Painters & Allied Trades District Council 36 and Sign Display & Allied Crafts Local 510 (Freemen Exp

National Labor Relations Board - Board Decisions

Aug 5, 2020

370 N.L.R.B. 6 (N.L.R.B. 2020)

370 NLRB No. 6
NOTICE: This opinion is subject to formal revision before publication in the
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Painters & Allied Trades District Council 36 and Sign
Display & Allied Crafts Local 510 and Freeman
Exposition, Inc. and Teamsters Local No. 2785.
Case 20–CD–253060
August 5, 2020
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
This is a jurisdictional dispute proceeding under Section
10(k) of the National Labor Relations Act (Act). Freeman
Exposition, Inc. (the Employer) filed a charge on Decem-
ber 6, 2019, alleging that Painters & Allied Trades District
Council 36 and Sign Display & Allied Crafts Local 510
(Local 510)1 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 employ-
ees it represents rather than to employees represented by
Teamsters Local No. 2785 (Teamsters). A hearing was
held on February 26 and 27, 2020, before Hearing Officer
Marta I. Novoa. Thereafter, the parties filed posthearing
briefs. Teamsters also filed a motion to quash the Section
10(k) notice of hearing.
The National Labor Relations Board affirms the hearing
officer’s rulings, finding them free from prejudicial error.
On the entire record, the Board makes the following find-
ings.
I. JURISDICTION
The parties stipulated that the Employer is a corporation
with its principal place of business in South San Francisco,
California, and that during the calendar year ending De-
cember 31, 2019, the Employer purchased and received at
its South San Francisco, California facility goods and ma-
terials valued in excess of $50,000 directly from points lo-
cated outside the State of California. The parties also stip-
ulated, and we find, that the Employer is engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act, and that Local 510 and Teamsters are labor organiza-
tions within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
The Employer installs equipment and material at trade
shows, conventions, and other events in and around San
Francisco, California. It stores and maintains its
1 Consistent with the parties’ stipulation, we refer to these unions col-
lectively as Local 510 hereafter.
installation equipment, materials, and supplies (e.g.,
graphics, signage, carpeting, and wall systems) at its ware-
house in South San Francisco.
The Employer, through a multiemployer group, exe-
cuted a collective-bargaining agreement with Teamsters,
the “Convention & Trade Show Agreement.” This agree-
ment, in relevant part, describes the scope of work to be
performed by Teamsters-represented employees as the
“[o]peration of all trucks and vans with a capacity of car-
rying in excess of 1.5 tons of deco material or freight, for
purposes of producing Trade Shows, Conference’s [sic]
and Conventions in accordance with this Agreement and
current work practices[.]”
The Employer is also bound to a separate multiem-
ployer collective-bargaining agreement with Local 510,
the “Trade Show and Convention Installer Agreement.”
Prior to 2012, this agreement allowed Local 510–repre-
sented employees to drive vehicles up to “a maximum ca-
pacity of one and one-half tons” in the delivery, installa-
tion, or removal of equipment and material identified in
the contract. That limiting language, however, was not in-
cluded in the agreements executed after 2012. Instead, the
Employer’s current contract with Local 510 states that Lo-
cal 510 has “sole jurisdiction” over “driving of trucks
(bobtails, and stake-beds and vans)” in the delivery, instal-
lation, or removal of equipment and material identified in
the contract.
The Employer’s initial shipments from its warehouse
for an event installation constitute about 95 percent of its
transportation work. The Employer uses employees rep-
resented by Local 510 to pull the equipment and material
from inventory and to prepare it for delivery to the event
site. It then uses Teamsters-represented employees to load
the equipment and material onto tractor-trailers, drive the
tractor-trailers from the warehouse to the event site, un-
load the tractor-trailers at the event site, and deliver the
equipment and material to designated locations in the
event site. Employees represented by Local 510 install
some of the equipment and material after it arrives at its
designated location.
The Employer’s remaining transportation work in-
volves shipping additional equipment and material from
its warehouse on an as-needed basis during the installation
for an event. The Employer and employees represented
by both unions refer to this transportation work by various
terms, including “hot runs,” “errand runs,” “emergency
runs,” “runner work,” and “as needed runs.” Employees
performing this work use “runner” vehicles (e.g., box
trucks, bobtails, panel vans, and stake beds) to transport
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
the equipment and material to the event site. Some “run-
ner” vehicles can carry over 1.5 tons of equipment and
material, but none requires the driver to hold a commercial
driver’s license (CDL) or license endorsements. The
equipment and material delivered by this method are ur-
gently needed, sometimes resulting in two or three trips
each day during the installation for an event. Until about
September 2019, the Employer assigned runner work to
employees represented by Local 510.
On about October 3, 2018, Teamsters filed a grievance
alleging that the Employer violated the Convention &
Trade Show Agreement by assigning runner work to em-
ployees not represented by Teamsters. The grievance ad-
vanced to arbitration. Local 510 was not a party in that
proceeding. By order dated September 16, 2019, the arbi-
trator sustained the grievance and ordered the Employer to
assign runner work to employees represented by Team-
sters. Thereafter, the Employer assigned that work only
to its Teamsters-represented employees.
By letter dated October 2, 2019, Local 510 grieved the
assignment of the runner work to employees represented
by Teamsters, and added that if the Employer did not re-
assign the work to Local 510–represented employees, Lo-
cal 510 would “pursue all available remedies, including
lawful primary picketing at show site.”
B. Work in Dispute
The parties stipulated that the disputed work involves
loading, unloading, and transportation of equipment and
material using “runner” vehicles (box trucks, panel vans,
stake beds) during trade shows and other events produced
by the Employer’s South San Francisco Branch.
C. Contentions of the Parties
Teamsters moves to quash the notice of hearing, argu-
ing that the Employer created a work preservation dispute,
which is not within the scope of Section 10(k). Alterna-
tively, if the notice of hearing is not quashed, Teamsters
contends that the work in dispute should be awarded to
employees it represents based on contractual language,
relative skills and training, and area and industry practice.
The Employer and Local 510, in separate briefs, oppose
Teamsters’ motion to quash, contending that the case pre-
sents a jurisdictional dispute appropriately brought before
the Board pursuant to Section 10(k), and that there is rea-
sonable cause to believe that Local 510 violated Section
8(b)(4)(D) by threatening to picket the Employer to force
2 Electrical Workers Local 47, 368 NLRB No. 11, slip op. at 4 (2019).
3 Laborers Local 110 (U.S. Silica), 363 NLRB No. 42, slip op. at 3
(2015).
4 Cases cited in support by Teamsters, therefore, are distinguishable.
See Machinists District 190 Local 1414 (SSA Terminal, LLC), 344
NLRB 1018, 1020 (2005) (employer created a work preservation dispute
it to reassign the disputed work to employees represented
by Local 510.
On the merits, the Employer and Local 510 assert that
the work in dispute should be assigned to employees rep-
resented by Local 510 based on the factors of employer
preference and past practice and area and industry prac-
tice. Local 510 further asserts that the factor of economy
and efficiency of operations weighs in favor of awarding
the disputed work to employees it represents.
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 reason-
able cause to believe that Section 8(b)(4)(D) has been vi-
olated. 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 com-
peting claims to the disputed work and that a party has
used proscribed means to enforce its claim to that work.
Additionally, there must be a finding that the parties have
not agreed on a method for the voluntary adjustment of the
dispute. Id. We find that these requirements have been
met.
1. Competing claims for work
The parties stipulated that both Local 510 and Team-
sters have claimed the work in dispute for employees they
respectively represent. Teamsters additionally argues,
however, that the Employer created the dispute, the sub-
ject of which is work preservation rather than competing
claims for work, and therefore this dispute is not within
the scope of Section 10(k). We find no merit in this con-
tention. First, Teamsters’ contention is contrary to the
stipulation that both parties have claimed the work in dis-
pute. In addition, the existence of competing claims for
the work is demonstrated by Teamsters-represented em-
ployees’ performance of the work in dispute2 and Local
510’s grievance seeking to reassign that work to employ-
ees it represents.3 Further, evidence that the Employer
previously assigned the disputed work to Local 510–rep-
resented employees (discussed below) demonstrates that
the Employer did not, as Teamsters contends, create a
work preservation dispute by allocating the disputed work
to a group of employees that previously had not performed
it.4 Accordingly, we find that there are competing claims
for the work in dispute.
by reassigning work away from the only group that had performed it);
Seafarers (Recon Refractory & Construction), 339 NLRB 825, 827–828
(2003) (employer created a work preservation dispute by assigning re-
fractory work to a group of employees that had not previously performed
it); Teamsters Local 578 (USCP-WESCO), 280 NLRB 818, 820 (1986)
(employer created a work preservation dispute by unilaterally
PAINTERS & ALLIED TRADES DISTRICT COUNCIL 36 (FREEMAN EXPOSITION, INC.) 3
2. Use of proscribed means
We find reasonable cause to believe that Local 510 used
means proscribed by Section 8(b)(4)(D) of the Act to en-
force its claim to the work in dispute. In its October 2,
2019 letter to the Employer, Local 510 stated that if the
Employer did not reassign the disputed work to employees
it represents, Local 510 would “pursue all available reme-
dies, including lawful primary picketing at show site.”
The Board has long considered this type of threat to be a
proscribed means of enforcing claims to disputed work.
See Laborers Local 860 (Anthony Allega Cement Con-
tractor), 336 NLRB 358, 361 (2001) (reasonable cause to
believe labor organization used proscribed means to en-
force claim to disputed work by threatening to “exercise
any and all legal means,” “including, if necessary, picket-
ing”). Contrary to the contention of Teamsters, a threat of
this nature is sufficient to constitute a violation of Section
8(b)(4)(D) even if it is not followed by other action. See
Operating Engineers Local 150 (Patten Industries), 348
NLRB 672, 674 (2006).
3. No voluntary method for adjustment of dispute
The parties stipulated, and we find, that there is no
agreed-to method for voluntary adjustment of the dispute.
Based on the foregoing, we find that there is reasonable
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 determination,
and we deny Teamsters’ motion to quash the notice of
hearing.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirmative
award of disputed work after considering various factors.
NLRB v. Electrical Workers Local 1212 (Columbia
Broadcasting), 364 U.S. 573, 577 (1961). The Board’s
determination in a jurisdictional dispute is an act of judg-
ment based on common sense and experience, reached by
balancing the factors involved in a particular case. Ma-
chinists Lodge 1743 (J. A. Jones Construction), 135
NLRB 1402, 1410 (1962).
The following factors are relevant in making the deter-
mination of this dispute.
1. Board certifications and collective-
bargaining agreements
There is no evidence of any Board certifications con-
cerning any of the employees involved in this dispute.
subcontracting work that was previously performed only by its own un-
ion-represented employees, in violation of contractual limitations on
subcontracting).
However, both Local 510 and Teamsters argue that their
respective collective-bargaining agreements with the Em-
ployer entitle the employees they represent to perform the
disputed work.
The Employer is bound to the Trade Show and Conven-
tion Installer Agreement with Local 510. The jurisdiction
clause of that agreement states, in relevant part, that Local
510 has “sole jurisdiction” over “driving of trucks (bob-
tails and stake-beds and vans) in the delivery and/or instal-
lation, removal of the above work, and warehouse work,
including forklift operation where currently performed.”
Teamsters and the Employer are bound to the Convention
& Trade Show Agreement. The scope of that agreement
includes the “[o]peration of all trucks and vans with a ca-
pacity of carrying in excess of 1.5 tons of deco material or
freight, for purposes of producing Trade Shows, Confer-
ence’s [sic] and Conventions in accordance with this
Agreement and current work practices[.]”
Both collective-bargaining agreements appear to cover
the work in dispute. As noted above, the “runner” vehicles
used in performing the work in dispute include bobtails,
stake beds, and vans, i.e., vehicles specifically referenced
in the Local 510 agreement, and the record also shows that
some of these vehicles have the capacity to carry over 1.5
tons of material, as referenced in the Teamsters agree-
ment. Accordingly, we find that this factor does not favor
an award of the work in dispute to either group of employ-
ees. See Laborers Local 1184 (High Light Electric), 355
NLRB 167, 169 (2010).
2. Employer preference and past practice
The Employer’s senior vice president of operations and
general manager of the San Francisco office, Bill Kuehnle,
testified that he started working for the Employer in San
Francisco in 2009, and that the Employer’s practice at that
time was to use Local 510–represented employees to per-
form the disputed work. Kuehnle also testified that the
Employer’s practice became the subject of the Teamsters’
2018 grievance, that the Employer took the position in the
subsequent 2019 arbitration proceeding that the “status
quo should be preserved,” and that it continued its practice
until the arbitration award directed the Employer to reas-
sign the disputed work to Teamsters-represented employ-
ees. Kuehnle further testified that, currently, he “leaned
on the side of the status quo” and that it “still makes sense
to [him] moving forward.”5
Local 510’s field representative, Joe Toback, testified
that Local 510–represented employees previously
5 Teamsters argues that Kuehnle’s second reference (above) to “status
quo” is vague because it can be interpreted as the status quo at the time
of the arbitration proceeding (assigning work to Local 510–represented
employees) or the status quo at the time of the hearing (assigning work
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
performed the disputed work, and that in 2012 the parties
revised the Trade Show and Convention Installer Agree-
ment with an eye toward Local 510–represented employ-
ees’ continued performance of the disputed work. Toback
testified that the Employer only changed its practice in late
2019, assigning the disputed work exclusively to Team-
sters-represented employees pursuant to the 2019 arbitra-
tion award.
Teamsters contends that the Employer’s past practice is
“mixed.” In support, it relies on a Board of Adjustment
Decision, issued after Teamsters filed its grievance in
2018. However, in that decision the members of the Board
of Adjustment deadlocked and reached no opinion about
the Employer’s assignment of work to employees not rep-
resented by Teamsters. Teamsters also relies on the 2019
arbitration decision, but the arbitrator there stated that the
record showed a lack of clarity or consistency in the Em-
ployer’s practice, noting that testimony about it (rather
than the practice itself) was “mixed.” In any event, the
arbitrator’s findings in that proceeding are not controlling
here. See Nashua Printing Pressmen Local 359 (Tele-
graph Publishing Co.), 212 NLRB 943, 944 fn. 4 (1974)
(“It is well settled that the Board is not bound in a juris-
dictional dispute by the results of an arbitration proceed-
ing which one of the parties did not agree to and in which
it did not participate.”).
We find, based on the foregoing evidence, that this fac-
tor favors awarding the work in dispute to employees rep-
resented by Local 510.
3. Area and industry practice
GES is a general contractor that installs trade shows in
and around San Francisco. Its vice president of labor re-
lations, Guy Langlais, testified that GES had assigned run-
ner work to employees represented by Local 510 for al-
most 20 years before its recent assignment of such work
to Teamsters-represented employees. Langlais testified
that the work was reassigned after Teamsters representa-
tives showed GES the 2019 arbitration award requiring the
Employer to assign runner work to Teamsters-represented
employees.
Local 510’s field representative, Toback, testified that
he worked for GES between 1998 and 2019, and that dur-
ing that period employees represented by Local 510 per-
formed runner work for GES. Toback further testified that
“all the companies” in the area assigned runner work to
employees represented by Local 510 and that he never
to Teamsters-represented employees). We find this argument to be
without merit. In context, Kuehnle’s testimony that the status quo “still
makes sense” clearly conveys that the Employer’s current view is the
same as its view previously expressed at the 2019 arbitration
observed Teamsters-represented employees performing
such work.
Robert Fabris, a Teamsters-represented foreman, works
for GES at its warehouse in San Francisco. He testified
that transportation work he observed from January 2019
to October 2019 broke down to about 90 percent per-
formed by Teamsters-represented employees and 10 per-
cent performed by Local 510–represented employees.
However, Fabris further testified that he was not always in
the warehouse and that he did not know the amount of
work performed by employees represented by either union
before January 2019.
We find, based on the above testimony, that the weight
of the evidence relevant to this factor favors an award of
the disputed work to employees represented by Local 510.
4. Relative skills and training
Teamsters contends that this factor weighs in favor of
awarding the disputed work to employees it represents be-
cause they possess skills and training that Local 510–rep-
resented employees do not. In support, it relies on testi-
mony by Teamsters employee William Cromartie that
Teamsters-represented employees maintain CDLs and can
drive vehicles requiring Class A and Class B licenses with
endorsements. However, Kuehnle testified that each
group of employees has performed the disputed work,
which demonstrates they both possess the necessary skills.
Kuehnle further testified that employees do not need
CDLs or license endorsements to drive the runner vehi-
cles, thereby revealing that these qualifications are not
needed to perform the work in dispute.
We find that this factor does not favor awarding the dis-
puted work to either group of employees.
5. Economy and efficiency of operations
Local 510 contends that this factor weighs in favor of
awarding the disputed work to employees it represents be-
cause they perform work that Teamsters-represented em-
ployees do not. In support, Local 510 relies on Kuehnle’s
testimony that Local 510–represented employees pull
equipment from inventory. We find this contention un-
persuasive. First, the record does not show, nor does any
party contend, that pulling equipment from inventory is an
aspect of the work in dispute. And, significantly, Ku-
ehnle’s testimony about the additional work performed by
Local 510–represented employees was offered as back-
ground information. The testimony does not explain how
assignment of the disputed work to employees who pull
equipment from inventory would necessarily contribute to
proceeding. Indeed, the Employer presented this testimony as evidence
of its current preference to assign the work to employees represented by
Local 510.
PAINTERS & ALLIED TRADES DISTRICT COUNCIL 36 (FREEMAN EXPOSITION, INC.) 5
the Employer’s economy and efficiency of the opera-
tions.6 We therefore find, contrary to Local 510, that this
factor does not favor awarding the work in dispute to ei-
ther group of employees.
Conclusions
After considering all of the relevant factors, we con-
clude that employees represented by Local 510 are entitled
to perform the work in dispute. We reach this conclusion
relying on the factors of employer preference and past
practice and area and industry practice. In making this de-
termination, we award the work to employees represented
by Local 510, not to that labor organization or to its mem-
bers. The determination is limited to the controversy that
gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of Freeman Exposition, Inc., represented by
Painters & Allied Trades District Council 36 and Sign Dis-
play & Allied Crafts Local 510 are entitled to perform
loading, unloading, and transportation of equipment and
materials using “runner” vehicles (box trucks, panel vans,
stake beds) during trade shows and other events produced
by the Employer’s South San Francisco Branch.
Dated, Washington, D.C. August 5, 2020
John F. Ring, Chairman
_
Marvin E. Kaplan, Member
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
6 Cases cited in support by Local 510, therefore, are distinguishable.
See International Brotherhood of Electrical Workers Local 876, 365
NLRB No. 81, slip op. at 5 (2017) (factor of economy and efficiency of
operations weighed in favor of group of employees that could perform
all aspects of the work in dispute, where other group of employees could
only perform some aspects of it); Laborers Local 113 (Michels Pipeline
Construction), 338 NLRB 480, 484 (2002) (factor of economy and effi-
ciency of operations weighed in favor of group of employees that could
perform the disputed work and attendant work not within the scope of
the disputed work at the same time, where other group of employees
lacked expertise necessary to perform attendant work).