International Union of Operating Engineers, Local 14-14B

372 NLRB No. 65 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 14- 14B, AFL–CIO and Tishman Construction Cor- poration and Long Island Concrete, Inc. and La- bor Management Concepts, Inc. and O’Connell Protection Services, LLC. Case 02–CD–288369 March 10, 2023 DECISION AND ORDER QUASHING NOTICE OF HEARING BY CHAIRMAN MCFERRAN AND MEMBERS WILCOX AND PROUTY The charge in this Section 10(k) proceeding was filed on January 3, 2022, by Tishman Construction Corporation (Tishman), alleging that International Union of Operating Engineers, Local 14-14B, AFL–CIO (Union or Local 14) violated Section 8(b)(4)(D) of the Act by engaging in pro- scribed activity with an object of forcing Tishman to as- sign certain work to employees represented by Local 14 rather than assigning the work to nonunion subcontractor Labor Management Concepts, Inc. (LMC). A hearing was held before Hearing Officer Paula J. Gomez on February 22, and continued on February 23, March 30, April 6, 20, and 21, 2022. The hearing closed on May 3, 2022. There- after, Tishman and Local 14 filed posthearing briefs. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board affirms the hearing officer’s rulings, finding them free from prejudicial error. On the entire record, the Board makes the following findings. I. JURISDICTION The parties stipulate that Tishman, a New York con- struction management company, and Long Island Con- crete (LIC), a New York construction subcontractor, each annually performs services valued in excess of $50,000 in states other than the State of New York. The parties fur- ther stipulate, and we find, that Tishman and LIC are en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Local 14 is a labor organization within the meaning of Section 2(5) of the Act.1 1 LMC and O’Connell Protective Services (O’Connell) were added as parties-in-interest during the hearing. The hearing officer received testimony that LMC was incorporated in New York and New Jersey and had annual revenue of several million dollars. No testimony was given regarding O’Connell’s annual revenue or place of business. Neverthe- less, it is unnecessary to make particular findings with respect to juris- diction over LMC and O’Connell as the Board’s jurisdiction in this mat- ter is established based on Tishman’s and LIC’s status as employers II. THE DISPUTE A. Background and Facts of the Dispute Tishman is the construction manager for a construction site at 561 Greenwich Street in New York City. The dis- pute in this case is over who operates the hoist at that site. Hoists are elevators used to transport people and material to construction site floors. For more than forty years, Tishman had been a member of the Building Contractors Association, a multiemployer association with a collec- tive-bargaining agreement with Local 14 that gave Local 14 jurisdiction over the operation of cranes and hoists. However, Tishman withdrew from the relevant collective- bargaining agreement on June 30, 2017. In September 2020, work began at the 561 Greenwich Street construction site. In October 2021, Tishman con- tracted with LIC to build the concrete superstructure at the site.2 LIC is a member of the Cement League and, accord- ingly, is bound to a multiemployer collective-bargaining agreement negotiated by the Cement League and Local 14 (Cement League CBA). Consistent with that collective- bargaining agreement, a Local 14 member, Anthony Merle, operates the crane at the Greenwich Street site. The Cement League CBA also addresses jurisdiction over the operation of hoists. Article IV, Work Covered, clarifies that engineers shall be employed in the operation of “personnel material hoists, regardless of the use of such machines.” In the bullet point titled “House Elevators,” the Agreement goes into further detail, stating that: It is agreed that the operation of house elevators, includ- ing but not limited to, inside cars, rack & pinion hoists and machines of a similar nature used for the hoisting of any construction material, equipment (including but not limited to: ladders, gangboxes, a-frames, tanks, etc.) or removal of debris is the jurisdiction of the Operating En- gineers. It is also agreed that the above equipment, when used in a dual role (that is a mixed use, which is under- stood by the parties to mean the hoisting of both people and material) is the jurisdiction of the Operating Engi- neers.3 Despite the terms of the Cement League CBA, the sub- contracting agreement between Tishman and LIC within the meaning of the Act. Stage Employees IATSE Local 142, 361 NLRB 1398, 1399 fn. 2 (2014). 2 All dates to follow are in 2021. 3 Operation of purely personnel hoists in New York City are within the jurisdiction of Elevator Constructors Local 1. In 2006, in accordance with the New York Plan for the Settlement of Jurisdictional Disputes, an arbitrator was appointed to resolve a dispute between Local 1 and Local 14 over the operation of hoists transporting both personnel and materials. The arbitrator awarded that work to Local 14. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 specifies that Tishman, not LIC, will retain the right to op- erate the hoist. Section 18.a.2 of that agreement states: The Construction Manager [Tishman] is not signatory to Operating Engineers Locals 14-14B and will neither di- rectly nor through a vertical transportation contractor employing [sic] Local 14 Operating Engineers as hoist operators. Any requirements to employ Local 14 Oper- ating Engineers as hoist operators will not be the respon- sibility of this Contractor. In August, LIC erected a crane at 561 Greenwich Street and began its work. Around October, a dual rack and pin- ion hoist, with two elevators, was erected on the site by Universal Building Supply. Tishman had previously con- tracted with LMC to provide security at the jobsite. Around November, Tishman asked LMC to employ some- one to operate the hoist. LMC did not have anyone avail- able, so LMC contracted with O’Connell to provide an in- dividual to operate the hoist.4 O’Connell hired Korey Fudge, a licensed security guard, who had no prior expe- rience with hoists, to operate the hoist. Fudge operated the hoist from some time in November until December 13, transporting personnel and materials. On December 7, Local 14 Business Agent Hugh Manley called Tom Perno, LIC’s owner, about the hoist.5 Manley had been advised by a Local 14 member that the hoist at 561 Greenwich Street was not being operated by a Local 14 member. Manley told Perno that he was required under the Cement League CBA to hire a Local 14 member to operate the hoist. Perno informed Manley that LIC’s con- tract with Tishman did not grant LIC the responsibility to operate the hoist. The parties dispute precisely what was said at this point, but at a minimum, Manley expressed displeasure, and he may have threatened or alluded to a potential work stoppage.6 On Wednesday, December 8, Manley referred Local 14 member Dominic Lamonica from the hiring hall to the jobsite to operate the hoist; Lamonica arrived around 6 a.m. Around 9 a.m., Lamonica called Manley and 4 Tishman was not aware until the hearing that LMC had subcon- tracted the work to O’Connell. 5 According to testimony from Fudge, the hoist was used to transport personnel and materials of the various contractors daily. Dominic La- monica’s testimony (the Local 14 member who operated the hoist start- ing on December 13) was consistent with Fudge’s description, though he operated the hoist after the resolution of the labor dispute. Perno testified that the hoist was only used to transport personnel but his testimony is contradicted by the testimony of the individuals who operated the hoist. In addition, Tishman Senior VP Allan Paul agreed on cross-examination that the hoist was operated daily to transport both personnel and materi- als. Further, Tishman’s brief concedes that the hoist was used to transport material and personnel for other contractors but claims that the hoist was only used to transport personnel for LIC. Again, neither Fudge’s nor Lamonica’s testimony supports this distinction. reported that he was informed by Perno that Tishman wanted Fudge, not Lamonica, to operate the hoist. Manley and Perno briefly spoke a couple times that morning, with Manley stating that the situation was a problem. Perno stated that he would look into it and reiterated that the hoist work was not in his subcontracting agreement with Tishman. Later that morning, Lamonica called Manley and told him that LIC would put Lamonica on its payroll but that he was not going to be allowed onto the jobsite to operate the hoist. At some point before 12:43 p.m., Local 14 member An- thony Merle refused to continue operating the crane.7 The crane would remain idle for 3 days, resulting in layoffs and production delays. Perno, in his continuing conversa- tions with Lamonica and Manley, offered to have LIC hire Lamonica to operate the hoist while LIC was using it, but, in that scenario, Fudge would continue to operate the hoist when it was used by other contractors. Manley declined.8 On December 8, Tishman sent a letter to LIC demanding that LIC invoke the no-strike provisions in the Cement League CBA and stated that any production delays due to a work stoppage would not be considered an excusable de- lay.9 On the morning of December 9, Manley referred Local 14 member Michael Kavanaugh to the jobsite. However, Kavanaugh also declined the job since the hoist was not being operated by a Local 14-represented employee. Perno called Manley that morning and, according to Man- ley, threatened to “split his fucking head open.” Perno de- nied making the specific threat but conceded that he was extremely agitated. He texted Manley later in the day to apologize for his remarks and to request another Local 14 member be sent to operate the crane. On December 10, Local 14 established a picket at the jobsite. At about 6:30 a.m., five Local 14 members gath- ered across the street with picket signs stating that Tish- man did not have an agreement with Local 14. The signs also stated that the picketing was not intended to induce any other person to cease work. That same morning, 6 Perno testified that Manley told him he would shut the job down or at least implied as much by stating that Perno was going to have a prob- lem if he did not put a Local 14 member on the hoist. Manley denied making any specific threat. 7 Perno texted Manley at 12:43 p.m. asking for a new member to operate the crane but the testimony does not establish precisely when Merle walked off the job. 8 The Cement League CBA grants Local 14 jurisdiction over work hoisting personnel and materials, not simply hoist work for the transpor- tation of LIC’s personnel and materials. 9 The Cement League CBA states that: “The Union or its Represent- atives shall not order a strike or stoppage of work, nor shall the employ- ees strike against any Employer or collectively leave the work of an Em- ployer.” LIC never filed a grievance alleging that Local 14’s conduct breached the Cement League CBA. OPERATING ENGINEERS, LOCAL 14-14B (TISHMAN CONSTRUCTION CORP.) 3 Manley referred Local 14 member Jim Cassidy to the site. Cassidy, though, also refused to operate the crane because there was not a Local 14-represented employee operating the hoist.10 Later that day, Perno texted Manley and in- formed him that Tishman had agreed that the hoist would be operated by a Local 14 member. On Monday, Decem- ber 13, LIC hired Lamonica to operate the hoist and Merle resumed operating the crane. B. Work in Dispute The parties stipulate and we find that the work in dis- pute is the operation of the hoist at the construction site located at 561 Greenwich Street in New York City. C. Contentions of the Parties Tishman asserts that there is reasonable cause to believe that Local 14 violated Section 8(b)(4)(D), and therefore that the Board is required to make an award of the disputed work under Section 10(k) of the Act. Tishman further as- serts that there is no agreed-upon method for voluntary ad- justment of the dispute in question that would bind all par- ties. On the merits, Tishman argues that the work in dis- pute should be awarded to nonunion subcontractor LMC. Local 14 contends that the hearing should be quashed because there were not competing claims among rival groups of employees for the work, and there was not rea- sonable cause to believe that Section 8(b)(4)(D) had been violated because Local 14 had not engaged in any pro- scribed conduct to advance its claim to the work. If the Board does not grant the motion to quash, Local 14 agrees that there is no agreed-upon method for voluntary adjust- ment of the dispute but asserts that the work should be awarded to Local 14. D. Applicability of the Statute Before the Board may proceed to a determination of dis- pute under Section 10(k) of the Act, the Board must find that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. Operating Engineers Local 150 (R&D Thiel), 345 NLRB 1137, 1139 (2005). This standard 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 en- force its claim to the work in dispute.11 See id. We are not satisfied that those requirements have been met in this case. 10 Manley testified that he never told members not to operate the crane, simply that there was a picket line and it was up to them whether to cross it. 11 Additionally, there must be a finding that the parties have not agreed on a method for the voluntary adjustment of the dispute. See Operating Engineers Local 150 (R&D Thiel), 345 NLRB at 1139. That requirement is not at issue here, as no party contends that there is a voluntary method of adjustment. In determining whether a genuine jurisdictional dispute exists, the Board must examine the “real nature and origin of the dispute.” See Teamsters Local 578 (USCP-Wesco), 280 NLRB 818, 820 (1986), affd. sub nom. USCP-Wesco, Inc. v. NLRB, 827 F.2d 581 (9th Cir. 1987). If the 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 (SSA Terminal), 344 NLRB 1018, 1020 (2005), affd. 253 Fed.Appx. 625 (9th Cir. 2007) (unpublished decision). Similarly, if the dispute is of the employer’s own making, the Board will not resolve it in a 10(k) proceeding. See, e.g., Teamsters Local 107 (Safeway Stores), 134 NLRB 1320, 1322–1323 (1961).12 We find that both circum- stances are present here. First, we find that the nature of the dispute is work preservation. For more than 40 years, until June 30, 2017, Tishman and Local 14 were parties to a collective-bar- gaining agreement that gave Local 14 jurisdiction over op- eration of hoists at Tishman construction sites. During that time, Local 14 was awarded the work for personnel and material hoists under locally established jurisdictional dispute resolution mechanisms.13 Similarly, LIC contin- ued to be a party to the Cement League CBA, which granted Local 14 jurisdiction over the operation of hoists that transported personnel and materials. Moreover, Local 14 performs New York City hoist work for other construc- tion companies in the area and continues to perform hoist work for Tishman about half of the time, even since the expiration of the contract. For those reasons, we find that, in the picketing at the 561 Greenwich Street construction site, Local 14 sought to retain hoist work that it had his- torically performed. Second, to the extent that there is a dispute over work, we find that it was initiated by Tishman. Tishman re- quired LIC to agree to a contract provision that explicitly deprived Local 14 of jurisdiction over the hoist work— even though Local 14 should properly have had jurisdic- tion over the work under the Cement League CBA, to which LIC and Local 14 were signatories. The facts here, then, are far removed from the normal situation where “the employer is willing to assign the work to either group if the other will just let him alone.” Safeway Stores, 134 NLRB at 1323. Tishman withdrew from the Building Contractors Association collective-bargaining agreement 12 See also ILWU Local 62-B v. NLRB, 781 F.2d 919, 925 (D.C. Cir. 1986) (“If we were to assume that the only significant facts were that one group was performing the work, and another group was demanding the work, then Safeway would have been a jurisdictional dispute case. The Board decision in Safeway, however, makes clear that we must also con- sider the origins of the dispute. Where, as here, the employer created the dispute, § 8(b)(4)(D) and § 10(k) do not apply.”). 13 See supra fn. 3. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 with Local 14 and then attempted to use subcontracting arrangements to ensure that Local 14 did not operate the hoist at 561 Greenwich Street. But 10(k) relief is not available to an employer who foments a dispute by trans- ferring work away from a group claiming it. See Stage- hands IATSE Local 2 (Complete Crewing Inc.), 366 NLRB No. 123, slip op. at 3 (2018). Tishman’s primary defense is that it has no legal obli- gation to Local 14 and LIC never had the disputed work because the subcontracting agreement between Tishman and LIC withheld the hoist work from LIC. While Tish- man was no longer a signatory to the collective-bargaining agreement with Local 14 that gave Local 14 jurisdiction over the operation of cranes and hoists, as explained above, any work dispute present here was initiated by Tishman’s subcontracting agreement with LIC that ex- cluded the hoist work from LIC (and, by extension, from Local 14). In these circumstances, any work dispute was of Tishman’s own making and thus is not properly re- solved in a 10(k) proceeding. See Safeway Stores, supra at 1322–1323. Moreover, in analogous circumstances, the Board has held that a subcontracting agreement cannot override a party’s existing collective-bargaining obliga- tion to a union. See, e.g., New York Paving, 370 NLRB No. 44, slip op. at 2 (2020), enfd. 2021 U.S. App. LEXIS 36626 (D.C. Cir.) (unpublished). In sum, we find that the conduct does not give rise to a jurisdictional dispute within the meaning of Section 10(k) and Section 8(b)(4)(D) of the Act.14 The evidence fails to establish a traditional jurisdictional dispute between two rival groups of employees claiming the same work, with an innocent employer caught in the middle. Rather, we conclude that Tishman has created a work preservation dispute by inserting a provision in its contract with LIC that explicitly denied the work to Local 14, in tension (if not direct conflict) with LIC’s collective-bargaining obli- gation with Local 14. As such, this case is not appropriate for resolution under Section 10(k), and we quash the no- tice of hearing. ORDER IT IS ORDERED that the notice of hearing issued in this case is quashed. Dated, Washington, D.C. March 10, 2023 ______________________________________ Lauren McFerran, Chairman 14 Since we grant the motion to quash based on the lack of a cognizable work dispute, we find it unnecessary to pass on Local 14’s alternative ______________________________________ Gwynne A. Wilcox, Member ______________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD argument that it did not engage in proscribed conduct. Similarly, we do not make an award of work pursuant to Sec. 10(k) of the Act.