Washington and Northern Idaho District Council of Laborers (Skanska USA Building, Inc. - WA Division

National Labor Relations Board - Board Decisions

Aug 16, 2018

366 NLRB No. 161 (N.L.R.B. 2018)

366 NLRB No. 161
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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Washington and Northern Idaho District Council of
Laborers and Skanska USA Building, Inc.1 and
Operative Plasterers and Cement Masons Inter-
national Association, Local 528. Case 19–CD–
211263
August 16, 2018
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN RING AND MEMBERS PEARCE
AND KAPLAN
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act (the Act).
Employer Skanska USA Building, Inc. (the Employer)
filed an unfair labor practice charge on December 8,
2017,2 alleging that the Respondent, Washington and
Northern Idaho District Council of Laborers (Laborers),
violated Section 8(b)(4)(D) of the Act by threatening to
engage in proscribed activity with an object of forcing
the Employer to assign certain work to employees it rep-
resents rather than to employees represented by Opera-
tive Plasterers and Cement Masons International Associ-
ation, Local 528 (Cement Masons). A hearing was held
on March 21, 2018, before Hearing Officer John Fawley.
Thereafter, the Employer, Laborers, and Cement Masons
filed posthearing briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.3
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire rec-
ord, the Board makes the following findings.
I. JURISDICTION
The parties stipulated that the Employer is a Delaware
corporation engaged as a general contractor in the build-
ing and construction industry with a place of business
located in Seattle, Washington. During the past year, the
Employer provided services in excess of $50,000 directly
to entities located outside the State of Washington. 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. We further find that Laborers
and Cement Masons are labor organizations within the
meaning of Section 2(5) of the Act.

1 The name of the Employer appears in the caption as amended at
the hearing.
2 All dates are in 2017 unless otherwise indicated.
3 Member Emanuel is recused and took no part in the consideration
of this case.
II. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is a general contractor in the building
and construction industry and is signatory to collective-
bargaining agreements with five unions, including La-
borers and Cement Masons. As the general contractor on
a construction project at the Life Sciences Building at the
University of Washington, the Employer needed to per-
form several jobs, including installing resinous flooring
(the disputed work) in the lab. Because the University of
Washington is a public entity, State law requires that a
subcontract bid package shall be awarded to the lowest
qualified bidder. The lowest responsive bid for the res-
inous flooring work was submitted by the Leewens Cor-
poration (Leewens), and it was therefore awarded the
work. The Leewens employees who began performing
the disputed work on approximately September 27, 2016,
were represented by Laborers. Leewens and the Em-
ployer have entered into a number of project agreements
during the last 10 years whereby epoxy and resinous
flooring work has been performed by employees repre-
sented by Laborers.
On July 17, a telephone conversation occurred be-
tween Cement Masons’ business agent, Justin Palachuk,
and the vice president of Leewens, Patrick Leewens. The
substance of the conversation is in dispute. According to
Patrick Leewens, Palachuk claimed the disputed work for
Cement Masons based on a ruling from the state De-
partment of Labor and Industries (L&I)4 and the fact that
Cement Masons uses the equipment required to perform
the disputed work. Patrick Leewens informed Palachuk
that Leewens had performed this type of work for years
using employees represented by Laborers and that he
would continue employing Laborers for the Life Scienc-
es project. Afterwards, Patrick Leewens sent an email to
the Employer recounting his recollection of the phone
conversation with Palachuk. Palachuk testified that he
never claimed the disputed work for Cement Masons but,
rather, that he had asked Patrick Leewens about the
scope of the work and what tools were being used.
Cement Masons subsequently filed a grievance alleg-
ing that the Employer had breached the subcontracting
clause in its collective-bargaining agreement with Ce-
ment Masons by subcontracting the disputed work to
Leewens. Upon learning of the grievance, Laborers noti-
fied the Employer that it was prepared to use all means
necessary, including picketing and economic action, to

4 On April 27, Cement Masons sent the Employer a letter generally
claiming various classes of work, including “floor coating,” based on
certain prevailing wage determinations made by L&I.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ensure that the Employer continued to assign the disput-
ed work to employees represented by Laborers.
The work is approximately 95 percent complete. In a
letter to Leewens just prior to the originally scheduled
10(k) hearing date,5 Cement Masons disclaimed the dis-
puted work, but it did not withdraw its grievance, which
is scheduled for arbitration.
B. Work in Dispute
The parties stipulated that the disputed work is correct-
ly identified in the notice of hearing as “[t]he installation
of the resinous flooring in the lab areas at the Life Sci-
ences Building at the University of Washington.”
C. Contentions of the Parties
The Employer and Laborers contend that there are
competing claims for the work in dispute. They also
assert that there is reasonable cause to believe that Sec-
tion 8(b)(4)(D) of the Act has been violated in light of
the threat by Laborers to take adverse action against the
Employer, including picketing and economic action,
concerning the assignment of the resinous flooring work
at the Life Sciences Building. They further contend that
the work in dispute should be awarded to the employees
represented by Laborers based on the factors of employer
preference and past practice, relative skills and training,
area and industry practice, and economy and efficiency
of operations.
Cement Masons contends that it has not made a claim
for the resinous flooring work. Relying on Laborers
(Capitol Drilling Supplies), 318 NLRB 809 (1995), it
argues that it has merely pursued a contractual grievance
against the Employer for failing to honor the subcontract-
ing clause in the collective-bargaining agreement. Ce-
ment Masons further argues that this dispute involves a
representational issue, not a jurisdictional issue. Addi-
tionally, Cement Masons contends that the notice of
hearing should be quashed because the threats to picket
were not authentic but rather were made by Laborers, in
collusion with the Employer, in order to fabricate a juris-
dictional dispute. Finally, Cement Masons argues that
even if it made a claim for work, it properly and effec-
tively disclaimed interest in the disputed work.
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

5 The hearing, originally noticed for January 25, was held on March
21.
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 of voluntary adjustment of the dis-
pute. Operating Engineers Local 150 (R&D Thiel), 345
NLRB 1137, 1139 (2005). We find that these require-
ments have been met.
1. Competing claims for work
We find reasonable cause to believe that both Unions
have claimed the work in dispute for the employees they
respectively represent. Laborers has claimed the work by
its letters from its business manager, Jermaine Smiley, to
the Employer objecting to any assignment of the resinous
flooring work to Cement Masons–represented employ-
ees. In addition, “[its] performance of the work indicates
that [it claims] the work in dispute.” Sheet Metal Work-
ers Local 54 (Goodyear Tire & Rubber Co.), 203 NLRB
74, 76 (1973); see also Operating Engineers Local 513
(Thomas Industrial Coatings), 345 NLRB 990, 992 fn. 6
(2005) (citing Laborers Local 79 (DNA Contracting),
338 NLRB 997, 998 fn. 6 (2003)).
We also find, despite its claims to the contrary, that
Cement Masons has claimed the disputed work. We find
no merit in the contention that, under Capitol Drilling, it
made no claim to the disputed work because it merely
filed a subcontracting grievance against the Employer,
the general contractor. In Capitol Drilling, supra, 318
NLRB at 811–812, the Board found that a jurisdictional
dispute arises when a union seeking enforcement of a
contractual claim both pursues its contractual remedies
against the general contractor with which it has an
agreement and makes a claim for the work directly to the
subcontractor that has assigned the work. Id. at 809.
There is reasonable cause to believe that Cement Masons
did precisely that here.
Cement Masons made a claim for the resinous flooring
work directly with the subcontractor, Leewens, as well as
with the general contractor, the Employer. During a
phone conversation, Palachuk informed Patrick Leewens
that L&I had assigned the work to Cement Masons and
that Cement Masons claimed all work requiring the tools
used in the disputed work, specifically rollers, squeegees,
cover trowels and other trowels. The subsequent email
from Patrick Leewens to the Employer, stating that Pala-
chuk informed him that L&I had assigned the disputed
work to Cement Masons, corroborated his testimony that
Palachuk claimed the work. Although Cement Masons
disputes this testimony, we find that it is sufficient to
establish reasonable cause to believe that Cement Ma-
sons made a claim for the disputed work directly with
Leewens. Electrical Workers Local 71 (US Utility Con-
tractor Co.), 355 NLRB 344, 346 (2010) (citing J.P.
Patti Co., 332 NLRB 830, 832 (2000)) (finding that in
WASHINGTON & NORTHERN IDAHO DISTRICT COUNCIL OF LABORERS 3
10(k) proceedings, a conflict in testimony does not pre-
vent the Board from finding reasonable cause and pro-
ceeding with a determination of the dispute).
We also find no merit in the assertion that no claim for
work occurred because this involved a representational
issue, not a jurisdictional issue. Cement Masons has
failed to provide any evidence that it sought to represent
the Leewens employees at issue. Therefore, this is not a
dispute about which of two competing unions will repre-
sent a single group of workers currently performing work
and instead involves an attempt by one group of employ-
ees to take a work assignment away from another group
of employees. For that reason, this dispute is jurisdic-
tional, not representational. DNA Contracting, supra,
338 NLRB at 999; cf. Carpenters Local 275 (Lymo Con-
struction Co.), 334 NLRB 422, 424 (2001) (unlike situa-
tion here, dispute found to be representational because
composite crew from both unions was used by the em-
ployer until the completion of the job).
Finally, we find no merit in the contention that Cement
Masons has sufficiently disclaimed interest in the disput-
ed work. On January 18, 2018, the eve of the original
10(k) hearing date, Cement Masons wrote Leewens say-
ing that it was not seeking the disputed work. Cement
Masons, however, has continued to pursue its grievance
against the Employer. We find that the continuance of
the grievance is inconsistent with any assertion of a dis-
claimed interest in the work and that Cement Masons’
attempted disclaimer is ineffective as it is not a true re-
nunciation of interest in the work. Plumbers District
Council16 (L&M Plumbing), 301 NLRB 1203, 1204
(1991).
2. Use of proscribed means
We find reasonable cause to believe that Laborers used
means proscribed by Section 8(b)(4)(D) to enforce its
claims to the work in dispute. As set forth above, Busi-
ness Manager Smiley wrote the Employer stating that
Laborers would use all means necessary, including pick-
eting and economic action, to ensure that the Employer
continued to assign the resinous flooring work to mem-
bers of Laborers. These statements constitute threats
concerning the assignment of the resinous flooring work,
and the Board has long considered such threats to be a
proscribed means of enforcing claims to disputed work.
See, e.g., Operating Engineers, Local 150 (Patten Indus-
tries), 348 NLRB 672, 674 (2006).
Further, we find no merit in the assertion that the Em-
ployer has colluded with Laborers to create a sham juris-
dictional dispute. The Board has consistently rejected
this argument absent “affirmative evidence that a threat
to take proscribed action was a sham or was the product
of collusion.” Operating Engineers Local 150 (R&D
Thiel), supra, 345 NLRB at 1140. There is no evidence
on this record that the written threats to strike or picket
over the assignment of the disputed work were the result
of collusion with the Employer or were otherwise not
genuine.
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.
Based on the foregoing, we find that there is reasona-
ble cause to believe that Section 8(b)(4)(D) has been
violated, and there is no agreed-upon method for the vol-
untary adjustment of the dispute. Accordingly, we find
that the dispute is properly before the Board for determi-
nation.
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, 577–579
(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 involved 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.6
1. Board certifications and collective-bargaining
agreements
The work in dispute is not covered by any Board or-
ders or certifications.
As noted above, the Employer is signatory to collec-
tive-bargaining agreements with both Laborers and Ce-
ment Masons. Both agreements contain a craft classifi-
cation that incorporates epoxy work.7 We find that the
language in each of these contracts covers the work in
dispute. Leewens does not have a collective-bargaining
agreement with either Laborers or Cement Masons.
Accordingly, the factor of board certifications and col-
lective-bargaining agreements does not favor an award to
either group of employees.

6 Cement Masons argues that there is no jurisdictional dispute war-
ranting a Board determination. It does not alternatively argue that, if
the Board disagrees, employees it represented should be awarded the
work under the Board’s multifactor test, nor did it introduce evidence
relevant to those factors.
7 Both the Employer and Laborers confirmed at the hearing that La-
borers’ “Epoxy Technician” classification pertains to the resinous floor-
ing coating work on the Life Sciences project.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
2. Employer preference, current assignment, and past
practice
The Employer assigned the disputed work, via
Leewens, to employees represented by Laborers, and
both the Employer and Leewens prefer that the work in
dispute continue to be performed by employees repre-
sented by Laborers. In addition, the Employer testified
that assignment of this work to Laborers-represented
employees is consistent with its past practice. Between
2010 and 2017, 42 out of 47 resinous flooring projects
were awarded by the Employer to Laborers-affiliated
subcontractors, and since 2014, 30 out of 31 of the Em-
ployer’s resinous flooring projects have utilized Labor-
ers. Furthermore, Leewens almost exclusively uses La-
borers-represented employees for epoxy floor coating
work.
We find, therefore, that the factor of employer prefer-
ence, current assignment, and past practice favors an
award of the work in dispute to employees represented
by Laborers.
3. Industry and area practice
The Employer and Laborers argue that industry and
area practice supports an award of the disputed work to
employees represented by Laborers. Dale Cannon, busi-
ness agent for Laborers Local 242, testified that area
competitors use Laborers-represented employees to per-
form resinous flooring work. Foreman Larry Vance, of
Leewens, also testified that he was not aware of Seattle-
area floor coating companies using any craft but Labor-
ers.
We find that on this record this factor favors an award
of the work in dispute to employees represented by La-
borers.
4. Relative skills
The evidence presented at the hearing demonstrates
that the employees represented by Laborers possess the
required skills and training to perform the disputed work
and have performed this type of project in the past.
Vance testified that Laborers available to perform the
disputed work have been trained in the general aspects of
floor coating and in installing methyl methacrylate
(MMA) in particular, which is the resinous coating being
used on the Life Sciences project. MMA requires certifi-
cation training on proper installation and safety hazards.
No evidence was presented concerning the skills of the
employees represented by Cement Masons. According-
ly, we find that on this record this factor favors awarding
the disputed work to employees represented by Laborers.
5. Economy and efficiency of operations
Representatives of the Employer testified that it is
more efficient and economical to assign the disputed
work to employees represented by Laborers because the
installation is 95 percent completed. One of the Employ-
er’s project executives, Lewis Guerrette, testified that
replacing Laborers with Cement Masons would disrupt
the project schedule because Cement Masons would be
required, pursuant to specification requirements, to pro-
duce a mockup of the resinous coating they would install,
which would need to be approved by the architect and
University of Washington representatives.
We therefore find this factor favors an award of the
disputed work to employees represented by Laborers.
Conclusion
After considering all of the relevant factors, we con-
clude that employees represented by Laborers are entitled
to perform the work in dispute. We reach this conclusion
relying on the factors of 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 Laborers, not to that labor organ-
ization or its members.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of Leewens Corporation, represented by
Washington and Northern Idaho District Council of La-
borers, are entitled to perform the installation of the res-
inous flooring in the lab areas at the Life Sciences Build-
ing at the University of Washington in Seattle, Washing-
ton.
Dated, Washington, D.C. August 16, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD