Carpenters Local 1780 (Image Exhibit Services)

National Labor Relations Board - Board Decisions

Oct 30, 2009

354 N.L.R.B. 930 (N.L.R.B. 2009)

354 NLRB No. 101
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Southwest Regional Council of Carpenters and its
affiliated Local Union 1780, affiliated with
United Brotherhood of Carpenters and Joiners
of America and Image Exhibit Services, Inc. and
Teamsters, Chauffeurs, Warehousemen and
Helpers, Local 631, affiliated with International
Brotherhood of Teamsters. Case 28–CD–272
October 30, 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
charge was filed on November 6, 2008, by Image Exhibit
Services, Inc. (Image or Employer), and alleges that the
Respondent, Southwest Regional Council of Carpenters
and its affiliated Local Union 1780, affiliated with
United Brotherhood of Carpenters and Joiners of Amer-
ica (Carpenters), violated Section 8(b)(4)(D) of the Act
by engaging in proscribed activity with an object of forc-
ing the Employer to assign certain work to employees it
represents rather than to employees represented by
Teamsters, Chauffeurs, Warehousemen and Helpers,
Local 631, affiliated with International Brotherhood of
Teamsters (Teamsters or Local 631). The hearing was
held on December 2, 2008, before Hearing Officer John
T. Giannopoulos.
The National Labor Relations Board1 affirms the hear-
ing officer’s rulings, finding them free from prejudicial

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. See Snell Island SNF LLC v. NLRB, 568 F.3d
410 (2d Cir. 2009), petition for cert. filed 78 U.S.L.W. 3130 (U.S.
September 11, 2009) (No. 09-328); New Process Steel v. NLRB, 564
F.3d 840 (7th Cir. 2009), petition for cert. filed 77 U.S.L.W. 3670 (U.S.
May 22, 2009) (No. 08-1457); Northeastern Land Services v. NLRB,
560 F.3d 36 (1st Cir. 2009), petition for cert. filed 78 U.S.L.W. 3098
(U.S. August 18, 2009) (No. 09-213). But see Laurel Baye Healthcare
of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009), petition
for cert. filed sub nom. NLRB v. Laurel Baye Healthcare of Lake
Lanier, Inc., __U.S.L.W.__ (U.S. September 29, 2009)(No. 09-377).
error. On the entire record, the Board makes the follow-
ing findings.
I. JURISDICTION
The Employer, a Nevada corporation with an office
and place of business in Las Vegas, Nevada, is engaged
as a contractor in the convention and trade show indus-
try. The parties stipulated that during the 12-month pe-
riod preceding the hearing, Image, in conducting its op-
erations, purchased and received goods and materials at
its Las Vegas, Nevada facility valued in excess of
$50,000 directly from points outside the State of Nevada.
We accordingly find that the Employer is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act. We further find, based on the stipulation of the
parties, that Carpenters and Teamsters are labor organi-
zations within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Image is 1 of over 130 employers that install and dis-
mantle trade show exhibits (I & D work) at shows and
conventions in Las Vegas. The majority of the I & D
work is governed by a Master Agreement signed by
Teamsters and GES Exposition Services, Inc., a large
general contractor in the industry. Under the Master
Agreement, GES agreed to use Local 631 employees for
its exhibits and shows. In October 1997, Image signed a
Short Form Agreement with Local 631 making it subject
to the provisions of the Master Agreement. Image was
not a signatory to the Master Agreement. The term of
the Master Agreement at issue here was June 1, 2004,
through May 31, 2007, and the term of the Short Form
Agreement between Image and Teamsters was coexten-
sive with the Master Agreement’s term. In 2007, Team-
sters and GES negotiated a successor contract with a
term from June 1, 2007, to May 31, 2011.
Article 4.4 of the Master Agreement provides that if
Teamsters cannot supply enough employees to meet an
employer’s specific needs the employer can seek em-
ployees from another source. Pursuant to article 4.4,
Image entered into a secondary agreement with Carpen-
ters from August 1, 2004, to July 31, 2007. From 2004
through 2007, Image performed work in 40 to 50 shows
per year in Las Vegas. During that period, it used Car-
penters-represented employees to perform work on ap-
proximately half of its shows because Teamsters was
unable to provide employees.
The relevant Master Agreement included an automatic
1-year renewal provision unless either party provided
written notice, at least 60 days before the May 31, 2007
expiration date, of its desire to terminate or modify the
agreement. The Short Form Agreement continued in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
effect for the full term of the Master Agreement and all
successive agreements, except where either party gave
notice, from 120 days to 90 days before the expiration of
the Master Agreement, of its intention to terminate the
Short Form Agreement. Finally, the Master Agreement
requires that an employer using Teamsters-represented
employees obtain a $60,000 surety bond.
Because of some undisclosed problems with the IRS,
Image was not able to secure a $60,000 bond and was
essentially “not bondable.” Until November 2006, Im-
age continued to use Teamsters-represented employees
as required by the Master Agreement, and although Im-
age had several discussions with Teamsters about the
bond, the parties were never able to resolve the issue.
On those occasions when Image used Carpenters-
represented employees on its jobs, Image Vice President
Anthony McKeighan testified that he found Carpenters
employees to be more efficient and more skilled than
Teamsters employees, and thus Image preferred using
Carpenters. On March 28, 2007, 64 days before the May
31, 2007 expiration of the Master Agreement (and the
Short Form Agreement), Image sent Teamsters written
notice, by certified mail, of its desire to renegotiate or
terminate their Short Form Agreement.
Image received no response from Teamsters to its no-
tice to terminate or renegotiate. In addition, Image al-
leges that during the following months, various Team-
sters agents indicated to the Employer that the contrac-
tual relationship between the parties was over. Specifi-
cally, Image President Scott Loveland testified that in
October 2006, Teamsters Business Agent Mike Goodall
told him that if Image did not obtain a surety bond,
Teamsters would not provide him with labor after Janu-
ary 1, 2007.2 McKeighan testified that in August 2007,
Teamsters Assistant Business Agent Laura Simms com-
plained to him because she observed a job where Image
was using Carpenters employees instead of Teamsters
employees. Simms allegedly called the Teamsters’ union
hall and then reported to McKeighan that Image was no
longer a signatory to an agreement with Teamsters and
thus Teamsters had no claim to the work. Moreover,
although Teamsters challenged the Employer on other
occasions for using Carpenters instead of Teamsters,
Teamsters did not pursue a grievance or other legal ac-
tion against the Employer for failing to use Teamsters on
its jobs or for breaching the Short Form Agreement.
On September 19, 2007, Image notified Teamsters and
the Teamsters Pension Trust that, according to Team-

2 Cheryl Schmit, Teamsters’ office manager and dispatcher, testified
that Image did not request Teamsters employees after November 2006.
There was no evidence that Teamsters ever refused to send employees
to Image.
sters, Image was no longer signatory to an agreement
with Teamsters, and thus Image would no longer make
contributions to the trust. In response, the Teamsters
Trust requested information to determine withdrawal
liability. On September 28, 2007, Image entered into a
primary agreement with Carpenters, effective September
1, 2007, to August 31, 2011, for all I & D work in Las
Vegas. Thereafter, Image used only Carpenters on its
jobs.
In November 2007, Teamsters filed a grievance
against Image for its failure to obtain a surety bond. In
response, Loveland stated that according to several
Teamsters agents Image no longer had a binding agree-
ment with Teamsters. Local 631 President Tommy
Blitsch replied to Loveland by denying that the Short
Form Agreement was terminated, and he stated that no
Teamsters representative had the power to terminate the
agreement. In addition, he stated that Image had been
invited with other signatory contractors to negotiate for a
successor contract, and because Image did not partici-
pate, Teamsters believed that Image had accepted and
was bound to the successor agreement.
On May 22, 2008, the Teamsters Union Security Fund
filed a suit against Image in Federal district court seeking
an audit and unpaid benefit contributions. In October
2008, due to the cost of the Federal court litigation,
Loveland called Carpenters Business Agent William
Harris and informed him that Image was considering
going back to Teamsters for future I & D work. On Oc-
tober 22, 2008, Carpenters responded by letter, stating
that it would resort to strikes and picketing if Image
transferred the I & D work to Teamsters. On November
6, 2008, Image filed a charge against Carpenters alleging
that Carpenters violated Section 8(b)(4)(D) by its actions.
B. The Work in Dispute
The work in dispute concerns the assignment of instal-
lation and dismantling of trade show exhibits in the Las
Vegas convention industry involving the Employer.
C. Contentions of the Parties
The Employer contends that it terminated its bargain-
ing relationship with Teamsters, and it now has a binding
primary contract with Carpenters for the work in dispute.
The Employer contends that Teamsters has no valid
claim to the work. The Employer further claims that,
even if its termination notice to Teamsters was untimely
under the terms of the Short Form Agreement, Team-
sters, through various actions and statements, acquiesced
in the termination of the collective-bargaining relation-
ship and thereby waived a timeliness argument. The
Employer states that there is no agreed-upon method of
resolving jurisdictional disputes that binds all three par-
CARPENTERS LOCAL 1780 (IMAGE EXHIBIT SERVICES) 3
ties. It argues that the work in dispute should be as-
signed to employees represented by Carpenters based on
the factors of collective-bargaining agreements, em-
ployer preference, current assignment, relative skills, and
economy and efficiency of operations. Carpenters essen-
tially adopts the Employer’s position, and its arguments
mirror the Employer’s.
Teamsters contends that the Employer’s 64-day termi-
nation notice was untimely, and the Employer is thus
bound to the most recent Master Agreement and Short
Form Agreement, both of which run through 2011.
Teamsters further asserts that none of its business agents
had the authority, through their words or actions, to ter-
minate the collective-bargaining relationship between the
parties. It thus claims that, based on the longstanding,
primary contractual relationship between Teamsters and
the Employer, the work in dispute belongs to Teamsters.
In addition, it argues that the factors of efficiency and
economy of operations, relative skills, area and industry
practice, and the Employer’s preference over the past
10years all weigh in favor of Teamsters-represented em-
ployees.
D. Applicability of the Statute
In determining whether a jurisdictional dispute within
the scope of Section 10(k) of the Act exists, the Board
first determines whether there is reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated.3 This
requires finding reasonable cause to believe that a union
has used proscribed means to enforce its claim to the
work in dispute, that there are competing claims to the
disputed work between rival groups of employees, and
that the parties have not agreed on a method of voluntary
adjustment of the dispute. See, e.g., Shepard Exposition
Services, 337 NLRB at 723.
These jurisdictional prerequisites have been met in this
case. Both Teamsters and Carpenters claim the work in

3 The Board also looks to the “real nature and origin of the dispute”
in determining whether a jurisdictional dispute exists. Teamsters Local
578 (USCP-Wesco), 280 NLRB 818, 820 (1986), affd. sub nom. USCP-
Wesco, Inc. v. NLRB, 827 F.2d 581 (9th Cir. 1987). In making that
determination, the Board has held that if a dispute is fundamentally
over the preservation, for one group of employees, of work they have
historically performed, it is not a jurisdictional dispute. Although none
of the parties in this case argued work preservation, the Board initially
questioned whether the facts presented a work preservation claim rather
than a jurisdictional dispute. On May 13, 2009, the Board issued a
notice to the parties requesting supplemental briefing on the issue.
Having reviewed the parties’ submissions and extant Board precedent,
we conclude that a jurisdictional dispute exists. In Stage Employees
IATSE Local 39 (Shepard Exposition Service), 337 NLRB 721 (2002),
on facts very similar to those presented in this case, the Board rejected
one party’s work preservation claim and decided the case by weighing
jurisdictional dispute factors. We find that Shepard Exposition is con-
trolling precedent for resolving this case.
dispute. Carpenters threatened that it would strike and
picket Image if it assigned the disputed work to employ-
ees represented by Teamsters. Finally, there is no
agreed-upon method for voluntarily resolving the dispute
that is binding on all parties to the proceeding.
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 IBEW Local 1212
(Columbia 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 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); Shepard Exposition Service, supra at 723–724.
The following factors are relevant in resolving this dis-
pute.
1. Certifications and collective-bargaining agreements
The parties stipulated, and we find, that there are no
Board certifications affecting this dispute.
Teamsters contends that the Master Agreement be-
tween GES and Teamsters covers the work in dispute,
and through Teamsters’ Short Form Agreement with
Image, it has always had first claim to Image’s I & D
work. On the other hand, Image and Carpenters argue
that the Short Form Agreement between Image and
Teamsters was terminated, and thus, as of 2007, Team-
sters had no contractual right to the work. As to Carpen-
ters, there is no dispute that it had a primary contract
with the Employer covering the disputed work.
Image has not shown that the Short Form Agreement,
and thus its obligation to assign the disputed work to
Teamsters-represented employees, was terminated. It is
undisputed that Image’s operative window for notifying
Teamsters of its intent to modify or terminate the con-
tract was 120 to 90 days before the expiration of the
Master Agreement, as clearly stated in the Short Form
Agreement. It is also clear that Image’s March 28, 2007
letter, received 64 days before the agreement’s expira-
tion, was untimely. Indeed, Image Vice President
McKeighan admitted that he made a mistake by relying
on the 60-day notification window in the Master Agree-
ment rather than the 120 to 90-day window in the Short
Form Agreement.
Image argues, however, that Teamsters, by certain
conduct, waived its claim of untimely notice to terminate
or modify the contract. We disagree. Image relies on
Industrial Workers Local 770 (Hutco Equipment), 285
NLRB 651 (1987), and Hasset Maintenance Corp., 260
NLRB 1211 (1982), for the proposition that a party, by
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
conduct, can waive a claim of untimely notice to termi-
nate or renegotiate a contract. But as the Seventh Circuit
has pointed out, these cases apply where the alleged
waiver conduct occurred before the contract renewed or
was reaffirmed.4 In this case, the conduct cited by Image
occurred after the successor Master Agreement was
signed on July 16, 2007. At that point, Image was bound
to the new agreement, and subsequent conduct by Team-
sters could not retroactively waive Teamsters’ claim that
Image’s request to renegotiate or terminate was untimely.
Contempo Design, Inc. v. Carpenters Northeast Illinois
District Council, supra at 547.
Further, we do not find that Teamsters’ conduct was
sufficiently clear to show that it believed the agreement
was terminated. Goodall’s alleged statement to
McKeighan in October 2006—that Teamsters would not
supply Image with employees after January 1, 2007,
unless it acquired a surety bond—does not show Team-
sters’ clear intention to terminate the agreement. Rather,
it shows Teamsters’ concern over the bond issue, which
Teamsters and Image discussed and worked around on
several other occasions. In addition, the record shows
that Teamsters never refused to supply Image with work-
ers. Rather, Image stopped calling Teamsters’ union hall
for employees in November 2006.
Image further relies on Laura Simms’ alleged state-
ment to McKeighan in August 2007 that Teamsters no
longer had a contract with Image. We do not find under
these circumstances that an oral statement by an assistant
business agent would be sufficient, without more, to re-
scind or revoke a written contract.
Moreover, certain conduct by Teamsters and Image
indicate that neither party considered the Short Form
Agreement terminated. Teamsters filed a grievance in
November 2007 regarding Image’s failure to attain a
surety bond as required under the Master Agreement.
Local 631 President Blitsch, in his November 19, 2007
letter to Image, stated in no uncertain terms that Image
was subject to the successor Master Agreement. Further,
McKeighan testified that Image continued to employ two
Teamsters-represented employees (although not out of
the hiring hall) through August 2007, and Image contin-
ued to pay into the Teamsters Trust on their behalf. This
conduct suggests adherence by both parties to an existing
contract.
Therefore, we find that both Teamsters and Carpenters
had valid collective-bargaining agreements with Image
and valid claims to the work in dispute pursuant to those
contracts. In such cases, the Board finds that this factor

4 Contempo Design, Inc. v. Carpenters Northeast Illinois District
Council, 226 F.3d 535 (7th Cir. 2000).
does not favor either union in a jurisdictional dispute.
Shepard Exposition Services, 337 NLRB at 724.
2. Employer preference and current assignment
The evidence clearly establishes that Image has as-
signed the work in dispute to Carpenters-represented
employees since November 2006. In addition,
McKeighan testified that Image preferred Carpenters
employees for this work. The Board has traditionally
assigned significant weight to the employer’s preference.
See, e.g., Graphic Communications Workers Local 508M
(Jos. Berning Printing Co.), 331 NLRB 846, 848 (2000)
(employer preference given “considerable weight”).
Thus, employer preference and current assignment weigh
significantly in favor of Carpenters-represented employ-
ees.
3. Employer’s past practice
Under the Short Form Agreement, the Employer tradi-
tionally awarded the disputed work to Teamsters em-
ployees first, and only when Teamsters employees were
not available did Image employ Carpenters employees.
According to McKeighan, from 2004 to 2007, Image
averaged about 40 to 50 shows per year, and it used Car-
penters for about half of those shows. Based on this tes-
timony, the past practice has been to distribute the work
fairly equally to employees of both unions. Thus, this
factor does not appear to favor either union.
4. Industry and area practice
According to testimony from various witnesses, Team-
sters performs the majority of I & D work in Las Vegas.
Local 631 Secretary-Treasurer King estimated that
Teamsters performs about 90 percent of the work. Thus,
this factor favors Teamsters-represented employees.
5. Relative skills
McKeighan testified that he found Carpenters employ-
ees better prepared and better trained in the field. They
generally showed up with the proper tools, and they
could take a set of blueprints and install the job without
supervision. According to McKeighan, this was not usu-
ally the case with Teamsters employees. This testimony
was supported by Teamsters Business Agent Terry
Schartung, who testified that as a result of 2007 negotia-
tions with GES, Teamsters created a “skilled labor
board” because “one of the biggest concerns we had
heard from I & D houses is that they were having diffi-
culty getting competent, skilled and qualified labor to set
their booths.” Based on this evidence, we find that this
factor favors Carpenters-represented employees.
CARPENTERS LOCAL 1780 (IMAGE EXHIBIT SERVICES) 5
6. Economy and efficiency of operations
McKeighan testified that because of Carpenters em-
ployees’ greater skill and experience, they were able to
work more efficiently and with less supervision than
Teamsters employees. As a result, Image was able to
expand its operation and take on more jobs in 2008 using
Carpenters exclusively.
In addition, because Teamsters dominated the industry,
it ran out of laborers during busy times, forcing employ-
ers to contact secondary labor sources. As indicated
above, McKeighan testified that from 2004 to 2007,
when Image was still abiding by the Master Agreement,
it used Carpenters employees on half of its jobs, indicat-
ing that no Teamsters employees were available for those
jobs. On the other hand, there was no evidence that Car-
penters has ever run out of laborers or denied Image’s
requests for employees. Thus, Carpenters has been more
efficient and consistent in providing Image with employ-
ees.
For these reasons, we find that this factor favors
awarding the work to Carpenters-represented employees.
Conclusions
After considering all the relevant factors, we conclude
that employees represented by Carpenters are entitled to
perform the work in dispute. We reach this conclusion
relying on the factors of employer preference and current
assignment, relative skills, and economy and efficiency
of operations. In making this determination, we are
awarding the disputed work to employees represented by
Southwest Regional Council of Carpenters and its afili-
ated Local Union 1780, afiliated with United Brother-
hood of Carpenters and Joiners of America, not to that
union or to its members.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees represented by Southwest Regional Coun-
cil of Carpenters and its affiliated Local Union 1780,
afiliated with United Brotherhood of Carpenters and
Joiners of America are entitled to perform all installation
and dismantling of trade show exhibits in the Las Vegas
convention industry involving the Employer, Image Ex-
hibit Services, Inc.
Dated, Washington, D.C. October 30, 2009
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD