Elevator Constructors Local 2 (Kone, Inc.)

ELEVATOR CONSTRUCTORS LOCAL 2 (KONE, INC.) 349 NLRB No. 112 1207 International Union of Elevator Constructors, Local 2 and Kone, Inc. and Architectural & Ornamental Iron Workers, Local 63 and Joint Conference Board. Case 13–CD–760 May 31, 2007 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND WALSH This is a jurisdictional dispute proceeding under Sec- tion 10(k) of the National Labor Relations Act (the Act). Kone, Inc. (the Employer) filed charges on De- cember 18, 2006, alleging that International Union of Elevator Constructors, Local 2 (Elevator Constructors) violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing the Em- ployer to assign certain work to employees represented by Elevator Constructors rather than to employees rep- resented by Architectural & Ornamental Iron Workers, Local 63 (Ironworkers). The hearing was held on Feb- ruary 7 and 8, 2007, before Hearing Officer Helen I. Gutierrez. Thereafter, the Employer and Elevator Con- structors each filed a posthearing brief,1 and Ironwork- ers filed a brief in support of its position. 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, find- ing them free from prejudicial error.2 On the entire record, the Board makes the following findings.3 I. JURISDICTION The parties stipulated that the Employer is a corpora- tion with an office and place of business in Chicago, Illinois, where it is engaged in the business of selling and servicing elevators and escalators. They also stipu- lated that during the past calendar year, the Employer purchased and received goods at its facility in Chicago, Illinois, valued in excess of $50,000 directly from points located outside the State of Illinois. The parties further stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Finally, the parties stipulated, and we find, that Elevator Constructors and Ironwork- 1 Elevator Constructors’ unopposed motion to correct typographical error in its posthearing brief is granted. 2 The Employer contends that the hearing officer improperly granted the Joint Conference Board’s petition to intervene. In view of our finding below that the Employer is not bound by the project labor agreement, a finding in accord with the Employer’s position and con- trary to the Joint Conference Board’s position, we find it unnecessary to address the Employer’s contention. 3 The Employer’s unopposed motion to correct the record is granted. ers are labor organizations within the meaning of Sec- tion 2(5) of the Act. II. THE DISPUTE A. Background and Facts of the Dispute The Employer is in the business of manufacturing, installing, repairing, modernizing, and maintaining ele- vators, escalators, and related equipment throughout the United States. The Employer is signatory to a collec- tive-bargaining agreement with Elevator Constructors, effective by its terms from July 9, 2002, to July 8, 2007. Pursuant to the collective-bargaining agreement, the Employer is required to and has a longstanding practice of employing employees represented by Elevator Con- structors to install elevator door frames and related ma- terials.4 Article IV(A) of the collective-bargaining agreement provides that, for disputes concerning modu- lar systems, the jurisdiction of Elevator Constructors “shall remain intact as outlined in the latest ‘Green Book’ or ‘Plan for Settling Jurisdictional Disputes, Na- tionally & Locally.’”5 Additionally, article XV sets forth the grievance procedure for all disputes within the jurisdiction of the agreement, which agreement does not mention the Local Plan or the Joint Conference Board (JCB). Article XIV is a no-strike clause. The Employer has never had a bargaining relation- ship with Ironworkers. Effective January 2, 2005, the Trump Organization (d/b/a 401 North Wabash Venture LLC), serving as owner/developer, together with the Chicago Building Trades Council, entered into a project labor agreement (the PLA) “for and on behalf of contractors and subcon- tractors performing work within the scope of this agree- ment.” The PLA, covering all applicable work per- formed at the Trump Tower, 401 N. Wabash Ave., Chi- cago, Illinois (the Trump Tower), contains a no-strike clause. Additionally, it requires that all jurisdictional disputes be resolved in accordance with the procedures of the “Plan for the Settlement of Jurisdiction Disputes In the Construction Industry” (the Plan), which impli- cates the jurisdiction of the JCB. Further, the PLA pro- vides that it supersedes all other national or local col- 4 Art. IV §§ 2(b), (m), and (v) of the collective-bargaining agreement provides that the Employer shall assign the following work to employ- ees represented by Elevator Constructors: “the erecting and assembling of all elevator equipment”; “The hanging of all automatic or semiauto- matic elevator hoistway doors, together with installation of hangers and tracks”; and “Landing door entrances.” 5 The uncontested testimony of E. James Walker, a member of the multiemployer association of elevator companies, was that art. IV(A) deals with modular systems buildings, which consists of offsite build- ing construction and preassembly. The uncontested testimony of the Employer’s vice president, John Reece, was that the work in dispute was not a modular systems project. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1208 lective-bargaining agreements, but provides an excep- tion to preserve the work jurisdiction of International Union of Elevator Constructors on the project. Both Elevator Constructors and Ironworkers are signatories to the PLA. The Employer is not a signatory and did not agree to abide by it. On March 4, 2005, the Employer entered into a sub- contract with the general contractor, Bovis, to install 26 elevators at the Trump Tower. The subcontract does not mention the PLA, and it includes a merger clause specifying that the contract constitutes the entire agree- ment between the parties.6 After executing the subcon- tract, the Employer assigned the work to employees represented by Elevator Constructors. Thereafter, by letter dated December 6, 2006,7 Iron- workers claimed that employees it represents were enti- tled to perform the installation of the elevator door frames. By letter dated December 14, representatives of the Chicago & Cook County Building and Construc- tion Trades Council informed the Employer that an ar- bitration hearing had been scheduled. By letter dated December 15, the business manager for Elevator Con- structors, Frank Christensen, threatened the Employer that it would “take all necessary action to protect our work assignment, including, but not limited to, striking your company.” On December 18, the Employer filed the instant charge against Elevator Constructors. Pursuant to the JCB grievance procedure, an arbitra- tion hearing was held on December 27. The Employer refused to participate in the arbitration, claiming it was not a signatory to the PLA and was therefore not bound by its terms. The arbitrator issued his decision on De- cember 28, finding that the Employer was bound by the PLA and awarding the installation work to employees represented by Ironworkers. B. Work in Dispute The parties stipulated that the work in dispute is the installation of elevator door frames and related material, including off-loading, handling, hoisting, and installa- tion of the sill, sill supports, struts, header, door jamb/buck, door frame and fascia at the Trump Tower. 6 The merger clause provides: The Contract constitutes the entire agreement between the parties. No representations of other agreements have been made other than as set forth in the contract. The Contract may not be amended or any term or provision waived except in writing signed by the Owner. Without limitation, no term or provision of the Contract may be amended or waived by conduct of the parties. 7 All dates hereinafter refer to 2006, unless otherwise provided. C. Contentions of the Parties Ironworkers contends that the notice of hearing should be quashed because the parties are bound to an agreed-upon method for the voluntary adjustment of the dispute by virtue of the PLA, namely arbitration under the auspices of the JCB.8 Ironworkers also contends that article IV(A) of the Employer’s collective- bargaining agreement with Elevator Constructors incor- porates the National Plan and the JCB, and that, even if not, the collective-bargaining agreement is superseded by the PLA. Further, Ironworkers contends that the Bovis subcontract’s failure to incorporate the PLA was inadvertent error.9 Finally, Ironworkers contends that the Board should defer to the December 28 arbitration award, and that, as a third-party beneficiary to the PLA, the Employer was required to arbitrate the dispute. On the merits, Ironworkers contends that the work should be awarded to employees it represents based on the fac- tor of interunion agreements and decisions. The Employer asserts that this dispute is properly be- fore the Board inasmuch as it has not agreed to be bound by the PLA. The Employer contends that there is reasonable cause to believe that Elevator Construc- tors violated Section 8(b)(4)(D) of the Act, and that the work in dispute should be awarded to the employees represented by Elevator Constructors based on the fac- tors of collective-bargaining agreements, employer preference and past practice, area and industry practice, economy and efficiency of operations, and relative skills. Elevator Constructors contends that the Employer has properly assigned the work to employees it represents. In so contending, Elevator Constructors relies on the same factors as the Employer. D. Applicability of the Statute Before the Board may proceed with determining a dispute pursuant to Section 10(k) of the Act, there must be reasonable cause to believe that Section 8(b)(4)(D) has been violated. This standard requires finding that there is reasonable cause to believe that: (1) there are competing claims for the disputed work among rival 8 Ironworkers makes several arguments in support of its contention that the Employer is bound to the PLA. It contends that the express terms of the PLA granted the Trump Organization actual authority to sign on the Employer’s behalf. Ironworkers contends alternatively that the Trump Organization had apparent authority to sign on the Em- ployer’s behalf, because the Trump Organization led third parties to believe that it had the authority to do so, and because this authority does not have to be expressly given by the Employer. 9 Ironworkers contends that, before the Employer signed the Bovis subcontract, Employer representatives were told that the subcontract incorporated the PLA. ELEVATOR CONSTRUCTORS LOCAL 2 (KONE, INC.) 1209 groups of employees;10 (2) a party has used proscribed means to enforce its claim to the work in dispute;11 and (3) the parties have not agreed on a method for the vol- untary adjustment of the dispute.12 On this record, we find that this standard has been met. 1. Competing claims for work We find that there are competing claims for the work here in dispute. Elevator Constructors has at all times claimed the work in dispute for the employees it repre- sents, and these employees have been performing the work. Further, Ironworkers has claimed the work in dispute by virtue of the December 6 letter, described above. 2. Use of proscribed means We also find that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. As described above, in its December 15 letter to the Employer, Ele- vator Constructors threatened to take “all necessary action to protect our work assignment, including, but not limited to, striking your company,” in the event that the Employer assigned the disputed work to employees represented by Ironworkers. 3. No voluntary method for adjustment of dispute We further find, contrary to Ironworkers’ contention, that the Employer is not bound to the provisions con- tained in the PLA, and, accordingly, that there is no agreed-upon method for the voluntary adjustment of the dispute to which all parties are bound. Ironworkers contends that the Employer is bound to the PLA because the Trump Organization signed the PLA on the Employer’s behalf. This contention rests on two theories. First, Ironworkers contends that the Trump Organization had actual authority to sign the PLA on behalf of the Employer, because the terms of the PLA indicate that the Trump Organization signed “for and on behalf of the contractors and subcontractors performing work within the scope of [the PLA].” Sec- ond, Ironworkers contends that the Trump Organization had apparent authority to sign the PLA on behalf of the Employer, because Ironworkers’ business manager re- lied on the Trump Organization’s representation of au- thority to act on behalf of the Employer when he de- cided to sign the PLA. We find no merit to these con- tentions. 10 Carpenters Local 275 (Lymo Construction Co.), 334 NLRB 422, 423 (2001). 11 See, e.g., Electrical Workers, Local 3 (Slattery Skanska, Inc.), 342 NLRB 173, 174 (2004). 12 Operating Engineers Local 150 (R&D Thiel), 345 NLRB 1137, 1138–1139 (2005). It is well established that: (1) actual authority refers to the power of an agent to act on his principal’s behalf when that power is created by the principal’s manifesta- tion to him; and (2) apparent authority results from a manifestation by a principal to a third party that another is his agent.13 Here, with respect to actual authority, Ironworkers presented no evidence that the Employer manifested agency authority directly to the Trump Or- ganization. Further, with respect to apparent authority, Ironworkers presented no evidence that the Employer manifested to a third party that the Trump Organization was its agent. Instead, Ironworkers relies solely on representations made by the Trump Organization. Rep- resentations by the putative agent, however, do not con- stitute evidence of agency status.14 We find, therefore, that the Trump Organization did not have actual or ap- parent authority to sign the PLA on behalf of the Em- ployer. Accordingly, we find that the Employer is not bound by its terms. We disagree with Ironworkers’ contention that either the Employer’s subcontract from Bovis or the Em- ployer’s collective-bargaining agreement with Elevator Constructors binds the Employer to the PLA or to the procedures of the JCB. The Employer’s subcontract does not mention the PLA or the JCB. To the contrary, the subcontract states that it “constitutes the entire agreement between the parties.”15 Additionally, the Em- ployer’s collective-bargaining agreement does not incor- porate the National Plan or the JCB with respect to the work in dispute. As noted above, the provision of the collective-bargaining agreement that incorporates those dispute resolution mechanisms applies only to modular systems, and the uncontested testimony of the Em- ployer’s vice president establishes that the Trump Tower is not a modular system. Ironworkers also contends that the arbitrator’s decision binds the Employer to the PLA. As noted above, the Employer was not a party to the proceeding and did not agree to be bound by its results. Accordingly, we con- clude that the Employer is not so bound.16 13 Restatement 2d, Agency, § 27; see Tyson Fresh Meats, Inc., 343 NLRB 1335, 1336 (2004). 14 See Precipitator Services Group, Inc., 349 NLRB 797, 802 (2007). 15 Although Ironworkers presented testimony contradicting the merger clause contained in the subcontract, it is of no avail to Iron- workers. Where an agreement is unambiguous, as in the instant case, “Board precedent prohibits the use of parol evidence to vary the terms of the parties’ agreement.” Contek International, 344 NLRB 879, 884 (2005) (citing Quality Building Contractors, 342 NLRB 429, 430 (2004); and NDK Corp., 278 NLRB 1035 (1986)). 16 See, e.g., Elevator Constructors Local 1 (Elevator Industries Assn.), 229 NLRB 1200, 1202 (1977). We also find no merit to Iron- workers’ contention that the Employer accepted certain benefits of the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1210 We, therefore, find that the record does not show that there is an agreed-upon method for the voluntary ad- justment of the dispute.17 Based on the foregoing, we find that there are com- peting claims for the disputed work, 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 accord- ingly find that the dispute is properly before the Board for determination and deny Ironworkers’ motion to quash the notice of the hearing. E. Merits of the Dispute Section 10(k) requires the Board to make an affirma- tive award of disputed work after considering various factors.18 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.19 Based on the following factors, which we find are relevant to determining this dispute, we conclude that the Employer’s employees represented by the Elevator Constructors are entitled to perform the work in dis- pute. 1. Certification and collective-bargaining agreements There is no evidence of a Board certification con- cerning the employees involved in this dispute. The evidence shows that the Employer has a collec- tive-bargaining agreement with Elevator Constructors that encompasses elevator door installation work. Arti- cle IV of this agreement provides that employees repre- sented by Elevator Constructors will be assigned all work involving “erecting and assembling of elevator equipment,” “hanging of all automatic or semiautomatic elevator doors,” and “installation of landing door en- trances.” The Employer is not a signatory to an Ironworkers collective-bargaining agreement. Ironworkers pre- sented testimony that it has a collective-bargaining PLA (specifically, the PLA’s no-strike clause and its provision requir- ing all jurisdictional disputes to be resolved in accordance with the Plan), and in so doing bound itself to the PLA as a third party benefici- ary. Contrary to Ironworkers’ contention, the record does not show that the Employer has ever accepted any of the so-called benefits of the Plan, as evidenced by the dispute at hand. 17 See Laborers (Eshbach Brothers, LP), 344 NLRB 201, 202 (2005) (quoting Nickelson Industrial Service, 342 NLRB 954, 955 (2004) (“In order for an agreement to constitute an agreed-upon method for the voluntary adjustment, all parties to the dispute must be bound to that agreement.”)). 18 NLRB v. Electrical Workers Local 1212 (Columbia Broadcasting), 364 U.S. 573, 577 (1961). 19 Machinists Lodge 1743 (J.A. Jones Construction), 135 NLRB 1402, 1410–1411 (1962). agreement with Door Systems, Inc., a subsidiary of the Employer. However, this testimony is unavailing be- cause no such collective-bargaining agreement has been entered into evidence.20 Accordingly, we find that the factor of collective-bargaining agreements favors an award of the work in dispute to employees represented by Elevator Constructors. 2. Employer preference and past practice Employer Vice President John Reece testified that the Employer prefers to assign the work in dispute to em- ployees represented by Elevator Constructors. Reece further testified that the Employer has a 20-year prac- tice of assigning similar work to employees represented by Elevator Constructors, with only one exception, the McCormick Place Expansion Project (the McCormick Project), in 2004. Reece testified that, on that project, the Employer was bound to a project labor agreement through provisions in its subcontract with the general contractor and by an arbitration decision that awarded the work in dispute to employees represented by Iron- workers. This sole exception does not outweigh the Employer’s stated preference and 20-year past practice. Accordingly, we find that the factor of Employer pref- erence and past practice favors an award of the work in dispute to employees represented by Elevator Construc- tors. 3. Area and industry practice Representatives of three large elevator companies, Otis Elevator Company, Schindler Elevator Company, and Thyssen-Krupp Elevator Company, testified that the elevator industry utilizes employees represented by Ele- vator Constructors to perform the work in dispute, and that they could not recall a single instance in which em- ployees represented by Ironworkers performed the work. In contrast, Eric Dean, Ironworkers’ former business agent, testified that the disputed work was performed by employees represented by Ironworkers on “more than one occasion,” but was unable to identify any specific projects where Ironworkers had performed the work out- side of New York. We find that, on balance, the factor of area and industry practice favors an award of the work in dispute to employees represented by Elevator Construc- tors. 4. Relative skills Both unions provided testimony that they offer their members complete 4-year training programs in elevator door-front installation and safety, and that their members 20 See, e.g., Electrical Workers Local 211 (United Technicians), 276 NLRB 512, 514 fn. 9 (1985) (“no weight can be attached to an agree- ment unless it is before the Board”), enfd. 821 F.2d 206 (3d Cir. 1987). ELEVATOR CONSTRUCTORS LOCAL 2 (KONE, INC.) 1211 receive extensive on-the-job training performing such installations. Reece testified that employees represented by Elevator Constructors receive additional training, entitled the “Kone methodology.” According to Reece, this involves training employees to install door frames and set up the entrances for Kone elevators. Reece’s testimony, how- ever, did not establish, and Elevator Constructors pre- sented no other evidence, that the “Kone methodology” provides employees represented by Elevator Construc- tors greater skills than the training offered by Ironwork- ers’ program. In the absence of any such evidence, we find that employees represented by Elevator Constructors and Ironworkers both possess the skills and training to perform the disputed work, and that this factor does not favor awarding the disputed work to either group of em- ployees. 5. Economy and efficiency of operations Reece testified that employees represented by Elevator Constructors run the elevator platforms, and that, while performing the disputed work, they also work simultane- ously on multiple tasks with respect to the elevators and the platforms. Reece further testified that, if the work is assigned to employees represented by Ironworkers, those employees would have to wait for employees represented by Elevator Constructors to finish various tasks on the platform before they could complete the work in dispute. Therefore, the record shows that it is more efficient for employees represented by Elevator Constructors to per- form the work in dispute, as this work may be carried out in conjunction with other tasks, as opposed to the em- ployees represented by Ironworkers, who would be oth- erwise idle while certain other tasks are performed.21 Accordingly, we find that the factor of economy and ef- ficiency of operations favors an award of the work in dispute to employees represented by Elevator Construc- tors. 6. Interunion agreements and awards Ironworkers introduced a “Green Book” from 1931, amended in June 1984, in which Ironworkers and Eleva- tor Constructors agreed that employees represented by Ironworkers shall perform all work involving “elevator doors or gates manually operated” and that Elevator Constructors shall perform all work involving “[a]ll semi or full automatic doors or gates.” Daniel Baumann, the business agent for Elevator Constructors, testified that the work in dispute involves automatic elevator doors, not doors manually operated. 21 See, e.g., Teamsters Local 505 (Sandblasting Co.), 240 NLRB 960, 963 (1979). Ironworkers also introduced into evidence the arbitra- tor’s decision, dated December 28, awarding the work in dispute to Ironworkers-represented employees. As noted above, the Employer neither participated in nor was a party to the arbitration proceeding, because it is not a signatory to the PLA. The Board does not give disposi- tive weight to arbitrator’s decisions where the employer is not a party to the proceeding and did not agree to be bound to its results. See, e.g., Automotive Trades Dis- trict Lodge 190 (Sea-Land Service), 322 NLRB 830, 835 (1997); see also Laborers Local 1086 (Detinger, Inc.), 282 NLRB 633, 635 (1987) (rejecting argument that ar- bitration awards were binding in a 10(k) proceeding where not all the parties to the proceeding participated in the arbitrations or agreed to be bound by the results). Further, Ironworkers submitted into evidence an Octo- ber 13, 2005 arbitration decision, in the McCormick Pro- ject, whereby similar work was awarded to employees represented by Ironworkers. As noted above, the sub- contract in that project bound the Employer to the appli- cable project labor agreement that assigned similar work to employees represented by Ironworkers. Here, the Employer’s subcontract for the Trump Tower Project does not incorporate the PLA. We therefore accord the October 2005 arbitration award no significant weight. Additionally, Ironworkers contends that the JCB has awarded similar work to employees represented by Iron- workers, and not to employees represented by Elevator Constructors, in several instances in the past. However, Ironworkers did not introduce any such awards into evi- dence. We find that this factor does not favor awarding the disputed work to either group of employees. Conclusions After considering all of the relevant factors, we con- clude that employees represented by Elevator Construc- tors are entitled to perform the work in dispute. We reach this conclusion relying on the factors of collective- bargaining agreements, employer preference and past practice, area and industry practice, and economy and efficiency of operations. Scope of Award Elevator Constructors and the Employer request that the Board issue a broad award covering all of the Em- ployer’s future work in Chicago, Illinois. “The Board customarily declines to grant an areawide award in cases in which the charged party represents the employees to whom the work is awarded and to whom the employer contemplates continuing to assign the work.” Laborers Local 243 (A. Amorello & Sons), 314 NLRB 501, 503 (1994). See also Laborers (Paul H. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1212 Schwendener, Inc.), 304 NLRB 623, 625 (1991). Be- cause Elevator Constructors is the charged party in this case, and because the Employer contemplates continuing to assign this work to employees represented by Elevator Constructors, we shall limit the present determination to the work jurisdiction dispute that gave rise these pro- ceedings. DETERMINATION OF THE DISPUTE The National Labor Relations Board has made the fol- lowing Determination of Dispute. Employees of Kone, Inc., represented by International Union of Elevator Constructors, Local 2, are entitled to perform the installation of elevator door frames and re- lated material, including off-loading, handling, hoisting, and installation of the sill, sill supports, struts, header, door jamb/buck, door frame and fascia at the Trump Tower, 401 N. Wabash, in Chicago, Illinois.