Operating Engineers Local 150 (Moore Landscapes)

354 NLRB No. 89 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. International Union of Operating Engineers, Local 150, AFL–CIO and International Brotherhood of Teamsters, Local 703 and Moore Landscapes, Inc. and Laborers’ International Union of North America, Local No. 4 and United Union of Roof- ers, Waterproofers and Allied Workers, Local No. 11. Cases 13–CD–800 and 13–CD–801 September 30, 2009 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER This is a jurisdictional dispute proceeding under Sec- tion 10(k) of the National Labor Relations Act. Moore Landscapes, Inc. (the Employer) filed charges on June 25, 2009,1 alleging that the International Brotherhood of Teamsters, Local 703 (Teamsters) and the International Union of Operating Engineers, Local 150 (Operating Engineers) violated Section 8(b)(4)(D) of the Act by threatening to engage in proscribed activity with an ob- ject of forcing the Employer to assign certain work to employees represented by the Teamsters and Operating Engineers rather than to employees represented by the United Union of Roofers, Waterproofers and Allied Workers, Local No. 11 (Roofers).2 The hearing was held from July 14 to 16, before Hearing Officer Adriana Lipczynski. Thereafter, the Teamsters and Operating Engineers, jointly, the Employer, and Roofers filed posthearing briefs. The National Labor Relations Board affirms the hear- ing officer’s rulings, finding them free from prejudicial error. On the entire record, we make the following find- ings.3 1 All dates hereafter are 2009, unless otherwise indicated. 2 Prior to the hearing, the Laborers International Union of North America, Local 4, named as a party here, disclaimed interest in the disputed work and did not participate in the hearing. 3 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 Liebman and Member Schaumber 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. See Snell Island SNF LLC v. NLRB, 568 F.3d 410 (2d Cir. 2009), petition for cert. filed __U.S.L.W.__ (U.S. Septem- ber 11, 2009) (No. 09-328); New Process Steel v. NLRB, 564 F.3d 840 (7th Cir. 2009), petition for cert. filed 77 U.S.L.W. 3670 (U.S. May 22, 2009) (No. 08-1457); Northeastern Land Services v. NLRB, 560 F.3d 36 (1st Cir. 2009), petition for cert. filed 78 U.S.L.W. 3098 (U.S. Au- gust 18, 2009) (No. 09-213). But see Laurel Baye Healthcare of Lake I. JURISDICTION The parties stipulated that the Employer is an Illinois corporation engaged in commercial landscape construc- tion and maintenance, and that, during the past calendar year, the Employer purchased and received goods and materials valued in excess of $50,000 indirectly from points located outside the State of Illinois. Accordingly, we find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The parties further stipulated, and we find, that Team- sters, Operating Engineers, and Roofers are labor organi- zations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of the Dispute The Employer has been engaged in commercial land- scape construction and maintenance in the Greater Chi- cago area since 1948. In 2004, the Board certified Teamsters and Operating Engineers as the joint represen- tatives of the Employer’s landscape construction em- ployees, including lead plantsmen, plantsmen, landscape helper, and installers. As a member of the Illinois and Indiana Landscape Contractors Bargaining Association (ILCBA), the Employer is signatory to the Plantsmen agreement4 with both unions and the Operators agree- ment5 with Operating Engineers. The Employer has never had a collective-bargaining relationship with Roof- ers. The Employer has a subcontracting agreement with general contractor Walsh Construction Company (Walsh) to perform all landscaping work at the Roosevelt Collection, a new, multiuse development consisting of both residential and commercial space. The landscaping work in the subcontract includes the installation of two green roof systems: a “green grid” system consisting of preplanted trays of plant material that are arranged in a grid pattern on the rooftop, and a “build-up” system con- sisting of multiple layers or components that are installed Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009), petition for cert. filed sub nom. NLRB v. Laurel Baye Healthcare of Lake Lanier, Inc., __U.S.L.W.__ (U.S. September 29, 2009) (No. 09-377). 4 The Plantsmen agreement covers employees in the following clas- sifications: plantsmen, lead plantsmen, equipment mechanics, shop helpers, truckdrivers, landscape helpers, water truck operators and installers. The Plantsmen agreement’s scope of work includes “all work historically performed in the landscape construction industry at or on construction sites[.]” The Employer has approximately 25 employ- ees covered by the Plantsmen agreement. 5 The Operators agreement applies to employees working as land- scape equipment operators. The Operators agreement’s scope of work includes the operation of equipment “on all commercial landscape construction projects.” The Employer has approximately six employ- ees covered by the Operators agreement. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 on top of each other to form a rooftop garden.6 The build-up system layers typically include: (1) the roof deck, (2) the roofing membrane, (3) a root barrier, (4) optional insulation, (5) an optional moisture mat, (6) a drainage mat, (7) filter fabric, (8) growing media, and (9) plants. The Employer has historically performed green roof- top projects using its employees represented by Team- sters and Operating Engineers. Consistent with this prac- tice, the Employer assigned the green roof installation work, as well as all other landscaping work under the Roosevelt Collection subcontract, to these employees. On April 6, the Employer commenced work on the Roosevelt Collection project. Two days later, Roofers requested a meeting of the Joint Conference Board (JCB) of the Chicago and Cook County Building and Construc- tion Trades Council (CBTC) to resolve an alleged juris- dictional dispute with respect to the performance of the green roofing work at the Roosevelt Collection jobsite. Roofers and Operating Engineers are members of the CBTC. The initially scheduled JCB hearing was postponed. Thereafter, as a result of a meeting attended by Roofers, Operating Engineers, the Employer, and Teamsters, the Employer employed two employees represented by Roofers to complete certain work under the subcontract for a couple of days. In agreeing to use the two employ- ees, the Employer expressly stated that it was not admit- ting that Roofers has a valid jurisdictional claim to the disputed work or that the Employer did not have a pref- erence for employees represented by Teamsters and Op- erating Engineers. Notwithstanding this and other at- tempts to settle the dispute, a JCB arbitration hearing on Roofers’ work claim was held on June 5. Although both Operating Engineers and the Employer received notice of the hearing, only Operating Engineers participated. On June 6, the JCB arbitrator issued a decision awarding to Roofers the installation of several components of the green roofing system at the Roosevelt Collection jobsite. In an appeal to the National Plan Administrator, Operat- ing Engineers argued that the JCB did not have jurisdic- tion to render an award because Teamsters and the Em- ployer were not bound. The appeal was denied on grounds that Operating Engineers failed to raise this be- fore the arbitrator. On June 15, general contractor Walsh notified the Em- ployer that if it did not comply with the terms of its sub- contract and perform the work in accordance with the project schedule using “the appropriate union labor,” 6 All parties agree that the “green grid” and “build-up” roof systems are considered “vegetative roofs,” one of several types of green roofing projects. Walsh would exercise the failure of performance clause in the subcontract. The Employer responded by June 18 letter to Walsh, with copies to Teamsters and Operating Engineers, stating that it was caught in the unions’ juris- dictional dispute, was not bound by the JCB’s arbitration award, and was exploring ways to complete the work. On June 23, the Employer received a letter from Team- sters and Operating Engineers threatening that they would use “any and all means, including picketing” if the Employer reassigned any of the disputed work. B. Work in Dispute The work in dispute includes green roof work to be performed by the Employer at the Roosevelt Collection jobsite at 949 South Wells Street, Chicago, Illinois, spe- cifically including the placement of preplanted trays in the green-grid roof system and the installation of all lay- ers in the built-up roof system above the roof membrane through the partial placement of growing media. C. Contentions of the Parties Teamsters, Operating Engineers, and the Employer contend that there are competing claims for the work in dispute, that there is reasonable cause to believe that Teamsters and Operating Engineers violated Section 8(b)(4)(D) by their threats to picket, that no voluntary method for dispute resolution exists, and that the dis- puted work should be awarded to employees represented by Teamsters and Operating Engineers based on the fac- tors of Board certification and collective-bargaining agreements, employer preference and past practice, area and industry practice, economy and efficiency of opera- tions, relative skills, and gain or loss of employment. Roofers moves to quash the notice of hearing on grounds that there are no competing claims to the work in dispute, the threat to picket by Teamsters and Operat- ing Engineers was a noncoercive sham, and, if a genuine jurisdictional dispute exists, the JCB grievance and arbi- tration proceeding was a voluntary means for resolving the dispute. In the event that the Board does exercise its jurisdiction under Section 10(k) of the Act, Roofers con- tends that the Board should award the work in dispute to employees represented by Roofers based on the factors of relative skills, economy and efficiency, area practice, and prior jurisdictional dispute determinations. D. Applicability of the Statute Before the Board may proceed with determining a dis- pute 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 groups of em- ployees; (2) a party has used proscribed means to enforce OPERATING ENGINEERS LOCAL 150 (MOORE LANDSCAPES) 3 its claim to the work in dispute; and (3) the parties have not agreed on a method for the voluntary adjustment of the dispute.7 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. Teamsters and Operating Engineers explicitly claimed the work in dispute for the employees they represent by their joint letter to the Employer on June 23. Employees represented by Teamsters and Operating Engineers have also been performing the work. Roofers has made a competing claim by virtue of its efforts to secure an award of the disputed work through the JCB grievance and arbitration proceedings.8 The Employer received notice of both the JCB arbitration hearing and the subse- quent award. Furthermore, Roofers pursued its claim to the disputed work in the meeting with the Employer and other parties that resulted in the temporary employment of two employees represented by Roofers at the Roose- velt Collection jobsite. 2. Use of proscribed means Teamsters and Operating Engineers’ June 23 joint let- ter to the Employer, threatening it with picketing if it reassigned any of the disputed work, constitutes a threat to take proscribed coercive action in furtherance of a claim to the work in dispute. Although Roofers urges the Board to find that this threat was a sham, there is no evi- dence that the threat was not made seriously or that Teamsters and Operating Engineers colluded with the Employer in this matter.9 Furthermore, the Board has rejected the argument that a strike threat was a sham simply because it would have violated a no-strike clause.10 3. No voluntary method for adjustment of dispute Roofers alternatively urges the Board to quash the no- tice of hearing because it submits that the parties are bound to a voluntary method of adjustment, namely, the JCB standard agreement. It is settled that the Board will not hear a dispute when all of the parties are bound to an 7 See, e.g., Electrical Workers Local 3 (Slattery Skanska, Inc.), 342 NLRB 173, 174 (2004). 8 Elevator Constructors Local 2 (Kone, Inc.), 349 NLRB 1207, 1209 (2007). 9 Lancaster Typographical Union 70 (C.J.S. Lancaster), 325 NLRB 449, 450–451 (1998) (“It is well established that as long as a Union’s statement, on its face, constitutes a threat to take proscribed action, the Board will find reasonable cause to believe that the statute has been violated, in the absence of affirmative evidence that the threat was a sham or was the product of collusion. [Citation omitted.]”). 10 See Electrical Workers Local 3 (Unitec Elevator Co.), 352 NLRB 1047, 1049 (2008). alternative method of adjustment.11 In order to determine if the parties are bound, the Board carefully scrutinizes the agreements at issue.12 A union is bound to the JCB standard agreement if it is a member of the Chicago and Cook County Building and Constructions Trades Council (CBTC). An employer is bound to the JCB standard agreement if it is a member of the Construction Em- ployer’s Association (CEA). Teamsters is not a member of the CBTC, and the Employer is not a member of the CEA. Nor is the Employer a signatory to a collective- bargaining agreement containing language that adopts or incorporates the JCB standard agreement. The JCB standard agreement also provides that a party can be bound to an arbitration decision by being present at the hearing. However, neither the Employer nor Teamsters attended the arbitration hearing. Accordingly, neither the Employer nor Teamsters are bound to the method of ad- justment set forth in the JCB standard agreement. Based on the foregoing, we find that there are compet- ing claims for the disputed work, that there is reasonable cause to believe that Section 8(b)(4)(D) has been vio- lated, and that there is no agreed-upon method for volun- tary adjustment of the dispute. We accordingly find that the dispute is properly before the Board for determina- tion and deny Roofers’ 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. NLRB v. Electrical Workers Local 1212 (Co- lumbia Broadcasting), 364 U.S. 573, 577 (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 in- volved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402, 1410–1411 (1962). Based on the following factors, which we find are relevant to determining this dispute, we conclude that the Employer’s employees represented by Teamsters and Operating Engineers are entitled to perform the work in dispute. 1. Certifications and collective-bargaining agreements The Board has certified the Teamsters and Operating Engineers jointly as the sole representative of the Em- ployer’s employees in classifications performing the 11 Operating Engineers Local 150 (R&D Thiel), 345 NLRB 1137, 1140 (2005). 12 See, e.g., Laborers Local 6 (Anderson Interiors, Inc.), 353 NLRB No. 62, slip op. at 3 (2008); Elevator Constructors Local 2 (Kone, Inc.), supra at 1209–1210. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 work in dispute. In addition, the Plantsmen agreement and Operators agreement, to which the Employer is bound through its membership in the ILCBA, at least generally cover the work in dispute as well as all em- ployees represented by the job classifications. In con- trast, the Employer has never had a collective-bargaining relationship with Roofers. Accordingly, we find that the factor of Board certification and collective-bargaining agreements favors awarding the disputed work to em- ployees represented by Teamsters and Operating Engi- neers. 2. Employer preference and past practice The record shows that the Employer has assigned the work in dispute to its employees represented by Team- sters and Operating Engineers and prefers that they con- tinue to perform it. Further, the Employer has histori- cally assigned similar work to employees represented by Teamsters and Operating Engineers. The Employer did employ two employees represented by Roofers to com- plete certain work under the Roosevelt Site subcontract. However, that limited work was only for a couple of days, and, in agreeing to hire the two Roofers employees, the Employer expressly stated that it was not admitting that Roofers had a valid jurisdictional claim to the dis- puted work or that it did not have a preference for em- ployees represented by Teamsters and Operating Engi- neers. Accordingly, we find that the factor of employer preference and past practice favors an award of the work in dispute to employees represented by Teamsters and Operating Engineers. 3. Area and industry practice The Employer presented extensive evidence that the area and industry practice of landscape constructor con- tractors is to assign the disputed work to employees rep- resented by Teamsters and Operating Engineers. The evidence shows that employees represented by Teamsters and Operating Engineers have worked on over one hun- dred similar projects in the area since 2002. Roofers also presented evidence of green roof projects completed by employees represented by Roofers. Although Roofers claims that roofing contractors have been installing gar- den or green rooftop systems longer than landscape con- tractors, its evidence did not specify whether the work done by the roofing contractors was actually performed by employees represented by Roofers, or that the work performed was actually of the same type as the work in dispute here, i.e., vegetative roofs. Thus, this factor weighs in favor of awarding the work in dispute to the employees represented by Teamsters and Operating En- gineers. 4. Relative skills The Employer, Teamsters, and Operating Engineers provided evidence that employees represented by Team- sters and Operating Engineers receive on-the-job and formal class training, attend training courses conducted by OSHA and the manufacturer of the systems to be in- stalled, participate in daily prejob conferences at the Roosevelt Collection site, and have performed the dis- puted work in the past. Noting that work on rooftops is highly dangerous, Roofers testified that its members go through an intensive 5-year apprenticeship program to perform work on roofs, including the installation of roof systems that will be used for rooftop gardens. On this record, we find that employees represented by each of the three unions have the skills and training necessary to perform the work in question. This factor, therefore, does not favor an award of the disputed work to either group of employees. 5. Economy and efficiency of operations Employees represented by Teamsters and Operating Engineers have the skills and experience required to per- form all aspects of the work under the Roosevelt Collec- tion subcontract, including work that Roofers do not claim. Furthermore, these employees already comprise the Employer’s established crew and operate within the flexibility afforded by the Plantsmen and Operators agreements to perform a variety of assigned tasks. In contrast, employees represented by Roofers could only perform discrete and limited portions of the rooftop in- stallation work in the subcontract. We therefore find that the factor of economy and efficiency of operations favors an award of the work in dispute to employees repre- sented by Teamsters and Operating Engineers. 6. Gain or loss of employment Employees represented by Teamsters and Operating Engineers are currently performing the work in dispute (notwithstanding the temporary assignment of some of the work to two Roofers). The reassignment of the dis- puted work to employees represented by Roofers would potentially result in the loss of employment for approxi- mately five or six of the Employer’s employees repre- sented by Teamsters and Operating Engineers. Con- versely, an award of the disputed work to employees represented by Teamsters and Operating Engineers would cause no discernible loss to Roofers because they are not currently employed by the Employer. We find that this factor favors an award to employees represented by Teamsters and Operating Engineers. OPERATING ENGINEERS LOCAL 150 (MOORE LANDSCAPES) 5 7. Prior jurisdictional dispute determinations Roofers contends that prior jurisdictional dispute de- terminations indicate that an award of the work in the instant case should be made to employees it represents. Roofers points out that it has been awarded the installa- tion of preplanted roof trays in the past, and that an arbi- trator has awarded the work in dispute at the Roosevelt Collection jobsite to Roofers. However, these determi- nations did not involve the Employer and Teamsters. Thus, we find that the evidence in support of this factor does not favor an award of the disputed work to either group of employees.13 Conclusion After considering all of the relevant factors, we con- clude that employees represented by Teamsters and Op- erating Engineers are entitled to perform the work in dispute. We reach this conclusion by relying on the fac- tors of Board certification and collective-bargaining agreements, employer preference and past practice, area and industry practice, economy and efficiency of opera- 13 See, e.g., Ceramic Tile Layers & Terrazzo Workers Union Local 67 (Fisher & Reid Tile Co.), 318 NLRB 569, 572 (1995). tions, and gain or loss of employment. In making this determination, we are awarding the work to employees represented by Teamsters and Operating Engineers, and not to those unions or its members. The determination is limited to the controversy that gave rise to this proceed- ing. DETERMINATION OF DISPUTE The National Labor Relations Board has made the fol- lowing Determination of Dispute. Employees of Moore Landscapes, Inc., represented by International Brotherhood of Teamsters, Local 703, and International Union of Operating Engineers, Local 150, are entitled to perform all of the work in dispute at the Roosevelt Collection jobsite in Chicago, Illinois. Dated, Washington, D.C. September 30, 2009 ______________________________________ Wilma B. Liebman, Chairman ______________________________________ Peter C. Schaumber, Member (SEAL) NATIONAL LABOR RELATIONS BOARD