Local 150, International Union Of Operating Engineers, Afl--Cio

938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Local 150, International Union of Operating Engi- neers, AFL-CIO and The Austin Company and Ross Construction, Inc., Party in Interest and Broadacre Development Co., Party in Interest. Case 13-CD-391 September 29, 1989 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS The charge in this Section 10(k) proceeding was filed August 12, 1987, by the Austin Company, al- leging that the Respondent, International Union of Operating Engineers, Local Union No. 150, AFL- CIO (Local 150), violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing the Austin Company and its sub- contractors to assign certain work to employees it represents rather than to employees represented by Carpenters Local Union 1, Chicago and Northeast Illinois District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America (Local 1). The hearing was held August 27, 1987, before Hearing Officer Margaret B. Peck. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board affirms the hearing officer's rulings, finding them free from prejudicial error. On the entire record, the Board makes the following find- ings. 1. JURISDICTION The Austin Company is an Ohio corporation, en- gaged as a designer engineer and builder at its fa- cility in Chicago, Illinois, where it annually derives gross revenues in excess of $500,000 and annually receives goods and materials valued in excess of $50,000 directly from points located outside the State of Illinois . The parties stipulated, and we find, that the Austin Company 1 is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and that Local 150, International Union of Operating Engineers is a labor organization within the meaning of Section 2(5) of the Act. ' The parties, apparently inadvertently , did not stipulate that Ross Construction is an employer under the Act Nor is there any evidence in the record that enables us to conclude that Ross is an employer under the Act However, because there is no claim that we lack jurisdiction and as the parties had every opportunity to make such an argument , we assume this lack of jurisdictional information is a mere oversight. In any event, jurisdiction is established by virtue of the stipulation regarding Austin II. THE DISPUTE A. Background and Facts of Dispute The Austin Company is the general contractor for the renovation of a six-story building located at 401 East Illinois Street, Chicago, Illinois (the North Pier Terminal). Inside the North Pier Termi- nal there are three manually operated elevators. Austin is a party to a prehire collective-bargaining agreement with Local 150. That agreement states at article VI, section 12, inter alia, that an operat- ing engineer is required for "elevators that are or will be a permanent part of a building or structure when used for remodeling or renovation work when the area being reconstructed exceeds 9,000 square feet." The agreement also states that Austin can subcontract work only to entities that are par- ties to the applicable labor agreement with Local 150. Ross Construction, Inc. is one of Austin's sub- contractors on the North Pier Terminal project. The subcontract between Austin and Ross states that the inside elevators at the North Pier Terminal are for Ross' use and that operators for the eleva- tors are to be provided by Ross . Ross is not a party to the applicable collective -bargaining agreement with Local 150 but is a party to a collective-bar- gaining agreement with Local 1. Ross employs ap- proximately 10-12 carpenters at the North Pier project and has told these employees to use the ele- vators on an as-needed basis. The record indicates that 3 or 4 months prior to the hearing in this case Robert Paddock, Local 150's business agent, spoke with Edward W. Klausner, Austin's project construction manager for the North Pier Terminal site . During this con- versation Paddock mentioned that Austin did not have a Local 150 man operating the elevators. Klausner explained that Austin 's subcontract stated that the elevators were for the subcontractor's use. On August 6, 1987, Paddock spoke with Dale Dippen, another Austin representative with respon- sibility for the North Pier project . During the con- versation the parties again discussed the applicabil- ity of the Local 150 agreement to the North Pier job. Dippen explained that Austin was maintaining its position that the Local 150 agreement was not applicable to the North Pier job and that the sub- contractors were responsible for the elevators and would provide the people to run them. After this conversation, Paddock observed two Ross employ- ees use an elevator. On August 11, 1987, Local 150 sent an area standards telegram to Ross Construc- tion. 2 Don Ross, owner of Ross Construction, 2 Paddock testified that Ross' employees were not making the area wage standard for elevator operators. 296 NLRB No. 121 OPERATING ENGINEERS LOCAL 150 (AUSTIN CO.) called Paddock on August 11 , 1987,3 and asked why he had received the telegram . Ross testified that Paddock replied, "you should be having a 150 operator on the elevator."4 Ross responded that he had never hired an operator in the past and did not intend to do so in the future . Local 150 pickets with area standards legends appeared at the site on August 11 .5 On August 12, the Austin Company filed an 8(b)(4)(D) charge against Local 150 and on August 13, the pickets were withdrawn. B. Work in Dispute The disputed work involves the operation of inside elevators at 401 East Illinois Street, Chicago, Illinois (North Pier Terminal). C. Contentions of the Parties Local 150 contends that no jurisdictional dispute exists and that the notice of hearing should be quashed because there are no competing claims for the work and no proscribed activity took place. Additionally, Local 150 claims that all parties have agreed on a method for voluntary adjustment of the dispute. Austin, Ross Construction, and Broadacre De- velopment Co. 6 contend that although Local l's business agent disclaimed interest in the work, Ross' employees operated the elevators on an as- needed basis both before and after the picketing.? They also contend that the object of the picketing was to force Ross to assign a Local 150 member to the elevator work and that no common method of adjustment exists to which all parties are bound. Further, Austin, Ross, and Broadacre contend that many of the factors traditionally considered by the Board in making jurisdictional awards-area and industry practice, relative skills, economy and effi- ciency of operations, and employer practice and preference-are present and favor an award of the disputed work to Ross' employees. D. Applicability of the Statute Before the Board may proceed to a determina- tion of dispute under Section 10(k) of the Act it must be satisfied there is reasonable cause to be- lieve that Section 8 (b)(4)(D) has been violated and a Ross had originally received a telegram addressed to Ross Accousti- cal Supply. Subsequently, Ross notified Local 150 that Ross Accoustical was not performing any work on the North Pier job and a telegram with the same area standards language was sent to Ross Construction. 4 Paddock denied making these statements. 5 All dates refer to 1987 unless otherwise specified. 9 Broadacre owns the North Pier Terminal building and is a party in interest to this proceeding along with Ross Construction Ross' employees did not operate the elevators during the picketing on orders from Don Ross. 939 that the parties have not agreed on a method for a voluntary adjustment of the dispute.8 With regard to the competing claims question, the party raising the issue that a disclaimer elimi- nates the existence of a jurisdictional dispute (Local 150) has the burden of proving a clear, unequivo- cal, and unqualified disclaimer of all interest in the work in dispute.9 Here, though Local l's business agent testified that his union had no interest in the work, the evidence that the members of Local 1 performed the work both before and after the pick- eting remains unrefuted . The only time Ross' em- ployees stopped performing the work was during the picketing when Donald Ross (owner of Ross Construction) told them to stop using the elevators. Further, Local l's conduct is equivocal as there is no indication that Local l's business agent at any time directed Local l 's members to stop perform- ing the work. Under these circumstances we find that Local 150 has failed to carry its burden of es- tablishing Local l 's clear, unequivocal, and un- qualified disclaimer to the work in dispute. Moreover, even if we assume Local 150 has car- ried its burden of proving an unequivocal disclaim- er by Local 1, such a disclaimer involves no sacri- fice by Local l's members. The Respondent, how- ever, argues that the Board should : accept Local l's disclaimer without requiring evidence of sacri- fice on the part of its members as a result of the disclaimer, as the presence or absence of sacrifice is immaterial to the disclaimer's validity; that two active claims for the work are necessary to have a jurisdictional dispute; that cases to the contrary are in error; and that the Board honors disclaimers re- gardless of sacrifice in cases in which the disclaim- ing union has not been assigned the work . This ar- gument, however, ignores that in cases finding a jurisdictional dispute in the absence of two active claims for the "work," the disclaiming union, while having disclaimed the "work," did not disclaim the pay that went along with the work .1 ° Because, at its core, a jurisdictional dispute is a dispute over who shall be paid for particular work, 11 a disclaim- er of the "work" that does not also equate to a dis- claimer of the pay fails to extinguish the dispute a See Operating Engineers Local 925 (Bradshaw Industrial Coatings), 264 NLRB 962, 964 (1982) 9 Operating Engineers Local 77 (C J. Coakley Co.), 257 NLRB 436, 438-439 (1981) 10 See Longshoremen ILA Local 1291 (Pocahontas Steamship Ca), 152 NLRB 676, 679-680 and 154 NLRB 1785 , 1789 (1965 ), enfd 368 F.2d 107, 110 (3d Cir 1966), cert denied 386 U S 1033 ( 1967), Electrical Workers IBEW Local 40 (F & B/Ceco), 199 NLRB 903, 904 (1972), Team- sters Local 326 (Eazor Express), 203 NLRB 1002, 1004 (1973), Electrical Workers IBEW Local 610 (Landau Outdoor Sign Co.). 225 NLRB 320, 321 (1976) 1 1 See Pocahontas Steamship, supra, 368 F 2d at 110 940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD when the disclaiming union continues to perform the work.12 Here, as in the cases cited by the Respondent, Local l 's disclaimer of the disputed work is not synonymous with a disclaimer of pay for the em- ployees performing the work , because the disputed work is incidental to those employees ' main work tasks (carpentry work , over which there is no dis- pute and to which the disclaimer does not apply) and the amount of compensation they receive for performing the disputed work has not been shown to be severable from the compensation they receive for performing their carpentry work . Consequent- ly, absent evidence that the compensation for the disputed work is severable, a disclaimer of such work is not synonymous with a disclaimer of the employees' compensation and the jurisdictional di- lemma remains, i.e., the employer is still caught in the middle between two unions or groups of em- ployees, having the choice of paying two groups of employees while one group performs the work or risking the disruption caused by maintaining the status quo. This situation stands in sharp contrast to one in which the employer is not placed in the po- sition of having to pay two groups to perform the work of one because the disclaiming party is not being paid for the disputed work and, as a result, its disclaimer is synonymous with a disclaimer of the pay. In those circumstances no jurisdictional dispute exists. In the instant case, then, the alleged disclaimer is not effective to extinguish the jurisdic- tional dispute.13 Similarly, Local 150's assertion that no jurisdic- tional dispute exists because it seeks to perform work different from that currently being performed by Ross' employees lacks merit . Local 150 argues that it wants to operate the elevators on a full-time, not on an as-needed, basis. The record is clear, however, that the instant dispute is over operation of the elevators, and that such work was assigned by Ross to its employees . Thus, there is no doubt that the work currently being performed and that which Local 150 seeks to perform overlap, if indeed it is not the same, cf. Teamsters Local 839 (Shustleff & Andrews Constructors), 249 NLRB 176 (1980), affd. 695 F.2d 424 (9th Cir. 1982) (no juris- dictional dispute where there is no overlapping area of dispute between the two groups of employ- ees). With regard to the maintenance function also 12 Thus, we read the statements in F & B/Ceco, supra, Eazor Express, supra, and Landau Outdoor Sign Ca, supra-that two active claims to the work are not necessary for there to be a jurisdictional dispute-as refer- ring to "active" in the sense of "affirmatively seeking out" and to "work" in the sense of "tasks to be performed " See also our decision issued today in Operating Engineers Local 150 (All American Decorating Corp), 296 NLRB 933, 935 (1989) See also Pocahontas Steamship, supra Is Landau Outdoor Sign Co., supra at 321 See also All American Deco- rating Corp., supra sought by Local 150, it is clear that Local 150 seeks this work as an incidental part of its main claim, which is to operate the elevators. Local 150's claim that no reasonable cause to be- lieve that proscribed activity took place also is without merit. The evidence indicates that in a telephone conversation on the day the pickets were established Local 150's business agent (Paddock) told Donald Ross "you should be having [sic] a 150 operator on the elevator." Though Paddock denied that he ever demanded an assignment of ele- vator operators from Ross Construction and indi- cated the object of the pickets was to publicize Ross' failure to pay wages and benefits equal to the area standard for elevator operators, such conflicts in testimony do not prevent the Board from pro- ceeding under Section 10(k), as we are charged only with determining whether reasonable cause exists for finding a violation of Section 8(b)(4)(D) of the Act, not that the violation actually oc- curred.14 Local 150 also asserts that all the parties to the dispute are bound by various collective -bargaining agreements to have the dispute adjusted by the Joint Conference Board established by the Stand- ard Agreement of the Construction Employers As- sociation of Chicago, Inc., and the Chicago and Cook County Building Trades Council (Joint Con- ference Board method). Local 150 states that the contract to which it and Austin are parties binds them to resolving the dispute by this method and also states that the contract to which Local 1 and Ross are parties places the same demands on them. This assertion is premised on the erroneous as- sumption that the collective-bargaining agreement allegedly binding Austin and Local 150 is applica- ble to the assignment of work by the party respon- sible for assigning it. The subcontract between Austin and Ross explicitly stated that the elevator operators would be provided by the subcontractor (Ross). It is clear that Ross assigned its employees to use and operate the elevators on an as-needed basis. In this regard , it is well settled that it is the company that ultimately controls and makes the job assignment that is deemed to be the employer. Thus, the contract to which Austin and Local 150 14 Bricklayers Local 44 (Corbetta Construction), 253 NLRB 131, 133 (1980) Local 150 also argues that this case involves a contract dispute and that Austin's real purpose in bringing the instant charge is to gain Board approval of its assignment of the work to Ross' employees In sup- port of this assertion Local 150 cites Teamsters Local 587 (USCP-Wesco), 280 NLRB 818 (1985). USCP- Wesco involved the alleged improper trans- fer of unit work from one group of employees who had been performing the work for 20 years to another group of employees There is no dispute that the circumstances here are in the nature of a true jurisdictional dis- pute rather than an attempt by an employer to use the 10(k) processes to avoid compliance with an arbitration decision prohibiting it from subcon- tracting the unit work OPERATING ENGINEERS LOCAL 150 (AUSTIN CO.) are parties is not germane to this case as it is Ross, not Austin, that is the employer for the purpose of deciding the work in dispute. 15 Since Austin has not assigned the elevator operators here, the terms of its agreement with Local 150 are not applicable to this dispute.16 Finally, even if the broad language 17 of the col- lective-bargaining agreement to which Local 150 and Austin are parties, in effect, creates an inde- pendent duty by which Local 150 is bound to submit jurisdictional disputes to the Joint Confer- ence Board, 18 it would not result in our conclud- ing that the parties are bound to an agreed-upon method to resolve their dispute . For, even assum- ing that Local 150 is bound to resolve the dispute by the Joint Conference Board method, the em- ployer here (Ross) has bound itself to two forums for resolving its jurisdictional disputes. The subcontract between Austin and Ross con- tains, inter alia, the following paragraphs: Subcontractors will make work assignments in accordance with the rules and regulations cur- rently prescribed by the National Joint Board for the Settlement of Jurisdictional disputes for the purpose of eliminating unreasonable misas- 15 It should be noted that the present case does not involve the mere filing of a grievance against a general contractor for its alleged violation of a union signatory subcontracting clause Here Local 150 has directed its coercion against Ross to influence Ross' assignment of the work. The agreement between Local 150 and Austin places no legal constraints on Ross as to its assignment of the work Compare Carpenters Local 33 (AGC of Massachusetts), 289 NLRB 1482 (1988). 16 Local 150 argues that Austin, in effect, did assign Local l's mem- bers to perform the elevator work by determining in its subcontract with Ross the category of tradesmen that would be required by Ross to per- form its work (including operating the elevators) Local 150 points out that the only category of tradesmen included in the subcontract is car- penters. The evidence indicates, however, that although the subcontracts are physically prepared by Austin , the determination as to which trades- men are required by the subcontractor to complete the work is made by the subcontractor There is no evidence suggesting that Austin prevented Ross from including Local 150 members in the subcontract to operate the elevators. 77 Sec 4 of the collective -bargaining agreement to which Austin and Local 150 are parties deals with jursidictional disputes and states. B COOK COUNTY- It is understood and agreed that the parties to this Agreement shall be bound to the provisions of the Standard Agreement establishing the Joint Conference Board as if set forth in the full herein. is It is settled law that an independent duty can be created outside a collective-bargaining relationship thereby requiring a party to submit ju- risdictional disputes to a specific forum Operating Engineers Local 150 (D. H. Johnson) v. NLRB, 755 F 2d 78 (7th Cir 1985) (unions found to have independent duty to submit jurisdictional disputes to the Joint Con- ference Board by virtue of their membership in a Council which was party to the agreement establishing that forum), affg 256 NLRB 1339 (1984). We note that one of the unions found to have had such an inde- pendent duty in D. H. Johnson, supra, is the same Local 150 involved in the instant case In the case sub judice, however, there is no indication or allegation that Local 150 is a member of the Chicago and Cook County Building and Construction Trades Council and , thereby, independently bound to submit its jurisdictional disputes to the Joint Conference Board. See also Plumbers Local 447 (Capitol Air Conditioning). 224 NLRB 985 (1976) (employer bound to submit jurisdictional disputes to forum where employer is member of association that is signatory to agreement estab- lishing forum) 941 signments of work and preventing jurisdiction- al disputes. An agreement to this effect shall be contained in any Subcontract which this Subcontractor may enter into with any other Subcontractor on work performed for The Austin Company. The Subcontractor further agrees during the term of this Subcontract to be bound by the terms of the agreement between The Austin Company and the Building and Construction Trades Department, AFL-CIO effective June 1, 1973, providing, among other things, for penalties against an employer arising out of un- reasonable misassignments of work determined by an impartial umpire and also providing, among other things, for penalties against an international union arising out of jursidictional disputes similarly determined. These provisions show that Ross has bound itself to resolve jurisdictional disputes in accordance with the National Joint Board method. In the agreement to which Ross and Local 1 are parties, however, Ross also bound itself to resolve jurisdic- tional disputes under the Joint Conference Board method.19 When a party to a jurisdictional dispute binds itself to conflicting forums for the resolution of such disputes, there is no voluntary agreement binding all parties, without the risk of conflicting judgments. Because the Board carries out its man- date of protecting employers and the public from the detrimental economic impact of jurisdictional disputes by assuring, to the extent possible, a per- manent resolution of those disputes, and because the possibility of conflicting judgments means the dispute might not be resolved permanently, the purposes of Section 10(k) require that the merits of this dispute be addressed.20 Accordingly, because we have found that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there 19 Art XXIX of the agreement between Ross and Local I states: 29 1 The Standard Agreement formulated by the Joint Conference Board of the Construction Employers Association of Chicago, Inc and the Chicago and Cook County Building Trades Council, as amended and readopted, shall be and hereby is adopted as a part of this Agreement for the Builders Association of Chicago and its mem- bers only, as fully and completely as if incorporated herein , except as to any provision of said Standard Agreement which may override or be in conflict with any of the Articles or provisions of this Agree- ment While neither the Standard Agreement nor the agreement between Austin and the Building and Construction Trades Department , AFL-CIO have been placed in evidence (though Local 150 attached the Standard Agreement to its brief), it is obvious from the descriptions of the forums in the relevant contracts that Ross has bound itself to two distinct forums for its resolving jurisdictional disputes. 20 D. H. Johnson Co, supra, 755 F.2d at 86 942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD exists no agreed-upon method for voluntary adjust- ment of the dispute within the meaning of Section 10(k) of the Act, we deny Local 150's motion to quash the notice of hearing and find that the dis- pute is properly before the Board for determina- tion. E. Merits of the Dispute Section 10(k) requires the Board to make an af- firmative 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 bal- ancing 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 determination of this dispute. 1. Certifications and collective-bargaining agreements To the extent Local 150 argues that the agree- ment to which it and Austin are parties controls the award of the disputed work, we reiterate our finding that that agreement is not applicable to this dispute. Ross Construction and Local 1 are parties to a collective-bargaining agreement but there is no indication that their agreement requires that the work be awarded to Ross' employees. There is no agreement between Ross and Local 150. Therefore, we find this factor favors neither group of employ- ees. 2. Employer preference and past practice21 Ross has assigned the disputed work to its em- ployees on an as-needed basis and prefers to contin- ue this assignment. Further, Donald Ross stated that he has never supplied an operating engineer to run inside elevators. Therefore, this factor clearly favors awarding the work to Ross' employees. 3. Area practice Austin's construction manager on the North Pier project, Edward Klausner, has 42 years of experi- ence in the Chicago area construction industry and stated that it is the area practice to have Local 150 people operate outside elevators and to have the tradesmen operate inside elevators on an as-needed 21 Local 150 cites, as evidence of Austin's past practice, the fact that Austin assigned the operation of inside elevators to Local 150 members on the West Wacker job where virtually identical contractual relation- ships among the parties in this case (i e., Austin, Local 150, Ross Con- struction, and Local 1) existed . In the instant case, however, we have found that Ross Construction is the relevant employer and thus we look to its past practice of assigning the work basis. Similarly, Donald Ross stated that in his 22 years of experience in the construction industry in the Chicago area he has never supplied an operat- ing engineer to run inside elevators. He also stated that most of the projects he has been on have not had operating engineers on the inside elevators. Local 150's Business Agent Paddock merely stated that a majority of the inside elevator assignments in the Chicago area go to Local 150. The weight of the evidence indicates, then, that the practice in the Chicago area is to allow various tradesmen to op- erate inside elevators on an as-needed basis. There- fore, this factor favors awarding the work to Ross' employees. 4. Relative skills The evidence establishes that the three elevators at issue are manually operated. Austin's construc- tion manager (Klausner) and Donald Ross testified that no special skills are needed to operate the ele- vators. The elevators are controlled by moving a lever inside the elevator. Local 150 Business Agent Paddock stated that an operator must have hand and eye coordination, a concern for placement of loads and an awareness of safety, but did not claim that Ross' employees lacked these skills. Regarding safety, the evidence shows that there was an acci- dent involving an employee of an Austin subcon- tractor (not Ross Construction) who sprained his neck, when decking he was carrying above his head and which partially was sticking out of the el- evator was hit by the elevator's counterweight. This incident demonstrates not that special skills are needed to operate the elevators but that precau- tion and common sense must be exercised when both operating and riding in them. Ross' employees have been operating the elevators and no safety problems caused by their performances have been reported. Given the minimal level of skill required to operate the elevators, it appears both groups of employees are capable of performing the work. Therefore, this factor favors an award to neither Ross' employees nor to those represented by Local 150. 5. Economy and efficiency of operation The record establishes that the elevators are used only 30-50 percent of the time, mainly to carry tradesmen and their tools to the floor where they will be working.22 Donald Ross indicated that al- lowing his employees to operate the elevators on an as-needed basis is a convenience that expedites the project. It is also evident that it would be a 22 Ninety percent of the construction material is hoisted to the various floors by an outside crane that is operated by a Local 150 member OPERATING ENGINEERS LOCAL 150 (AUSTIN CO.) cost burden to have an operating engineer available full time to run the elevators when they are used only 30-50 percent of the day. Therefore, this factor clearly favors awarding the work to Ross' employees. Conclusions After considering all the relevant factors, we conclude that Ross' employees represented by Local 1 are entitled to perform the work in dis- pute. We reach this conclusion relying on the fac- tors of employer preference and past practice, area practice, and economy and efficiency. In making this determination, we are awarding the work to employees represented by Local 1, not to that Union or its members. The determination is limited to the controversy that gave rise to this proceeding. 943 DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Employees of Ross Construction , Inc., repre- sented by Carpenters Local Union 1, Chicago and Northeast Illinois District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America are entitled to operate the inside elevators at 401 East Illinois Street, Chicago , Illinois. 2. International Union of Operating Engineers, Local Union No. 150, AFL-CIO is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Ross Construction, Inc. to assign the dis- puted work to employees represented by it. 3. Within 10 days from this date, International Union of Operating Engineers, Local Union No. 150, AFL-CIO shall notify the Regional Director for Region 13 in writing whether it will refrain from forcing the Employer, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination.