Michigan Laborer's District Council

National Labor Relations Board - Board Decisions

Mar 20, 2009

353 N.L.R.B. 1080 (N.L.R.B. 2009)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 114
1080
Michigan Laborers’ District Council, AFL–CIO and
Michigan Infrastructure & Transportation As-
sociation, Inc. (Walter Toebe Construction
Company) and Michigan Regional Council of
Carpenters of United Brotherhood of Carpen-
ters and Joiners of America. Case 7–CD–577
March 20, 2009
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act (the Act).
Michigan Infrastructure & Transportation Association,
Inc. (MITA), on behalf of the Walter Toebe Construction
Company (the Employer), filed charges on October 23,
2008, alleging that the Respondent, Michigan Laborers’
District Council, AFL–CIO (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 it represents rather than to employees
represented by the Michigan Regional Council of Car-
penters of United Brotherhood of Carpenters and Joiners
of America (Carpenters). The hearing was held on No-
vember 20 and 21, 2008, before Hearing Officer Vicki
Claire Lessard. Thereafter, the Employer and Laborers
each filed a posthearing brief, and Carpenters filed a
brief in support of its position.
The National Labor Relations Board1 affirms the hear-
ing officer’s rulings, finding them free from prejudicial
error. On the entire record, the Board makes the follow-
ing findings
I. JURISDICTION
The parties stipulated that the Employer is a Michigan
corporation engaged in site preparation and construction
of highways, roads, and ramps at various jobsites. Dur-
ing the calendar year ending December 31, 2007, the
Employer had gross revenues in excess of $1 million,
and purchased goods valued in excess of $50,000 from
suppliers located outside the State of Michigan. The
parties further stipulated, and we find, that the Employer
is engaged in commerce within the meaning of Section
2(6) and (7) of the Act and that Laborers and Carpenters

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 Liebman and Member Schaumber 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.
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 performs heavy highway construction
work within the Detroit, Michigan area. The Employer
is a member of MITA and, as such, is party to collective-
bargaining agreements with both Laborers, effective June
1, 2008, to May 31, 2013, and Carpenters, effective June
1, 2003, to May 31, 2008.
The MITA agreement with Laborers requires the Em-
ployer to use Laborers-represented employees for high-
way construction and airport construction work in
Michigan. Article II of the agreement defines highway
construction work as, “all work ordinarily included in
public or private highway construction contracts . . . such
as, for example, bridges . . . any concrete slab work,
sound barrier walls.” The MITA agreement with Car-
penters requires the Employer to recognize Carpenters as
the collective-bargaining representative for its employees
performing “bridge construction work (including pile
driving . . .), retaining wall and highway pumping station
construction work which [the Employer performs] in the
State of Michigan.”
In July 2007, work started on the Gateway Four Pro-
ject (Gateway Project) in Detroit, Michigan, which in-
volved rebuilding entrance and exit ramps along several
miles of the interstate highway I-75 leading to the Am-
bassador Bridge. As part of this project, the Employer
was responsible for installing mechanically stabilized
earth (MSE) walls.2 The Employer started the MSE
work in the fall of 2007 and assigned that work to em-
ployees represented by Laborers.
Also in the fall of 2007, Tony Stewart, a business
agent for Carpenters, contacted Robert Jones, the Em-
ployer’s vice president, and asked that the MSE installa-
tion work on the Gateway Project be assigned to em-
ployees represented by Carpenters. Jones responded that
the Employer “has been using strictly Laborers on that
work for 10, 12 years.” Jones discussed the matter fur-
ther with Tom Stover, the Employer’s president, but the

2 At the hearing, the Employer presented a DVD describing MSE in-
stallation as follows: a footing, gravel or other type of leveling slab is
laid on the ground; a row of interlocking precast concrete panels is
placed by a back hoe and is guided into place; metal straps are attached
to the backs of the panels and are laid out behind the panels; dirt is
pushed over the straps by loaders and, when it is within several feet of
the panels, the backfilling and dirt compacting is done manually with
shovels; the panels are waterproofed; and the next layer of straps are
attached and fully backfilled before the next row of precast concrete
panels are put into place. After the wall is installed, coping is used to
lock the wall into place.
LABORERS MICHIGAN DISTRICT COUNCIL (WALTER TOEBE CONSTR. CO.) 1081
Employer did not change its work assignment. Thereaf-
ter, on April 15, 2008, Carpenters filed a grievance
claiming that the installation of the retaining walls at the
Gateway Project should be assigned to employees repre-
sented by Carpenters.3
In May or June 2008, Robert Patzer, MITA’s execu-
tive vice president, told Laborers Business Manager Gary
Jorgensen about Carpenters’ grievance. In response,
Jorgensen stated that Laborers would “do whatever [it]
had to” to protect the work for employees represented by
Laborers, including “signing” (i.e., picketing) the job.
Thereafter, by letter to Patzer dated June 26, 2008,
Jorgensen stated:
This [MSE work] is Laborers’ work and job as-
signments, area practice and the overall history will
defend our position. If, for some reason, this work is
assigned to the Carpenters, even through arbitration,
the Laborers will be forced to take all the necessary
steps to protect our Jurisdiction and Assignment of
Work.
Let me repeat myself, all means and methods and
resources required will be exercised.
B. Work in Dispute
The parties stipulated that the work in dispute is the
unloading, setting, leveling, and coping of precast con-
crete for mechanically stabilized earth (MSE) walls at the
Employer’s jobsite at the Gateway Project in Detroit,
Michigan.4
C. Contentions of the Parties
The Employer and Laborers contend that there is rea-
sonable cause to believe that Section 8(b)(4)(D) of the
Act has been violated by Laborers’ threat to take eco-
nomic action if the disputed work were reassigned to
employees represented by Carpenters. The Employer
and Laborers further contend that no voluntary means
exist for adjustment of the jurisdictional dispute. Finally,
the Employer and Laborers argue that the work in dis-
pute should be assigned to employees represented by
Laborers based on the factors of employer preference and
past practice, area and industry practice, relative skills,
and economy and efficiency of operations.
Carpenters contends that the threat by Laborers was
contrived to invoke the instant proceeding and to derail
Carpenters’ grievance against the Employer. Thus, Car-
penters contends the Employer’s charge should be dis-

3 The parties stipulated that the grievance was still pending at the
time of the hearing, and that the arbitration was postponed in deference
to the instant proceeding.
4 The parties further stipulated that there is no dispute regarding site
preparation, backfill, cleanup, or poured in place coping.
missed. Alternatively, Carpenters contends that the por-
tion of the MSE work that is in dispute should be as-
signed to employees it represents (as part of a composite
team of employees represented by Carpenters and Labor-
ers) based on the factors of collective-bargaining agree-
ments, area and industry practice, relative skills, and
economy and efficiency of operations.
D. Applicability of the Statute
Before the Board may proceed with determining a dis-
pute pursuant to Section 10(k) of the Act, there must be
reasonable cause to believe that Section 8(b)(4)(D) has
been violated. This standard requires finding that there is
reasonable cause to believe that: (1) there are competing
claims for the disputed work among rival groups of em-
ployees;5 (2) a party has used proscribed means to en-
force its claim to the work in dispute;6 and (3) the parties
have not agreed on a method for the voluntary adjust-
ment of the dispute.7 On the record, we find that this
standard has been met.
1. Competing claims for work
We find that there are competing claims for the work.
Laborers has at all times claimed the work in dispute for
the employees it represents, and these employees have
been performing this work. Carpenters claimed the work
by Business Agent Stewart’s statement to Employer Vice
President Jones, and by filing a grievance challenging the
Employer’s assignment of the work to Laborers. See
Bakery Workers Local 205 (Metz Baking Co.), 339
NLRB 1095, 1097 (2003).
2. Use of proscribed means
We also find that there is reasonable cause to believe
that Section 8(b)(4)(D) has been violated. It is well es-
tablished that a picketing threat constitutes proscribed
means. See Bricklayers (Cretex Construction Services),
343 NLRB 1030, 1032 (2004). Here, there is reasonable
cause to believe that Laborers threatened to picket the
Employer. Laborers Business Manager Jorgensen told
MITA Executive Vice President Patzer that Laborers
would “do whatever [it] had to” in order to protect the
work assignment to employees it represents, including
“signing.” Further, in its June 28, 2008 letter, Laborers
reinforced the prior threat by stating it would take “all
necessary steps” and exercise “all means and methods
and resources” if the disputed work were reassigned to
Carpenters.

5 Carpenters Local 275 (Lymo Construction Co.), 334 NLRB 422,
423 (2001).
6 See, e.g., Electrical Workers Local 3 (Slattery Skanska, Inc.), 342
NLRB 173, 174 (2004).
7 Operating Engineers Local 150 (R&D Thiel), 345 NLRB 1137,
1138–1139 (2005).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1082
Carpenters argues that Laborers’ threats were con-
trived to invoke this 10(k) proceeding, evidenced by the
fact that Laborers’ letter was not issued contemporane-
ously with Jorgensen’s verbal threat to picket. Carpen-
ters does not, however, offer any direct evidence demon-
strating that Laborers did not intend its threat seriously.
In the absence of such evidence, a charged party’s use of
language that, on its face, threatens economic action is
sufficient to find reasonable cause to believe that Section
8(b)(4)(D) has been violated. See, e.g., Cretex, above at
1032.
3. No voluntary method for adjustment of dispute
The parties stipulated, and we find, that there is no
agreed-upon method for voluntary adjustment of the dis-
pute to which all parties are bound.
Accordingly, we find that the dispute is properly be-
fore 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 (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 making the de-
termination in this dispute.
1. Certifications and collective-bargaining agreements
There is no evidence of Board certifications concern-
ing the employees involved in this dispute.
The Employer is subject to 8(f) collective-bargaining
agreements with both Laborers and Carpenters. Labor-
ers’ contract with MITA, to which the Employer is
bound, includes the following description of work to be
performed by employees represented by Laborers: “Earth
Retention Barrier and wall and M.S.E. wall installer (in-
cluding sound, retaining and crash barrier).”
The applicable Carpenters contract states that it gov-
erns “retaining wall . . . work which the Contractors per-
form in the State of Michigan.” Carpenters argues that
retaining wall work is synonymous with MSE wall work,
because an MSE wall is nothing more than a precast re-
taining wall. However, Employer Vice President Jones
and Chris Peyerk, the president of Dan’s Excavating (a
heavy highway contractor), both testified that MSE work
is not similar to retaining wall work. They testified that
an MSE wall has no structural integrity, and the earth is
retained by layers of fabric, geotextiles, and straps inter-
twined with layers of sand. In contrast, they added, tra-
ditional retaining walls consist of reinforced concrete
footings, driven by pile driving equipment, which hold
back the earth.
Carpenters also relies on the “Craft Jurisdiction Ex-
hibit 1” in its agreement with the Employer, which cites
“the installation and handling of any and all precast ma-
terial used to form a wall or barrier.” MITA Executive
Vice President Patzer testified, however, that Exhibit 1
was not negotiated, but rather was inserted after the sig-
nature page of the agreement, and was not referenced in
the agreement itself. More importantly, the language in
this exhibit does not specifically mention MSE work.
Although the language of the Carpenters’ collective-
bargaining agreement arguably covers the work in dis-
pute, the language of the Laborers’ agreement specifi-
cally claims such work. Accordingly, we find that the
factor of collective-bargaining agreements slightly favors
an award to employees represented by the Laborers. See
Laborers Local 731 (Tully Construction Co.), 352 NLRB
107, 109 (2008).
2. Employer preference and past practice
The Employer, in accordance with its past practice, as-
signed the disputed work at the Gateway Project to its
employees represented by Laborers.
At the hearing, Employer Vice President Jones testi-
fied that the Employer has previously assigned the MSE
work to Laborers without complaints. According to
Jones, the Employer has employed individuals repre-
sented by Laborers for at least a dozen MSE projects
and, since at least 1991, the Employer has not employed
any employees represented by Carpenters to perform the
disputed work. Laborers Vice President Bruce
Ruedisueli testified that in 1993 there was a brief dispute
between Laborers and Carpenters over MSE work at the
Employer’s Blue Water Bridge Project. However, that
dispute was quickly resolved when the Employer told
Carpenters that the work was assigned to employees rep-
resented by Laborers. Since then, employees represented
by Laborers have performed the Employer’s MSE work.
Carpenters presented testimony from Ronald Maracle,
a carpenter formerly employed by the Employer, that in
2006 he performed MSE work on a small, 1- to 2-day
project for the Employer. Carpenters also relies on a
March 5, 2004 joint arbitration board decision, resolving
a grievance filed against the Employer under its agree-
ment with MITA involving a precast sound wall project
at the intersection of I-75 and Square Lake Road. The
decision resolved that the parties would agree to use a
joint laborer/carpenter composite crew in the future to
“complete installation of the precast parts and to erect
precast wall panels.” Laborers, however, was not a party
LABORERS MICHIGAN DISTRICT COUNCIL (WALTER TOEBE CONSTR. CO.) 1083
to this proceeding, and the decision does not specifically
refer to MSE work.
Carpenters’ evidence of past practice does not out-
weigh the evidence clearly establishing the Employer’s
preference for, and past practice of, using employees
represented by Laborers to perform work of the kind in
dispute. Accordingly, we find this factor favors an
award of the disputed work to employees represented by
Laborers.
3. Area and industry practice
MITA Executive Vice President Patzer testified that
two contractors, Dan’s Excavating and the Employer,
perform 60–65 percent of the MSE work in southeastern
Michigan with employees represented by Laborers.
Dan’s Excavating President Peyerk testified that his
company does approximately 50 percent of the MSE
work in southeastern Michigan with employees repre-
sented by Laborers, and has never assigned MSE work to
employees represented by Carpenters. Peyerk also testi-
fied that 5 percent of his active jobsites involve MSE
work, and that he was not aware of his company using a
composite crew of Laborers and Carpenters for that
work. Laborers also provided letters of assignment for
MSE work from area contractors.
Carpenters also presented evidence that its members
have performed work of the kind in dispute. Milford
Reynolds, director of heavy and highway operations for
Carpenters, testified that members of Carpenters have
performed MSE work in Michigan as part of composite
crews of employees represented by Laborers and Carpen-
ters. Reynolds added that Dan’s Excavating and the Em-
ployer are the only two employers in the industry who do
not use composite crews for the MSE work. Carpenters
also presented assignment letters from two area employ-
ers that specifically referred to the performance of MSE
work.8
The evidence above shows a practice of performing
work of the kind in dispute with members of Laborers
and Carpenters. Accordingly, we find that this factor
does not favor an award to either group of employees.
4. Relative skills
Laborers presented testimony that its members possess
the required skills and training to perform the disputed
work and are experienced in doing so. MITA Executive
Vice President Patzer, Employer Vice President Jones,
and Laborers Vice President Ruedisueli all testified that
employees represented by Laborers have performed MSE

8 Carpenters presented additional assignment letters referring to pre-
cast concrete work, but not specifically to MSE work.
work for the Employer and that the Employer is satisfied
with the quality of their work.
Carpenters also presented testimony that its members
have the requisite skills needed to perform the disputed
work. Director Reynolds testified that employees repre-
sented by Carpenters have the necessary skills to perform
the applicable precast duties, and that their apprentice
training involves precast retaining wall installation. He
added that the training for precast walls is similar to the
training for MSE wall work.
The record shows that employees represented by both
unions have the skills and training necessary to perform
the work in question. Accordingly, we find that this fac-
tor does not favor an award to either group of employees.
5. Economy and efficiency of operations
Employer Vice President Jones testified that in a 10-
hour workday at the Gateway Project, the actual place-
ment and assembly of the panels takes about 3 hours. For
the remaining time, employees represented by Laborers
perform other MSE tasks, including the placement of
geotextile material and the completion of the backfilling
process. In contrast, if Carpenters-represented employ-
ees were assigned the disputed work, they would not
perform other MSE work on the project. Carpenters con-
tends that its members can easily perform multiple tasks
on MSE and related work. However, it is undisputed that
Carpenters seeks only a portion of the MSE work for the
employees it represents, which would leave Laborers-
represented employees to perform the placement of geo-
textile material, waterproofing, backfilling, and strapping
work.
Jones added that Carpenters-represented employees on
the Gateway Project currently work in set crews handling
“steel sheet piling work . . . foundation piling work . . .
cast-in-place concrete walls . . . cast-in-place concrete
abutments and piers for the bridges . . . parapet walls,”
and that a carpenter could not be safely pulled off one of
those projects to be assigned MSE work for 45 minutes.
Further, such reassignment would effectively shut down
the Carpenter’s crew operations during that period.
Laborers Vice President Ruedisueli similarly testified
that it is efficient to perform the disputed work with em-
ployees represented by Laborers, because they also per-
form other MSE work such as waterproofing, strapping,
and backfilling.
In view of the foregoing evidence, we find that this
factor favors an award of the disputed work to the Em-
ployer’s employees represented by Laborers.
Conclusions
After considering all the relevant factors, we conclude
that the employees represented by Laborers are entitled
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1084
to perform the work in dispute. We reach this conclusion
relying on the factors of certifications and collective-
bargaining agreements, employer preference and past
practice, and economy and efficiency of operations. In
making this determination, we are awarding the work to
employees represented by Laborers, not to that Union or
its members. The determination is limited to the contro-
versy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of Walter Toebe Construction Company,
represented by Michigan Laborers’ District Council,
AFL–CIO, are entitled to perform the unloading, setting,
leveling, and coping of precast concrete for mechanically
stabilized earth (MSE) walls at the Employer’s jobsite at
the Gateway Project in Detroit, Michigan.