) (finding continuance of grievance, which was scheduled for arbitration, inconsistent with asserted disclaimer of interest in disputed work) (citing Plumbers District Council 16 (L & M Plumbing), 301 NLRB 1203, 1204 (1991)); Seafarers District NMU (Luedtke Engineering Co.), 355 NLRB in the work.10 For these reasons, we find that Local 2 con- tinues to claim the work in dispute. Turning to Local 48, SMART concedes that its initial grievance could be construed as a competing claim to the work in dispute because it alleged that the Employer failed to use Local 48’s referral hall for the Facebook jobsite. SMART contends, however, that Local 48’s amended grievance merely seeks to enforce a prevailing wage claim against the Employer pursuant to Local 2’s collective-bar- gaining agreement, which required the Employer to meet Local 48’s compensation standards when it worked in Lo- cal 48’s geographic jurisdiction. Unlike Local 2’s pay-in-lieu approach, Local 48 seeks to have its contract wage rates applied directly to Carpen- ters-represented employees performing the work. Specif- ically, Local 48 contends that the Employer violated Local 2’s travel and local compensation provisions when it worked outside Local 2’s geographic jurisdiction without following Local 48’s terms and conditions of employ- ment. Consistent with well-established precedent, we find SMART’s remedial objective substantively the same as a claim to the disputed work under Local 2’s contract. See Laborers Local No. 113 (Michels Pipeline Construction, Inc.), 338 NLRB 480, 483 (2002) (finding that union, by “declaring that an objective of its grievance is the applica- tion of contractually prescribed wage and benefit rates to” the disputed work, “is taking the position that the work is covered by its contract and is, therefore, asserting jurisdic- tion over it”). Accordingly, we find that SMART Local 48’s amended grievance, which it has not withdrawn, es- tablishes that Local 48, like Local 2, continues to claim the disputed work.11 Finally, we observe that, at one point in the hearing, SMART’s counsel said that SMART “disclaims our inter- est in performing the work.” However, after discussion with the parties, the hearing officer confirmed on the rec- ord that factual disputes remained about “whether the par- ties still considered the work to be potentially in dispute and whether there was still a dispute that [they] needed to go forward on,” and proceeded with the hearing. Subse- quently, Local 2 representative Hansen framed the dispute at issue as one “between Sheet Metal Workers . . . and a group of workers . . . uncovered by the Sheet Metal Work- ers agreement.” He also asserted his belief that the Em- ployer must pay contributions to the SMART’s training 302, 304 fn. 5 (2010) (finding pending grievances were continuing claim to the work and rendered the disclaimer ineffective). 11 See Electrical Workers IBEW Local 701 (Federal Street Construc- tion), 306 NLRB 829, 830–831 (1992) (finding union's efforts to enforce area standards was a claim for disputed work); Laborers Local 931 (Carl Bolander), 305 NLRB 490, 491 (1991) (holding that a claim to the work in dispute based on an asserted contractual right to the work "constitutes a claim to the work"). UNITED BROTHERHOOD OF CARPENTERS 5 fund. Similarly, Local 48 representative Walden testified that the Employer could comply with the contractual obli- gations with sheet metal workers “by using [Local 48’s] hiring halls” or “paying the sheet metal workers fringes.” Accordingly, we find that the purported oral disclaimer by SMART’s counsel at the hearing was ineffective with re- spect to both Locals 2 and 48. See Austin Co., 296 NLRB at 939 (party raising issue of disclaimer “has the burden of proving a clear, unequivocal, and unqualified disclaimer of all interest in the work in dispute”).12 2. Use of proscribed means We find reasonable cause to believe that Carpenters used means proscribed by Section 8(b)(4)(D) to enforce its claim to the work in dispute. As set forth above, by letter dated July 1, Carpenters stated that SMART’s griev- ances claim the work of Carpenters’ members, and that Carpenters will strike and picket the Employer to ensure it does not take their work away and give it to SMART. Such threats are “proscribed means of enforcing claims to disputed work.” E.g., Skanska, 366 NLRB No. 161, slip op. at 3. SMART contends that the Board should quash the no- tice of hearing because any dispute that exists on this rec- ord was caused by the Employer. Specifically, SMART claims that the Employer wanted to avoid Local 48’s grievance and the potential additional costs it might entail. In support of this view, SMART argues that, despite hav- ing been on the Facebook jobsite since the fall of 2018 and having a local collective-bargaining agreement with Car- penters since at least February 1, 2021, the Employer only awarded the disputed work to Carpenters on May 1 (when Carpenters organized the workers), “just 23 days prior to when Walden started his investigation.” SMART further contends that the Board should overturn the hearing of- ficer’s decision to revoke SMART’s subpoenas duces te- cum, which seek records intended to prove that the 12 See generally Laborers Local 459 (Cord North American Moving & Storage), 224 NLRB 690, 691 (1976) (finding disclaimer ineffective where Laborers counsel orally disclaimed the work at the hearing but his witness “persistently asserted his belief that the Laborers members were entitled to the disputed work”). We note that, after SMART’s counsel purportedly disclaimed interest in the work in his opening statement, the Hearing Officer asked whether it was SMART’s position that the work was properly assigned to Car- penters. SMART’s counsel responded “no, it’s not our position that it was properly assigned because we maintain that . . . [the Employer] cre- ated this dispute to avoid their obligations” under the Local 2 collective- bargaining agreement. We find this assertion relevant to the analysis of proscribed means and consider below whether the Employer caused the dispute that exists on this record. 13 In questioning General Manager Kerber, for example, SMART’s counsel had ample opportunity to probe the timing and circumstances of the Employer’s assignment of the disputed work and to ask about com- munications between the Employer and Carpenters regarding the Employer’s assignment of the work “was the product of collusive efforts between [the Employer] and the Carpen- ters to create a sham jurisdictional dispute.” We are not persuaded by SMART’s arguments. SMART has neither provided an objective basis for its suspicions of collusion nor disputed the record evidence establishing when the Employer assigned the work to Car- penters, despite the opportunity to probe these matters at the hearing. Nor has it otherwise provided a sufficient ba- sis for its contention that the hearing officer improperly revoked its subpoenas regarding payroll and membership records of the employees performing the disputed work. We note that the hearing officer did not outright revoke SMART’s subpoenas but rather reserved his decision until the end of the hearing. During the hearing, SMART could have but did not elicit any testimony, either through cross- examination or its own witnesses, to indicate that the rec- ords sought would have been relevant to SMART’s collu- sion claim.13 Moreover, the record establishes when the Employer assigned the work in dispute to Carpenters. And although the Employer did not provide a written as- signment of the work in dispute to Carpenters-represented employees until July 18, the Employer was operating pur- suant to its collective-bargaining agreement with Carpen- ters at all relevant times, including prior to SMART’s in- vestigation of the Facebook jobsite. Under these circumstances, we find that SMART “was afforded a full opportunity to be heard, to examine and cross-examine witnesses, . . . and to adduce evidence bear- ing on the issues in this case,” including the Employer’s assignment of the work in dispute. Teamsters, Local No. 407 (Norris Brothers Co.), 362 NLRB 318, 320 fn. 5 (2015).14 We also affirm the hearing officer’s granting of the motions to revoke the subpoenas and find that SMART’s broad and unsubstantiated request for commu- nications between Carpenters and the Employer, for an undefined period of time, amounts to an unwarranted assignment. He asked Kerber “when [] the work [was] assigned to the Carpenters,” to which Kerber responded that “the labor was organized on the 1st of May 2022.” SMART’s counsel did not query him further about matters that might have shed light on the relevance of the infor- mation sought in the subpoenas and provided some objective basis for its speculative collusion claims. Nor did he ask when the Employer knew of SMART’s concerns that the Local 2 collective-bargaining agreement was being violated, information relevant to SMART’s contention that the Employer assigned the work to avoid the instant dispute. 14 Even had SMART introduced evidence that the Employer and/or Carpenters were aware of Local 48’s investigation on May 24, or had discussed the jurisdictional dispute, such evidence would not establish collusion. See, e.g., Laborers Local 265 (Henkels & McCoy, Inc.), 360 NLRB 819, 823 (2014) (finding insufficient evidence of collu- sion where employer provided rival union's grievance to threatening un- ion); R&D Thiel, 345 NLRB at 1140 (finding insufficient evidence of collusion where union told the employer's president that it wanted him to "file a 10(k)"). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 fishing expedition. See, e.g., Burns Security Services, 278 NLRB 565, 565–566 (1986) (affirming hearing officer's quashing of subpoenas where employer introduced no rel- evant evidence and subpoenas were a mere “fishing expe- dition"); Boilermakers, Lodge 6 (Pacific Far East Lines, Inc.), 224 NLRB 222, 222 fn. 1 (1976) (affirming hearing officer’s granting of motion to revoke subpoena duces te- cum where union sought records to support a speculative inference).15 Finally, we find that SMART created the controversy by filing its grievances and continuing to claim the work, including by filing amended grievances after the expiration of the Local 2 agreement. See gener- ally Longshoremen ILWU Local 12 (Southport Lumber Co.), 367 NLRB No. 16, slip op. at 4–5 (2018) (rejecting union’s contention that employer manufactured the dis- pute by unilaterally reassigning the disputed work to its own employees where “the dispute was precipitated by the [u]nion’s attempt to acquire the [disputed] work”).16 3. No voluntary method for adjustment of dispute We further find no agreed-upon method for voluntary adjustment of the dispute. The Employer and Carpenters so contend, and SMART provided no evidence to the con- trary. Based on the foregoing, we find that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that there is no agreed-upon method for the voluntary adjustment of the dispute. We accordingly find that the dispute is properly before the Board for determination, and we find no merit in SMART’s argument that the no- tice of hearing should be quashed. E. Merits of the Dispute Section 10(k) requires the Board to make an affirmative award of disputed work after considering various factors. NLRB v. Electrical Workers Local 1212 (Columbia Broadcasting), 364 U.S. 573, 577 (1961). The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, 15 We clarify, however, that SMART’s service of the subpoenas did not contravene the Board’s Rules and Regulations, which do not require parties to “expedite service [of subpoenas] via e-mail” as the hearing of- ficer suggested in his report. Furthermore, we find that the hearing of- ficer erred in stating that parties “are supposed to serve [subpoenas] . . . to allow for at least five business days before the start of the hearing.” Rather, pursuant to Secs. 102.31(b) and 102.66(f) of the Board’s Rules and Regulations, petitions to revoke must be made in writing “within 5 business days after the date of service of the subpoena.” With regard to the petitions to revoke, the subpoenas here were served the day before and the day of the hearing, and SMART did not object to the fact that the petitions to revoke were thus made orally at the hearing. In finding that the hearing officer’s revocation of the subpoenas was not prejudicial er- ror, we note that the hearing officer waited until the end of the hearing so as to assess the relevance of the requested information in light of the proffered evidence. Because we find that SMART only sought records 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 deter- mination of this dispute. 1. Board certifications and collective-bargaining agreements The parties stipulate that the Employer is not failing to conform to an order or certification of the Board determin- ing the bargaining representative for the employees per- forming the work in dispute. As noted above, the Employer is party to a national agreement with Carpenters and is bound by a local agree- ment covering Carpenters’ Southern District, including Alabama. The Employer argues two sections of the local agreement cover the disputed work: Article 2—TERRITORIAL AND SCOPE JURISDICTION This Agreement shall cover the entire geograph- ical jurisdiction of the UBC Southern District and or its Successor, which includes the states of Texas, Oklahoma, Arkansas, Louisiana, Missis- sippi, Alabama, Georgia, Florida, Tennessee, South Carolina and North Carolina. In the event that any other union attempts to claim the work covered by this Agreement, or files any grievance against Employer or Union to contest the Union performing the work, Union shall re- spond to any such claim or grievance and take whatever steps necessary to claim this work for the Union to perform pursuant to this Agreement. Article 4—COVERED WORK The covered work under this Agreement will be work that is related to and necessary for panel con- struction for which the Union claims the work within the Territorial Jurisdiction as defined in to support a speculative inference, we affirm the hearing officer’s deci- sion to revoke. See Pacific Far East Lines, Inc., 224 NLRB at 222. 16 Iron Workers Local 46 (A.F.C. Enterprises, Inc.), 316 NLRB 271 (1995), cited by SMART, is distinguishable. There, the employer ini- tially assigned the disputed work to the employees represented by Lath- ers Local 46 under its contract with Local 46 and reassigned it to em- ployees represented by Carpenters only after it could not reach an agree- ment with Local 46 on the terms and conditions under which these em- ployees would work. Because the employer was willing to assign the work to Local 46-represented employees, the Board found Local 46’s subsequent picketing was not jurisdictional but to protest the employer’s failure to reach an agreement regarding these employees’ terms of em- ployment. Here, it is undisputed that SMART-represented employees never performed the disputed work for the Employer and that the Em- ployer preferred assigning the work to Carpenters-represented employ- ees, who have performed the disputed work since May 1. UNITED BROTHERHOOD OF CARPENTERS 7 Article 2 (the “covered work”). The goal of this Agreement will be to employ Union Carpenters with skill sets that support a safe, quality, efficient and productive panel installation projects. The scope of work excludes Low Temperature, Food & Beverage, and Cold Storage projects. Work rules to be per Addendum A to this agreement. The Employer had a collective-bargaining agreement with SMART Local 2 from the time the work at the Face- book jobsite commenced through, at the latest, the June 30 expiration of that agreement. However, as noted above, it is undisputed that the Employer sold the branch of its busi- ness that performed work covered by the Local 2 contract in Local 2’s jurisdiction prior to the time relevant to the instant dispute, and Local 2 had asserted to the purchaser that it was a successor bound by that agreement. The par- ties have not litigated whether or how this impacts the Em- ployer’s contractual obligation to the SMART locals, so we cannot with any certainty determine the status of the Employer’s contractual obligation to SMART during the relevant time period. Nevertheless, there is no evidence that the Employer presently has any agreement with SMART, or any of its locals, including Local 48, covering the work in dispute. Because Carpenters’ agreement covers the panel instal- lation work in Alabama, we find that this factor favors awarding the disputed work to employees represented by Carpenters. 2. Employer preference, current assignment, and past practice The Employer assigned the work in dispute to employ- ees represented by Carpenters and prefers that they con- tinue to perform the work because it has historically as- signed this type of work to Carpenters, is signatory to a collective-bargaining agreement with Carpenters covering the work, has numerous ongoing projects with Carpenters, and has been highly satisfied with the quality of their work to date. The Employer’s General Manager Kerber testi- fied that Carpenters have performed this work for the Em- ployer “across the country for the last several years.”17 Kerber also described several projects in Ohio, Tennessee, and Florida where Carpenters perform the same or similar panel installation work for the Employer as that performed at the Facebook jobsite. Kerber testified that the Em- ployer has been satisfied with the work performed by Car- penters on “numerous projects” where the Employer has used Carpenters for the type of work in dispute, including 17 General Manager Kerber’s testimony is consistent with the hearing officer’s finding that the Employer has used Carpenters for this type of work since at least 2018. the “12 to 15” of which he has “[f]irsthand knowledge.” SMART did not present any evidence regarding the extent to which the Employer assigned IMP work to Local 2, nor did it present any evidence that the Employer has ever as- signed similar work to Local 48. We find that the factors of employer preference, current assignment, and past practice favor awarding the work in dispute to employees represented by Carpenters. 3. Industry and area practice The record contains testimonial and documentary evi- dence (including letters of assignment) that other employ- ers have assigned work of the kind disputed here to em- ployees represented by Carpenters. A Carpenters repre- sentative testified that the assignment letters introduced were “just a sampling of the many letters” showing that employees represented by Carpenters perform this type of work for “many contractors” across the country. The record contains testimonial evidence that SMART Local 48-represented employees currently perform the type of work in dispute at the Facebook jobsite for another employer. SMART Local 2 does not perform this type of work in Alabama, and there is no evidence of an industry or area practice of similar work being performed by em- ployees represented by Local 2. Although members of both trades perform the type of work in dispute, the record contains significant evidence regarding such work being performed by employees rep- resented by Carpenters. Accordingly, we find the factor of area and industry practice slightly favors an award of the disputed work to employees represented by Carpen- ters. 4. Relative skills Both the Employer and Carpenters presented evidence that employees represented by Carpenters possess the req- uisite training, skill, and experience to perform the dis- puted work. As noted above, Kerber testified that Carpen- ters-represented employees have satisfactorily performed the work in numerous projects, including the Facebook project. And it is not disputed that the Employer and Car- penters have worked together to develop a specific curric- ulum to train Carpenters-represented employees on per- forming the type of work in dispute.18 In Southwest Re- gional Council of Carpenters, 371 NLRB No. 87, slip op. at 4, which involved the same parties, the Board cited the availability of the specialized training program for Car- penters-represented employees in finding that this factor 18 Although the record does not establish whether specific employees had taken the training at the time of the hearing, we find it relevant that the jointly-developed curriculum was available for the Carpenter-repre- sented employees. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 favored awarding the disputed work to Carpenters-repre- sented employees. SMART did not present evidence regarding SMART- represented employees’ relative skills and made no argu- ment about this to the Hearing Officer or to the Board, alt- hough the record shows that SMART Local 48-repre- sented employees currently perform sheet-metal installa- tion at the Facebook jobsite for a different contractor. For the above reasons and consistent with Southwest Regional Council of Carpenters, supra, we find that this factor favors awarding the disputed work to Carpenters- represented employees. 5. Economy and efficiency of operations Both the Employer and Carpenters claim that the factor of economy and efficiency of operations favors awarding the work to employees represented by Carpenters. The Employer contends that replacing Carpenters with SMART-represented employees “would be wasteful and unnecessary,” particularly given that Carpenters continue to perform the work in dispute and there is no evidence that SMART-represented employees could perform the work. Carpenters likewise contends that reassignment is inefficient because employees it represents are “capable of handling a variety of responsibilities” as a result of its own training and the training provided by the Employer, and therefore employees it represents have “little down time.” SMART did not present evidence specific to this factor. The arguments made by the Employer and Carpenters do not persuade us that this factor favors awarding the work to employees represented by the Carpenters. First, the mere fact that employees represented by Carpenters have been performing the work does not necessarily war- rant a finding that this factor favors keeping the work with them. See id., slip op. at 4 (rejecting contention that fac- tor of economy and efficiency of operations favors award- ing work to employees currently performing the work, even with work nearing completion). Further, although Carpenters contends that employees it represents are ca- pable of handling a variety of responsibilities due to the training they received, the Board in Southwest Regional Council of Carpenters did not find that the availability of this training indicated that it would be more economical or efficient to award the same type of disputed work to Carpenters-represented employees, but instead found, on the same evidence as here, that this factor did not weigh in favor of awarding the disputed work to either group of em- ployees. Id. As there is little to distinguish the two cases, we reach the same conclusion here. CONCLUSIONS After considering all of the relevant factors, we con- clude that employees represented by Carpenters are enti- tled to perform the work in dispute. We reach this conclu- sion relying on the factors of collective-bargaining agree- ments; employer preference, current assignment, and past practice; industry and area practice; and relative skills. In making this determination, we award the work to employ- ees represented by Carpenters, not to that labor organiza- tion or to its members. SCOPE OF THE AWARD The Employer and Carpenters request that the Board is- sue a broad award, either “on a nationwide, or at least an area-wide, basis.” In support of its request, the Employer cites the behavior of both SMART and Carpenters as evi- denced by their prior appearance before the Board in a similar jurisdictional dispute and a similar grievance with a LJAB in California, both brought in reliance on the Lo- cal 2 collective-bargaining agreement as noted above. The Employer argues that SMART has demonstrated its pro- clivity to file grievances over the assignment of the type of work in dispute to non-SMART-represented employees and that Carpenters has promised to take any action re- quired—including striking—to counter those grievances. Carpenters contends that SMART did not file its griev- ances based on a good-faith belief of the allegations con- tained therein. It is the Board’s practice to decline to grant a broad award in cases where, like here, the charged party repre- sents the employees to whom the work is awarded and to whom the Employer intends to continue to assign the work. Super Excavators, 338 NLRB at 478 & fn. 15 (cit- ing cases). Further, the dispute arose based on SMART’s reliance on Local 2’s collective-bargaining agreement with the Employer. That agreement expired on June 30, there is no evidence that SMART Local 2 entered into a successor agreement with the Employer, and the Em- ployer does not have an agreement with SMART Local 48. Accordingly, in these circumstances, we find a broad award is not warranted. The determination is therefore 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 Performance Contracting, Inc., repre- sented by United Brotherhood of Carpenters and Joiners of America, are entitled to perform the installation of pre- fabricated insulated metal panels, including architectural metal/siding installation, related supports, tracks and flashing, caulking and all related work, at a construction UNITED BROTHERHOOD OF CARPENTERS 9 jobsite of the Employer located at 5400 Prosperity Drive in Huntsville, Alabama 35810. Dated, Washington, D.C. May 4, 2023 ______________________________________ Lauren McFerran, Chairman ______________________________________ Marvin E. Kaplan, Member ________________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD