Freesen Inc.

National Labor Relations Board - Board Decisions

Apr 21, 2006

346 N.L.R.B. 953 (N.L.R.B. 2006)

IRON WORKERS LOCAL 112 (FREESEN INC.)
346 NLRB No. 85
953
Iron Workers Local Union No. 112 and Freesen Inc.
and Mid-Central Illinois Regional Council of
Carpenters. Case 33–CD–448
April 21, 2006
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act. The
charge in this proceeding was filed on November 16,
2005,1 by Freesen Inc. (the Employer) alleging that the
Respondent, Iron Workers Local Union No. 112 (Iron
Workers) violated Section 8(b)(4)(D) of the Act by en-
gaging in proscribed activity with an object of forcing
the Employer to assign certain work to employees it
represents rather than to employees represented by Mid-
Central Illinois Regional Council of Carpenters (Carpen-
ters).
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire re-
cord, the Board makes the following findings.
I. JURISDICTION
The Employer is a corporation engaged in construction
in Illinois, Missouri, Oklahoma, Texas, Indiana, and
Iowa. The Employer annually performs services valued
in excess of $50,000 directly to customers located out-
side the State of Illinois, and annually purchases and re-
ceives at its Illinois jobsites goods valued in excess of
$50,000 directly from suppliers located outside the State
of Illinois. We find that the Employer is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act and that Iron Workers 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, a highway contractor, is engaged in the
business of highway construction. It is a signatory mem-
ber of the Associated General Contractors of Illinois,
through which it is bound to a series of collective-
bargaining agreements with Iron Workers, Carpenters,
and Laborers’ International Union of North America,
Local No. 165 (Laborers). The Employer’s most recent
agreement with Iron Workers is effective from May 1,
2005 to April 30, 2009, and its most recent agreement

1 Unless otherwise indicated, all dates are in 2005.
with Carpenters is effective from September 1, 2001 to
July 31, 2006.2
The Employer is responsible for stage 2 of a project to
upgrade interstate 74 through East Peoria and Peoria,
Illinois. The Employer’s responsibilities include estimat-
ing, managing, and performing all major excavation
work, and the construction of all structures and bridges.
The Employer began the project in August 2004. Part of
the project involved the setting of precast concrete beams
for bridges at various points along the roadway. The
beams are cast offsite, lifted into place, and affixed in
one of three ways: on a masonry base of stiff grout, on a
fabric pad, or on steel bearings. The Employer has not
previously set precast concrete beams on steel bearings.
Around January 2005, Iron Workers Foreman Doug
McClister approached the Employer’s manager of
bridges and structures, William Coates, and asked if the
Employer had assigned the setting of precast concrete
beams. Coates responded that he did not know if the
Employer had made the assignment. McClister then re-
minded Coates that Iron Workers set the precast concrete
vault beams at the Employer’s Cabin Town job in
Bloomington, Illinois in 2003–2004.3
On February 2, the Employer’s CEO, James Buhlig,
met with Iron Workers Business Manager Johnnie Short,
Carpenters Vice President Darrel Moody, and other rep-
resentatives from both unions to discuss the interstate 74
project. At the meeting, Buhlig acknowledged that con-
tracts with both unions covered the work of setting pre-
cast concrete beams, and proposed that a composite crew
of Carpenters, Iron Workers and Laborers4 perform the
work. Carpenters rejected the proposal while Iron Work-
ers agreed to it. Buhlig reminded Carpenters that on the
Cabin Town project in 2003–2004, the Employer as-
signed Iron Workers to set all precast beams, and Car-
penters did not object to that assignment. Buhlig ended
the meeting by stating that the Employer’s managers
would consult and announce their decision. He told them
that the Employer would make the assignment from the
standpoint of economic efficiency, and that it was lean-
ing towards assigning the work in the same manner as
another bridge builder, O’Neal Construction. O’Neal
Construction had assigned the setting of precast concrete
beams on steel bearings to employees represented by

2 Although Carpenters did not appear at the hearing, the Employer
submitted into evidence its collective-bargaining agreement with Car-
penters.
3 The beams on that job were set on fabric pads.
4 Buhlig testified that he included Laborers because the Employer’s
collective-bargaining agreement with Laborers obligated the Employer
to assign at least one employee represented by Laborers as a carpenter
tender for every three Carpenters’ represented employees it employed
on all its projects.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD954
Iron Workers, and the setting of all other precast concrete
beams to employees represented by Carpenters.
By letter to the Employer dated February 9, Carpen-
ters’ executive secretary, James Dalluge, protested the
Employer’s intention to assign to Iron Workers the set-
ting of precast beams on steel bearings. In the letter,
Carpenters threatened to file a grievance concerning the
assignment of this work to Iron Workers.
On February 11, Buhlig sent a letter to Iron Workers
and Carpenters assigning the “setting of all pre-cast I-
beams that are set on steel bearings” to employees repre-
sented by Iron Workers, and the setting of “all other pre-
cast I-beams” to employees represented by Carpenters.
A few days later, the Employer began the project using
employees represented by Iron Workers to set the precast
concrete beams on steel bearings.
By letter dated February 24, the Employer responded
to Carpenters’ February 9 letter, asserting that the dispute
was not arbitrable because jurisdictional disputes are
excluded from the grievance process under the Carpen-
ters’ collective-bargaining agreement, and that Carpen-
ters had no valid claim to the disputed work.
By letter dated March 2, Dalluge disputed the Em-
ployer’s statement that Carpenters had no valid claim for
the work, and stated that the Employer’s assignment vio-
lated the Employer’s collective-bargaining agreement
with Carpenters. Dalluge added that if the Employer
would not process the grievance then “all legal action
will be taken to resolve this matter.”
Shortly before March 25, Buhlig and Iron Workers
Business Manager Short had a brief telephone conversa-
tion in which Buhlig related that Carpenters was still
pursuing the assignment of setting all precast beams.
Short stated that Iron Workers would fight to keep its
assignment.
On March 25, Short sent a letter to the Employer stat-
ing that if the setting of the precast concrete beams on
steel bearings was reassigned to employees represented
by Carpenters, Iron Workers would “take every action
available to [them] to see to it that the work in dispute is
performed by Iron Workers, . . . which could well in-
clude [a] job action. . . .”
On November 8, Carpenters filed a lawsuit against the
Employer under Section 301 of the Labor-Management
Relations Act in the United States District Court for the
Central District of Illinois. In its lawsuit, Carpenters
sought payment for all work assigned by the Employer to
Iron Workers in the setting of precast concrete beams.
Shortly afterwards, Buhlig informed Short that Car-
penters had filed suit in Federal court. In a letter dated
November 14, Short stated that “all setting of pre-cast
concrete falls within work that is performed exclusively”
by Iron Workers, and should the Employer take any step
to reassign the disputed work, Iron Workers would “take
all available legal action,” including “post[ing] pickets
on affected job sites.” Subsequently, the Employer filed
the instant unfair labor practice charge against Iron
Workers. The Employer also filed with the district court
a motion to stay Carpenters’ lawsuit pending the out-
come of the case before the Board. The district court has
not yet ruled on the Employer’s motion.
In a letter to the Region, dated December 2, Carpenters
stated that it disclaims the work in dispute, but that it
does not waive any claim to the work at issue pending
before the district court, and that any resulting Board
action would not affect in any way its pending court pro-
ceeding.
B. Work in Dispute
The Board’s notice of hearing states that the work in
dispute is “setting precast concrete beams on steel bear-
ings on the Upgrade I-74 project, Peoria, Illinois.”
C. Contentions of the Parties
The Employer contends that there is reasonable cause
to believe that Section 8(b)(4)(D) of the Act has been
violated. The Employer maintains that Iron Workers
made several demands for the work in dispute, and that
in its letter of November 14, Iron Workers threatened to
picket the Employer. The Employer also contends that
Carpenters’ letter to the Region did not unequivocally
disclaim the work in dispute because it explicitly re-
served the right to pursue the same work in its lawsuit.
The Employer also contends that no voluntary means
exist for adjustment of the jurisdictional dispute. As to
the merits of the dispute, the Employer contends that the
work should be assigned to employees represented by
Iron Workers, based on the factors of collective-
bargaining agreements, employer preference and past
practice, area and industry practice, relative skills and
training, and economy and efficiency of operations.
Iron Workers also argues that Carpenters’ disclaimer is
ineffective because of Carpenters’ stated intent to pursue
its lawsuit, and that the work in dispute should be as-
signed to the employees it represents based on the factors
of the collective-bargaining agreements, employer pref-
erence and past practice, area and industry practice, and
relative skills and training.
D. Applicability of the Statute
Before the Board may proceed with a determination of
a dispute pursuant to Section 10(k) of the Act, there must
be reasonable cause to believe that Section 8(b)(4)(D) of
the Act has been violated. This standard requires finding
that there is reasonable cause to believe that there are
competing claims to the disputed work among rival
IRON WORKERS LOCAL 112 (FREESEN INC.) 955
groups of employees and that a party has used proscribed
means to enforce its claim to the work in dispute. See
Electrical Workers Local 3 (Slattery Skanska, Inc.), 342
NLRB 173, 174 (2004). The Board will not proceed
under Section 10(k) if there is an agreed-upon method
for voluntary adjustment of the dispute. Id.
1. Competing claims for work
The evidence establishes that Iron Workers claims the
disputed work. That claim is demonstrated not only by
the fact that employees it represents perform the work,
Longshoremen Local 14 (Sierra Pacific Industries), 314
NLRB 834, 836 (1994), but also by Iron Workers’ No-
vember 14 statement that it would take all available ac-
tion, including picketing, if the disputed work were reas-
signed.
We find that there is reasonable cause to believe that
Carpenters claims the work in dispute, as well. As set
forth above, in the February 2 meeting, Carpenters
claimed the disputed work by refusing the Employer’s
proposal of a composite crew of employees represented
by Iron Workers, Carpenters, and Laborers. Further, in
letters dated February 9 and March 2, Carpenters stated
that it would file a grievance if the Employer did not
assign the disputed work to employees represented by
Carpenters, and that it would pursue all avenues if the
Employer did not process the grievance. Finally, Car-
penters filed its lawsuit in district court concerning the
work in dispute.
Although Carpenters’ December 2 letter to the Region
purports to disclaim interest in the disputed work, we
find the disclaimer ineffective.5 To be effective, a dis-
claimer must be a clear, unequivocal, and unqualified
disclaimer of interest in the work in question. Laborers
Local 79 (DNA Contracting), 338 NLRB 997, 998–999
(2003); Operating Engineers Local 150 (Interior Devel-
opment), 308 NLRB 1005, 1006 (1992). As noted
above, Carpenters’ disclaimer was qualified by the
statement that it did not waive any claim to the work at
issue in the district court proceeding. Plainly, Carpen-
ters’ continuing lawsuit is inconsistent with any dis-
claimer of interest in the work.6 And we therefore reject
the purported disclaimer.

5 The Carpenters did not appear at the hearing or file any brief in this
matter. Consequently, there is no motion to quash based on the alleged
disclaimer, and there is arguably a procedural basis to refuse to quash
the 10(k) proceeding. We have nonetheless addressed the substantive
issue, and we deny it on the merits.
6 See Laborers Local 931 (Carl Bolander), 305 NLRB 490, 491
(1991) (grievance requesting compliance with collective-bargaining
agreement constituted a claim for the disputed work); Plumbers District
Council 16 (L&M Plumbing, Inc.), 301 NLRB 1203, 1204 (1991) (un-
ion’s continued pursuit of grievance found inconsistent with its asser-
tion that it disclaimed interest in the disputed work); Longshoremen
2. Use of proscribed means
As discussed above, in its November 14 letter to the
Employer, Iron Workers threatened that it would “take
all legal action” including “post[ing] pickets on affected
job sites.” On this basis we find that there is reasonable
cause to believe that Iron Workers’ threat constituted
proscribed means to enforce its claim to the work in dis-
pute.
3. No voluntary method for adjustment of dispute
There is no evidence that either Carpenters or Iron
Workers is bound to the dispute resolution procedure in
the other union’s collective-bargaining agreement with
the Employer. Moreover, the dispute resolution provi-
sion in Carpenters’ collective-bargaining agreement with
the Employer specifically excludes jurisdictional dis-
putes. It is well settled that all parties to the dispute must
be bound if an agreement is to constitute “an agreed
method of voluntary adjustment.” Plumbers Local 393
(Therma Corp.), 303 NLRB 678, 680 (1991). Thus, we
find that that there is no agreed-upon method for the vol-
untary adjustment of the dispute to which all parties are
bound.
Based on the foregoing, we find there is reasonable
cause to believe that a violation of Section 8(b)(4)(D) has
occurred and that there exists no agreed-upon method for
voluntary adjustment of the dispute within the meaning
of Section 10(k) of the Act. Therefore, we find that the
dispute is properly before the Board for determination.
D. Merits of the Dispute.
Section 10(k) requires the Board to make an affirma-
tive award of disputed work after considering various
factors. NLRB v. Electrical Workers Local 1212 (Co-
lumbia Broadcasting), 364 U.S. 573 (1961). The Board
has held that its determination in a jurisdictional dispute
is an act of judgment based on common sense and ex-
perience, reached by balancing the factors involved in a
particular case. Machinists Lodge 1743 (J. A. Jones
Construction), 135 NLRB 1402 (1962).
The following factors are relevant in deciding this dis-
pute.
1. Collective-bargaining agreements
The record shows that the Employer has been signa-
tory to a series of collective-bargaining agreements with
Iron Workers, the most recent of which is effective from

Local 1294 ILA (Cibro Petroleum Products), 257 NLRB 403, 406
(1981) (statement that disclaimer is conditioned on success of Federal
lawsuit found not to be an unequivocal disclaimer of the disputed
work). Member Liebman agrees that the Carpenters’ continuing law-
suit, which seeks pay-in-lieu relief, is inconsistent with a disclaimer of
interest in the disputed work. See Laborers Local 542 (Eshbach Bros.),
344 NLRB 201, 202 fn. 4(2005).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD956
2005 to 2009. The Employer’s agreement with Iron
Workers covers work involved in the construction of
highways and bridges including “handling, erection and
construction of all . . . steel . . . all precast, prestressed,
preassembled masonry panels and poststressed concrete
structures. . . .”
The record also establishes that the Employer has a
collective-bargaining agreement with Carpenters, which
covers “highway and heavy construction including all
work involved in the construction of roads . . . highways
. . . bridges” and the “setting of pre-cast and pre-stressed
beams, girders and deck.”
Both collective-bargaining agreements arguably cover
the work in dispute. Under these circumstances, we find
that the factor of collective-bargaining agreements does
not favor an award of the disputed work to either group
of employees.
2. Employer preference and past practice
Both Employer CEO Buhlig and Manager Coates testi-
fied that the Employer assigned the disputed work to
employees represented by Iron Workers, and that the
Employer prefers that the work in dispute continue to be
performed by Iron Workers-represented employees.
At the hearing, Buhlig testified that the Employer had
never before installed precast concrete beams on steel
bearings. The record does show, however, that the Em-
ployer has previously assigned similar work to employ-
ees represented by Iron Workers.7 Both Buhlig and
Coates testified that the Employer has always assigned to
these employees the installation of steel girders on steel
bearings. Coates further testified that the installation of
girders on steel bearings entails “the same setup” as the
installation of concrete beams, because the same bearing
is used in both instances.
In view of the Employer’s preference, and its past
practice with respect to installations involving steel bear-
ings, we find that this factor favors an award of the dis-
puted work to employees represented by Iron Workers.
3. Area and industry practice
Iron Workers Business Manager Short testified that the
setting of precast concrete and steel beams on steel bear-
ings has been performed by Iron Workers-represented
employees for other contractors within the Peoria-East
Peoria area. Specifically, he testified that employees
represented by Iron Workers performed the setting of

7 The Board has found that an employer’s past practice of assigning
similar work is a relevant consideration in determining whether this
factor favors an award to a particular group of employees. See, e.g.,
Laborers Local 172 (Henkels & McCoy), 313 NLRB 978, 981 (1994);
Sheet Metal Workers Local 18 (Circle T Construction), 209 NLRB 470,
471–472 (1974).
beams in the original construction of interstate 74
through Peoria and East Peoria. Short further testified
that, on a 2002 project, employees represented by Iron
Workers set both the iron girders and the concrete beams
of a new bridge. In addition, Iron Workers introduced
into evidence letters of assignment from other area con-
tractors, involving the installation of iron girders on steel
bearings or precast concrete beams on fabric or masonry
pads.
There is no evidence addressing whether there is an
area or industry practice of Carpenters-represented em-
ployees performing this work.
We find from the above evidence that this factor favors
an award of the disputed work to employees represented
by Iron Workers.
5. Relative skills and training
The Employer and Iron Workers presented testimony
that employees represented by Iron Workers are skilled
in the installation of precast concrete beams and other
structures. Iron Workers’ apprentice coordinator Brian
Stanley testified that Iron Workers’ apprentice program
takes 3 years to complete and includes over 100 hours of
classroom instruction. He added that the program re-
quires apprentices to work under the supervision of one
or more journeymen, and that they spend 1,500 to 2,000
hours in the field while in the program. Stanley further
testified that Iron Workers apprentices are also required
to purchase manuals and watch training video modules
demonstrating rigging, setting, and installation of precast
concrete beams.
The record contains no evidence of the training re-
ceived by employees represented by Carpenters.
Accordingly, we find that this factor favors an award
to employees represented by Iron Workers.
6. Economy and efficiency of operations
Employer managers Buhlig and Coates both testified
that the Employer can perform the work more efficiently
and economically with Iron Workers. They testified that
assigning the work to Iron Workers requires a crew of
only five employees. The crew consists of one employee
to relay signals from the crew to the crane operator, two
employees to rig the beam before it is lifted, and two
employees to assist in placing the beam on the pintles in
the bearing base, once the beam is guided into place, to
adjust the bearings as necessary, and to install the anchor
bolt.
Buhlig and Coates testified that, by contrast, if the
work in dispute is assigned to employees represented by
Carpenters, the Employer would have to use a six or
seven person crew. The crew would consist of one Car-
penters-represented employee to be the signal person,
IRON WORKERS LOCAL 112 (FREESEN INC.) 957
two employees represented by Laborers for rigging (as
required under its collective-bargaining agreement with
Laborers if a Carpenters-represented employee is used),8
two employees represented by Carpenters to set the
beams into place, and two Iron Workers-represented em-
ployees to adjust the bearings and set the anchor bolt.
Buhlig and Coates testified that the employees repre-
sented by Iron Workers would be needed on that crew
because only they can adjust the bearings and set the
anchor bolts for the retainers.
Accordingly, we find that this factor favors an award
of the disputed work to the employees represented by
Iron Workers.
Conclusions
After considering all the relevant factors, we conclude
that the employees represented by Iron Workers are enti-

8 See fn. 4, supra.
tled to perform the work in dispute. We reach this con-
clusion relying on the factors of employer preference and
past practice, area and industry practice, relative skills
and training, and economy and efficiency of operations.
In making this determination, we are awarding the work
to employees represented by Iron Workers, not to that
Union or its members. The determination is 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 Freesen, Inc., represented by Iron
Workers Local Union No. 112, are entitled to perform
the setting of precast concrete beams on steel bearings on
the Upgrade I-74 project, Peoria, Illinois.