Carpenters (Prime Scaffold, Inc.)

National Labor Relations Board - Board Decisions

Apr 30, 2003

338 N.L.R.B. 1104 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1104
Chicago and Northeast Illinois District Council of
Carpenters and Prime Scaffold, Inc., and Con-
struction and General Laborers’ District Coun-
cil of Chicago and Vicinity, affiliated with the
Laborers’ International Union of North Amer-
ica, AFL–CIO. Case 13–CD–653
April 30, 2003
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
This is a work jurisdiction proceeding under Section
10(k) of the National Labor Relations Act. A charge was
filed on August 6, 2002,1 and an amended charge was
filed on August 19, by Prime Scaffold, Inc. (Prime or the
Employer). The charge alleges that about June 3 and
thereafter, the Respondent, Chicago and Northeast Illi-
nois District Council of Carpenters (Carpenters), violated
Section 8(b)(4)(D) of the National Labor Relations Act
by engaging in proscribed activity with an object of forc-
ing the Employer to assign certain work to individuals
the Carpenters represent rather than to employees repre-
sented by the Construction and General Laborers’ Dis-
trict Council of Chicago and Vicinity, affiliated with the
Laborers’ International Union of North America, AFL–
CIO (Laborers). The hearing was held on August 27 and
28 before Hearing Officer Hyeyoung Bang-Thompson.
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 parties have stipulated that the Employer is an Il-
linois corporation engaged in the business of erecting,
dismantling, and renting scaffolding. Within the 12
months preceding the hearing, which is a representative
period, the Employer has received goods in excess of
$50,000 from outside the State of Illinois at its facility
located in Bensenville, Illinois, and has performed ser-
vices outside the State of Illinois valued in excess of
$50,000. The parties have stipulated, and we find, that
the Employer is engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act. We further
find, based on the stipulation of the parties, that the Car-
penters and the Laborers are labor organizations within
the meaning of Section 2(5) of the Act.

1 All dates are in 2002 unless otherwise noted.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer has erected and dismantled platforms
and scaffolding for construction sites in several Illinois
counties, including the Chicago area, since the mid-
1980s. In projects in the Chicago area, it has used em-
ployees represented by the Laborers. In projects outside
the Chicago area, it has also used employees represented
by the Laborers, unless a general contractor or contractor
has required that it use individuals represented by the
Carpenters.
On the SkyBridge project at issue, each contractor
hired its own subcontractors. Prime performed the scaf-
folding work on the SkyBridge project pursuant to a sub-
contract with Levy Company. The general contractor on
the entire project was Walsh Construction.
Prime began work on the project on June 3. Its crew
consisted of Mark Malczewski, who was a field foreman
for Prime represented by the Laborers, and two other
Laborers-represented employees.
On June 3, Malczewski was approached by Gary
Meredith, who identified himself as a Carpenters’ stew-
ard. Meredith worked for Walsh Construction, and he
was the Carpenters’ chief steward on the SkyBridge pro-
ject. Meredith asked Malczewski if the scaffolding em-
ployees were carpenters or laborers. Malczewski re-
sponded that they were laborers. Meredith informed
Malczewski that usually a mixed crew of carpenters and
laborers erected the scaffolding. Meredith then left, re-
turned a short while later, and stated to Malczewski that
the Carpenters’ business agent (Tom Ryan) said that the
scaffolding employees had to stop working.2
Malczewski responded that he would call Prime’s super-
intendent.
During the 10 minutes it took Malczewski to call the
superintendent, the other two Laborers-represented em-
ployees also stopped working. On Malczewski’s return,
he informed Meredith that Prime’s superintendent said
that the laborers should continue working unless a La-
borers’ business agent told them to stop. Meredith re-
sponded that that was fine, that he understood, and that
he would talk to the Carpenters’ business agent.3
2 Ryan admitted that on the SkyBridge project, Meredith worked for
Walsh Construction, was the chief steward for the Carpenters, reported
violations of the Carpenters’ jurisdiction to Ryan, enforced the collec-
tive-bargaining agreements between the Carpenters and the contractors,
monitored safety, and was “an agent of the business agent” “while
[Meredith was] on the job.”
3 Malczewski testified that later that day he asked Meredith whether
anything would come of the situation. In response, Meredith stated,
“There’s a possibility [Carpenters] might picket the job.” No further
conversations were held between Meredith and Malczewski.
338 NLRB No. 170
CHICAGO & NORTHEAST ILLINOIS DISTRICT COUNCIL OF CARPENTERS 1105
Later on June 3, a Levy company representative told a
vice president for Prime, Joe Nitty, that there was a prob-
lem with the Carpenters claiming the scaffolding work.
Nitty responded that Prime has been having this problem
with the Carpenters for quite a while and that he would
try to take care of it. Nitty then called the business agent
of the Carpenters, Ryan. According to Nitty, Ryan said
that the Laborers-represented employees were doing the
work of Carpenters-represented individuals.4 Nitty re-
sponded that Prime considered the work to be correctly
assigned to employees represented by the Laborers.
Ryan replied that he wanted to put a steward on the job,
pursuant to a collective-bargaining agreement between
Prime and the Carpenters.5 Nitty replied, “You can put a
steward on if you want, but I’m not paying him.” Nitty
offered to arrange a meeting between the Carpenters and
the Laborers, but Ryan refused.
Shortly after June 3, the Carpenters filed a grievance
with Prime alleging that it was required to place a Car-
penters’ steward on the SkyBridge project. At the time
of the 10(k) hearing on August 27 and 28, that grievance
had been heard by an arbitrator but not decided. The
scaffolding was fully erected by about June 10. It was
dismantled in August approximately a week before the
10(k) hearing.
B. The Work in Dispute
The notice of hearing defines the disputed work as “the
erecting and dismantling of platforms and scaffolding at
the SkyBridge located at 1 North Halsted, Chicago, Illi-
nois.”
C. Contentions of the Parties
The Employer and the Laborers contend that there is
reasonable cause to believe that the Carpenters have used
proscribed means to enforce their claim to the work in
dispute based on the statements of the Carpenters’ stew-
ard, Meredith, to employee Malczewski and the state-
ments of the Carpenters’ business agent, Ryan, to
Prime’s vice president, Nitty. The Employer also claims
that the Carpenters’ grievance seeking to have a Carpen-
ters’ steward assigned to the project was an additional
proscribed means of forcing Prime to reassign the dis-
puted work. Further, the Employer and the Laborers
argue that the Carpenters’ statements as well as their
grievance establish competing claims to the disputed
work between the Carpenters and the Laborers. Finally,
the Employer and the Laborers maintain that the disputed

4 Ryan denied making this statement.
5 On other Prime projects in the Chicago area in which employees
represented by the Laborers performed the scaffolding work, the Car-
penters had similarly claimed that Prime was required to hire a Carpen-
ters’ steward.
work should be awarded to employees represented by the
Laborers on the basis of the factors of collective-
bargaining agreements, Employer preference, current
assignment, past practice, area and industry practice,
relative skills, and economy and efficiency of operations.
The Carpenters move to quash the notice of hearing in
this case, contending that there is not reasonable cause to
believe that Section 8(b)(4)(D) has been violated. The
Carpenters claim that the statements by Meredith to
Malczewski did not constitute coercion or a threat to
picket. The Carpenters also argue that they never made a
claim to the disputed work, but merely sought to have a
Carpenters’ steward assigned to the project. Further, the
Carpenters contend that Prime is biased in favor of the
Laborers, at fault for entering into conflicting agreements
with both Unions, and should not be allowed to use the
Section 10(k) procedure to escape its obligations under
the Carpenters’ contract. Finally, the Carpenters argue
that the work should be awarded to individuals it repre-
sents on the basis of the factors of relative skills and area
and industry practice.
D. Applicability of the Statute
It is well settled that the standard in a 10(k) proceeding
is whether there is reasonable cause to believe that Sec-
tion 8(b)(4)(D) of the Act has been violated. This stan-
dard requires finding that there is reasonable cause to
believe that a party has used proscribed means to enforce
its claim to the work in dispute, and that there are com-
peting claims to the disputed work among rival groups of
employees. In addition, Section 10(k) requires that no
method of voluntary adjustment of the dispute has been
agreed on by all the parties. These three prerequisites
have been met in this case.6
First, under Section 8(b)(4), it is a proscribed means of
enforcing a claim to disputed work for a union “(i) to
engage in, or to induce or encourage any individual em-
ployed by any person engaged in commerce or in an in-
dustry affecting commerce to engage in, a strike or a
refusal in the course of his employment . . . to perform
any services.” “The words ‘induce or encourage’ are
broad enough to include in them every form of influence
and persuasion.” Electrical Workers Local 501 v. NLRB,
341 U.S. 694, 701–702 (1951). The provision thus pro-
scribes statements that “would reasonably be understood
by the employees as a signal or request to engage in a
work stoppage against their own employer.” Los Ange-
les Building Trades Council (Sierra South Development),
215 NLRB 288, 290 (1974).
6 Consequently, we deny the Carpenters’ motion to quash the notice
of hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1106
Meredith’s statements to Malczewski that the Carpen-
ters’ business agent said that the laborers had to stop
working “would reasonably be understood by the em-
ployees as a signal or request to engage in a work stop-
page against their own employer.”7 Id. Therefore, we
find that Meredith’s statements establish reasonable
cause to believe that the Carpenters used the means pro-
scribed by Subsection 8(b)(4)(i).8
We also find that there is reasonable cause to believe
that Meredith’s statement that Prime’s employees had to
stop working had the proscribed object of enforcing a
claim to the disputed work. Meredith made this state-
ment immediately after checking with his business agent
about how to respond to the performance of the scaffold-
ing work by Laborers-represented employees. Meredith
also said to Malczewski that normally some Carpenters-
represented employees perform the scaffolding work.
Similarly, Ryan, the Carpenters’ business agent, stated to
Prime’s vice president, Nitty, that Prime’s employees
were doing the work of Carpenters-represented individu-
als.9
Second, we find that the above claim of the Carpenters
competed with the claim of the Laborers. The Laborers-
represented employees asserted a claim to the disputed
work by performing it since the project’s inception.10 See
Longshoremen ILWU Local 14 (Sierra Pacific Indus-
tries), 314 NLRB 834, 836 (1994), affd. 85 F.3d 646, 652
(D.C. Cir. 1996) (citing Operating Engineers Local 926
(Georgia World), 254 NLRB 994, 996 (1981)).
Third, the parties have stipulated, and we find, that
there is no agreed-on method of voluntary adjustment of
the work dispute that would bind all the parties. Accord-
ingly, we conclude that we may appropriately determine
the merits of this dispute.

7 We find, and the Carpenters do not dispute, that Meredith is an
agent of the Carpenters. See fn. 2, above.
8 We need not decide whether other record evidence establishes rea-
sonable cause to believe that the Carpenters used additional proscribed
means to enforce a claim to the disputed work.
9 Although Ryan denied making the statement attributed to him, the
Board may consider contradicted testimony in finding reasonable
cause. See Operating Engineers Local 12 (Winegardner Masonry),
331 NLRB 1669, 1671 (2000); Carpenters Local 1485 (C.J. Reinke &
Sons), 254 NLRB 1091, 1093 (1981).
10 The Carpenters argued at the hearing, but not in their brief to the
Board, that competing claims to the disputed work do not exist because
the work has been completed. However, the completion of disputed
work does not eliminate competing claims to it nor moot the dispute,
unless the record evidence demonstrates that a similar dispute will not
arise in the future. See Iron Workers California District Council
(Madison Industries), 307 NLRB 405, 407 fn. 5 (1992); Electrical
Workers Local 701 (Federal Street Construction), 306 NLRB 829, 830
(1992). Here, the record evidence fails to so demonstrate.
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, 579 (1961). The
Board has held that its determination in a jurisdictional
dispute is an act of judgment based on common sense
and experience, reached by balancing the factors in-
volved in a particular case. Machinists Lodge 1743 (J.A.
Jones Construction), 135 NLRB 1402, 1410–1411
(1962); Electrical Workers Local 1049 (Asplundh Con-
struction), 318 NLRB 633, 634 (1995).
The following factors are relevant in determining this
dispute.
1. Certifications and collective-bargaining agreements
There is no evidence of any Board certifications con-
cerning the employees involved in this dispute. Accord-
ingly, we find that the factor of certifications does not
favor an award of the disputed work to employees repre-
sented by either Union.
The Employer is party to collective-bargaining agree-
ments with both the Carpenters and the Laborers. Prime
has entered into a letter agreement with the Carpenters,
which is dated 1992 and is still in effect. It provides:
EMPLOYER recognizes the UNION as the sole and
exclusive bargaining agent for and on behalf of the
Employees of the EMPLOYER coming within the ter-
ritorial and occupational jurisdiction of the UNION.
That letter agreement also binds Prime to successor collec-
tive-bargaining agreements between area contractors and
the Carpenters unless Prime gives written notice of its intent
to terminate or amend any such agreement. The most recent
successor agreement, which Prime has not given written
notice to terminate or amend, is dated June 1, 2001. It de-
fines the Carpenters’ unit work and job titles in considerable
detail, but does not mention scaffolding.
Prime has had collective-bargaining agreements with
the Laborers since the early 1980s. More recently, in
2001, Prime became a member of the Chicago Area
Scaffolding Association (CASA), which negotiated an
agreement with the Laborers specifically designed for
scaffolding companies.11 The agreement states that it
shall cover all work performed in connection with the
erection, maintenance and dismantling of scaffolding,
which shall include but not be limited to: pedestrian
canopies (including post and beam system, frame sys-
tem, tube and clamp system, parapet wall, barricade
wall, and splash wall, whether stationary or mobile);
construction scaffolding (including frame scaffolds,
11 CASA did not negotiate an agreement with the Carpenters.
CHICAGO & NORTHEAST ILLINOIS DISTRICT COUNCIL OF CARPENTERS 1107
tube and clamp scaffolds, quick-connect systems, sus-
pended platforms, and swing stages); monorail sys-
tems; and shoring (including frames and beams, post
shores, trusses, brace and putlog, screwjacks, flooring
and forms).
The above provision more specifically encompasses
the disputed work than does any provision of Prime’s
agreements with the Carpenters. Accordingly, we find
that this factor favors awarding the work to employees
represented by the Laborers. See, e.g., Machinists
(Brown & Williamson Tobacco), 242 NLRB 22, 24–25
(1979) (finding that this factor favored employees whose
collective-bargaining agreement “more specifically per-
tains to the work in dispute”).
2. Employer preference, current assignment,
and past practice
The Employer assigned the disputed work to its em-
ployees who are represented by the Laborers and main-
tains a preference for that assignment. Further, the Em-
ployer’s past practice has been to assign scaffolding
work within the Chicago area, such as the SkyBridge
project, to employees represented by the Laborers. Con-
sequently, we find that these factors favor awarding the
work to employees represented by the Laborers.
3. Area and industry practice
A vice president of Prime, as well as executives of two
other scaffolding companies that are members of CASA,
testified that Laborers-represented employees perform
virtually all their scaffolding work on commercial con-
struction projects in the Chicago area. The Carpenters
introduced testimony of its district council vice president,
its business agent, and its assistant director of apprentice
training that Carpenters-represented individuals have
erected and dismantled scaffolding in the Chicago area
for other employers. As the evidence admitted by the
hearing officer indicates that at least some employees
represented by each Union perform scaffolding work in
the Chicago area, we find that the factor of area practice
does not favor awarding the work to employees repre-
sented by either Union.12

12 The Carpenters offered into evidence decisions of the National
Joint Construction Board, disbanded several years ago, finding that the
erection and dismantling of scaffolding over 14-feet high should be
performed by Carpenters-represented individuals. However, the hear-
ing officer excluded that evidence as too old and not involving either
Prime or the Laborers. We have examined the evidence, which is cu-
mulative of other Carpenters’ evidence pertaining to area practice, and
have concluded that if the evidence were admitted, it would not affect
our finding that this factor does not favor awarding the work to indi-
viduals represented by either Union. Thus, it is not necessary to decide
whether the hearing officer properly excluded the evidence from the
record.
4. Relative skills
The Employer and the Laborers introduced evidence
that Laborers-represented employees obtain training and
experience in erecting and dismantling scaffolding
through the Laborers’ training programs. Likewise, the
Carpenters introduced evidence that Carpenters-
represented individuals obtain training and experience in
erecting and dismantling scaffolding through the Carpen-
ters’ training programs. Accordingly, we find that this
factor does not favor awarding the work to employees
represented by either Union.
5. Economy and efficiency of operations
The evidence regarding this factor consisted primarily
of testimony by a vice president of Prime, Eric Ringstad,
that all its new hires, even if they are well qualified, are
observed and taught Prime’s specific communication and
scaffolding techniques by a supervisor for a day or two
on their first project. In the Chicago area, the Employer
employs employees represented by the Laborers, and
thus they receive that training. The evidence does not
establish that the Employer employs, in the Chicago area,
employees represented by the Carpenters. Therefore, if
the disputed work were reassigned from the already-
trained employees represented by the Laborers to em-
ployees represented by the Carpenters, the Employer
would need to invest additional supervisory time training
and observing the new hires. Accordingly, we find that
this factor favors awarding the work to employees repre-
sented by the Laborers.13
CONCLUSION
After considering all the relevant factors, we conclude
that Prime employees represented by the Laborers are
entitled to perform the work in dispute. We reach this
conclusion relying on the factors of collective-bargaining
agreements, Employer preference, current assignment,
past practice, and economy and efficiency of operations.
In making this determination, we are awarding the dis-
puted work to employees represented by the Construc-
tion and General Laborers’ District Council of Chicago
and Vicinity, affiliated with the Laborers’ International
Union of North America, AFL–CIO, not to that Union or
its members. The determination is limited to the contro-
versy that gave rise to this proceeding.

Insufficient evidence was introduced with respect to industry prac-
tice to find that this factor favors awarding the disputed work to em-
ployees represented by either Union.
13 Inasmuch as it is the Employer’s practice to observe and train all
new hires, whether represented by the Laborers or by the Carpenters,
Member Walsh would find the evidence regarding the factor of econ-
omy and efficiency of operations to be insufficient to favor awarding
the work to individuals represented by either Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1108
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
1. Employees of Prime Scaffold, Inc., represented by
the Construction and General Laborers’ District Council
of Chicago and Vicinity, affiliated with the Laborers’
International Union of North America, AFL–CIO are
entitled to perform the erecting and dismantling of plat-
forms and scaffolding at the SkyBridge located at 1
North Halsted, Chicago, Illinois.
2. Chicago and Northeast Illinois District Council of
Carpenters is not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force Prime Scaffold, Inc. to
assign the disputed work to employees represented by it.
3. Within 14 days from this date, Chicago and North-
east Illinois District Council of Carpenters shall notify
the Regional Director for Region 13 in writing whether it
will refrain from forcing Prime Scaffold, Inc., by means
proscribed by Section 8(b)(4)(D), to assign the disputed
work to employees represented by it rather than to em-
ployees represented by the Construction and General
Laborers’ District Council of Chicago and Vicinity, af-
filiated with the Laborers’ International Union of North
America, AFL–CIO.