Operating Engineers Local 825 (Structure Tone, Inc.)

National Labor Relations Board - Board Decisions

May 30, 2008

352 N.L.R.B. 635 (N.L.R.B. 2008)

OPERATING ENGINEERS LOCAL 825 (STRUCTURE TONE, INC.)
352 NLRB No. 77
635
International Union of Operating Engineers a/w
AFL–CIO, Local Union 825 and Structure Tone,
Inc. and Market Halsey Urban Renewal, Party
in Interest. Case 22–CD–765
May 30, 2008
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act (the Act).
Structure Tone, Inc. (the Employer) filed a charge on
October 16, 2007, alleging that the Respondent, Interna-
tional Union of Operating Engineers, Local Union 825
(Local 825 or the Union), violated Section 8(b)(4)(D) of
the Act by engaging in proscribed activity with an object
of forcing the Employer to assign certain work to an em-
ployee it represents rather than to a Market Halsey Urban
Renewal (Market Halsey) employee. The hearing was
held on November 5, 2007, before Hearing Officer Lisa
D. Pollack. Thereafter, the Employer filed a posthearing
brief.1
The National Labor Relations Board affirms the hear-
ing officer’s rulings, finding them free from prejudicial
error. On the entire record, the Board makes the follow-
ing findings.2
I. JURISDICTION
The parties stipulated that, during the 12-month period
preceding the hearing, the Employer, a New York corpo-
ration, purchased and received goods valued in excess of
$50,000 directly from points located outside the State of
New York. Accordingly, we find that the Employer is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act. The parties also stipulated, and we
find, that Local 825 is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer is in the business of construction man-
agement. In 2006, Morgan Stanley hired the Employer
to construct a data center in Newark, New Jersey, located
on the second floor of a 13-story commercial building

1 Local 825 did not file a posthearing brief. Market Halsey did not
appear at the hearing nor did it file a brief.
2 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 Schaumber and Member Liebman 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.
owned by Market Halsey. Morgan Stanley leases this
space from Market Halsey. The project included two
phases of construction. Phase one began in June 2006
and ended in August 2006. Phase two began in Septem-
ber 2007, with construction scheduled to end in January
2008. Phase one work included the construction of com-
partments to house data equipment, fabrication of work
cubicles, and installation of air conditioning units, ceiling
tiles, and flooring. Phase two involved an expansion of
work completed during phase one.
Market Halsey employs Pepito Gonzalez to operate the
building’s freight elevator, available for free use by all
tenants. Pursuant to this arrangement, the Employer used
this elevator—with Gonzalez as its operator—to trans-
port building materials during phase one.
As more fully detailed below, the Employer is party to
a collective-bargaining agreement with Local 825. In
July 2006, Local 825 learned of the Morgan Stanley pro-
ject. Local 825 Agent Lino Santiago contacted Telly
Fitanidis, the Employer’s project manager, and claimed
that the parties’ agreement required that the Employer
hire a union engineer to operate the elevator to transport
building materials to the construction site. Fitanidis re-
ferred Santiago to Tom Matello, the Morgan Stanley
representative assigned to the project. Santiago dis-
cussed Local 825’s claim with Matello and also con-
tacted Bob Klug, Market Halsey’s chief engineer at the
building. In an e-mail to Matello, Klug reported that
building management agreed with Local 825’s claim and
wanted “to maintain harmony” with local unions.
Fitanidis testified that as a result of these discussions,
Matello directed that the Employer hire a union-
represented employee to operate the elevator, when taken
to the second floor, during the final 3 weeks of phase
one. Under this agreement, Gonzalez continued to oper-
ate the elevator when used by all other tenants. The Em-
ployer paid the union operator’s wages and benefits, but
was reimbursed by Morgan Stanley.
In early September 2007, Local 825 first learned of
phase two and that Gonzalez had resumed operating the
elevator when used by the Employer to transport materi-
als to the Morgan Stanley construction site. Santiago
contacted Fitanidis several times during the month, each
time claiming that the work belonged to a union operator.
Fitanidis denied all of Santiago’s claims, strongly ex-
pressing the Employer’s position that the parties’ agree-
ment did not cover the work. There is no record evi-
dence that Local 825 contacted Morgan Stanley or Mar-
ket Halsey in an effort to achieve its goal. Instead, on
October 1, 2007, Local 825 sent the Employer a letter
stating its “[intent] to commence picketing to enforce
contract rights.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD636
On October 15, 2007, Local 825 began picketing the
building’s front and back entrances.3 Picketers carried
signs stating, “Unfair to Local 825, Structure Tone has
violated a collective bargaining agreement with Local
825.” Between 6:45 a.m. and 3:15 p.m. each day, 20 to
30 union members picketed the back entrance while 10
members picketed the front entrance. This picketing
stopped all deliveries to tenants and the Employer. Local
825 terminated picketing on October 22, 2007, after the
Employer filed the unfair labor practice charge in this
case.
B. Work in Dispute
At the hearing, the parties stipulated that the work in
dispute is “the operation of freight elevators at the Mor-
gan Stanley construction project located at 165 Halsey
Street, Newark, New Jersey.”
C. Contentions of the Parties
The Employer contends that there are competing
claims to the work and that there is reasonable cause to
believe that Local 825 violated Section 8(b)(4)(D) of the
Act. It further argues that there is no agreed-upon
method for voluntary adjustment of the dispute. On the
merits, the Employer asserts that its collective-bargaining
agreement with Local 825 does not favor assigning the
disputed work to a union-represented employee. Addi-
tionally, the Employer argues that employer preference,
area practice, and economy and efficiency of operations
favor continuing to assign the disputed work to a Market
Halsey employee.
At the hearing, Local 825 contended that its collective-
bargaining agreement with the Employer, employer pref-
erence and past practice, area practice, and Joint Board
determinations favor assigning the disputed work to an
employee it represents.
D. Applicability of the Statute
Before the Board may proceed with a determination of
a dispute under Section 10(k) of the Act, there must be
reasonable cause to believe that Section 8(b)(4)(D) has
been violated. Operating Engineers Local 510 (R&D
Thiel), 345 NLRB 1137, 1139 (2005). This 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 enforce its claim to
the work in dispute. Id. Additionally, the Board will not
proceed under Section 10(k) if there is an agreed-upon
method for voluntary adjustment of the dispute. Id.

3 The freight elevator is located at the building’s back entrance, near
a loading dock used by the Employer during construction. Tenants use
the front entrance to access the building’s unmanned passenger eleva-
tors.
1. Competing claims for the work
Local 825 stipulated that it claims the disputed work.
The record shows that Gonzalez has operated the freight
elevator when used by the Employer during phase two of
construction. Gonzalez’ continued performance estab-
lishes an additional claim to the disputed work. See Op-
erating Engineers Local 513 (Thomas Industrial Coat-
ings), 345 NLRB 990, 992 fn. 6 (2005) (employees’ per-
formance of work in dispute is “evidence of a claim for
the work . . . even absent a specific claim.”). Accord-
ingly, there is reasonable cause to believe that there are
competing claims to the disputed work.
2. Use of proscribed means
This case is atypical because Local 825 directed its
picketing at the Employer rather than Market Halsey, the
party that employs the operator who currently performs
the work in dispute. This case nevertheless presents a
situation which Section 8(b)(4)(D) was intended to rem-
edy. As the Board noted in Plumbers Local 195 (Gulf
Oil):
Section 8(b)(4)(D) makes it an unfair labor practice for
a labor organization to engage in proscribed activity
with an object of “forcing or requiring any employer to
assign particular work to employees in a particular la-
bor organization or in a particular trade, craft, or class
rather than to employees in another labor organization
or in another trade, craft, or class.” The Board has in-
terpreted this language as showing the “clear intent of
Congress to protect not only employers whose work is
in dispute from such [proscribed] activity, but any em-
ployer against whom a union acts with such a purpose.”
275 NLRB 484, 485 (1985) (emphasis in original; foot-
note omitted) (quoting Longshoremen ILA Local 1911
(Cargo Handlers), 236 NLRB 1439, 1440 (1978)).
As stated above, Local 825 picketed the Employer af-
ter it repeatedly denied Local 825’s demands that the
parties’ agreement required reassignment of the disputed
work to a union operator. That picketing also affected
Market Halsey because it took place at all entrances to
the building and stopped all tenant deliveries. Thus, it is
clear that Local 825 aimed its picketing at the Employer
with an object of forcing the Employer to reassign the
disputed work or, through the Employer, forcing Market
Halsey to reassign the disputed work. See Painters Dis-
trict Council 9 (Apple Restoration), 313 NLRB 1111,
1112 fn. 3 (1994). This establishes reasonable cause to
believe that Local 825 used proscribed means to enforce
its claim to the work. Id.
OPERATING ENGINEERS LOCAL 825 (STRUCTURE TONE, INC.) 637
3. No agreed-upon method for voluntary
resolution of dispute
The collective-bargaining agreement between the Em-
ployer and Local 825 provides that, where a jurisdic-
tional dispute arises, any party may file a complaint with
the plan for the settlement of jurisdictional disputes in
the construction industry. At the hearing, Local 825 ac-
knowledged that it contacted the plan administrator about
pursuing a complaint, but that the administrator could not
decide the dispute because Market Halsey was not a sig-
natory to the parties’ agreement. Therefore, the Board
may proceed under Section 10(k) because this agreed-
upon method cannot resolve the dispute. See Laborers
Local 1184 (Golden State Boring & Pipejacking), 337
NLRB 157, 159 (2001) (although parties bound to sub-
mit dispute to settlement plan, Board determined dispute
after the plan administrator refused to decide it).
For these reasons, we find that there is reasonable
cause to believe that Section 8(b)(4)(D) has been violated
and that there is no available agreed-upon method for
voluntary adjustment of the dispute.
Local 825 contended, however, that Section 10(k) is
inapplicable because the dispute concerns its attempt to
recapture bargaining unit work acquired during phase
one of construction. To this end, the Board has held that
“if a 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 Local 1414 (SSA Terminal, LLC), 344
NLRB 1018, 1020 (2005). Here, however, the union-
represented operator performed the work for only 3
weeks during phase one of construction. Moreover, this
assignment of work was at the direction of Morgan
Stanley “to maintain harmony” with local unions. Thus,
this limited performance of work does not constitute a
history of performance sufficient to establish a work
preservation claim. See, e.g., Teamsters Local 107 (Re-
ber-Friel Co.), 336 NLRB 518, 521 (2001) (union mem-
bers’ performance of work on a “few isolated occasions”
insufficient to establish a work preservation claim). Cf.
Seafarers (Recon Refractory & Construction), 339
NLRB 825, 828 (2003) (union members’ performance of
work for a decade sufficient to establish a work preserva-
tion claim).
Therefore, we 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 affirma-
tive award of disputed work after considering various
factors. NLRB v. Electrical Workers Local 1212 (Co-
lumbia 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 ex-
perience, reached by balancing 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 de-
termination of this dispute.
1. Certifications and collective-bargaining agreements
At the hearing, the parties stipulated that there are no
Board certifications concerning the employees involved
in this dispute. Accordingly, we find that the factor of
Board certifications does not favor awarding the disputed
work to either employees represented by Local 825 or
Market Halsey employees.
The Employer’s collective-bargaining agreement with
Local 825 covers all employees “engaged in the opera-
tion of power equipment . . . used in the construction,
alteration and repair of buildings . . . .” It defines build-
ing construction work as the “construction of building
structures, including modifications thereof, or additions
or repair thereto, intended for use for shelter, protection,
comfort or convenience.” Additionally, for covered
work, the agreement provides that “an Engineer shall be
employed on all elevators and hoists (freight or passen-
ger, permanent or temporary) . . . where used for hoisting
building materials . . . or tools and equipment . . . .”
These broad provisions can be read to cover the dis-
puted work in this case. The Employer describes the
construction in this case as “interior renovation work”
and argues that the parties’ agreement only encompasses
“building structural work.” The Employer does not,
however, cite any specific contractual provisions to sup-
port this contention. Additionally, there is no record
evidence of a collective-bargaining agreement covering
Gonzalez or any other Market Halsey employees who
might perform the work in dispute. Thus, on balance, the
factor of collective-bargaining agreements favors award-
ing the work in dispute to employees represented by Lo-
cal 825.
2. Employer preference and past practice
As a threshold issue, we note that Local 825 argued at
the hearing that the Board should give weight to the al-
leged preference of Market Halsey that the work in dis-
pute be performed by union-represented employees. We
reject this contention. As described above, Local 825 did
not include Market Halsey in discussions concerning
reassignment of the disputed work. Without additional
evidence, Local 825 cannot demonstrate Market Halsey’s
current preference. Furthermore, by exclusively seeking
the disputed work from the Employer, Local 825 limited
this dispute to itself and the Employer. Therefore, we
will only consider the Employer’s preference. The Em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD638
ployer prefers that the work in dispute continue to be
performed by a Market Halsey employee. Thus, we find
that the factor of employer preference favors an award of
the disputed work to Market Halsey employees.
Additionally, the parties disagree as to whether the hir-
ing of a union-represented operator during phase one of
construction constitutes evidence of the Employer’s past
practice. As described above, the Employer had no in-
volvement in this decision. The union-represented op-
erator began phase one work—at no cost to the Employer
and at Morgan Stanley’s direction—only after Market
Halsey agreed with the Union’s claim. Accordingly, we
will not consider this as evidence of the Employer’s past
practice.
Local 825 presented evidence that in 2007, an em-
ployee represented by it operated an elevator during an
Employer construction project in Jersey City, New Jer-
sey.4 Local 825 asserts that this evidence establishes an
employer past practice that favors awarding the work in
dispute to an employee it represents. Even assuming that
the Jersey City project involved work comparable to the
disputed work in this case, this single instance is insuffi-
cient to establish controlling employer past practice.5
Therefore, we find that the factor of employer past prac-
tice does not favor awarding the disputed work to either
employees represented by Local 825 or Market Halsey
employees.
3. Area practice
The Union introduced letters from seven local contrac-
tors, demonstrating their practice of assigning the opera-
tion of elevators to union-represented employees. This
evidence, however, is too inconclusive to establish a
clear area practice with regard to the work in dispute.
These letters fail to specifically describe the work in-
volved nor do they set forth any facts and circumstances
surrounding the work.
Santiago testified that employees represented by Local
825 recently operated elevators for local contractors dur-
ing the construction of two new high schools and a new
hospital. In contrast, phase two work involves substan-
tially less construction in a completed structure. Fur-
thermore, unlike the projects cited by Local 825, phase

4 Local 825 Business Agent Cesar Gamio testified that the Employer
conducted construction work on seven floors of a completed 30-story
building. Gamio further testified that tenants occupied the building
during this project and the Employer had near dedicated use of one of
the building’s four or five freight elevators. Gamio reported that the
Employer initially hired a security guard and laborer to operate this
elevator. Gamio testified that the Employer reassigned the disputed
work to a union-represented operator after Local 825 claimed the work
under the parties’ collective-bargaining agreement.
5 Thus, we find it unnecessary to decide whether this evidence is
comparable employer past practice.
two work occurs at a time when the building is occupied
by tenants and the elevator has been turned over to the
building’s owner. Thus, this evidence is not sufficiently
comparable to constitute controlling area practice.
Finally, union member Lee Hubbard testified about
past construction work completed at the Market Halsey
building. Hubbard testified that, between 1999 and
2002, several subcontractors hired employees repre-
sented by Local 825 to operate the building’s freight ele-
vators.6 As here, this construction occurred at a time
when structural work was complete, tenants occupied the
building, and elevators had been turned over to Market
Halsey. However, this limited evidence of assignment of
work to Local 825, some 5 years ago, is insufficient to
demonstrate prevailing area practice. Accordingly, we
find that this factor does not favor awarding the disputed
work to either employees represented by Local 825 or
Market Halsey employees.
4. Relative skills and training
It is undisputed that operation of the freight elevator
involves opening and closing the elevator door and con-
trolling a lever to move the elevator between floors.
Santiago testified that no special training or license is
required to perform this work. On these facts, we find
that employees represented by Local 825 and Market
Halsey employees have the skills and training necessary
to perform this simple work. Thus, this factor does not
favor an award to either employees represented by Local
825 or Market Halsey employees.
5. Economy and efficiency of operations
Fitanidis testified that, during phase one, the union-
represented employee operated the elevator during Em-
ployer deliveries and Gonzalez operated it for all other
tenant deliveries. Fitanidis further testified that if the
Employer and a tenant required use of the elevator at the
same time, even when it could hold both parties and their
materials, one party would have to wait until the other
party’s operator completed the delivery. Because a Mar-
ket Halsey employee delivers materials to all but one
floor, it is more efficient for that employee to also trans-
port materials to the Morgan Stanley construction site.
See, e.g., Elevator Constructors Local 2 (Kone, Inc.),
349 NLRB 1207, 1211 (2007). Otherwise, the Union
operator would remain idle while the Market Halsey op-
erator completed the bulk of deliveries. See id. Accord-
ingly, we find that the factor of economy and efficiency

6 Hubbard testified that subcontractors used six of the building’s
freight elevators. The record evidence suggests that Market Halsey
currently makes available only one of these freight elevators for tenant
use.
OPERATING ENGINEERS LOCAL 825 (STRUCTURE TONE, INC.) 639
of operations favors awarding the disputed work to Mar-
ket Halsey employees.
6. Joint Board determinations
Local 825 introduced a number of joint board deci-
sions granting operation of elevators to employees repre-
sented by Operating Engineers Locals throughout the
United States. These decisions do not set forth an under-
lying rationale, are expressly limited to the jobs in issue,
and include no evidence that the work and underlying
facts are comparable to this case. Furthermore, the Em-
ployer was not a party to any of these disputes and is,
therefore, not bound by them. Hence, this factor does
not favor an award to either employees represented by
Local 825 or Market Halsey employees. See Iron Work-
ers Local 1 (Advance Cast Stone Co.), 338 NLRB 43, 47
(2002).
Conclusion
After considering all the relevant factors, we conclude
that a Market Halsey employee is entitled to continue
performing the work in dispute. Although the factor of
collective-bargaining agreements favors awarding the
disputed work to employees represented by Local 825,
we find that this factor is outweighed by the factors of
employer preference and economy and efficiency of op-
erations, which favor awarding the disputed work to
Market Halsey employees. The determination is limited
to the controversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
low0ing Determination of Dispute.
1. Market Halsey Urban Renewal employees are enti-
tled to perform the operation of freight elevators at the
Morgan Stanley construction project located at 165 Hal-
sey Street, Newark, New Jersey.
2. International Union of Operating Engineers, Local
Union 825 is not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force Structure Tone, Inc. to
assign the disputed work to employees represented by it.
3. Within 14 days from this date, International Union
of Operating Engineers, Local Union 825 shall notify the
Regional Director for Region 22 in writing whether it
will refrain from forcing Structure Tone, Inc., by means
proscribed by Section 8(b)(4)(D), to assign the disputed
work in a manner inconsistent with this determination.