International Brotherhood of Electrical Workers Local 332 (Rudolph and Sletten)

National Labor Relations Board - Board Decisions

Jan 3, 2018

365 NLRB No. 171 (N.L.R.B. 2018)

365 NLRB No. 171
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.
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be included in the bound volumes.
International Brotherhood of Electrical Workers,
Local 332 and Rudolph and Sletten and George
Family Enterprises and United Brotherhood of
Carpenters and Joiners of America, Local Union
No. 405. Case 32–CD–198681
January 3, 2018
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN KAPLAN AND MEMBERS PEARCE
AND MCFERRAN
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act (the Act).
Rudolph and Sletten (R&S) filed a charge on May 12,
2017, alleging that the Respondent, International Broth-
erhood of Electrical Workers, Local 332 (IBEW Local
332) violated Section 8(b)(4)(D) of the Act by threaten-
ing to engage and engaging in proscribed activity with an
object of forcing R&S to assign certain work to employ-
ees represented by IBEW Local 332 rather than to em-
ployees who are represented by the United Brotherhood
of Carpenters and Joiners of America, Local Union No.
405 (Carpenters Local 405). A hearing was held on June
14 and 16, 2017, before Hearing Officer D. Criss Parker.
Thereafter, R&S and Carpenters Local 405 filed post-
hearing briefs.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.2
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire record,
the Board makes the following findings.
I. JURISDICTION
R&S, a general building contractor, is a California
corporation with its principal place of business in Red-
wood City, California. During 2016, R&S purchased
and received materials valued in excess of $50,000 di-
rectly from points located outside the State of California.
We find that R&S is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
George Family Enterprises (GFE), a general interior
contractor and specialty subcontractor, is a California
corporation with its principal place of business in Nova-
to, California. Annually, GFE purchases and receives
materials valued in excess of $50,000 directly from

1 IBEW Local 332 departed the hearing shortly after the parties
agreed on the record to the work in dispute, and it did not file a post-
hearing brief.
2 Member Emanuel took no part in the consideration of this case.
points located outside the State of California. We find
that GFE is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
Carpenters Local 405’s collective-bargaining agree-
ment, which clearly identifies it as a labor organization,
was entered into the record, and the Board has previously
found Carpenters Local 405 and IBEW Local 332 to be
labor organizations under the Act.3 We therefore find
that IBEW Local 332 and Carpenters Local 405 are labor
organizations within the meaning of Section 2(5) of the
Act.4
II. THE DISPUTE
A. Background and Facts of Dispute
R&S is one of three general contractors on the Apple
Campus 2 Project, with overall responsibility for im-
provements to the interior of the building. It subcon-
tracted the installation of the fabric ceiling to GFE.
Among other things, this work included the installation
of CoolEdge LED plug and play panels (LED Panels).
R&S and GFE are both signatories to the Northern Cali-
fornia Drywall/Lathing Master Agreement, which was
negotiated between the multi-employer Wall and Ceiling
Alliance and United Brotherhood of Carpenters and
Joiners of America. GFE exclusively used carpenters for
its work on the project.
Holder Construction (Holder), another general contrac-
tor on the Apple Campus 2 Project, has overall responsi-
bility for the core shell construction of the building.
Holder subcontracted the installation of various electrical
components to RE2, which employs members of IBEW
Local 332.
In approximately February 2017,5 GFE was ready to
install the LED Panels. However, the work assigned to
RE2 had to be finished before GFE could proceed, and
RE2 has failed to complete any of that necessary precur-
sor work.
Then, on March 22, electricians wearing RE2 apparel
began removing the LED Panels from the GFE staging
area without permission. While doing so, they informed
the nearby GFE carpenters that they were acting under
the direction of their foreman and stated, “this is our ma-
terial. We’re going to be getting this work. So we’re just
going to take it now.”
In late March, Rick Solis, senior field representative
for Carpenters Local 405, attended a meeting with Gerald

3 See, e.g., Aztech Electric Co., 335 NLRB 260, 278 (2001), enfd. in
relevant part 323 F.3d 1051 (D.C. Cir. 2003); Carpenters Local 405,
328 NLRB 788, 788 (1999).
4 See Ironworkers Local 550 (R.G. Smith Co.), 363 NLRB No. 151,
slip op. at 1 fn. 2 (2016) (Sec. 2(5) status found where Board previously
determined that entity was a labor organization).
5 Unless otherwise stated, all dates refer to 2017.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Pfeiffer, IBEW Local 332’s business manager. Pfeiffer
claimed that GFE and Carpenters Local 405 were steal-
ing IBEW Local 332’s work. As a compromise, Pfeiffer
proposed that a composite crew of both electricians and
carpenters install the LED Panels—a proposal that Solis
quickly rejected. Pfeiffer then yelled that this situation
was “bullshit” and called the carpenters “predators,” add-
ing that they were “stealing [IBEW] work.” Later in the
meeting, Pfeiffer asked Solis, “you understand what
you’re going to do, right?” When Solis requested clarifi-
cation, Pfeiffer responded, “I got 900 pissed off electri-
cians ready to walk off the job.”
Subsequently, on March 28, Pfeiffer called John El-
wood, R&S’s senior project executive, and left a
voicemail in which he objected to the Carpenters in-
stalling the LED Panels, stating that it “needs to stop
immediately.”
The next day, Neil Struthers, a representative of the
IBEW,6 called John Hillegass, Apple’s director of con-
struction. Struthers stated that hundreds of electrical
workers were upset that the disputed work was assigned
to GFE and the Carpenters, and that the IBEW would
“wobble” the job unless Apple corrected the issue.7 As
defined at the hearing, the term “wobble” encompasses
any number of retaliatory job actions, including slow-
downs, strikes, and walkouts.8
B. Work in Dispute
R&S, GFE, Carpenters Local 405, and IBEW Local
332 agreed that the work in dispute is all work associated
with the unloading, packing, and installation of the illu-
minated and non-illuminated stretch fabric ceiling system
including, but not limited to, the installation of M-13 low
voltage CoolEdge LED plug and play panels at the Apple
Campus 2 Project in Cupertino, California.

6 Struthers’ exact position with the IBEW was not specified in the
record. However, there is uncontradicted testimony that he was an
“electrical rep” calling “on behalf” of the IBEW Local 332.
7 Neither Struthers nor Hillegass testified at the hearing. Struthers’
statement was described by two witnesses. Carpenters Director of
Organizing Jay Bradshaw testified that Hillegass relayed Struthers’
statements to him right after the phone call ended. Elwood testified
that he became aware of Struthers’ statement through Martin Sisemore,
president and CEO of R&S, who had discussed the statement in a meet-
ing with Hillegass.
8 The record contains testimony that electricians took photos of car-
penters performing work and claimed that the carpenters were perform-
ing electricians’ work on multiple occasions in May. The record also
contains evidence that IBEW Local 332 staged walkouts on May 12
and 16. R&S argues that these actions further support its position in
this case. However, IBEW Local 332 also sought other work on the
Apple Campus 2 Project that had been assigned to Carpenters Local
405. Based on the record, we find that these actions were connected to
those other disagreements, not the work in dispute at issue here.
C. Contentions of the Parties
R&S, GFE, and Carpenters Local 405 contend that
there is reasonable cause to believe that there are compet-
ing claims for the work in dispute, that there is reasona-
ble cause to believe that Section 8(b)(4)(D) has been
violated by IBEW Local 332’s threat to induce and in-
ducing employees to “wobble” the project unless the
work in dispute was reassigned to employees represented
by the IBEW Local 332, and that the parties have not
agreed on a method for voluntary adjustment of the dis-
pute.
R&S, GFE, and Carpenters Local 405 further contend
that the work in dispute should be assigned to employees
represented by the Carpenters Local 405 based on the
factors of collective-bargaining agreements; employer
preference, current assignment, and past practice; area
and industry practice; relative skills; and economy and
efficiency of operations.
As stated above, IBEW Local 332 departed the hearing
shortly after the parties went on the record and did not
file a posthearing brief. Accordingly, the contentions
and evidence introduced by R&S, GFE, and Carpenters
Local 405 stand unrebutted.
D. Applicability of the Statute
The Board may proceed with a determination of a dis-
pute under Section 10(k) of the Act only if there is rea-
sonable cause to believe that Section 8(b)(4)(D) has been
violated. This standard requires finding that there is rea-
sonable cause to believe that there are competing claims
to the disputed work, and that a party has used proscribed
means to enforce its claim to the work in dispute. Addi-
tionally, there must be a finding that the parties have not
agreed on a method for the voluntary adjustment of the
dispute. See, e.g., Operating Engineers Local 150 (R&D
Thiel), 345 NLRB 1137, 1139 (2005). We find that these
requirements have been met.
1. Competing claims for work
We find reasonable cause to believe that there are
competing claims to the installation of the LED Panels.
There is no dispute that Carpenters Local 405 was pre-
pared to perform the work in dispute and that the work
had been assigned to them by GFE. Further, there is
reasonable cause to believe that IBEW Local 332 made a
claim for the work in dispute, as evidenced by statements
made by business manager Pfeiffer to Solis and in a
voicemail for Elwood on March 28.
2. Use of proscribed means
We find reasonable cause to believe IBEW Local 332
used means proscribed under Section 8(b)(4)(D) of the
Act to enforce its claim to the work in dispute. As stated
ELECTRICAL WORKERS LOCAL 332 (GEORGE FAMILY ENTERPRISES) 3
above, on March 29, Struthers, a representative of IBEW
Local 332, threatened to “wobble” the worksite unless
Apple reassigned the disputed work to IBEW electri-
cians.9 A union’s threat to engage in the job actions as-
sociated with “wobbling” is sufficient to establish rea-
sonable cause to believe that it has used proscribed
means to enforce its claim. See, e.g., Iron Workers Local
86 (Kulama Erectors), 264 NLRB 166, 168 (1982). And
although the threat was directed at Apple rather than
R&S or GFE, the Board has found that even indirect
pressure on an employer to reassign work is prohibited.
See Paper Workers Local 194 (Georgia-Pacific Corp.),
267 NLRB 26, 28–29 (1983) (subsequent history omit-
ted).
3. No voluntary method for adjustment of dispute
We also find no agreed-upon method for voluntary ad-
justment of the dispute to which all parties are bound.
R&S, GFE, and Carpenters Local 405 contend that there
is no such procedure in place between the parties to re-
solve the current work dispute. No evidence or argument
was proffered to the contrary.
Based on the foregoing, we find that there is reasona-
ble cause to believe that Section 8(b)(4)(D) has been
violated, and that there is no agreed-upon method for the
voluntary adjustment of the dispute. We accordingly
find that the dispute is properly before the Board for de-
termination.
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, 577 (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).
The following factors are relevant in making the de-
termination of this dispute.

9 We emphasize that the “reasonable cause standard is substantially
lower than that required to establish that the statute has in fact been
violated.” Plumbers Local 562 (C&R Heating & Service Co.), 328
NLRB 1235, 1235 (1999). Although the only evidence of Struthers’
threat is hearsay testimony, we note that there is no evidence contra-
dicting the testimony. It is therefore sufficient to meet the reasonable
cause standard. Compare Operating Engineers Local 4 (Henley-
Lungren), 268 NLRB 1227, 1228 (1984) (finding no reasonable cause
to believe that Sec. 8(b)(4)(D) had been violated where the only evi-
dence of proscribed means was a double hearsay statement that the
purported speaker denied making).
1. Board certifications and collective-bargaining
agreements
R&S and GFE are subject to a collective-bargaining
agreement with the Carpenters that specifically includes,
among other things, installation of “all materials and
component parts of all types of ceilings regardless of
their material or composition.” This language clearly
covers the work in dispute. The agreement requires that
if any work is subcontracted, it must be completed by a
signatory to the agreement.
There is no evidence that GFE or R&S has a collec-
tive-bargaining agreement with IBEW Local 332 cover-
ing the work in dispute. Accordingly, we find that the
factor of collective-bargaining agreements favors award-
ing the work in dispute to employees represented by
Carpenters Local 405.
2. Employer preference, current assignment, and past
practice
Paul Aherne, senior vice president of R&S, testified
that both Apple and R&S prefer for the work in dispute
to be done by carpenters. Laurence George, president
and CEO of GFE, testified that GFE also prefers that
work to be done by carpenters. In addition, Aherne and
George testified that their current assignment of this
work to Carpenter-represented employees is consistent
with their past practices. Accordingly, we find that this
factor favors awarding the work in dispute to employees
represented by the Carpenters Local 405.
3. Industry and area practice
Frank E. Nunes, CEO of the Wall and Ceiling Alli-
ance, testified that the area and industry practice is for
carpenters to perform installation of low-voltage LED
ceiling panels. In contrast, the record only includes evi-
dence of one instance in which an electrician installed
these types of panels. Accordingly, we find that this fac-
tor favors awarding the work in dispute to employees
represented by Carpenters Local 405.
4. Relative skills
Nunes testified that employees represented by the Car-
penters have the necessary skills and training to perform
the work in dispute. These skills arise because the dis-
puted work has historically been part of the carpenters’
craft. Further, Nunes testified that the Carpenters host
events at the international and regional level to train its
members on the proper installation of technical ceiling
systems, including new LED-based ceiling panels. This
expertise has led to at least one situation in which a car-
penter was called to resolve an issue arising from an
electrician’s incorrect installation of a LED Panel.
George likewise testified that noncarpenters are not qual-
ified to perform the work. On this record, we find that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
this factor favors awarding the work in dispute to em-
ployees represented by the Carpenters Local 405.
5. Economy and efficiency of operations
Nunes testified that it is more efficient and economical
to assign installation of LED Panels to carpenters. Spe-
cifically, Nunes stated that the installation of LED Panels
frequently requires adjustments to the ceiling assembly,
which fall within the duties of a carpenter. Nunes further
stated that it is more efficient for a carpenter to do both,
rather than have an electrician install the LED Panel and
a carpenter adjust the ceiling assembly. Accordingly, we
find that this factor favors awarding the work in dispute
to employees represented by the Carpenters Local 405.
Conclusion
After considering all of the relevant factors, we con-
clude that employees represented by Carpenters Local
405 are entitled to perform the work in dispute. We
reach this conclusion relying on the factors of collective-
bargaining agreements; employer preference, current
assignment, and past practice; industry and area practice;
relative skills; and economy and efficiency of operations.
In making this determination, we award the work to em-
ployees represented by Carpenters Local 405, not to that
labor organization or to its members.
Scope of Award
R&S and Carpenters Local 405 contend that a broad
order covering all of R&S’s and GFE’s future projects in
Northern California is necessary to avoid similar juris-
dictional disputes in the future. We find no merit in this
contention.
There are two requirements for a broad, area-wide
award. First, there must be evidence that the disputed
work has been a continuous source of controversy in the
relevant geographic area and that similar disputes may
recur. Second, there must be evidence demonstrating
that the charged party has a proclivity to engage in un-
lawful conduct in order to obtain work similar to the
work in dispute. Bricklayers (Sesco, Inc.), 303 NLRB
401, 403 (1991).
Neither R&S nor Carpenters Local 405 introduced any
testimony or evidence concerning either of these re-
quirements. The record, here, indicates that the only
other dispute between Carpenters Local 405 and IBEW
Local 332 involved acoustical work, not LED Panel
work. Furthermore, there is no evidence demonstrating
that IBEW Local 332 has a proclivity to engage in un-
lawful conduct to force the reassignment of work. Ac-
cordingly, we shall limit the present determination to the
particular controversy that gave rise to this proceeding.
Carpenters Local 405 further requests an order ex-
pressly barring IBEW Local 332 from “wobbling” or
threatening to “wobble” any job based on any jurisdic-
tional dispute. We find that our standard language is
sufficient to resolve this dispute.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
1. Employees of GFE, represented by Carpenters Lo-
cal 405, are entitled to perform unloading, packing, and
installation of the illuminated and non-illuminated stretch
fabric ceiling system including, but not limited to, the
installation of M-13 low voltage CoolEdge LED plug
and play panels at the Apple Campus 2 Project in Cuper-
tino, California.
2. IBEW Local 332 is not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force R&S or
GFE to assign the disputed work to employees represent-
ed by it.
3. Within 14 days from this date, IBEW Local 332
shall notify the Regional Director for Region 32 in writ-
ing whether it will refrain from forcing R&S and GFE,
by means proscribed by Section 8(b)(4)(D), to assign the
disputed work in a manner inconsistent with this deter-
mination.
Dated, Washington, D.C. January 3, 2018
______________________________________
Marvin E. Kaplan, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD