Elevator Constructors Local 91 (Otis Elevator)

National Labor Relations Board - Board Decisions

Sep 9, 2003

340 N.L.R.B. 94 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 94
International Union of Elevator Constructors, Local
91 and Otis Elevator Company and Perini Build-
ing Company and International Union of Oper-
ating Engineers, Local 478. Case 34–CD–64
September 9, 2003
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN
AND WALSH
This is a jurisdictional dispute proceeding under Section
10(k) of the National Labor Relations Act. The charge was
filed March 6, 2002, by the International Union of Operat-
ing Engineers, Local 478 (Operating Engineers), alleging
that the Respondent, International Union of Elevator Con-
structors, Local 91 (Elevator Constructors), violated Sec-
tion 8(b)(4)(D) of the National Labor Relations Act by
engaging in proscribed activity with an object of forcing
Perini Building Company, Inc. (Employer Perini), to as-
sign certain work to employees represented by Elevator
Constructors rather than to employees represented by Op-
erating Engineers. The hearing was held on March 19 and
April 1, 2002, before Hearing Officer Margaret A. Lareau.
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 of prejudicial error. On the entire record the
Board makes the following findings
I. JURISDICTION
The parties stipulated that Otis Elevator Company (Em-
ployer Otis), is a New Jersey corporation engaged in the
business of manufacture, research and development, retail
and nonretail sale, and distribution of elevators and related
products at its East Hartford, Connecticut facility. During
the 12 months preceding the hearing, Employer Otis pur-
chased and received goods in excess of $50,000 at its East
Hartford, Connecticut facility, directly from points located
outside the State of Connecticut.
The parties stipulated that Employer Perini is a Massa-
chusetts corporation engaged in the operation of a general
contracting business. During the 12 months preceding the
hearing, Employer Perini provided services valued in ex-
cess of $50,000 in states other than the Commonwealth of
Massachusetts.
The parties stipulate, and we find, that the Employers
are engaged in commerce within the meaning of Section
2(6) and (7) of the Act and that Elevator Constructors and
Operating Engineers are labor organizations within the
meaning of Section 2(5) of the Act.
II. DISPUTE
A. Background and Facts of Dispute
The Mohegan Tribal Gaming Authority (MTGA) hired
Employer Perini to manage the construction of phase II of
the Mohegan Sun Casino Resort project, consisting of the
expansion of an existing casino and the construction of a
major sports arena, several surrounding projects, and a
hotel tower. Employer Perini procured subcontractors for
the construction of the tower, but elected to perform itself
all hoisting on the project, including the tower cranes, out-
side hoists, and interior elevators also known as cars.1
Employer Perini has a collective-bargaining agreement
with Operating Engineers, but not with Elevator Construc-
tors. Employer Perini initially assigned in writing the out-
side hoisting work to employees represented by Operating
Engineers and, as discussed below, later made a written
assignment to them of the operation of the interior cars.
Employer Otis, a subcontractor,2 was hired to install,
test, and repair the elevators at the Mohegan Sun Resort.
Employer Otis was to turn the tower elevators over to
Perini for use in moving a combination of people and ma-
terials for construction purposes after the elevators were
installed and tested. Employer Otis has a collective-
bargaining agreement with Elevator Constructors.
On June 1, 2001, Perini’s Senior Project Manager Travis
Burton assigned, in writing, the operation of the inside
elevators to employees represented by the Operating Engi-
neers. Elevator Constructors Business Manager Dominic
Accarpio learned of the assignment and met with Burton.
Burton indicated he would be amenable to a splitting of
the work, provided that Elevator Constructors adjusted
their wages to those paid under Operating Engineers’ col-
lective-bargaining agreement and that the two Unions en-
tered into a side agreement concerning the disputed work.
Otherwise, according to Burton, Perini was obligated to
assign the work to Operating Engineers-represented em-
ployees as provided in the collective-bargaining agree-
ment. Accarpio refused.
Accarpio then spoke with Senior Project Manager Emil
Newman of the Mohegan Sun Gaming Authority. New-
man approved of the splitting of the work, since in his
experience in New York and New Jersey the two unions
split the operation of the elevator cars, provided there was
wage parity. Newman also informed Accarpio that Perini
had ultimate authority to assign the work.

1 Employer Perini’s senior project manager, Travis Burton, testified
that the reason Perini chose to perform the hoisting itself was so that
Perini could coordinate the flow of personnel and building materials
throughout the 36 stories of the hotel tower in order to effectively manage
the construction process.
2 Employer Perini hired Employer Otis to install, test, and repair the
elevators, but Otis’s contract is with Mohegan Sun and not Employer
Perini.
340 NLRB No. 14
ELEVATOR CONSTRUCTORS LOCAL 91 (OTIS ELEVATOR CO.) 95
B. Work in Dispute
The disputed work consists of the operation of inside
elevators to move a combination of workmen and materi-
als during the construction of the hotel tower after the ele-
vators’ installation, but before final inspection and certifi-
cation of the elevators for public use3 in the hotel tower at
the Mohegan Sun Resort.
C. Contentions of the Parties
Employer Perini argues that employees represented by
Elevator Constructors walked off the job in order to force
Perini to reassign half the disputed work to employees
represented by Elevator Constructors and that the parties
have not agreed on a voluntary settlement method.4 It
therefore argues reasonable cause exists to believe that
Section 8(b)(4)(D) of the Act has been violated. Employer
Perini contends that the employees represented by Operat-
ing Engineers should be awarded the operation of the inte-
rior cars for hoisting personnel and materials in the State
of Connecticut. Perini contends that the following factors
support this award: (1) collective-bargaining agreements;
(2) employer preference and assignment; (3) area and in-
dustry practice; and (4) economy and efficiency of opera-
tions.
Employer Otis argues that reasonable cause exists to be-
lieve that Section 8(b)(4)(D) has been violated and that the
Board should award the disputed work to the employees
represented by Elevator Constructors. Otis contends that
the following factors favor assigning the work to employ-
ees represented by Elevator Constructors: (1) collective-
bargaining agreements; (2) industry and area practice; (3)
skills; and (4) economy and efficiency of operations.
Operating Engineers contends that the factors of collec-
tive-bargaining agreements, Employer Perini’s preference,
area and industry practice, and economy and efficiency of
operations favor employees represented by the Operating
Engineers, and that skills and training favor neither em-
ployee group.
Elevator Constructors argue that no jurisdictional dis-
pute exists because the dispute was over the wage rate to
be paid employees represented by Elevator Constructors,
rather than which group of employees should perform the
work. Thus, it argues that the Board should quash the no-
tice of hearing. It further argues that, if the Board finds that
a jurisdictional dispute exists, then the Board should award
the work to employees represented by Elevator Construc-

3 Once the elevators were installed and tested, but before final inspec-
tion, Employer Otis was to turn control of the cars over to Perini so that
Perini could control the flow of workmen and materials throughout the
tower.
4 In support of its position, Perini notes that Employer Otis originally
filed charges with the Board alleging that Elevator Constructors walked
off the job to force the reassignment of work, but that Otis later settled the
matter with Elevator Constructors.
tors on the basis of employer preference and past practice,
industry and area practice, skills, and economy and effi-
ciency of operations.
D. Applicability of the Statute
Before the National Labor Relations Board may proceed
with a determination of the dispute pursuant to Section
10(k), it must be satisfied that reasonable cause exists to
believe that Section 8(b)(4)(D) has been violated and that
the parties have not agreed on a method for the voluntary
adjustment of their dispute.
On the morning of September 11, 2001, Elevator Con-
structors Local 91 Business Manager Dominic Accarpio
met with Perini’s Project Manager Travis Burton for a
second time, demanding that Perini reassign operation of
half of the elevator cars used for moving a combination of
workmen and materials in the tower to employees repre-
sented by Elevator Constructors. Burton informed Accar-
pio that he would not consider reassigning half the work
unless Elevator Constructors agreed to work at Operating
Engineers’ contractual wage rate. He also insisted that
Operating Engineers agree in writing to Elevator Construc-
tors-represented employees sharing the work. Accarpio
rejected the lower wage rate on behalf of Elevator Con-
structors. Elevator Constructors and Operating Engineers
did not enter into a side agreement. Immediately following
the unsuccessful meeting, Elevator Constructors-
represented employees walked off the job.
Perini’s President Craig Shaw was on the site and called
a meeting to deal with the walkout.5 As a result, Employer
Perini reassigned half of the work to employees repre-
sented by Elevator Constructors.6 Following the reas-
signment, Elevator Constructors-represented employees
returned to work.
Although Elevator Constructors describe this dispute as
exclusively over wage rates, it is not. Employer Perini had
not assigned half the work to Elevator Constructors-
represented employees before the walkout, and Elevator
Constructors had not agreed to the terms required by Em-
ployer Perini. Even assuming that one object of the walk-
out was economic, there is reasonable cause to believe that
an object of the walkout was to force Perini to reassign
half the work to employees represented by Elevator Con-
5 At the time of the walkout Employer Otis was still installing elevators
and performing other related work. Employees represented by Operating
Engineers had not yet assumed operation of the elevators.
6 Under the agreement reached, the first car would be assigned to an
employee represented by Operating Engineers and the second car would
be assigned to an employee represented by Elevator Constructors. If there
were an even number of cars, then each Union would have an equal num-
ber of employees it represented performing the work. If there were an odd
number of cars, then Operating Engineers-represented employees would
operate one more car. The wage rates paid are specified in the two Un-
ions’ collective-bargaining agreements.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 96
structors.7 The parties stipulated that there is no method of
resolving the dispute that would be binding on all the par-
ties.
We find that there is reasonable cause to believe that a
violation of Section 8(b)(4)(D) has occurred and that there
is no agreed-upon method for voluntary adjustment of the
dispute within the meaning of Section 10(k) of the Act.
Accordingly, 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 affirmative
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 involved in a particular case. Ma-
chinists Lodge 1743 (J. A. Jones Construction), 155
NLRB 1402 (1962).
The following factors are relevant in making the deter-
mination of this dispute.
1. Certifications and collective-bargaining agreements
There is no evidence of any Board certifications con-
cerning the employees involved in this dispute.
Both Operating Engineers and Elevator Constructors
have collective-bargaining agreements with an employer
on the project that arguably covers the disputed work.
Article III, trade jurisdiction, section 1, of Operating
Engineers’ collective-bargaining agreement with Em-
ployer Perini states in pertinent part that Operating Engi-
neers have “exclusive jurisdiction for hoisting materials
and/or workman, whether inside or outside the building,”
and that “[t]he Employer agrees that the Union shall be the
exclusive representative of all employees performing . . .
[t]he maintenance and or operation of . . . elevators used
for hoisting materials and/or workmen, whether inside or
outside the building.”
Article IV, paragraph 2, of Elevator Constructors’ con-
tract with Employer Otis contains a list of job functions
that employees represented by Elevator Constructors ex-
clusively are to perform where Otis is the Employer.
Those functions include the “operation of temporary eleva-
tor cars.”
Although both Unions’ collective-bargaining agree-
ments arguably cover the work in dispute, the collective-
bargaining agreement that is relevant is the one that has
been negotiated with the employer who has the ultimate
control over the assignment of the work. See Moving Pic-
ture Machine Operators Locals 27 & 48, 227 NLRB 142,
144 (1976). In this instance, it is the collective-bargaining

7 “One proscribed objective suffices.” Teamsters Local 50 (Schnabel
Foundation), 295 NLRB 68, 70 (1989).
agreement with Employer Perini, as Perini elected to per-
form all hoisting work itself, including the disputed work,
and has ultimate authority over whoever does the work.
Only Operating Engineers have a collective-bargaining
agreement with Perini.
In these circumstances, we find that the factor of collec-
tive-bargaining agreements favors awarding the disputed
work to employees represented by Operating Engineers.
2. Employer preference
At the hearing and in its brief, Employer Perini states
that its preference is to have the disputed work performed
by employees represented by Operating Engineers. There-
fore, we find that this factor favors awarding the disputed
work to the employees represented by Operating Engi-
neers.
3. Area and industry practice
Both Unions listed a number of sites within Connecticut
where represented employees performed the disputed
work. In many instances, it was unclear whether both Un-
ions were on the same construction site, who the general
contractor was, or what the elevators were carrying. Both
sides did show that employees they represent performed
the disputed work in Connecticut.
The evidence is not clear as to whether employees rep-
resented by one Union or the other more typically per-
formed the disputed work in similar circumstances. Thus,
we find that this factor does not favor awarding the dis-
puted work to employees represented by either Union.
4. Joint Board decisions
Operating Engineers presented joint Board decisions in
which employees represented by Elevator Constuctors
were awarded the assignment of cars used only for the
movement of personnel, while employees represented by
Operating Engineers were awarded in different instances
cars used for the movement of material or a combination
of personnel and material. The joint Board decisions were
not recent. None involved the same employers, and the
awards did not set forth the circumstances behind the
award and specified that each award was specific to that
particular case.
Based on these facts, we find that the joint Board awards
do not favor employees represented by either Union.
5. Relative skills
The record shows that employees represented by both
Unions possess the skills necessary to perform the work
and that neither is better able to perform the work.
The disputed work consists of pushing buttons, a skill
that employees represented by both Unions possess. We
find that this factor does not favor employees represented
by either Union.
ELEVATOR CONSTRUCTORS LOCAL 91 (OTIS ELEVATOR CO.) 97
6. Economy and efficiency of operation
Employer Perini argues that it is more efficient and eco-
nomical to use employees represented by Operating Engi-
neers. Perini notes that by using Operating Engineers-
represented employees, Perini can directly control the pro-
gress of the project by controlling which floors receive
personnel and materials, whereas by using Elevator Con-
structors-represented employees, Perini must delegate to
Employer Otis the responsibility of controlling the flow of
personnel and materials throughout the tower. This re-
duces Perini’s control of the project and provides a disin-
centive to performing the work itself.
Employer Otis and Elevator Constructors argue that it is
more efficient to use Elevator Constructors-represented
employees because only these employees have the skills to
repair the elevators. If an elevator breaks down, an eleva-
tor constructor operating the car can immediately make
repairs instead of having to wait for an elevator constructor
to be called to the site. There is no evidence that elevators
break down frequently. Moreover, employees represented
by Elevator Constructors are under contract to perform the
repairs and are on site. There would be little delay in wait-
ing for an elevator constructor to make the repairs.
Employer Perini and Operating Engineers argue that it is
more economical to use employees represented by Operat-
ing Engineers. Perini and Operating Engineers point to
Elevator Constructors’ wage rate being $18/hr. greater
than Operating Engineers’. However, the Board does not
consider wage rates as a basis for determining whether one
group of employees is more economical than another
group of employees.8
We find the factor of efficiency and economy does not
favor employees represented by either Union.
CONCLUSIONS
After considering all the relevant factors, we conclude
that employees represented by Operating Engineers are
entitled to perform the work in dispute. We reach this con-
clusion relying on the factors of employer preference and
collective-bargaining agreements. See Plumbers Local 81,
327 NLRB 9 (1998) (awarded work on basis of employer
preference and collective-bargaining agreement). There
are no countervailing factors supporting an award to em-
ployees represented by Elevator Constructors.
In making this determination, we award the work to
employees represented by the International Union of Op-
erating Engineers, Local 478, not to that Union or its

8 See Laborers Local 320, 318 NLRB 917, 918 (1995).
members. The determination is limited to the controversy
that gave rise to this proceeding.
Scope of Award
The work award is limited to the hotel tower at the Mo-
hegan Sun Resort in Uncasville, Connecticut. We reject
the arguments of Employers Perini and Otis favoring a
broader award encompassing wherever the work is per-
formed throughout the State of Connecticut. Only where
the evidence indicates that the disputed work will be a
continuing source of controversy in the relevant geo-
graphic area, and that similar disputes are likely to recur,
and the charged party has a proclivity to engage in unlaw-
ful conduct to obtain work similar to the disputed work,
will we make an award of work broader than one covering
the jobsite. See Standard Sign & Signal Co., 248 NLRB
1144, 1148 (1980).
Employer Perini intends to continue employing employ-
ees represented by Operating Engineers and to continue to
subcontract with elevator companies employing employ-
ees represented by Elevator Constructors. Otis intends to
continue employing employees represented by Elevator
Constructors, and both Unions desire to perform the same
work. However, there is no evidence that Elevator Con-
structors has a demonstrated proclivity to engage in unlaw-
ful conduct to obtain the disputed work.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
1. Employees of Perini Building Company, Inc., repre-
sented by the International Union of Operating Engineers,
Local 478, are entitled to operate the interior cars used for
transporting a combination of workmen and materials (af-
ter the cars are turned over but before final inspection and
certification for public use) at the hotel tower at the Mohe-
gan Sun Resort in Uncasville, Connecticut.
2. International Union of Elevator Constructors, Local
91, is not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force Perini Building Company,
Inc., to assign the disputed work to employees represented
by it.
3. Within 14 days from this date, International Union of
Elevator Constructors, Local 91, shall notify the Regional
Director for Region 34 in writing whether it will refrain
from forcing Employer Perini, by means proscribed by
Section 8(b)(4)(D), to assign the disputed work in a man-
ner inconsistent with this determination.