Southwest Regional Council of Carpenters (BrandSafway Services LLC)

National Labor Relations Board - Board Decisions

Jun 30, 2020

369 N.L.R.B. 113 (N.L.R.B. 2020)

369 NLRB No. 113
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.
Southwest Regional Council of Carpenters and Brand-
Safway Services, LLC and Laborers Interna-
tional Union of North America, Local 169. Case
32‒CD‒251616
June 30, 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 (the Act).
BrandSafway Services, LLC (the Employer) filed a charge
on November 12, 2019, alleging that the Respondent,
Southwest Regional Council of Carpenters (Southwest
Council), violated Section 8(b)(4)(D) of the Act by threat-
ening to engage in proscribed activity with an object of
forcing the Employer to assign certain work to employees
it represents rather than to employees represented by La-
borers’ International Union of North America, Local 169
(Local 169). A hearing was held on February 18, 2020,
before Hearing Officer Alexander M. Hajduk.1 During the
hearing, Local 169 introduced a motion to quash the Sec-
tion 10(k) notice of hearing, in which it asserted that Local
169 had not claimed the disputed work. Thereafter, the
Employer, Southwest Council, and Local 169 filed post-
hearing briefs.
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 annually sells
and ships goods valued in excess of $50,000 from its fa-
cility located in or about the Reno, Nevada area to custom-
ers located outside of the state of Nevada. 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
Southwest Council and Local 169 are labor organizations
within the meaning of Section 2(5) of the Act.
1 The notice of hearing, which issued on December 23, 2019, set the
hearing date for February 10, 2020. The Region, however, inadvertently
failed to serve the notice on Local 169. The record opened on February
10, 2020, but no evidence was taken. The hearing was continued and
rescheduled for February 18, 2020. The record closed on February 21,
2020.
2 All subsequent dates are in 2019 unless otherwise noted.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer provides scaffolding services for con-
struction projects, including delivering, assembling, disas-
sembling, and removing scaffolding. From early 2019 un-
til August 2019,2 the Employer provided scaffolding for
the Marriott Aloft hotel project in Reno, Nevada. It hired
employees represented by Southwest Council to perform
this work pursuant to their longstanding relationship, cur-
rently embodied in a collective-bargaining agreement in
effect from July 1, 2018, to June 30, 2023. The agreement
provides that “[t]he character of such work covered by this
Agreement shall include but not be limited to . . . scaffold
[work].”
On August 1, Local 169 sent a letter to the Employer
and Brand Energy Services, which Local 169 believed
was a predecessor to the Employer, informing them that
Local 169 was filing a grievance against the Employer for
assigning the scaffolding work at the Aloft hotel project,
as well as “other work in the Union’s Jurisdiction,” to
Southwest Council in violation of the Laborers’ Master
Agreement (LMA). The LMA provides that employees
represented by Local 169 are assigned work “[t]ending to
Carpenters, handling and distributing materials used by
Carpenters,” which includes delivery and distribution of
scaffold components. Although Brand Energy Services
was a successor to Brand Scaffold Rental and Erection,
which was a signatory to a Local 169 Short Form Agree-
ment binding it to the LMA, the Employer denied that it
was a successor to Brand Energy Services.
On September 9, having learned from its business
agents that Local 169 had claimed the work on the Aloft
hotel project and work in northern Nevada generally,
Southwest Council sent the Employer a letter threatening
to strike and picket all the Employer’s jobs in northern Ne-
vada if the Employer reassigned that work to Local 169.
During meetings on September 10 and 27, after South-
west Council‒represented employees had performed the
work in question, the Employer resolved the confusion
about its corporate predecessor.3 The Employer and Local
169 agreed that the Employer was a successor to a differ-
ent entity, Safway Services, LLC. Thereafter, Local 169
sent the Employer a letter asserting that the Employer, as
a successor to Safway Services, LLC, was bound to the
LMA. On October 2, Local 169 sent the Employer
3 All parties now agree that Brand Energy Services and the Employer
are separate entities. On October 31, Local 169 amended the August 1
grievance to address work assignment issues with Brand Energy Services
and its successor, Brandsafway Industries, LLC, which are unrelated to
the dispute in the instant case. On January 22, 2020, Local 169 settled
its grievance with Brandsafway Industries.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
another letter, informing it that Local 169 was filing a
grievance to determine whether the Employer was bound
to the LMA. The Employer responded that it was “not
willing to submit to the grievance and arbitration process
in the [LMA]” because it disputed that Safway Services,
LLC, had ever been a party to the LMA.
On February 14, 2020, the Employer emailed Local 169
with a list of other construction projects on which it was
performing scaffolding work, including the Double R of-
fice building in Reno, Nevada. The Employer asked Local
169 to respond to the email if it was planning to claim
work on these projects, stating that it would interpret no
response as Local 169 disclaiming the work. The record
does not establish whether Local 169 responded to the
Employer.
On February 18, 2020, the Employer’s construction
manager at the Double R project sent the Employer photos
that purportedly show a Local 169 business agent photo-
graphing the scaffolding work at the Double R project.
B. Work in Dispute
The parties stipulated, and we find, that the work in dis-
pute is the loading/unloading, moving, erecting, and dis-
mantling of scaffolding and related cleanup at the Marriott
Aloft hotel project in Reno, Nevada.
C. Contentions of the Parties
Local 169 moves to quash the notice of hearing, arguing
that there are no competing claims for the work in dispute
because it has not made a claim for that work. To begin,
it contends that its August 1 grievance was not a claim for
the disputed work because it was later amended and filed
against an entity not party to this proceeding. It also con-
tends that its October 2 grievance was not a claim for the
disputed work because it seeks only to determine whether
the Employer is bound by the LMA as a successor to Saf-
way Services, LLC, which Local 169 asserts was a signa-
tory to the LMA. Local 169 therefore argues that the Oc-
tober 2 grievance is for breach of contract and not a claim
for work, citing, among other cases, Laborers (Capitol
Drilling Supplies), 318 NLRB 809 (1995). Finally, it ar-
gues that it has not made a claim for the disputed work
because Local 169 Business Manager Richard Daly “tes-
tified truthfully that, until there is a resolution of the Oc-
tober 2, 2019, grievance he could not know what the future
might hold, or what path [Local 169] might choose.”4 In
addition to asserting that it did not claim the disputed
work, Local 169 also argues that because there is still a
question whether the Employer has an agreement with
4 In fact, Daly provided evasive testimony on this point. For example,
when asked directly whether Local 169 would claim the work if an arbi-
trator found the Employer was bound to the LMA, Daly replied simply
Local 169, it would be inappropriate for the Board to de-
cide the jurisdictional dispute.
The Employer contends that Local 169 claimed the dis-
puted work by filing the August 1 grievance. The Em-
ployer also argues that Local 169 did not disclaim the dis-
puted work in either the October 2 grievance or the Octo-
ber 31 amendment to the August 1 grievance, nor did it
disclaim the work at the hearing.
Southwest Council contends that Local 169 claimed the
work through its August 1 and October 2 grievances.
Southwest Council argues that these grievances are claims
for work, not for breach of contract, and that Capitol Drill-
ing, above, is distinguishable. Accordingly, Southwest
Council contends that Local 169’s motion to quash should
be denied and that the Board should decide this jurisdic-
tional dispute.
On the merits, the Employer and Southwest Council as-
sert that the work in dispute should be awarded to employ-
ees represented by Southwest Council based on the fol-
lowing factors: Board certifications and collective-bar-
gaining agreements; employer preference, current assign-
ment, and past practice; area and industry practice; relative
skills and training; and economy and efficiency of opera-
tions.
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. This standard requires finding that there is reason-
able 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). On this record, we
find that these requirements have been met.
1. Competing claims for work
The performance of the disputed work by Southwest
Council‒represented employees establishes Southwest
Council’s claim to that work. Sheet Metal Workers 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)). In addition, Southwest
Council’s threat of job actions if the Employer gave any
of the disputed work to Local 169 constituted a claim to
that Local 169 would “expect [the Employer] to follow the terms and
conditions of the agreement.”
SOUTHWEST REGIONAL COUNCIL OF CARPENTERS 3
the work. See, e.g., Thomas Industrial Coatings, above at
992.
We find, despite its claims to the contrary, that Local
169 has also claimed the disputed work. Local 169 filed
the August 1 grievance because it “recently observed
workers employed by [the Employer] performing work,
covered by the [LMA] in effect between the Union and
[the Employer] on the Aloft Hotel project in Reno, and the
Union recently became aware that [the Employer] has
been performing other work in the Union’s Jurisdiction.”
The LMA requires “employees to be cleared through the
hiring hall of the Union.” Local 169 also filed the October
2 grievance to determine whether the Employer is bound
by the LMA.
Local 169’s arguments that its grievances did not con-
stitute a claim for the disputed work are unconvincing.
First, Local 169 never effectively disclaimed the disputed
work claimed in the August 1 grievance, either when it
amended the August 1 grievance or when it filed the Oc-
tober 2 grievance. The Board has found that a disclaimer
of disputed work can eliminate a jurisdictional dispute
only if the disclaimer is “‘clear, unequivocal, and unqual-
ified and disclaim[s] all interest in the work in dispute.’”
Bakery Workers Local 334 (Interstate Brand Corp.), 334
NLRB 1161, 1163 (2001) (quoting Machinists Local 724
(ATSL, Inc.), 317 NLRB 781, 782 (1995)). It is clear that
Local 169’s August 1 grievance constituted a claim for the
disputed work.5 The grievance eventually settled, but Lo-
cal 169 never disclaimed the disputed work. As for the
October 2 grievance, Local 169 Business Manager Daly
admitted that if the arbitrator sustained the grievance and
found the Employer was bound by the LMA, Local 169
would expect the Employer to “abide by the terms of the
agreement,” i.e., the LMA. Because Local 169 asserted in
its August 1 grievance that the LMA would require assign-
ment of the disputed work to employees it represents, the
October 2 grievance to determine whether the Employer
is bound by the agreement is also tantamount to a claim
for the disputed work.
Second, Local 169’s argument that its October 2 griev-
ance made no claim to the disputed work under Capitol
Drilling is unpersuasive. In Capitol Drilling, the Board
found that because the union’s grievance was filed only
against the general contractor, not the subcontractor that
actually assigned the work at issue, there was no compet-
ing claim for the work being performed by employees of
5 As noted above, although Local 169 amended this grievance on Oc-
tober 31, the amendment was not related to the work assignment question
at issue.
6 Contrary to Local 169’s contentions, a union can make a claim for
work even if there is no contractual relationship between the union and
employer. International Brotherhood of Electrical Workers Local 71
the subcontractor. 318 NLRB at 810‒812. Here, Local
169’s grievance was directed at the Employer, a subcon-
tractor that had assigned the disputed work to employees
represented by Southwest Council. As discussed above,
the August 1 grievance expressly claimed the work under
the LMA, and the October 2 grievance effectively claimed
the work on the condition that the Employer was bound to
the LMA. Accordingly, this case presents a traditional ju-
risdictional dispute in which each union claims that its
contract covers the work at issue. See, e.g., Carpenters
Southeast Missouri District Council (International Rig-
gers), 306 NLRB 561, 562‒563 (1992); Carpenters Los
Angeles Council (Swinerton & Walberg), 298 NLRB 412,
413‒414 (1990).6
2. Use of proscribed means
We find reasonable cause to believe that Southwest
Council used means proscribed by Section 8(b)(4)(D) to
enforce its claims to the work in dispute. As noted above,
on September 9, 2019, Southwest Council sent a letter to
the Employer threatening to “strik[e] and picket[] all [its]
jobs” if the Employer reassigned the scaffolding work in
northern Nevada to Local 169. The Board has long con-
sidered such threats to be a proscribed means of enforcing
claims to disputed work. See, e.g., Washington & North-
ern Idaho District Council of Laborers (Skanska USA
Building, Inc.), 366 NLRB No. 161, slip op. at 3 (2018);
Laborers Local 1184 (High Light Electric), 355 NLRB
167, 169 (2010); Bricklayers (Cretex Construction Ser-
vices), 343 NLRB 1030, 1032 (2004).
3. No voluntary method for adjustment of dispute
The parties stipulated, and we find, that there is no
agreed-upon mechanism for the voluntary resolution of
this dispute.
Based on the foregoing factors, we find that there is rea-
sonable 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 determi-
nation, and we deny Local 169’s motion to quash the no-
tice 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 has
(Thompson Electric, Inc.), 362 NLRB 1176, 1178 (2015) (finding de-
mand for work when union asked employer to “join” or sign a project
labor agreement), and cases cited therein; Carpenters Northeast Ohio
Council Local 1929 (Luedtke Engineering), 307 NLRB 1323, 1324
(1992) (finding expiration of one union’s contract did not transform ju-
risdictional dispute into contractual dispute).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
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 (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 certification concern-
ing any of the employees involved in this dispute.
As mentioned above, however, the Employer and
Southwest Council have a longstanding relationship, most
recently embodied in a collective-bargaining agreement in
effect from July 1, 2018, to June 30, 2023. It includes lan-
guage that clearly covers the work in dispute: “[t]he char-
acter of such work covered by this Agreement shall in-
clude but not be limited to . . . scaffold [work].” There is
no evidence that Local 169 has a collective-bargaining
agreement with the Employer covering the work in dis-
pute. Although Local 169 asserts that the Employer is
bound to the LMA as a successor to Safway Services,
LLC, Local 169 has failed to establish that Safway Ser-
vices was itself bound to the LMA.7 Accordingly, we find
that the factor of collective-bargaining agreements favors
awarding the disputed work to employees represented by
Southwest Council.
2. Employer preference, current assignment, and past
practice
Matt Headrick, the Employer’s southwest branch man-
ager, testified that the Employer prefers that the work in
dispute be performed by employees represented by the
Southwest Council. In addition, he testified that the Em-
ployer’s current assignment of this work to Southwest
Council‒represented employees is consistent with its past
practice. We find that the factors of employer preference,
current assignment, and past practice favor awarding the
work in dispute to employees represented by Southwest
Council.
3. Industry and area practice
Frank Hawk, chief operating officer and regional vice
president for Southwest Council, testified that he knows
of 10 or 12 other contractors in northern Nevada that pro-
vide scaffolding services exclusively. Hawk testified that
those contractors, like the Employer, all use employees
represented by Southwest Council. He also testified that
Southwest Council provided scaffolding services to over
7 Although this issue was addressed in Local 169’s October 2 griev-
ance, which at the time of the hearing had been scheduled for arbitration,
Local 169’s claim that the Employer is bound to the LMA is purely
100 other contractors in the Reno area. Local 169 business
manager Daly, in turn, testified that employees repre-
sented by Local 169 performed scaffolding work with
Brand Scaffold Rental and Erection until 2008, and then
with its successor, Brand Energy Services, in 2016 and
2017. Daly further testified that the last scaffolding pro-
ject Local 169‒represented employees had worked on was
for BrandSafway Industries, the successor to Brand En-
ergy Services, in 2017. Based on this evidence, we find
that this factor does not favor an award of the work in dis-
pute to either employee group.
4. Relative skills and training
Hawk testified that Southwest Council administers a
state-recognized, 4-year training program that provides
training exclusively in scaffolding. Headrick testified that
he had visited Southwest Council’s training center and
that it provides comprehensive training in different types
of scaffolding. He also testified that the Employer was
able to continue to win jobs based on the high quality of
work performed by Southwest Council‒represented em-
ployees. He was not familiar with the quality of scaffold-
ing work performed by Local 169‒represented employees.
Daly testified that Local 169 provides scaffold erecting
training only peripherally. Local 169 has a 2-year pro-
gram, which emphasizes familiarity with scaffolding ma-
terials and understanding how they go together; the focus
is not on erecting the scaffolding. He testified that Local
169‒represented employees tend to carpenters, bringing
materials off the truck and handing them materials at the
point of installation. Daly also testified that Local 169‒
represented employees can perform the scaffolding work
that Southwest Council‒represented employees perform,
but they ordinarily do not. We find that this factor favors
awarding the disputed work to employees represented by
Southwest Council.
5. Economy and efficiency of operations
Headrick testified that it was more efficient to have
Southwest Council‒represented employees perform all
the scaffolding work because they perform all aspects of
scaffolding work. He observed specifically that employ-
ees represented by Southwest Council are not limited to a
certain scope of work or certain tasks. We find that this
factor favors awarding the disputed work to employees
represented by Southwest Council.
CONCLUSIONS
After considering all of the relevant factors, we con-
clude that employees represented by Southwest Council
conjectural at this point. Notably, the record is devoid of any documen-
tary evidence showing that the Employer was ever bound to the LMA.
SOUTHWEST REGIONAL COUNCIL OF CARPENTERS 5
are entitled to perform the work in dispute. We reach this
conclusion relying on the following factors: Board certifi-
cations and collective-bargaining agreements; employer
preference, current assignment, and past practice; relative
skills and training; and economy and efficiency of opera-
tions. In making this determination, we award the work to
employees represented by Southwest Council, not to that
labor organization or to its members.
SCOPE OF THE AWARD
The Employer and Southwest Council maintain that our
award in this proceeding should encompass the entire
geographic area in which the Employer performs the work
and the competing unions’ jurisdictions overlap because
disagreements and further unlawful conduct over the
assignment of the disputed work will continue to arise on
future projects. In support, they cite Local 169’s August
1 grievance that also referred to “other work” in its
jurisdiction, Local 169’s October 2 grievance to determine
whether the Employer is bound by the LMA, and photos
taken as recently as February 18, 2020, that purportedly
show a Local 169 business agent taking pictures of the
Double R worksite where Southwest Council‒represented
employees were performing scaffolding work. Local 169
opposes the broad award because it is contrary to Board
policy and it was not illegal for Local 169’s business agent
to be present at or photograph the scaffolding at one of the
Employer’s other worksites.
The Board normally limits a Section 10(k) award to the
jobsite that was the subject of the unlawful Section
8(b)(4)(D) conduct or threats. See Carpenters (Prate In-
stallations, Inc.), 341 NLRB 543, 546 (2004). To justify
an areawide award, there must be (1) evidence that the dis-
puted work has been a continuous source of controversy
in the relevant geographic area and that similar disputes
may recur, and (2) evidence demonstrating the offending
union’s proclivity to engage in further unlawful conduct
in order to obtain work similar to that in dispute. See, e.g.,
Laborers’ International Union of North America, Local
860 (Ballast Construction, Inc.), 364 NLRB No. 126, slip
op. at 6 (2016).
We find that an areawide award of the disputed work is
not warranted here. The Board generally declines to issue
such an award where, as here, the charged party represents
the employees to whom the work is awarded and to whom
the employer contemplates continuing to assign the work.
See, e.g., Laborers Local 1010 (New York Paving), 366
NLRB No. 174, slip op. at 5 (2018). No aspects of this
case justify departing from the Board’s general practice.
Here, the record does not indicate that the disputed work
has been a continuous source of controversy and will con-
tinue to be so. The dispute was the first substantiated con-
troversy arising over the disputed work and involved only
one of the Employer’s jobsites. Accord Prate Installa-
tions, above at 546 (finding no proclivity for offending un-
ion to engage in further unlawful conduct where dispute
was “the first substantiated controversy arising over the
disputed work”). Further, even assuming that Local 169
prevails on its October 2 grievance, there is no independ-
ent evidence that Southwest Council is likely to engage in
unlawful conduct at future job sites in pursuit of work sim-
ilar to that in dispute. Id; see also Laborers Local 1010
(New York Paving), 366 NLRB No. 174, slip op. at 5 (cit-
ing Laborers Local 22 (AGC of Massachusetts), 283
NLRB 605, 608 (1987)). Accordingly, we shall limit the
present determination to the disputed work located at the
Marriott Aloft hotel jobsite in Reno, Nevada. See, e.g.,
Laborers Local 210 (Concrete Cutting & Breaking), 328
NLRB 1314, 1316 (1999).
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of BrandSafway Services, LLC represented
by Southwest Regional Council of Carpenters are entitled
to perform the loading/unloading, moving, erecting, and
dismantling of scaffolding and related cleanup at the Mar-
riott Aloft hotel project in Reno, Nevada.
Dated, Washington, D.C. June 30, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD