Laborers' Local 860 (Headlands Contracting & Tunneling)

National Labor Relations Board - Board Decisions

Aug 24, 2016

364 NLRB No. 76 (N.L.R.B. 2016)

364 NLRB No. 76
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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Laborers’ International Union of North America,
Local 860 and Headlands Contracting & Tun-
neling, Inc. and Indiana, Kentucky, Ohio Re-
gional Council of Carpenters. Case 08–CD–
087934
August 24, 2016
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act. Head-
lands Contracting & Tunneling, Inc. (the Employer),
filed a charge on August 23, 2012, alleging that Labor-
ers’ International Union of North America, Local 860
(the Laborers), violated Section 8(b)(4)(D) of the Act by
threatening to engage in proscribed activity with an ob-
ject of forcing the Employer to assign certain work to
employees it represents rather than to employees repre-
sented by Indiana, Kentucky, Ohio Regional Council of
Carpenters (the Carpenters). The hearing was held on
November 28, 2012, before Hearing Officer Laural S.
Wagner. The Carpenters did not participate in the hear-
ing. No party filed a posthearing brief.
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 rec-
ord, we make the following findings.
I. JURISDICTION
The Employer and the Laborers stipulated that the
Employer, an Ohio corporation with a primary place of
business located at 150 Parker Court, Chardon, Ohio,
performs construction work in the sewer and tunnel in-
dustry. Within the 12 months preceding the filing of the
charge, the Employer purchased and received goods at its
Chardon, Ohio facility valued in excess of $50,000 di-
rectly from suppliers located outside the State of Ohio.
The Employer and the Laborers further stipulated, and
we find, that the Employer is engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act and that
the Laborers and the Carpenters are labor organizations
within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
Walsh Construction Company (Walsh) is the general
contractor in charge of a construction project at the East-
erly Tunnel Dewatering Pump Station located at 788 East
140th Street, Cleveland, Ohio (the Easterly project). On
or about May 10, 2012, Walsh hired the Employer as a
subcontractor to perform the structural and concrete work
on the Easterly project. The Employer’s portion of the
job was expected to take 2 years to complete.
The Employer has a collective-bargaining relationship
with the Laborers. On May 1, 1995, the Employer1
signed a letter of assent recognizing the Laborers as the
exclusive collective-bargaining representative of its em-
ployees engaged in work within the chartered trade juris-
diction of Laborers’ International Union of North Ameri-
ca, AFL–CIO, and employed in “Highway-Heavy-
Municipal and Utility Construction in the State of Ohio.”
The letter of assent specified that the Employer agrees to
be bound by the Ohio Highway-Heavy-Municipal-Utility
State Construction Agreement between Laborers’ Dis-
trict Council of Ohio and the Ohio Contractors Associa-
tion Labor Relations Division (the Laborers Agreement).
The letter of assent renewed automatically because nei-
ther party terminated the letter of assent under the termi-
nation clause, and therefore the Employer continued to
be bound by the Laborers Agreement then in effect. The
Laborers Agreement in effect at the time of this dispute
had a term from May 1, 2010, through April 30, 2013.
The Employer also has a collective-bargaining rela-
tionship with the Carpenters. On September 19, 2002,
the Employer signed a letter of assent with the Carpen-
ters2 whereby the Employer agreed to be bound by the
collective-bargaining agreement between the Northeast
Ohio Council of the United Brotherhood of Carpenters
and Joiners of America and numerous multi-employer
associations (the Carpenters Agreement). The letter of
assent renewed automatically because neither party ter-
minated the letter of assent under the termination clause,
and therefore the Employer continued to be bound by the
Carpenters Agreement then in effect.3 The Carpenters
Agreement in effect at the time of this dispute had a term
from May 1, 2009, through May 31, 2013.
The Employer utilized employees represented by the
Laborers to perform the structural and concrete work on
the Easterly project.
Brian Allen, the Employer’s owner, testified that on or
about August 10, 2012, Bill Karkoff, a business repre-
sentative for the Carpenters, telephoned and said that the
structural work on the Easterly project belonged to em-
ployees represented by the Carpenters. Karkoff remind-

1 At the time, the Employer was known as H&T Construction Co.
2 At the time, the Carpenters were known as Ohio & Vicinity Re-
gional Council of Carpenters.
3 Although the letter of assent was introduced into the record as a
joint exhibit, the Carpenters Agreement was not.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ed Allen that the Employer had a contract with the Car-
penters and that the Easterly project fell within its juris-
diction. Allen scheduled a meeting with Karkoff for Au-
gust 17 to discuss the matter further, but the meeting did
not occur. Allen never again heard from Karkoff about
the work in dispute.
Allen further testified that on or about August 15,
Charles Weitzel, a project manager for Walsh, told him
to put some Carpenters-represented employees on the
Easterly project and that Walsh would reimburse the
Employer for any extra cost for doing so. According to
Allen, Weitzel said the Carpenters were putting pressure
on him to use Carpenters-represented employees on the
Easterly project, that it had become “a public relations
problem for Walsh,” and that “if [the Employer] hire[s] a
couple of Carpenters, all this goes away.” Soon after,
Allen called Anthony Liberatore, business manager for
the Laborers, and informed him of his conversation with
Weitzel.
The next day, August 16, Allen received a letter from
Liberatore that stated: “Please be advised that Laborers’
Local 860 will have no choice but to strike if [the Em-
ployer] assigns structure work to Carpenters on the
Northeast Ohio Regional Sewer District Easterly Tunnel
Dewatering Pump Station.”
There is no evidence that the Employer ever used Car-
penters-represented employees on the Easterly project.
There has not been a strike.
B. Work in Dispute
The Employer and the Laborers stipulated that the
work in dispute is the erection and dismantling of any
structural work/form, including all patented form sys-
tems that are used to hold or form concrete, and any rein-
forced structural concrete work at the Easterly Tunnel
Dewatering Pump Station located at 788 East 140th
Street, Cleveland, Ohio.
C. Contentions of the Parties
The Employer and the Laborers contend that there are
competing claims for the work in dispute, that there is
reasonable cause to believe that Section 8(b)(4)(D) has
been violated by the Laborers’ threat to strike if the work
in dispute were reassigned to employees represented by
the Carpenters, and that the parties have not agreed on a
method for voluntary adjustment of the dispute. The
Employer and the Laborers further contend that the work
in dispute should be assigned to employees represented
by the Laborers based on the factors of collective-
bargaining agreements, employer preference and current
assignment, past practice, area and industry practice,
relative skills and training, and economy and efficiency
of operations.
As stated, the Carpenters did not appear at the hearing
or file a posthearing brief. Accordingly, the contentions
of the Employer and the Laborers stand uncontradicted,
as does the evidence the Employer and the Laborers in-
troduced at the hearing.
D. Applicability of the Statute
The Board may proceed with determining a dispute
pursuant to Section 10(k) of the Act only if there is rea-
sonable cause to believe that Section 8(b)(4)(D) has been
violated. Operating Engineers Local 150 (R&D Thiel),
345 NLRB 1137, 1139 (2005). This standard requires
finding that there is reasonable cause to believe that there
are competing claims for the disputed work between or
among rival groups of employees and that a party has
used proscribed means to enforce its claim to the work.
Id. Additionally, there must be a finding that the parties
have not agreed on a method for the voluntary adjust-
ment of the dispute. Id. On this record, we find that this
standard has been met.
1. Competing claims for work
The Employer and the Laborers stipulated, and we
find, that the Laborers have claimed the work in dispute.
We also find reasonable cause to believe that the Carpen-
ters have claimed the work. Allen, the Employer’s own-
er, testified that on or about August 10, 2012, Carpenters
Business Representative Karkoff told him that the work
in dispute belonged to employees represented by the
Carpenters because the Easterly project fell within the
jurisdictional scope of the Employer’s contract with the
Carpenters.
2. Use of proscribed means
As described, on August 16, 2012, the Employer re-
ceived a letter from the Laborers Business Manager Lib-
eratore stating that the Laborers would “have no choice
but to strike” if the Employer assigned the work in dis-
pute to employees represented by the Carpenters. Such a
threat establishes reasonable cause to believe that the
Laborers used proscribed means to enforce its claim to
the work in dispute. See Electrical Workers, Local 48
(Kinder Morgan Terminals), 357 NLRB 2217, 2218
(2011).
3. No voluntary method for adjustment of dispute
Finally, the Employer and the Laborers stipulated, and
we find, that there is no agreed-upon method for the vol-
untary adjustment of this dispute that would bind all par-
ties.
We therefore find that this dispute is properly before
the Board for determination.
LABORERS’ LOCAL 860 (HEADLANDS CONTRACTING & TUNNELING, INC.) 3
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).
The following factors are relevant in making the de-
termination of this dispute.
1. Certifications and collective-bargaining agreements
There is no evidence of a Board certification concern-
ing the employees involved in this dispute.
The Employer is subject to a collective-bargaining
agreement with the Laborers. The Laborers Agreement,
which the Employer accepted and adopted via its letter of
assent with the Laborers, specifically covers, among oth-
er things, “Water Treatment Facilities Construction” and
“Pumping Stations.” This language clearly covers the
work in dispute.
The Employer is also subject to a collective-bargaining
agreement with the Carpenters. The Employer’s letter of
assent with the Carpenters, however, does not specifical-
ly describe the scope of the work; rather, the letter mere-
ly provides that it covers work “performed by Carpen-
ters” in various counties, including Cuyahoga County,
Ohio, where the work in dispute is located. Although the
letter of assent binds the Employer and the Carpenters to
the Carpenters Agreement, the Carpenters Agreement
was not introduced into the record, and no other evidence
concerning the scope of the Carpenters Agreement was
presented at the hearing.
Because there is no evidence establishing that the Car-
penters Agreement clearly covers the work in dispute, we
find that this factor favors an award of the disputed work
to employees represented by the Laborers. See Labor-
ers’ Union Local 310 (Safway Services, LLC), 363
NLRB No. 25, slip op. at 3 (2015).
2. Employer preference and current assignment
Allen, the Employer’s owner, testified that the Em-
ployer preferred to assign, and has assigned, the work in
dispute to employees represented by the Laborers. Ac-
cordingly, we find that this factor favors an award of the
disputed work to employees represented by the Laborers.
3. Employer past practice
Allen testified that the Employer has always used em-
ployees represented by the Laborers to perform structural
concrete work and that the Employer has never used
Carpenters-represented employees to perform such work.
Accordingly, we find that this factor favors an award of
the disputed work to employees represented by the La-
borers.
4. Area and industry practice
Allen testified that the area and industry practice is for
employees represented by the Laborers to perform struc-
tural concrete work. In contrast, the record does not in-
clude evidence regarding area and industry practice as it
pertains to employees represented by the Carpenters.
Accordingly, we find that this factor favors an award of
the disputed work to employees represented by the La-
borers.
5. Relative Skills
Allen testified that employees represented by the La-
borers have the skills and training necessary to perform
the work in question. Specifically, Allen testified that
the Laborers’ hiring hall “has a pretty good inventory of
skilled tunnel-hands” because “[t]hey’ve done a lot of
[that type of work].” In contrast, the record does not
include evidence on whether employees represented by
the Carpenters have received relevant training or possess
the skills to perform the work in dispute. Accordingly,
we find that this factor favors an award of the disputed
work to employees represented by the Laborers.
6. Economy and efficiency of operations
Allen testified that using employees represented by the
Laborers to perform the structural concrete work on the
Easterly project provides certain efficiencies over using
Carpenters-represented employees. Specifically, Allen
testified that Carpenters-represented employees would
only assemble the concrete forms; they would not per-
form other related tasks, such as pouring the concrete,
tying the rebar, dismantling the forms, and moving the
forms. By contrast, employees represented by the La-
borers would perform all of the tasks associated with the
job. In these circumstances, we agree with the Employer
that Laborers-represented employees provide certain
efficiencies. Accordingly, we find that this factor favors
an award of the disputed work to employees represented
by the Laborers.
CONCLUSIONS
After considering all of the relevant factors, we con-
clude that employees represented by the Laborers are
entitled to perform the work in dispute. We reach this
conclusion relying on the factors of collective-bargaining
agreements, employer preference and current assignment,
employer past practice, area and industry practice, rela-
tive skills, and economy and efficiency of operations. In
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
making this determination, we are awarding the work to
employees represented by the Laborers, not to that Union
or its members. The determination is limited to the con-
troversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of Headlands Contracting & Tunneling,
Inc., represented by Laborers’ International Union of
North America, Local 860, are entitled to perform the
erection and dismantling of any structural work/form,
including all patented form systems that are used to hold
or form concrete, and any reinforced structural concrete
work at the Easterly Tunnel Dewatering Pump Station
located at 788 East 140th Street, Cleveland, Ohio.
Dated, Washington, D.C. August 24, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD