INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 18 AND ITS BRANCHES, (2016)

Docket Number:08-CD-081840
 
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NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive 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 18 and Donley’s Inc.

International Union of Operating Engineers Local 18 and Hunt Construction Group, Inc.

International Union of Operating Engineers Local 18 and Precision Environmental Co.

International Union of Operating Engineers Local 18 and Construction Employers Association

International Union of Operating Engineers Local 18 and B & B Wrecking and Excavating, Inc.

International Union of Operating Engineers Local 18 and Cleveland Cement Contractors, Inc.

International Union of Operating Engineers Local 18 and Laborers’ Local 894, a/w International Union of North America, AFL–CIO, Party in Interest

International Union of Operating Engineers Local 18 and Laborers’ Local 310, a/w International Union of North America, AFL–CIO, Party in Interest. Cases 08–CD–081840, 08–CD–091637, 08–CD–133957, 08–CD–091683, 08–CD–091684, 08–CD–091686, 08–CD–091770, 08–CD–091773, 08–CD–130178

May 6, 2016

DECISION AND ORDER

BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA AND MCFERRAN

On April 9, 2015, Administrative Law Judge Mark Carissimi issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel and Charging Party Employers filed answering briefs, and the Parties in Interest filed a letter adopting the Employers’ answering brief. The Respondent filed briefs in reply to both answering briefs.1

1 In addition, pursuant to Reliant Energy, 339 NLRB 66 (2003), the Respondent filed two postbrief letters calling the Board’s attention to a Division of Advice memorandum and recent case authority, and the General Counsel filed an opposition letter to the second postbrief letter. As to the second letter, we find that the decision cited by the Respondent, Local 18 International Union of Operating Engineers v. Ohio Contractors Association, No. 14–4294, 2016 WL 683246 (6th Cir.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the recommended Order.

In part, the complaint alleges that the Respondent, International Union of Operating Engineers Local 18, violated Section 8(b)(4)(ii)(D) of the Act by filing and maintaining pay-in-lieu grievances with an object of forcing the Charging Party Employers to assign the operation of certain construction equipment to employees it represented, contrary to two prior Section 10(k) determinations in which the Board awarded the work to employees represented by a different union. As found by the judge, and discussed further below, we agree that the Respondent violated the Act as alleged.2

The first 10(k) determination, Laborers’ Local 894 (Donley’s Inc.) (Donley’s I), 360 NLRB No. 20 (2014), involved a jurisdictional dispute between the Respondent and Laborers’ International Union of North America Local 894 (Local 894), concerning the operation of forklifts and skid steers at a construction site in Akron, Ohio, where Employer Donley’s was building a parking garage for Goodyear. At the time of the Goodyear project, Donley’s employed both operating engineers and laborers and was signatory to separate collective-bargaining agreements negotiated by the Associated General Contractors (AGC) and Respondent and AGC and Local 894. Donley’s assigned the disputed forklift and skid steer work to its Local 894-represented employees, resulting in the Respondent threatening to strike the Goodyear project, conducting a one-day strike at the project, and filing a pay-in-lieu grievance alleging that the work assignment breached the jurisdiction clause of the 2010–2013 Respondent-AGC agreement. After Donley’s informed Local 894 of the Respondent’s grievance, Local 894 threatened to picket and/or strike, if necessary, to ensure the continued assignment of forklift and skid steer work to employees it represented. The Board found reasonable cause to believe that the threats to strike by both Un

2016), does not affect our decision here, as it raises only a procedural issue concerning the arbitrability of a provision in a collectivebargaining agreement different from the agreements in the instant case.

2 The complaint further alleges that the Respondent violated Sec. 8(b)(4)(ii)(D) by threatening to strike Employer Donley’s, violated Sec. 8(b)(4)(i) and (ii)(D) of the Act by engaging in a strike at Donley’s project at the Goodyear jobsite, and violated Sec. 8(b)(4)(ii)(D) by threatening to strike the Construction Employers Association and the Employers, B & B Wrecking and Excavating, Cleveland Cement Contractors, Precision Environmental Co., and Hunt Construction Group. For the reasons stated by the judge, we agree that the Respondent violated the Act in these respects as well.

363 NLRB No. 184

2

ions, and the strike by Respondent, constituted unlawful 8(b)(4)(D) conduct to enforce their claims to the disputed work, and awarded the forklift and skid steer work to employees represented by Local 894. 360 NLRB No. 20, slip op. at 5–7.

The second 10(k) determination, Operating Engineers, Local 18 (Donley’s Inc.) (Donley’s II), 360 NLRB No. 113 (2014), involved a jurisdictional dispute between the Respondent and Laborers’ International Union of North America Local 310 (Local 310). The dispute concerned the operation of forklifts and skid steers at construction projects of Donley’s and four other Employers—B & B Wrecking and Excavating (B & B), Cleveland Cement Contractors (Cleveland Cement), Precision Environmental Co. (Precision), and Hunt Construction Group (Hunt). The Employers employed operating engineers and laborers represented by the Respondent and Local 310, respectively, and, except for B & B Wrecking, were signatories to separate 2012–2015 agreements between each Union and the Construction Employers Association (CEA). During negotiations for these contracts, the Respondent’s chief negotiator, Pat Sink, complained that for “far too long” the Employers had been assigning forklift and skid steer work to employees it did not represent, and that the Respondent was prepared to strike if such assignments continued. In late Spring 2012, the Employers commenced various construction projects in the Cleveland, Ohio area, and assigned the operation of forklifts and skid steers to their Local 310-represented employees. Starting on June 5, 2012, and continuing until October 1, 2014, the Respondent filed pay-in-lieu grievances against the Employers at each construction project alleging that the assignment of forklifts and skid steers to employees it did not represent breached the work jurisdiction clause of the Respondent-CEA contract. CEA Executive Vice President Linville wrote Local 310 business manager Terence Joyce that Respondent was engaged in an “areawide” campaign of filing grievances against the Employers.3 Joyce responded by letter that Local 310 would picket and strike all projects if the disputed work was reassigned. The Board found reasonable cause to believe that the Respondent’s and Local 310’s strike threats constituted 8(b)(4)(D) conduct to enforce their claims to the disputed work, and awarded the forklift and skid steer work to employees represented by Local 310. 360 NLRB No. 113, slip op. at 5–7.

The Respondent refused to comply with the Board’s awards in both Donley’s I and II. It continued to process the Goodyear pay-in-lieu grievance in Donley’s I and the

3 Donley’s was not named in this letter because the first of the several grievances had not yet been filed against it.

pay-in-lieu grievances against the Employers in Donley’s II. It also filed new pay-in-lieu grievances against Donley’s and a new grievance against Cleveland Cement after the Board issued Donley’s II.

DISCUSSION

As the judge correctly observed, the Board has long held that a union’s pursuit of contractual claims to obtain work that the Board has awarded in a 10(k) determination to another group of employees, or to secure monetary damages in lieu of the work, violates Section 8(b)(4)(ii)(D). Machinists Lodge 160 (SSA Marine, Inc.), 360 NLRB No. 64, slip op. at 3 (2014); Plasterers Local 200 (Standard Drywall, Inc.), 357 NLRB 1921, 1923 (2011); Sheet Metal Workers Local 27 (E.P. Donnelly, Inc.), 357 NLRB 1577, 1578 (2011); and Marble Polishers Local 47-T (Grazzini Bros.), 315 NLRB 520, 522–523 (1994). As the Board explained in Roofers Local 30 (Gundle Construction), 307 NLRB 1429, 1430 (1992), enfd. 1 F.3d 1419 (3d Cir. 1993), “[s]uch postaward conduct is properly prohibited under Section 8(b)(4)(D) because it directly undermines the 10(k) award, which, under the congressional scheme, is supposed to provide a final resolution to the dispute over which group of employees are entitled to the work at issue.” Applying these principles, we agree with the judge that the Respondent’s maintenance of pay-in-lieu grievances against the Employers after the Board issued its 10(k) determinations, as well the subsequent filing of new pay-in-lieu grievances, violated Section 8(b)(4)(ii)(D) by seeking to undermine the Board’s award of the disputed forklift and skid steer work to employees that it did not represent.

In exceptions, the Respondent renews two defenses raised and rejected by the Board in the 10(k) proceedings: (1) Local 894 in Donley’s I and Local 310 in Donley’s II engaged in collusion with the Employers to create a sham jurisdictional dispute, and (2) the pay-in-lieu grievances...

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