Laborers Local 6 (Anderson Interiors)

National Labor Relations Board - Board Decisions

Dec 12, 2008

353 N.L.R.B. 590 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 62
590
Laborers International Union of North America, Lo-
cal No. 6 and Chicago Regional Council of Car-
penters and Anderson Interiors, Inc. Case 13–
CD–781
December 12, 2008
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act (the Act).
Chicago Regional Council of Carpenters (Carpenters)
filed a charge on July 14, 2008, alleging that Laborers
International Union of North America, Local No. 6 (La-
borers) violated Section 8(b)(4)(D) of the Act by engag-
ing in proscribed activity with an object of forcing
Anderson Interiors, Inc. to assign certain work to em-
ployees it represents rather than to employees repre-
sented by Carpenters. The hearing was held on Septem-
ber 2, 2008, before Hearing Officer Lisa Friedheim-
Weis. Thereafter, Carpenters filed a posthearing brief in
support of its position, and Laborers filed a brief in sup-
port of its motion to quash the notice of hearing.
The National Labor Relations Board affirms the hear-
ing officer’s rulings, finding them free from prejudicial
error. On the entire record, we make the following find-
ings.1
I. JURISDICTION
Anderson Interiors (Anderson), an Illinois corporation,
is engaged in the business of installing flooring material.
During the calendar year preceding the hearing, a repre-
sentative period, Anderson purchased and received at its
Antioch, Illinois facility goods and materials valued in
excess of $50,000 directly from points located outside
the State of Illinois. Accordingly, Anderson is engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act. Furthermore, based on the parties’ stipula-
tion, Carpenters and Laborers are labor organizations
within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Anderson installs hardwood flooring material at vari-
ous project sites in the Chicago metropolitan area.

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
Anderson assigns its employees the tasks of unloading,
handling, preparing, and installing its flooring material.
At all times relevant, Anderson was a signatory to a col-
lective-bargaining agreement with Carpenters;2 it has
never entered into a collective-bargaining agreement
with Laborers.
As is its practice, Anderson assigned the installation of
hardwood flooring at its 757 Orleans Street project to its
employees, who are represented by Carpenters. The pro-
ject commenced in June or July 2008. At that time, an
employee for the general contractor of the project warned
Anderson’s superintendent that Laborers “would be there
waiting for” them. According to the superintendent,
members of Laborers approached him and his co-
workers as they unloaded their truck, asked to see their
union cards, and inquired about their wages. Laborers’
steward then told them “that’s Laborers’ work . . . [and
to] stop until they sort it out.” Also at that time, a busi-
ness agent for Laborers told a business agent for Carpen-
ters that there was “an area standards issue” on the pro-
ject. Laborers’ agent also claimed the unloading work,
according to Carpenters’ agent. When asked whether
Laborers’ agent threatened to set up an area standards
picket, Carpenters’ agent testified, “That would be your
interpretation of what a threat it [sic]. He told me to do
what I got to do and I told him you do what you got to
do.” Approximately 1 week later, Laborers picketed
Anderson. The picket signs read, “On strike against
Anderson Interiors for Area Standards.” Several other
unions refused to cross the Laborers’ picket line. The
picket lasted for 1 day.
B. Work in Dispute
According to Carpenters and Anderson, the work in
dispute includes: “All unloading and handling of hard-
wood flooring materials located at 757 Orleans Street in
Chicago, Illinois by the employees of Anderson Interiors,
Inc.” Laborers, however, argues that the work in dispute
should be limited to just the “unloading” of such flooring
materials.
While the Board may narrow the scope of the work in
dispute, see Operating Engineers Local 150 (R&D
Thiel), 345 NLRB 1137, 1138 (2005), the facts do not
warrant such a ruling in this case. Admittedly, Laborers
verbally demanded only the “unloading” work. How-
ever, the record reveals the difficulty in distinguishing
between “unloading” and “handling.” A business agent
for Carpenters attempted to articulate a distinction: “You

2 The collective-bargaining agreement and addendum thereto intro-
duced into evidence expired on May 31, 2008. However, the record
indicates that the parties entered into a successor agreement and that the
relevant provisions are the same in both agreements.
LABORERS LOCAL 6 (ANDERSON INTERIORS) 591
unload [the hardwood flooring] off the truck to the dock.
Then you handle it from the dock to the floor. Then you
stage it from the floor to the area.” (Emphasis added.) It
would appear from this testimony that “unloading” and
“handling” are two separate and distinct stages in the
preinstallation process. Immediately preceding this
statement, though, the agent acknowledged that the term
“handling” could be more broadly interpreted to include
the “unloading” work—“Well, we use it unloading, han-
dling, because you are handling the product.”
To fully resolve this matter and avoid future disputes,
we adopt the definition of the work in dispute as advo-
cated by Carpenters and Anderson.
C. Contentions of the Parties
Carpenters first contends that Section 10(k) applies to
this case. It argues that Laborers claimed the work in
dispute. It further argues that there is reasonable cause to
believe that Laborers violated the Act when it picketed to
enforce its claim. Carpenters also maintains that no vol-
untary adjustment mechanism exists. As to the merits of
the dispute, Carpenters contends that the work in dispute
should be assigned to the employees it represents based
on the following factors: collective-bargaining agree-
ments, employer preference and past practice, area prac-
tice, relative skill and experience, and economy and effi-
ciency of operations. Carpenters finally requests an area-
wide award.
Although Anderson did not file a posthearing brief in
this case, its representatives testified at the hearing and
supported Carpenters’ contentions that Section 10(k)
applies to this case and that, based on the above factors,
Anderson’s employees, who are represented by Carpen-
ters, should be assigned the work in dispute.
Laborers moves to quash the notice of hearing.3 In its
motion filed at the hearing, it argues that it did not claim
the work in dispute and did not engage in proscribed ac-
tivity. It also argues in its motion, and in its posthearing
brief, that the parties are bound to an alternative method
of adjustment. After the hearing officer denied the La-

3 Although Laborers did not directly raise the issue in its motion to
quash, Carpenters states in its posthearing brief that Laborers twice
attempted to disclaim the work in dispute. “[T]he party raising the
issue that a disclaimer eliminates the existence of a jurisdictional dis-
pute” bears the burden of proof. Operating Engineers Local 150 (Inte-
rior Development, Inc.), 308 NLRB 1005, 1006 (1992). Moreover, for a
disclaimer to be effective, it must be “a clear, unequivocal, and unquali-
fied disclaimer of all interest in the work in question.” R&D Thiel, 345
NLRB at 1139. Laborers failed to satisfy its burden. The only evi-
dence in the record is the following statement by counsel for Laborers:
“We’re not filing a disclaimer. We’re submitting a disclaimer for pur-
poses of this proceeding because, because we’ve submitted a motion
which I will address on the record in a moment.” Such a statement is
not a clear, unequivocal disclaimer of work.
borers’ motion to quash, it withdrew from the hearing
and did not contest the merits of the dispute.4
D. Applicability of the Statute
Before the Board may determine a dispute pursuant to
Section 10(k), there must be reasonable cause to believe
that Section 8(b)(4)(D) of the Act has been violated.
R&D Thiel, 345 NLRB at 1139. This standard requires
finding that there is reasonable cause to believe that there
are competing claims to the disputed work among rival
groups of employees and that a party has used proscribed
means to enforce its claim to the work in dispute. Id.
Additionally, 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 in dispute and
proscribed means
Laborers asserts that it did not claim the work in dis-
pute and did not employ proscribed means. Instead, it
contends that it inquired about, and picketed to enforce,
area standards. Such picketing is permissible under Sec-
tion 8(b)(4)(D). Sheet Metal Workers Local 19 (E. P.
Donnelly, Inc.), 345 NLRB 960, 962 (2005). Laborers,
therefore, urges the Board to sustain its motion to quash.
Laborers may have desired to protect area standards.
Members of Laborers did inquire about that subject, and
its picket signs were limited to area standards. “How-
ever, even where one object of picketing is to protect
area standards, if the evidence shows reasonable cause to
believe that another objective of the picketing is to obtain
disputed work, that is sufficient to bring the union’s con-
duct within the ambit of Section 8(b)(4)(D).” Id. Such
evidence exists here. Laborers twice demanded at least a
portion of the work in question, and it picketed approxi-
mately 1 week after it made these claims. Based on these
facts, we find there is reasonable cause to believe that
Laborers claimed the work in dispute and that at least
one objective of the picketing was to obtain that work.
See generally E. P. Donnelly, Inc., supra.
2. No voluntary method for adjustment of dispute
Laborers also urges the Board to quash the notice of
hearing because it believes that all parties are bound to a
voluntary method of adjustment, namely, the Chicago &
Cook County Building & Construction Trades Council
Joint Conference Board (JCB). Both unions agree that,
by virtue of their memberships in the Chicago & Cook
County Building & Construction Trades Council (Coun-
cil), they are bound by the standard agreement between
the Construction Employers’ Association and the Coun-

4 Despite this, we will address the merits. See, e.g., Iron Workers
Local 112 (Freesen, Inc.), 346 NLRB 953, 955 fn. 5 (2006).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD592
cil to submit all jurisdictional disputes to the JCB. The
argument in this case centers on whether or not Anderson
is bound to the JCB.
It is well settled that the Board will not hear a dispute
when all of the parties are bound to an alternative method
of adjustment. R&D Thiel, 345 NLRB at 1140. In order
to determine if the parties are bound, the Board carefully
scrutinizes the agreements at issue. See, e.g., Elevator
Constructors Local 2 (Kone, Inc.), 349 NLRB 1207,
1209–1210 (2007); Sheet Metal Workers Local 292 (Gal-
lagher-Kaiser Corp.), 264 NLRB 424, 428–430 (1982).
Contrary to Laborers’ contention, Anderson is not
bound to the JCB. To establish Anderson’s connection
to the JCB, Laborers looks to Anderson’s involvement
with another project in Chicago—the Trump Interna-
tional Hotel and Tower (Trump Tower). For that project,
the Trump Organization entered into a Project Labor
Agreement (PLA) with the unions affiliated with the
Council. The PLA binds its parties to the JCB. Ander-
son is a subcontractor on the Trump Tower project and is
thereby bound to the PLA. However, the subcontract
and the PLA itself make clear that they only apply to
Anderson’s work on the Trump Tower project.5 There-
fore, they cannot bind Anderson to the JCB for the cur-
rent dispute. Additionally, Laborers cannot rely on
Anderson’s collective-bargaining agreement with Car-
penters to bind Anderson to the JCB for the instant dis-
pute because that agreement mentions neither the stan-
dard agreement nor the JCB.
In sum, we conclude that there are competing claims
for the work in dispute, that there is reasonable cause to
believe that a violation of Section 8(b)(4)(D) has oc-
curred, and that no agreed upon method for voluntary

5 Anderson’s subcontractor agreement states, in pertinent part:
“[Anderson] understands that the [PLA] is in place specific for [the
Trump Tower] project with the local trade unions and that compliance
with this agreement for labor provided in this scope of work is in-
cluded.” (Emphasis added.)
The PLA states, in pertinent part, “This Agreement is made . . . be-
tween the Trump Organization for and on behalf of the contractors and
subcontractors performing work within the scope of this Agreement . . .
and each of the labor organizations affiliated with the Chicago & Cook
County Building & Construction Trades Council.” (Emphasis added.)
In Plasterers Local 478 (J.L. Manta, Inc.), 264 NLRB 171 (1982), a
case cited by Laborers, the Board determined that a subcontractor was
bound by a jurisdictional dispute resolution procedure negotiated by the
general contractor. That case, however, is distinguishable. First, the
subcontractor in J.L. Manta had to comply with “all the provisions of
any” agreement executed by the general contractor, including provi-
sions concerning settlement of jurisdictional disputes. Id. at 172. Here,
conversely, the Trump Tower’s subcontract has project-specific lan-
guage. Second, the agreements in J.L. Manta concerned only one pro-
ject. In this case, however, Laborers tries to apply the agreements from
one project—the Trump Tower—to a wholly different project—757
Orleans Street.
adjustment of the dispute within the meaning of Section
10(k) exists in this case. Based on the foregoing, we
hold that the dispute is properly before us for determina-
tion, and, accordingly, we deny Laborers’ motion to
quash the notice of hearing.
E. Merits of the Dispute
The grant of authority in Section 10(k) for the Board to
“hear and determine” jurisdictional disputes requires the
Board to make an affirmative award of the disputed work
to one of the groups of employees involved in the dis-
pute. NLRB v. Electrical Workers Local 1212 (Columbia
Broadcasting), 364 U.S. 573, 579 (1961). While the Act
does not set out the standards the Board is to apply in
making this determination, the Supreme Court has ex-
plained that “[e]xperience and common sense will supply
the grounds for the performance of this job which Con-
gress has assigned the Board.” Id. at 583. Consistent
with the Court’s opinion, the Board announced in Ma-
chinists Lodge 1743 (J. A. Jones Construction), 135
NLRB 1402, 1410–1411 (1962), that in making the de-
termination that the Supreme Court found was required
by Section 10(k), the Board would consider “all relevant
factors,” and that its determination in a jurisdictional
dispute would be an act of judgment based on common
sense and experience, reached by balancing the factors
involved in a particular case. See R&D Thiel, 345 NLRB
at 1140–1141.
We have considered the following relevant factors,
and, for the reasons set forth below, we conclude that
Anderson’s employees, who are represented by Carpen-
ters, are entitled to perform the work in dispute. In mak-
ing this determination, we emphasize that we are award-
ing the work to Anderson’s employees, who are repre-
sented by Carpenters, not to that Union or its members.
1. Certifications and collective-bargaining agreements
There is no evidence of any Board certifications con-
cerning the employees involved in this dispute. Thus, we
find the factor of Board certifications does not favor
awarding the disputed work to employees represented by
either union. However, the collective-bargaining agree-
ment between Anderson and Carpenters covers the work
in dispute,6 and Anderson does not have a collective-
bargaining agreement with Laborers. Thus, the factor of

6 Art. I of the collective-bargaining agreement states that the bar-
gaining unit includes those employees engaged in “the handling, erect-
ing, and installing material on any of the above divisions or subdivi-
sions” of the trade. Art. XXV of the collective-bargaining agreement,
which specifically covers installers of floor and wall products, includes
the “handling, distributing and unpacking” of wood flooring material.
Finally, an addendum to the collective-bargaining agreement provides,
in pertinent part, “A Helper on residential or commercial jobsites may
unload, and distribute all floor covering related material . . . .”
LABORERS LOCAL 6 (ANDERSON INTERIORS) 593
collective-bargaining agreements favors awarding the
work in dispute to the employees represented by Carpen-
ters.
2. Employer preference and past practice
Anderson, in accordance with its preference and prac-
tice, assigned the disputed work to employees repre-
sented by Carpenters. Thus, we find this factor favors
awarding the disputed work to the employees represented
by Carpenters.
3. Area practice
Carpenters presented testimony from two witnesses—
Anderson’s project coordinator and Carpenters’ business
agent—that employers in the Chicago area typically as-
sign the unloading and handling of hardwood flooring
material to employees represented by Carpenters. Thus,
this factor weighs in favor of awarding the work in dis-
pute to the employees represented by Carpenters.
4. Relative skill and experience
Carpenters presented testimony that its members are
specifically trained for, and particularly skilled at, per-
forming the work in dispute. Carpenters requires preap-
prentices and apprentices to attend training programs that
include instruction on proper material unloading and
handling methods. Carpenters also offers continuing
education and certification programs in material han-
dling. According to Carpenters, training on proper
unloading and handling procedures promotes workplace
safety, reduces damage to the flooring material, and en-
sures that necessary preinstallation procedures are fol-
lowed. There is no evidence regarding the skills or ex-
perience of employees represented by Laborers. Thus,
this factor weighs in favor of awarding the work in dis-
pute to the employees represented by Carpenters.
5. Economy and efficiency of operations
Carpenters presented testimony that employees repre-
sented by it perform the unloading and handling work
more efficiently than employees represented by Laborers.
Anderson’s superintendent testified, “One, we know the
material. We know how to handle it. We know where to
stage it.” Anderson’s project coordinator similarly testi-
fied that carpenters are familiar with the work and are
skilled at performing it. According to the project coordi-
nator, by having the same employees unload, distribute,
and install the material, Anderson can “[s]ave time, labor
. . . . because [the carpenters] know exactly what’s going
on in the job . . . . They’re part of the crew.” “The La-
borers’ [, on the other hand,] are doing other things dur-
ing the day. . . . [T]hey don’t know our product. They
don’t know what goes with our product,” according to
the project coordinator. Thus, this factor weighs in favor
of awarding the work in dispute to the employees repre-
sented by Carpenters.
Conclusion
After considering all the relevant factors, we conclude
that Anderson’s employees, who are represented by Car-
penters, are entitled to continue performing the work in
dispute at the jobsite that gave rise to this dispute. We
reach this conclusion relying on the factors of collective-
bargaining agreements, employer preference and past
practice, area practice, relative skill and experience, and
economy and efficiency of operations. In making our
determination, we award the work to Anderson’s em-
ployees, who are represented by Carpenters, not to that
labor organization or its members.
Scope of Award
“Normally, [Section] 10(k) awards are limited to the
jobsites where the unlawful [Section] 8(b)(4)(D) conduct
occurred or was threatened.” Carpenters (Prate Installa-
tions, Inc.), 341 NLRB 543, 546 (2004). However, Car-
penters seeks an areawide award.
For the Board to issue a broad award, two prerequisites
must be met—there must be: “(1) evidence that the dis-
puted work has been a continuous source of controversy
in the relevant geographic area and that similar disputes
may recur; and (2) evidence demonstrating the offending
union’s proclivity to engage in further unlawful conduct
in order to obtain work similar to that in dispute.” Id.
When evaluating these prerequisites, the Board looks to
the offending union’s other conduct. See Electrical
Workers Local 98 (Lucent Technology), 338 NLRB
1118, 1122 (2003); Electrical Workers Local 98
(Swartley Bros. Engineers), 337 NLRB 1270, 1273
(2002).
To support its request, Carpenters cites four recent in-
cidents between itself and Laborers. Based upon the
documentary evidence attached to Carpenters’ posthear-
ing brief and/or the posthearing brief itself, all four inci-
dents appear to concern unloading work. The first inci-
dent occurred at the University of Chicago in June 2008.
Laborers allegedly picketed the employer, ISEC, in order
to force it to reassign the work in question. Region 13
scheduled a 10(k) hearing on July 22, 2008. The after-
noon before the hearing, Laborers disclaimed the work.
Carpenters provided no further information. The second
and third incidents, which both occurred in September
2008, involved the Trump Tower project and the Alexian
Brothers Medical Center project, respectively. In both
incidents, Laborers allegedly threatened to file a griev-
ance against the general contractor because of its respec-
tive subcontractor’s assignment of work. Finally, the
fourth incident, which occurred in August 2008, involved
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD594
a project at Dearborn and Kinzie Streets in Chicago. In
that incident, Laborers filed a grievance directly against
the employer who assigned the work in dispute.
Carpenters’ request for an area-wide award is without
merit. At the least, it failed to show Laborers has a pro-
clivity to engage in unlawful conduct to obtain work
similar to that in dispute here. Carpenters provided in-
sufficient information for us to adequately review the
first incident. Regarding the second and third incidents,
the Board has held that “a union’s effort to enforce a
lawful union signatory subcontracting clause against a
general contractor through a grievance, arbitration, or
court action does not constitute a claim to the subcon-
tractor for the work.” Iron Workers Local 1 (Goebel
Forming), 340 NLRB 1158, 1160 (2003). Regarding the
fourth incident, the Board has held that “the mere filing
of an arguably meritorious grievance is not unlawful
conduct within the meaning of Section 8(b)(4)(D).”
Bricklayers Local 20 (Altounian Builders), 338 NLRB
1100, 1101 (2003). Carpenters failed to provide any
evidence that Laborers’ grievance did not arguably have
merit or that Laborers did more than merely file a griev-
ance.
Accordingly, we shall limit the present determination
to the work jurisdiction dispute that gave rise to these
proceedings.
III. DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
(1) Employees of Anderson Interiors, Inc. who are rep-
resented by Chicago Regional Council of Carpenters, are
entitled to unload and handle hardwood flooring materi-
als at Anderson’s jobsite located at 757 Orleans Street in
Chicago, Illinois.
(2) Laborers International Union of North America,
Local No. 6 is not entitled by means proscribed by Sec-
tion 8(b)(4)(D) of the Act to force Anderson Interiors,
Inc. to assign the disputed work to employees repre-
sented by it.
(3) Within 14 days from this date, Laborers Interna-
tional Union of North America, Local No. 6 shall notify
the Regional Director for Region 13 in writing whether it
will refrain from forcing Anderson Interiors, Inc. by
means proscribed by Section 8(b)(4)(D) to assign the
disputed work in a manner inconsistent with this deter-
mination.