Operating Engineers Local 150 (Interior Development)

National Labor Relations Board - Board Decisions

Sep 24, 1992

308 N.L.R.B. 1005 (N.L.R.B. 1992)

1005
308 NLRB No. 141
OPERATING ENGINEERS LOCAL 150 (INTERIOR DEVELOPMENT)
1 All dates refer to 1992 unless otherwise specified.
Local 150, International Union of Operating Engi-
neers, AFL–CIO and Interior Development,
Inc. Construction and General Laborers Dis-
trict Council of Chicago and Vicinity, affiliated
with the Laborers’ International Union of
North America, AFL–CIO. Case 13–CD–457
September 24, 1992
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed April 1, 1992, by Interior Development, Inc.
(IDI), a subsidiary of Hawthorn Realty Group, Inc., al-
leging that the Respondent, Local Union No. 150,
International Union of Operating Engineers, AFL–CIO
(Local 150), violated Section 8(b)(4)(D) of the Na-
tional Labor Relations Act by engaging in proscribed
activity with an object of forcing IDI to assign certain
work to employees it represents rather than to employ-
ees represented by Construction and General Laborers
District Council of Chicago and Vicinity, affiliated
with the Laborers’ International Union of North Amer-
ica, AFL–CIO (Laborers Union). The hearing was held
April 23 and 27 and May 22, 1992, before Hearing Of-
ficer Deborah Schrock.
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. On the entire
record, the Board makes the following findings.
I. JURISDICTION
IDI is an Illinois corporation engaged in the busi-
ness of interior construction at its facility in Rolling
Meadows, Illinois, where it annually derives gross rev-
enues in excess of $500,000 and annually receives
goods and materials valued in excess of $50,000 di-
rectly from points outside the State of Illinois. Haw-
thorn Realty Group, Inc. (Hawthorn) is a Delaware
corporation engaged as a real estate developer at its fa-
cility in Rosemont, Illinois, where it annually derives
gross revenues in excess of $500,000 and annually re-
ceives goods and materials valued in excess of $50,000
directly from points outside the State of Illinois. The
parties stipulated, and we find, that both IDI and Haw-
thorn are engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that both Local
150 and the Laborers are labor organizations within the
meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
IDI was hired by Wilson Sporting Goods Company
to perform the interior construction work at Wilson’s
new corporate offices in a building located at 8700
West Bryn Mawr Avenue, Chicago, Illinois (Presidents
Plaza). Construction on the jobsite, which consisted of
work on the 3d, 10th, 11th, and 12th floors totaling ap-
proximately 100,000 square feet, began in February
19921 with the demolition of the prior tenant’s space.
IDI used 10 to 12 of its own laborers during the demo-
lition phase, which lasted approximately 4 to 5 weeks.
The laborers employed by IDI are covered by a collec-
tive-bargaining agreement between the Laborers Dis-
trict Council and Hawthorn, IDI’s corporate parent.
Hawthorn also furnishes various payroll administrative
services to IDI, but all wages and fringe benefit con-
tributions are paid out of IDI funds.
During the demolition phase, the laborers wrecked
the existing walls, loaded the debris into portable
dumpsters, and removed it from Wilson’s four floors
by using a freight elevator. The freight elevator is a
fully automatic, self-service, pushbutton elevator,
which the record indicates was available for the use of
all tenants of the building, as well as IDI’s construc-
tion crews. IDI did not assign any particular employee
or group of employees to operate the elevator; instead
it was used by IDI’s laborers on an as-needed basis,
while also being used by the other subcontractors’ em-
ployees and other building tenants.
On March 12, Local 150 Business Agent Fenton
Cross came to IDI’s construction office at the Presi-
dents Plaza jobsite and told IDI Project Superintendent
Craig Kinzel that IDI was in violation of an agreement
by not having a Local 150 elevator operator on site.
IDI President Terry Christianson, also in attendance,
told Cross that IDI was not a signatory to any agree-
ment. After the meeting, Cross checked at the Union
office and found that Local 150 and IDI did not have
an existing agreement.
Cross testified that on March 18, he informed
Christianson that there was no agreement, and one that
would ‘‘put a man on the elevator’’ would have to be
reached. Christianson testified that he asked Cross to
send him a copy of the agreement to which Cross was
referring, but Cross refused, telling Christianson that
he would have to sign the agreement ‘‘like everyone
else did,’’ naming two core and shell contractors as
examples. Christianson replied that these companies,
unlike IDI, employed operating engineers to run heavy
equipment and special temporary construction lifts. He
told Cross that IDI had been doing the same kind of
1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Christianson testified that in the past 3 years, IDI has had 80 to
100 interior construction jobs, 65 percent of which involved build-
ings with freight elevators, and has never had any employee assigned
to operate the freight elevators.
3 There were approximately six pickets carrying signs that read:
‘‘Local 150 on strike against IDI, Interior Development, Inc., for
recognition as bargaining representative for company’s operating en-
gineer employees.’’
work for several years in buildings with automatic
freight elevators and never had a problem with Local
150.2 According to Christianson, Cross said that he
would strike the Presidents Plaza jobsite.
Cross testified that on March 20, he informed
Christianson that Local 150 would be picketing for
recognition. On March 24, Local 150 set up a picket
line at both entrances of the Presidents Plaza jobsite.3
The picketing continued through April 3, during which
none of the other building trade employees of the sub-
contractors or IDI’s laborers crossed the picket line,
and the job was shut down. When the picketing
ceased, the tradesmen returned to the job, and they re-
sumed operating the elevator when needed.
Local 150 resumed its picketing on April 8, and
continued picketing until April 10. During this pick-
eting, the laborers continued to work, but the other
building trade employees refused to cross the picket
line.
B. Work in Dispute
The disputed work involves the operation of an in-
side freight elevator at 8700 West Bryn Mawr Avenue,
Chicago, Illinois (Presidents Plaza), when it is used in
connection with the demolition phase of interior con-
struction.
C. Contentions of the Parties
Local 150 contends that no jurisdictional dispute ex-
ists 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, and
that IDI and Hawthorn are joint employers under the
Act. Finally, in the event the notice of hearing is not
quashed, Local 150 contends the work should be
awarded to the employees it represents based on the
following factors: collective-bargaining agreement; past
employer and industry practice; job impact; skills,
training and safety; employer preference and past prac-
tice; and economy and efficiency.
IDI and Hawthorn contend that the object of the
picketing was to force IDI to assign a Local 150 mem-
ber to the elevator work, and that there is no voluntary
method of resolving the dispute to which all parties are
bound. In addition, they contend that the Laborers’ as-
serted disclaimer of interest is ineffective because,
inter alia, the laborers operated the elevator on an as-
needed basis both before and after the picketing and
the Laborers Union never directed the employees rep-
resented by it to stop performing the work. Further,
IDI and Hawthorn contend that the work should be
awarded to employees represented by the Laborers
Union based on the following factors: collective-bar-
gaining agreement; employer preference and past prac-
tice; area and industry practice; and economy and effi-
ciency of operations.
D. Applicability of the Statute
Before the Board may proceed to a determination of
dispute under Section 10(k) of the Act, it must be sat-
isfied there is reasonable cause to believe that Section
8(b)(4)(D) has been violated and that the parties have
not agreed on a method for a voluntary adjustment of
the dispute. See Operating Engineers Local 925 (Brad-
shaw Industrial Coatings), 264 NLRB 962, 964
(1982).
It is not disputed that Local 150 Business Represent-
ative Cross, after laying claim to the disputed work
being performed by the laborers, told Christianson that
IDI needed an elevator operator hired out of Local
150’s hiring hall. Christianson also testified that Cross
told him that Local 150 would strike the jobsite.
In determining the applicability of the statute, the
Board must consider whether an object of the picketing
was to force or require the Employer to reassign the
work in dispute from employees represented by the La-
borers Union to members of Local 150. The fact that
one of the Union’s objectives may have been recog-
nitional does not control. The establishment of one
proscribed objective is sufficient to bring a union’s
conduct within the statutory language of Section
8(b)(4)(D). Operating Engineers (All American Deco-
rating Corp.), 296 NLRB 933, 935 (1989). Carpenters
Local 593 (T & P Iron Works), 266 NLRB 617 (1983).
With regard to the competing claims question, the
party raising the issue that a disclaimer eliminates the
existence of a jurisdictional dispute (here Local 150)
has the burden of proving a clear, unequivocal, and un-
qualified disclaimer of all interest in the work in dis-
pute. Operating Engineers Local 150 (Austin Co.), 296
NLRB 938, 939 (1989). Here, the uncontradicted evi-
dence is that the laborers performed the work both be-
fore, after, and at times during the picketing. In addi-
tion, there is no indication that the Laborers Union
business agent at any time directed the laborers to stop
performing the work, and the laborers never questioned
or rejected the assignment. Under these circumstances,
we find that Local 150 failed to carry its burden of es-
tablishing the Laborers’ clear, unequivocal, and un-
qualified disclaimer to the work in dispute. Austin Co.,
supra at 939.
Further, even assuming Local 150 carried its burden
of proving an unequivocal disclaimer, such a dis-
1007OPERATING ENGINEERS LOCAL 150 (INTERIOR DEVELOPMENT)
4 Local 150 relies on its argument that IDI and Hawthorn are joint
employers to reinforce this claim. Because, for the following rea-
sons, we find that neither contract binds IDI to the Joint Conference
Board Method, we need not address Local 150’s joint employer ar-
gument.
5 Local 150 concurred with the hearing officer’s ruling at the hear-
ing that the repudiation would not be litigated in the 10(k) pro-
ceeding.
6 In agreeing with this finding, Member Devaney relies on the un-
disputed evidence of Hawthorn’s April 1990 contract repudiation. He
finds the repudiation on this record sufficient to negate a conclusion
that Local 150 has established the existence of a binding agreement
between Hawthorn and Local 150 at the time of the March-April
1992 events here. Thus, Member Devaney finds it unnecessary to
rely on his collegues’ discussion of Sec. 10(b) and A & L Under-
ground, supra, in which he dissented.
claimer involves no sacrifice by the employees rep-
resented by Laborers. See All American Decorating
Corp., supra, 296 NLRB at 935; Austin Co., supra, 296
NLRB at 939–940; Longshoremen ILA Local 1291
(Pocohantas Steamship Co.), 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). In fact, the disputed work of pushing the
self-service elevator’s buttons was done on an inci-
dental basis. In such circumstances, it is impossible to
allocate part of the laborers’ compensation to the dis-
puted work. Absent evidence that the compensation for
the disputed work is severable, a disclaimer of such
work is not synonymous with a disclaimer of the em-
ployee’s compensation and the jurisdictional dilemma
remains. Austin Co., supra, 296 NLRB at 940. Con-
sequently, we find that the Laborers’ disclaimer fails
to extinguish the jurisdictional dispute.
Local 150 also asserts that all the parties to the dis-
pute are bound by various collective-bargaining agree-
ments to have the dispute adjusted by the Joint Con-
ference Board established by the Standard Agreement
of the Construction Employers’ Association of Chi-
cago, Inc. and Cook County Building Trades Council
(Joint Conference Board Method). Local 150 states
that its master Illinois Building Agreement binds IDI,
through Hawthorn, to the Joint Conference Board, as
does the contract between the Laborers and Hawthorn.4
This assertion is premised on the assumption that
the Illinois Building Agreement allegedly binding
Local 150 and IDI, through Hawthorn, is still in effect.
While Hawthorn executed a memorandum of agree-
ment adopting the Illinois Building Agreement in
1988, it is undisputed that Hawthorn clearly and un-
equivocally repudiated its agreement with Local 150
by letter dated April 25, 1990.5 The 6-month limita-
tions period of Section 10(b) of the Act bars Local 150
from challenging Hawthorn’s repudiation in any pro-
ceeding under the Act. A & L Underground, 302
NLRB 467 (1991). Therefore, the Illinois Building
Agreement cannot form the basis for binding either
Hawthorn or IDI.6
Likewise, the Laborers’ Building Agreement cannot
form the basis for binding either Hawthorn or IDI to
the Joint Conference Board Method. Article XV, para-
graph 4 of the Laborers’ Building Agreement states:
The Standard Agreement formulated by the
Joint Conference Board of the Construction Em-
ployer’s Association and the Chicago and Cook
County Building Trades Council, as amended and
readopted, shall be and hereby is adopted as part
of this Agreement for the Builders Association of
Greater Chicago and its members only, as fully
and completely as if incorporated herein. [Empha-
sis added.]
It is undisputed that neither IDI nor Hawthorn is, or
has ever been, a member of the Builders Association
of Chicago, nor have they ever submitted to the Joint
Conference Board’s jurisdiction in any other pro-
ceeding. Further, the Memorandum of Agreement be-
tween Hawthorn and the Laborers Union does not dis-
cuss the Joint Conference Board or its authority to re-
solve jurisdictional disputes. Therefore, the Laborers’
contract cannot bind Hawthorn or IDI to the Joint Con-
ference Board procedure.
Accordingly, we find that there is reasonable cause
to believe that a violation of Section 8(b)(4)(D) has oc-
curred and that there exists no agreed-upon method for
voluntary adjustment of the dispute within the meaning
of Section 10(k) of the Act. Therefore, we deny Local
150’s motion to quash the hearing and find that the
dispute is properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative 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 balancing the factors in-
volved in a particular case. Machinists Lodge 1743
(J. A. Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of this dispute:
1. Certifications and collective-bargaining
agreements
As noted above, there is no current agreement with
Local 150 which arguably covers the work in dispute.
The collective-bargaining agreement between Haw-
thorn and the Laborers defines in article XV, para-
graph 4(b) of that agreement the scope of the laborers’
work to include: ‘‘all loading and unloading of mate-
rials carried away from the site of wrecking.’’ There-
fore, to the extent that operating the freight elevator is
incidental to that work, the factor of collective-bar-
1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Hawthorn employed an operating engineer to run a freight eleva-
tor on one real estate development project, the Riverway Office
Plaza, for a 5-month period. However, unlike the Presidents Plaza
job, the Riverway project was still in its initial core-and-shell con-
struction phase when an elevator operator was employed there.
8 While the Operating Engineers argue that job impact favors an
assignment to the employees they represent, they only point to the
assignment in connection with the Riverway project, discussed
above, to support their position. Because that assignment involved
exterior work, we find this factor does not support the Operting En-
gineers’ claim for this work.
gaining agreements favors an award to the employees
represented by the Laborers.
2. Employer preference and past practice
IDI has assigned the disputed work to its laborers on
an as-needed basis and prefers to continue this assign-
ment. This is in accord with IDI’s past practice at
other jobsites. Further, Christianson stated that IDI has
had between 80 and 100 different interior construction
jobs in the past 3 years, of which 65 percent of the
jobs were in buildings with freight elevators. IDI has
never hired an operating engineer to run the freight el-
evator on any of those jobs.7 Therefore, this factor fa-
vors awarding the work to employees represented by
the Laborers Union.
3. Area practice
Christianson testified that he has 21 years of experi-
ence in the Chicago-area construction industry and
stated that it is the area practice for general contractors
to have operating engineers operate outside construc-
tion elevators and to have tradesmen operate inside
freight elevators on an as-needed basis in the same
manner as the Presidents Plaza job. He also stated that
there has never been a particularly assigned elevator
operator for an inside elevator on any of the projects
on which he has been.
Local 150’s Cross did not testify as to the area prac-
tice regarding the operation of inside elevators during
interior tenant construction work, instead testifying
about Hawthorn’s prior use of an elevator operator at
the Riverway project. As stated earlier, the Riverway
project was still in its core-and-shell construction phase
when the operating engineers were used to run the
construction elevators. Cross did testify that training
would be involved if the freight elevator could be and
was operated on a manual or semimanual function, but
there was no evidence as to whether this elevator had
such a capacity. Thus, the weight of the evidence indi-
cates that the practice in the Chicago area is to allow
various tradesmen to operate inside elevators on an as-
needed basis. Therefore, this factor favors awarding the
work to the employees represented by the Laborers
Union.
4. Relative skills
The evidence establishes that the elevator at issue is
a fully automated, self-service elevator. Except for
some plywood and masonite installed by the laborers
to protect the elevator’s interior, it is identical in its
operation to the building’s passenger elevators. The
user must push a button to send the elevator to the de-
sired floor. The work in dispute involves even less
skill then that required to operate the manual elevators
in Austin Co., supra, 296 NLRB at 942. Both groups
have the skill to perform the work. Therefore, this fac-
tor favors an award to neither the employees rep-
resented by the Laborers Union nor to those rep-
resented by Local 150.
5. Economy and efficiency
The record establishes that the laborers may use the
elevator a maximum of four to five times each day for
a few minutes each trip. They perform this work as in-
cidental to other work. Employees can move between
the 10th and 12th floors where the construction work
is in progress via an interior stairway without using the
elevator. The only work available for operating engi-
neers is the operation of the elevator. Thus, it is more
efficient to assign the work to employees represented
by the Laborers Union.8
Conclusions
After considering all the relevant favors, we con-
clude that IDI’s employees represented by the Laborers
are entitled to perform the work in dispute. We reach
this conclusion relying on the factors of employer pref-
erence and past practice, area practice, and economy
and efficiency, and to a lesser extent the Employer’s
collective-bargaining agreement with the Laborers
Union.
In making this determination, we are awarding the
work to employees represented by the Laborers, not to
that Union or its members. The determination is lim-
ited to the controversy that gave rise to this pro-
ceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of Interior Development, Inc., rep-
resented by Construction and General Laborers District
Council of Chicago and Vicinity, Laborers’ Inter-
national Union of North America, AFL–CIO are enti-
tled to operate the inside elevator at 8700 West Bryn
Mawr Avenue, 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
Interior Development, Inc. to assign the disputed work
to employees represented by it.
1009OPERATING ENGINEERS LOCAL 150 (INTERIOR DEVELOPMENT)
3. Within 10 days from this date, International
Union of Operating Engineers, Local Union No. 150,
AFL–CIO shall notify the Regional Director for Re-
gion 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 in-
consistent with this determination.