Operating Engineers Local 825 (Structure Tone, Inc.)

OPERATING ENGINEERS LOCAL 825 (STRUCTURE TONE, INC.) 352 NLRB No. 77 635 International Union of Operating Engineers a/w AFL–CIO, Local Union 825 and Structure Tone, Inc. and Market Halsey Urban Renewal, Party in Interest. Case 22–CD–765 May 30, 2008 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN This is a jurisdictional dispute proceeding under Sec- tion 10(k) of the National Labor Relations Act (the Act). Structure Tone, Inc. (the Employer) filed a charge on October 16, 2007, alleging that the Respondent, Interna- tional Union of Operating Engineers, Local Union 825 (Local 825 or the Union), violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to an em- ployee it represents rather than to a Market Halsey Urban Renewal (Market Halsey) employee. The hearing was held on November 5, 2007, before Hearing Officer Lisa D. Pollack. Thereafter, the Employer filed a posthearing brief.1 The National Labor Relations Board affirms the hear- ing officer’s rulings, finding them free from prejudicial error. On the entire record, the Board makes the follow- ing findings.2 I. JURISDICTION The parties stipulated that, during the 12-month period preceding the hearing, the Employer, a New York corpo- ration, purchased and received goods valued in excess of $50,000 directly from points located outside the State of New York. Accordingly, we find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The parties also stipulated, and we find, that Local 825 is a labor organization within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute The Employer is in the business of construction man- agement. In 2006, Morgan Stanley hired the Employer to construct a data center in Newark, New Jersey, located on the second floor of a 13-story commercial building 1 Local 825 did not file a posthearing brief. Market Halsey did not appear at the hearing nor did it file a brief. 2 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Schaumber and Member Liebman constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. owned by Market Halsey. Morgan Stanley leases this space from Market Halsey. The project included two phases of construction. Phase one began in June 2006 and ended in August 2006. Phase two began in Septem- ber 2007, with construction scheduled to end in January 2008. Phase one work included the construction of com- partments to house data equipment, fabrication of work cubicles, and installation of air conditioning units, ceiling tiles, and flooring. Phase two involved an expansion of work completed during phase one. Market Halsey employs Pepito Gonzalez to operate the building’s freight elevator, available for free use by all tenants. Pursuant to this arrangement, the Employer used this elevator—with Gonzalez as its operator—to trans- port building materials during phase one. As more fully detailed below, the Employer is party to a collective-bargaining agreement with Local 825. In July 2006, Local 825 learned of the Morgan Stanley pro- ject. Local 825 Agent Lino Santiago contacted Telly Fitanidis, the Employer’s project manager, and claimed that the parties’ agreement required that the Employer hire a union engineer to operate the elevator to transport building materials to the construction site. Fitanidis re- ferred Santiago to Tom Matello, the Morgan Stanley representative assigned to the project. Santiago dis- cussed Local 825’s claim with Matello and also con- tacted Bob Klug, Market Halsey’s chief engineer at the building. In an e-mail to Matello, Klug reported that building management agreed with Local 825’s claim and wanted “to maintain harmony” with local unions. Fitanidis testified that as a result of these discussions, Matello directed that the Employer hire a union- represented employee to operate the elevator, when taken to the second floor, during the final 3 weeks of phase one. Under this agreement, Gonzalez continued to oper- ate the elevator when used by all other tenants. The Em- ployer paid the union operator’s wages and benefits, but was reimbursed by Morgan Stanley. In early September 2007, Local 825 first learned of phase two and that Gonzalez had resumed operating the elevator when used by the Employer to transport materi- als to the Morgan Stanley construction site. Santiago contacted Fitanidis several times during the month, each time claiming that the work belonged to a union operator. Fitanidis denied all of Santiago’s claims, strongly ex- pressing the Employer’s position that the parties’ agree- ment did not cover the work. There is no record evi- dence that Local 825 contacted Morgan Stanley or Mar- ket Halsey in an effort to achieve its goal. Instead, on October 1, 2007, Local 825 sent the Employer a letter stating its “[intent] to commence picketing to enforce contract rights.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 636 On October 15, 2007, Local 825 began picketing the building’s front and back entrances.3 Picketers carried signs stating, “Unfair to Local 825, Structure Tone has violated a collective bargaining agreement with Local 825.” Between 6:45 a.m. and 3:15 p.m. each day, 20 to 30 union members picketed the back entrance while 10 members picketed the front entrance. This picketing stopped all deliveries to tenants and the Employer. Local 825 terminated picketing on October 22, 2007, after the Employer filed the unfair labor practice charge in this case. B. Work in Dispute At the hearing, the parties stipulated that the work in dispute is “the operation of freight elevators at the Mor- gan Stanley construction project located at 165 Halsey Street, Newark, New Jersey.” C. Contentions of the Parties The Employer contends that there are competing claims to the work and that there is reasonable cause to believe that Local 825 violated Section 8(b)(4)(D) of the Act. It further argues that there is no agreed-upon method for voluntary adjustment of the dispute. On the merits, the Employer asserts that its collective-bargaining agreement with Local 825 does not favor assigning the disputed work to a union-represented employee. Addi- tionally, the Employer argues that employer preference, area practice, and economy and efficiency of operations favor continuing to assign the disputed work to a Market Halsey employee. At the hearing, Local 825 contended that its collective- bargaining agreement with the Employer, employer pref- erence and past practice, area practice, and Joint Board determinations favor assigning the disputed work to an employee it represents. D. Applicability of the Statute Before the Board may proceed with a determination of a dispute under Section 10(k) of the Act, there must be reasonable cause to believe that Section 8(b)(4)(D) has been violated. Operating Engineers Local 510 (R&D Thiel), 345 NLRB 1137, 1139 (2005). This requires finding that there is reasonable 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. Id. Additionally, the Board will not proceed under Section 10(k) if there is an agreed-upon method for voluntary adjustment of the dispute. Id. 3 The freight elevator is located at the building’s back entrance, near a loading dock used by the Employer during construction. Tenants use the front entrance to access the building’s unmanned passenger eleva- tors. 1. Competing claims for the work Local 825 stipulated that it claims the disputed work. The record shows that Gonzalez has operated the freight elevator when used by the Employer during phase two of construction. Gonzalez’ continued performance estab- lishes an additional claim to the disputed work. See Op- erating Engineers Local 513 (Thomas Industrial Coat- ings), 345 NLRB 990, 992 fn. 6 (2005) (employees’ per- formance of work in dispute is “evidence of a claim for the work . . . even absent a specific claim.”). Accord- ingly, there is reasonable cause to believe that there are competing claims to the disputed work. 2. Use of proscribed means This case is atypical because Local 825 directed its picketing at the Employer rather than Market Halsey, the party that employs the operator who currently performs the work in dispute. This case nevertheless presents a situation which Section 8(b)(4)(D) was intended to rem- edy. As the Board noted in Plumbers Local 195 (Gulf Oil): Section 8(b)(4)(D) makes it an unfair labor practice for a labor organization to engage in proscribed activity with an object of “forcing or requiring any employer to assign particular work to employees in a particular la- bor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class.” The Board has in- terpreted this language as showing the “clear intent of Congress to protect not only employers whose work is in dispute from such [proscribed] activity, but any em- ployer against whom a union acts with such a purpose.” 275 NLRB 484, 485 (1985) (emphasis in original; foot- note omitted) (quoting Longshoremen ILA Local 1911 (Cargo Handlers), 236 NLRB 1439, 1440 (1978)). As stated above, Local 825 picketed the Employer af- ter it repeatedly denied Local 825’s demands that the parties’ agreement required reassignment of the disputed work to a union operator. That picketing also affected Market Halsey because it took place at all entrances to the building and stopped all tenant deliveries. Thus, it is clear that Local 825 aimed its picketing at the Employer with an object of forcing the Employer to reassign the disputed work or, through the Employer, forcing Market Halsey to reassign the disputed work. See Painters Dis- trict Council 9 (Apple Restoration), 313 NLRB 1111, 1112 fn. 3 (1994). This establishes reasonable cause to believe that Local 825 used proscribed means to enforce its claim to the work. Id. OPERATING ENGINEERS LOCAL 825 (STRUCTURE TONE, INC.) 637 3. No agreed-upon method for voluntary resolution of dispute The collective-bargaining agreement between the Em- ployer and Local 825 provides that, where a jurisdic- tional dispute arises, any party may file a complaint with the plan for the settlement of jurisdictional disputes in the construction industry. At the hearing, Local 825 ac- knowledged that it contacted the plan administrator about pursuing a complaint, but that the administrator could not decide the dispute because Market Halsey was not a sig- natory to the parties’ agreement. Therefore, the Board may proceed under Section 10(k) because this agreed- upon method cannot resolve the dispute. See Laborers Local 1184 (Golden State Boring & Pipejacking), 337 NLRB 157, 159 (2001) (although parties bound to sub- mit dispute to settlement plan, Board determined dispute after the plan administrator refused to decide it). For these reasons, we find that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that there is no available agreed-upon method for voluntary adjustment of the dispute. Local 825 contended, however, that Section 10(k) is inapplicable because the dispute concerns its attempt to recapture bargaining unit work acquired during phase one of construction. To this end, the Board has held that “if a dispute is fundamentally over the preservation, for one group of employees, of work they have historically performed, it is not a jurisdictional dispute.” Machinists District 190 Local 1414 (SSA Terminal, LLC), 344 NLRB 1018, 1020 (2005). Here, however, the union- represented operator performed the work for only 3 weeks during phase one of construction. Moreover, this assignment of work was at the direction of Morgan Stanley “to maintain harmony” with local unions. Thus, this limited performance of work does not constitute a history of performance sufficient to establish a work preservation claim. See, e.g., Teamsters Local 107 (Re- ber-Friel Co.), 336 NLRB 518, 521 (2001) (union mem- bers’ performance of work on a “few isolated occasions” insufficient to establish a work preservation claim). Cf. Seafarers (Recon Refractory & Construction), 339 NLRB 825, 828 (2003) (union members’ performance of work for a decade sufficient to establish a work preserva- tion claim). Therefore, 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 affirma- tive award of disputed work after considering various factors. NLRB v. Electrical Workers Local 1212 (Co- lumbia 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 ex- perience, 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 de- termination of this dispute. 1. Certifications and collective-bargaining agreements At the hearing, the parties stipulated that there are no Board certifications concerning the employees involved in this dispute. Accordingly, we find that the factor of Board certifications does not favor awarding the disputed work to either employees represented by Local 825 or Market Halsey employees. The Employer’s collective-bargaining agreement with Local 825 covers all employees “engaged in the opera- tion of power equipment . . . used in the construction, alteration and repair of buildings . . . .” It defines build- ing construction work as the “construction of building structures, including modifications thereof, or additions or repair thereto, intended for use for shelter, protection, comfort or convenience.” Additionally, for covered work, the agreement provides that “an Engineer shall be employed on all elevators and hoists (freight or passen- ger, permanent or temporary) . . . where used for hoisting building materials . . . or tools and equipment . . . .” These broad provisions can be read to cover the dis- puted work in this case. The Employer describes the construction in this case as “interior renovation work” and argues that the parties’ agreement only encompasses “building structural work.” The Employer does not, however, cite any specific contractual provisions to sup- port this contention. Additionally, there is no record evidence of a collective-bargaining agreement covering Gonzalez or any other Market Halsey employees who might perform the work in dispute. Thus, on balance, the factor of collective-bargaining agreements favors award- ing the work in dispute to employees represented by Lo- cal 825. 2. Employer preference and past practice As a threshold issue, we note that Local 825 argued at the hearing that the Board should give weight to the al- leged preference of Market Halsey that the work in dis- pute be performed by union-represented employees. We reject this contention. As described above, Local 825 did not include Market Halsey in discussions concerning reassignment of the disputed work. Without additional evidence, Local 825 cannot demonstrate Market Halsey’s current preference. Furthermore, by exclusively seeking the disputed work from the Employer, Local 825 limited this dispute to itself and the Employer. Therefore, we will only consider the Employer’s preference. The Em- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 638 ployer prefers that the work in dispute continue to be performed by a Market Halsey employee. Thus, we find that the factor of employer preference favors an award of the disputed work to Market Halsey employees. Additionally, the parties disagree as to whether the hir- ing of a union-represented operator during phase one of construction constitutes evidence of the Employer’s past practice. As described above, the Employer had no in- volvement in this decision. The union-represented op- erator began phase one work—at no cost to the Employer and at Morgan Stanley’s direction—only after Market Halsey agreed with the Union’s claim. Accordingly, we will not consider this as evidence of the Employer’s past practice. Local 825 presented evidence that in 2007, an em- ployee represented by it operated an elevator during an Employer construction project in Jersey City, New Jer- sey.4 Local 825 asserts that this evidence establishes an employer past practice that favors awarding the work in dispute to an employee it represents. Even assuming that the Jersey City project involved work comparable to the disputed work in this case, this single instance is insuffi- cient to establish controlling employer past practice.5 Therefore, we find that the factor of employer past prac- tice does not favor awarding the disputed work to either employees represented by Local 825 or Market Halsey employees. 3. Area practice The Union introduced letters from seven local contrac- tors, demonstrating their practice of assigning the opera- tion of elevators to union-represented employees. This evidence, however, is too inconclusive to establish a clear area practice with regard to the work in dispute. These letters fail to specifically describe the work in- volved nor do they set forth any facts and circumstances surrounding the work. Santiago testified that employees represented by Local 825 recently operated elevators for local contractors dur- ing the construction of two new high schools and a new hospital. In contrast, phase two work involves substan- tially less construction in a completed structure. Fur- thermore, unlike the projects cited by Local 825, phase 4 Local 825 Business Agent Cesar Gamio testified that the Employer conducted construction work on seven floors of a completed 30-story building. Gamio further testified that tenants occupied the building during this project and the Employer had near dedicated use of one of the building’s four or five freight elevators. Gamio reported that the Employer initially hired a security guard and laborer to operate this elevator. Gamio testified that the Employer reassigned the disputed work to a union-represented operator after Local 825 claimed the work under the parties’ collective-bargaining agreement. 5 Thus, we find it unnecessary to decide whether this evidence is comparable employer past practice. two work occurs at a time when the building is occupied by tenants and the elevator has been turned over to the building’s owner. Thus, this evidence is not sufficiently comparable to constitute controlling area practice. Finally, union member Lee Hubbard testified about past construction work completed at the Market Halsey building. Hubbard testified that, between 1999 and 2002, several subcontractors hired employees repre- sented by Local 825 to operate the building’s freight ele- vators.6 As here, this construction occurred at a time when structural work was complete, tenants occupied the building, and elevators had been turned over to Market Halsey. However, this limited evidence of assignment of work to Local 825, some 5 years ago, is insufficient to demonstrate prevailing area practice. Accordingly, we find that this factor does not favor awarding the disputed work to either employees represented by Local 825 or Market Halsey employees. 4. Relative skills and training It is undisputed that operation of the freight elevator involves opening and closing the elevator door and con- trolling a lever to move the elevator between floors. Santiago testified that no special training or license is required to perform this work. On these facts, we find that employees represented by Local 825 and Market Halsey employees have the skills and training necessary to perform this simple work. Thus, this factor does not favor an award to either employees represented by Local 825 or Market Halsey employees. 5. Economy and efficiency of operations Fitanidis testified that, during phase one, the union- represented employee operated the elevator during Em- ployer deliveries and Gonzalez operated it for all other tenant deliveries. Fitanidis further testified that if the Employer and a tenant required use of the elevator at the same time, even when it could hold both parties and their materials, one party would have to wait until the other party’s operator completed the delivery. Because a Mar- ket Halsey employee delivers materials to all but one floor, it is more efficient for that employee to also trans- port materials to the Morgan Stanley construction site. See, e.g., Elevator Constructors Local 2 (Kone, Inc.), 349 NLRB 1207, 1211 (2007). Otherwise, the Union operator would remain idle while the Market Halsey op- erator completed the bulk of deliveries. See id. Accord- ingly, we find that the factor of economy and efficiency 6 Hubbard testified that subcontractors used six of the building’s freight elevators. The record evidence suggests that Market Halsey currently makes available only one of these freight elevators for tenant use. OPERATING ENGINEERS LOCAL 825 (STRUCTURE TONE, INC.) 639 of operations favors awarding the disputed work to Mar- ket Halsey employees. 6. Joint Board determinations Local 825 introduced a number of joint board deci- sions granting operation of elevators to employees repre- sented by Operating Engineers Locals throughout the United States. These decisions do not set forth an under- lying rationale, are expressly limited to the jobs in issue, and include no evidence that the work and underlying facts are comparable to this case. Furthermore, the Em- ployer was not a party to any of these disputes and is, therefore, not bound by them. Hence, this factor does not favor an award to either employees represented by Local 825 or Market Halsey employees. See Iron Work- ers Local 1 (Advance Cast Stone Co.), 338 NLRB 43, 47 (2002). Conclusion After considering all the relevant factors, we conclude that a Market Halsey employee is entitled to continue performing the work in dispute. Although the factor of collective-bargaining agreements favors awarding the disputed work to employees represented by Local 825, we find that this factor is outweighed by the factors of employer preference and economy and efficiency of op- erations, which favor awarding the disputed work to Market Halsey employees. The determination is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the fol- low0ing Determination of Dispute. 1. Market Halsey Urban Renewal employees are enti- tled to perform the operation of freight elevators at the Morgan Stanley construction project located at 165 Hal- sey Street, Newark, New Jersey. 2. International Union of Operating Engineers, Local Union 825 is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Structure Tone, Inc. to assign the disputed work to employees represented by it. 3. Within 14 days from this date, International Union of Operating Engineers, Local Union 825 shall notify the Regional Director for Region 22 in writing whether it will refrain from forcing Structure Tone, Inc., by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination.