Elevator Constructors Local 91 (Otis Elevator)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 94 International Union of Elevator Constructors, Local 91 and Otis Elevator Company and Perini Build- ing Company and International Union of Oper- ating Engineers, Local 478. Case 34–CD–64 September 9, 2003 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND WALSH This is a jurisdictional dispute proceeding under Section 10(k) of the National Labor Relations Act. The charge was filed March 6, 2002, by the International Union of Operat- ing Engineers, Local 478 (Operating Engineers), alleging that the Respondent, International Union of Elevator Con- structors, Local 91 (Elevator Constructors), violated Sec- tion 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing Perini Building Company, Inc. (Employer Perini), to as- sign certain work to employees represented by Elevator Constructors rather than to employees represented by Op- erating Engineers. The hearing was held on March 19 and April 1, 2002, before Hearing Officer Margaret A. Lareau. 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, finding them free of prejudicial error. On the entire record the Board makes the following findings I. JURISDICTION The parties stipulated that Otis Elevator Company (Em- ployer Otis), is a New Jersey corporation engaged in the business of manufacture, research and development, retail and nonretail sale, and distribution of elevators and related products at its East Hartford, Connecticut facility. During the 12 months preceding the hearing, Employer Otis pur- chased and received goods in excess of $50,000 at its East Hartford, Connecticut facility, directly from points located outside the State of Connecticut. The parties stipulated that Employer Perini is a Massa- chusetts corporation engaged in the operation of a general contracting business. During the 12 months preceding the hearing, Employer Perini provided services valued in ex- cess of $50,000 in states other than the Commonwealth of Massachusetts. The parties stipulate, and we find, that the Employers are engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Elevator Constructors and Operating Engineers are labor organizations within the meaning of Section 2(5) of the Act. II. DISPUTE A. Background and Facts of Dispute The Mohegan Tribal Gaming Authority (MTGA) hired Employer Perini to manage the construction of phase II of the Mohegan Sun Casino Resort project, consisting of the expansion of an existing casino and the construction of a major sports arena, several surrounding projects, and a hotel tower. Employer Perini procured subcontractors for the construction of the tower, but elected to perform itself all hoisting on the project, including the tower cranes, out- side hoists, and interior elevators also known as cars.1 Employer Perini has a collective-bargaining agreement with Operating Engineers, but not with Elevator Construc- tors. Employer Perini initially assigned in writing the out- side hoisting work to employees represented by Operating Engineers and, as discussed below, later made a written assignment to them of the operation of the interior cars. Employer Otis, a subcontractor,2 was hired to install, test, and repair the elevators at the Mohegan Sun Resort. Employer Otis was to turn the tower elevators over to Perini for use in moving a combination of people and ma- terials for construction purposes after the elevators were installed and tested. Employer Otis has a collective- bargaining agreement with Elevator Constructors. On June 1, 2001, Perini’s Senior Project Manager Travis Burton assigned, in writing, the operation of the inside elevators to employees represented by the Operating Engi- neers. Elevator Constructors Business Manager Dominic Accarpio learned of the assignment and met with Burton. Burton indicated he would be amenable to a splitting of the work, provided that Elevator Constructors adjusted their wages to those paid under Operating Engineers’ col- lective-bargaining agreement and that the two Unions en- tered into a side agreement concerning the disputed work. Otherwise, according to Burton, Perini was obligated to assign the work to Operating Engineers-represented em- ployees as provided in the collective-bargaining agree- ment. Accarpio refused. Accarpio then spoke with Senior Project Manager Emil Newman of the Mohegan Sun Gaming Authority. New- man approved of the splitting of the work, since in his experience in New York and New Jersey the two unions split the operation of the elevator cars, provided there was wage parity. Newman also informed Accarpio that Perini had ultimate authority to assign the work. 1 Employer Perini’s senior project manager, Travis Burton, testified that the reason Perini chose to perform the hoisting itself was so that Perini could coordinate the flow of personnel and building materials throughout the 36 stories of the hotel tower in order to effectively manage the construction process. 2 Employer Perini hired Employer Otis to install, test, and repair the elevators, but Otis’s contract is with Mohegan Sun and not Employer Perini. 340 NLRB No. 14 ELEVATOR CONSTRUCTORS LOCAL 91 (OTIS ELEVATOR CO.) 95 B. Work in Dispute The disputed work consists of the operation of inside elevators to move a combination of workmen and materi- als during the construction of the hotel tower after the ele- vators’ installation, but before final inspection and certifi- cation of the elevators for public use3 in the hotel tower at the Mohegan Sun Resort. C. Contentions of the Parties Employer Perini argues that employees represented by Elevator Constructors walked off the job in order to force Perini to reassign half the disputed work to employees represented by Elevator Constructors and that the parties have not agreed on a voluntary settlement method.4 It therefore argues reasonable cause exists to believe that Section 8(b)(4)(D) of the Act has been violated. Employer Perini contends that the employees represented by Operat- ing Engineers should be awarded the operation of the inte- rior cars for hoisting personnel and materials in the State of Connecticut. Perini contends that the following factors support this award: (1) collective-bargaining agreements; (2) employer preference and assignment; (3) area and in- dustry practice; and (4) economy and efficiency of opera- tions. Employer Otis argues that reasonable cause exists to be- lieve that Section 8(b)(4)(D) has been violated and that the Board should award the disputed work to the employees represented by Elevator Constructors. Otis contends that the following factors favor assigning the work to employ- ees represented by Elevator Constructors: (1) collective- bargaining agreements; (2) industry and area practice; (3) skills; and (4) economy and efficiency of operations. Operating Engineers contends that the factors of collec- tive-bargaining agreements, Employer Perini’s preference, area and industry practice, and economy and efficiency of operations favor employees represented by the Operating Engineers, and that skills and training favor neither em- ployee group. Elevator Constructors argue that no jurisdictional dis- pute exists because the dispute was over the wage rate to be paid employees represented by Elevator Constructors, rather than which group of employees should perform the work. Thus, it argues that the Board should quash the no- tice of hearing. It further argues that, if the Board finds that a jurisdictional dispute exists, then the Board should award the work to employees represented by Elevator Construc- 3 Once the elevators were installed and tested, but before final inspec- tion, Employer Otis was to turn control of the cars over to Perini so that Perini could control the flow of workmen and materials throughout the tower. 4 In support of its position, Perini notes that Employer Otis originally filed charges with the Board alleging that Elevator Constructors walked off the job to force the reassignment of work, but that Otis later settled the matter with Elevator Constructors. tors on the basis of employer preference and past practice, industry and area practice, skills, and economy and effi- ciency of operations. D. Applicability of the Statute Before the National Labor Relations Board may proceed with a determination of the dispute pursuant to Section 10(k), it must be satisfied that reasonable cause exists to believe that Section 8(b)(4)(D) has been violated and that the parties have not agreed on a method for the voluntary adjustment of their dispute. On the morning of September 11, 2001, Elevator Con- structors Local 91 Business Manager Dominic Accarpio met with Perini’s Project Manager Travis Burton for a second time, demanding that Perini reassign operation of half of the elevator cars used for moving a combination of workmen and materials in the tower to employees repre- sented by Elevator Constructors. Burton informed Accar- pio that he would not consider reassigning half the work unless Elevator Constructors agreed to work at Operating Engineers’ contractual wage rate. He also insisted that Operating Engineers agree in writing to Elevator Construc- tors-represented employees sharing the work. Accarpio rejected the lower wage rate on behalf of Elevator Con- structors. Elevator Constructors and Operating Engineers did not enter into a side agreement. Immediately following the unsuccessful meeting, Elevator Constructors- represented employees walked off the job. Perini’s President Craig Shaw was on the site and called a meeting to deal with the walkout.5 As a result, Employer Perini reassigned half of the work to employees repre- sented by Elevator Constructors.6 Following the reas- signment, Elevator Constructors-represented employees returned to work. Although Elevator Constructors describe this dispute as exclusively over wage rates, it is not. Employer Perini had not assigned half the work to Elevator Constructors- represented employees before the walkout, and Elevator Constructors had not agreed to the terms required by Em- ployer Perini. Even assuming that one object of the walk- out was economic, there is reasonable cause to believe that an object of the walkout was to force Perini to reassign half the work to employees represented by Elevator Con- 5 At the time of the walkout Employer Otis was still installing elevators and performing other related work. Employees represented by Operating Engineers had not yet assumed operation of the elevators. 6 Under the agreement reached, the first car would be assigned to an employee represented by Operating Engineers and the second car would be assigned to an employee represented by Elevator Constructors. If there were an even number of cars, then each Union would have an equal num- ber of employees it represented performing the work. If there were an odd number of cars, then Operating Engineers-represented employees would operate one more car. The wage rates paid are specified in the two Un- ions’ collective-bargaining agreements. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 96 structors.7 The parties stipulated that there is no method of resolving the dispute that would be binding on all the par- ties. We find that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there is no agreed-upon method for voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dispute is properly before the Board for determination. 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 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 involved in a particular case. Ma- chinists Lodge 1743 (J. A. Jones Construction), 155 NLRB 1402 (1962). The following factors are relevant in making the deter- mination of this dispute. 1. Certifications and collective-bargaining agreements There is no evidence of any Board certifications con- cerning the employees involved in this dispute. Both Operating Engineers and Elevator Constructors have collective-bargaining agreements with an employer on the project that arguably covers the disputed work. Article III, trade jurisdiction, section 1, of Operating Engineers’ collective-bargaining agreement with Em- ployer Perini states in pertinent part that Operating Engi- neers have “exclusive jurisdiction for hoisting materials and/or workman, whether inside or outside the building,” and that “[t]he Employer agrees that the Union shall be the exclusive representative of all employees performing . . . [t]he maintenance and or operation of . . . elevators used for hoisting materials and/or workmen, whether inside or outside the building.” Article IV, paragraph 2, of Elevator Constructors’ con- tract with Employer Otis contains a list of job functions that employees represented by Elevator Constructors ex- clusively are to perform where Otis is the Employer. Those functions include the “operation of temporary eleva- tor cars.” Although both Unions’ collective-bargaining agree- ments arguably cover the work in dispute, the collective- bargaining agreement that is relevant is the one that has been negotiated with the employer who has the ultimate control over the assignment of the work. See Moving Pic- ture Machine Operators Locals 27 & 48, 227 NLRB 142, 144 (1976). In this instance, it is the collective-bargaining 7 “One proscribed objective suffices.” Teamsters Local 50 (Schnabel Foundation), 295 NLRB 68, 70 (1989). agreement with Employer Perini, as Perini elected to per- form all hoisting work itself, including the disputed work, and has ultimate authority over whoever does the work. Only Operating Engineers have a collective-bargaining agreement with Perini. In these circumstances, we find that the factor of collec- tive-bargaining agreements favors awarding the disputed work to employees represented by Operating Engineers. 2. Employer preference At the hearing and in its brief, Employer Perini states that its preference is to have the disputed work performed by employees represented by Operating Engineers. There- fore, we find that this factor favors awarding the disputed work to the employees represented by Operating Engi- neers. 3. Area and industry practice Both Unions listed a number of sites within Connecticut where represented employees performed the disputed work. In many instances, it was unclear whether both Un- ions were on the same construction site, who the general contractor was, or what the elevators were carrying. Both sides did show that employees they represent performed the disputed work in Connecticut. The evidence is not clear as to whether employees rep- resented by one Union or the other more typically per- formed the disputed work in similar circumstances. Thus, we find that this factor does not favor awarding the dis- puted work to employees represented by either Union. 4. Joint Board decisions Operating Engineers presented joint Board decisions in which employees represented by Elevator Constuctors were awarded the assignment of cars used only for the movement of personnel, while employees represented by Operating Engineers were awarded in different instances cars used for the movement of material or a combination of personnel and material. The joint Board decisions were not recent. None involved the same employers, and the awards did not set forth the circumstances behind the award and specified that each award was specific to that particular case. Based on these facts, we find that the joint Board awards do not favor employees represented by either Union. 5. Relative skills The record shows that employees represented by both Unions possess the skills necessary to perform the work and that neither is better able to perform the work. The disputed work consists of pushing buttons, a skill that employees represented by both Unions possess. We find that this factor does not favor employees represented by either Union. ELEVATOR CONSTRUCTORS LOCAL 91 (OTIS ELEVATOR CO.) 97 6. Economy and efficiency of operation Employer Perini argues that it is more efficient and eco- nomical to use employees represented by Operating Engi- neers. Perini notes that by using Operating Engineers- represented employees, Perini can directly control the pro- gress of the project by controlling which floors receive personnel and materials, whereas by using Elevator Con- structors-represented employees, Perini must delegate to Employer Otis the responsibility of controlling the flow of personnel and materials throughout the tower. This re- duces Perini’s control of the project and provides a disin- centive to performing the work itself. Employer Otis and Elevator Constructors argue that it is more efficient to use Elevator Constructors-represented employees because only these employees have the skills to repair the elevators. If an elevator breaks down, an eleva- tor constructor operating the car can immediately make repairs instead of having to wait for an elevator constructor to be called to the site. There is no evidence that elevators break down frequently. Moreover, employees represented by Elevator Constructors are under contract to perform the repairs and are on site. There would be little delay in wait- ing for an elevator constructor to make the repairs. Employer Perini and Operating Engineers argue that it is more economical to use employees represented by Operat- ing Engineers. Perini and Operating Engineers point to Elevator Constructors’ wage rate being $18/hr. greater than Operating Engineers’. However, the Board does not consider wage rates as a basis for determining whether one group of employees is more economical than another group of employees.8 We find the factor of efficiency and economy does not favor employees represented by either Union. CONCLUSIONS After considering all the relevant factors, we conclude that employees represented by Operating Engineers are entitled to perform the work in dispute. We reach this con- clusion relying on the factors of employer preference and collective-bargaining agreements. See Plumbers Local 81, 327 NLRB 9 (1998) (awarded work on basis of employer preference and collective-bargaining agreement). There are no countervailing factors supporting an award to em- ployees represented by Elevator Constructors. In making this determination, we award the work to employees represented by the International Union of Op- erating Engineers, Local 478, not to that Union or its 8 See Laborers Local 320, 318 NLRB 917, 918 (1995). members. The determination is limited to the controversy that gave rise to this proceeding. Scope of Award The work award is limited to the hotel tower at the Mo- hegan Sun Resort in Uncasville, Connecticut. We reject the arguments of Employers Perini and Otis favoring a broader award encompassing wherever the work is per- formed throughout the State of Connecticut. Only where the evidence indicates that the disputed work will be a continuing source of controversy in the relevant geo- graphic area, and that similar disputes are likely to recur, and the charged party has a proclivity to engage in unlaw- ful conduct to obtain work similar to the disputed work, will we make an award of work broader than one covering the jobsite. See Standard Sign & Signal Co., 248 NLRB 1144, 1148 (1980). Employer Perini intends to continue employing employ- ees represented by Operating Engineers and to continue to subcontract with elevator companies employing employ- ees represented by Elevator Constructors. Otis intends to continue employing employees represented by Elevator Constructors, and both Unions desire to perform the same work. However, there is no evidence that Elevator Con- structors has a demonstrated proclivity to engage in unlaw- ful conduct to obtain the disputed work. DETERMINATION OF DISPUTE The National Labor Relations Board makes the follow- ing Determination of Dispute. 1. Employees of Perini Building Company, Inc., repre- sented by the International Union of Operating Engineers, Local 478, are entitled to operate the interior cars used for transporting a combination of workmen and materials (af- ter the cars are turned over but before final inspection and certification for public use) at the hotel tower at the Mohe- gan Sun Resort in Uncasville, Connecticut. 2. International Union of Elevator Constructors, Local 91, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Perini Building Company, Inc., to assign the disputed work to employees represented by it. 3. Within 14 days from this date, International Union of Elevator Constructors, Local 91, shall notify the Regional Director for Region 34 in writing whether it will refrain from forcing Employer Perini, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a man- ner inconsistent with this determination.