Building Laborers' Local No. 310 (Safway Services)

National Labor Relations Board - Board Decisions

Oct 29, 2015

363 NLRB No. 25 (N.L.R.B. 2015)

363 NLRB No. 25
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the Bound Volumes.
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.

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.
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
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-

3 The contract in evidence, which states that it is effective from May
1, 2010, through April 30, 2015, has an automatic renewal provision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
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.
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 No. 57, slip op. at 3 (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
LABORERS’ UNION LOCAL 310 (SAFWAY SERVICES, LLC) 3
agreed-upon method for the voluntary adjustment of the
dispute. We accordingly find that the dispute is properly
before 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, 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,

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.
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
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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
generally perform different work. Accordingly, we find
that this factor favors an assignment of the work to em-
ployees represented by Laborers.
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.
Dated, Washington, D.C. October 29, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD