International Union of Elevator Constructors, Local 3 (Otis Elevator Company)

National Labor Relations Board - Board Decisions

Oct 21, 2016

364 NLRB No. 131 (N.L.R.B. 2016)

364 NLRB No. 131
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 Elevator Constructors, Local
3, AFL–CIO and Otis Elevator Company. Case
14–CD–156706
October 21, 2016
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act (the Act).
The Otis Elevator Company (Otis) filed a charge on July
24, 2015, alleging that the Respondent, International Un-
ion of Elevator Constructors, Local 3, AFL–CIO (Union)
violated Section 8(b)(4)(D) of the Act by engaging in
proscribed activity with an object of forcing Otis to as-
sign certain elevator cab interior refinishing work to em-
ployees it represents rather than to the unrepresented
employees of Renaissance Metals, Inc. d/b/a Mid Ameri-
ca Metals (Mid America). A hearing was held on August
18, 2015, before Hearing Officer Neale K. Sutcliff.
Thereafter, Otis and the Union filed posthearing briefs.
The Union also filed a motion to quash the Section 10(k)
notice of hearing and a motion to correct an error in the
hearing transcript.1
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
Otis, a corporation with its principal offices in Farm-
ington, Connecticut, and a facility at 8240 Brentwood
Industrial Drive, St. Louis, Missouri, is engaged in the
installation, maintenance and repair of elevators. The
parties stipulated that during the 12 months prior to the
hearing, a representative time period, Otis purchased and
received at its Missouri facilities goods valued in excess
of $50,000 directly from points outside the State of Mis-
souri.
Mid America, a corporation with its principal offices
in Ozark, Missouri, and a facility at 1906 Delmar Boule-
vard, St. Louis, Missouri, refinishes architectural metal,
stone, and wood on commercial and residential projects.
The parties stipulated that during the 12 months prior to
the hearing, a representative time period, Mid America
purchased and received at its Missouri facilities goods

1 All parties have consented to the Union’s motion to correct an error
in the hearing transcript, and we grant the motion.
valued in excess of $50,000 directly from points outside
the State of Missouri.
We find that Otis and Mid America are engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
In light of the parties’ stipulation and other undisputed
record evidence, we further find that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
II. THE DISPUTE
A. Background and Facts of Dispute
BSI Constructors (BSI) was the general contractor on a
project to remodel the Lennox Hotel in downtown St.
Louis. As part of the remodeling project, BSI subcon-
tracted with Otis to modernize four of the hotel’s eleva-
tors. This included updating the elevators’ mechanical
and electrical systems so that they complied with rele-
vant codes and refinishing the cabs’ interiors. The eleva-
tor renovation began in January 2015 and was scheduled
to be completed in August 2015.2
Otis has a longstanding collective-bargaining relation-
ship with the Union. At the time of the relevant events in
this case, Otis was bound by the collective-bargaining
agreement between the Union and the National Elevator
Bargaining Association. In performing the BSI subcon-
tract, Otis employed as many as four Union-represented
employees in the elevator mechanic and helper classifica-
tions.
Three of the four elevators Otis was contracted to
modernize were passenger elevators that required exten-
sive interior refinishing work. The fourth was a service
elevator that did not require interior refinishing. Otis’
Union-represented mechanics and helpers performed
mechanical and electrical work and were also responsible
for operating the elevators prior to code inspections.
Once the mechanical and electrical tasks were complete,
the elevators were inspected for code compliance. After
the elevators passed inspection, responsibility for their
operation was returned to BSI, but Otis employees often
continued to operate them. Two of the passenger eleva-
tors (elevators 3 and 4) passed inspection and were
turned over to BSI in April. A third passenger elevator
(elevator 2) passed inspection in August.
Otis’ subcontract with BSI required it to contract with
a “professional metals refinishing contractor” to renovate
the three passenger cabs’ interiors. Interior renovation
work included refinishing the interiors’ bronze front re-
turns, panels, entrance jambs and inside headers. Otis
chose Mid America, a nonunion company, as the refin-

2 All dates are 2015 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ishing subcontractor. Otis had contracted such work to
Mid America before. Mid America’s interior renovation
work did not start until the other modernization and ren-
ovation work was complete.
Mid America’s employees were to perform the bronze
refinishing work in the evening once the other project
workers had left for the day so that they could work
without interruption or risk of scratches or blemishes to
refinished cab interiors. To give Mid America’s em-
ployees access to the elevators, they were to be parked
and locked (i.e., disconnected from the electrical power
source) at the end of the day on the first floor with the
doors open. Refinishing the bronze in each cab was ex-
pected to require two employees working two evenings.
The work on elevators 3 and 4 was scheduled to start on
July 20.
On July 9, Otis’ modernization superintendent in-
structed one of the Union-represented mechanics to park
and lock elevators 3 and 4 at the end of day on July 20.
The mechanic replied that the Union would not allow
him to park and lock the elevators with their doors open.
Later that same day, the Union’s business manager tele-
phoned the modernization superintendent and asserted
that the Union had jurisdiction over interior refinishing
work. The business manager said that the issue could be
resolved if Otis paid a Union-represented employee to
“stand by,” i.e., watch but not work, while Mid America
employees performed the refinishing work. The business
manager also told the modernization superintendent that
the Union would continue to order the mechanic not to
park and lock the elevators with the doors open.
On July 20, Otis’ modernization superintendent di-
rected another mechanic to park and lock elevators 3 and
4 so that Mid America could work on them that evening.
This mechanic likewise said that the Union would not
allow him to park the elevators with the doors open.
Later that same day, the Union’s business manager again
telephoned the modernization superintendent to claim the
interior refinishing work and to inform Otis that the Un-
ion would persist in ordering mechanics not to park the
elevators with the doors open. During this call, the busi-
ness manager also asserted that leaving the elevator
doors open was a safety issue and that the mechanic
might be personally liable if anyone was hurt. The mod-
ernization superintendent disputed the safety claim. The
mechanic did not leave the elevators parked with the
doors open, but Mid America employees were unable to
do interior refinishing work that evening for other rea-
sons.
On July 21, Otis’ senior field operations manager tele-
phoned the Union’s business manager in an effort to re-
solve the interior refinishing issue. The business manag-
er said that the dispute was a jurisdictional issue, not a
safety matter. He again suggested that Otis pay Union-
represented employees to “stand by” while Mid America
employees worked. The business manager also said that
Union-represented mechanics would continue to refuse
to leave the elevators with the doors open even if Otis
directed them to do so because the interior refinishing
work was the Union’s work. In response, Otis filed a
Section 8(b)(4)(D) charge against the Union on July 24.
B. Work in Dispute
The disputed work involves the refinishing of bronze
front returns, panels, entrance jambs, and headers inside
three passenger elevator cabs at the Lennox Hotel in St.
Louis.
C. Contentions of the Parties
Otis avers that the Union violated Section 8(b)(4)(D)
of the Act by threatening to induce and inducing Otis
employees to engage in partial work stoppages—i.e.,
twice refusing to park and lock elevators 3 and 4 with the
doors open so that interior refinishing work could pro-
ceed—unless the disputed refinishing work was reas-
signed to Union-represented employees. On the merits
of the award, Otis argues that the disputed work was
properly assigned to Mid America’s unrepresented em-
ployees on the basis of area practice, relative skills, com-
pany preference and past practice, and economy and effi-
ciency of operations.
The Union moves to quash the notice of hearing, argu-
ing that there is no reasonable cause to believe that Sec-
tion 8(b)(4)(D) has been violated. It contends that the
July 2015 exchanges between its business manager and
member employees, on the one hand, and Otis managers
on the other about the disputed work concerned only
elevator 2, which had not yet been inspected and turned
over to BSI. The Union concedes that it claimed the dis-
puted work on elevator 2. It asserts, however, that its
business manager did not induce Otis employees to en-
gage in a partial work stoppage. Rather, the Union ar-
gues, Otis employees independently refused to park and
lock elevator 2 with the doors open because of their con-
cerns about the safety of doing so and the risk of being
held personally liable for any accidents. The Union pre-
sents no argument on the factors to consider for awarding
the disputed work.
D. Applicability of the Statute
The Board may proceed with a determination of a dis-
pute under Section 10(k) of the Act only if there is rea-
sonable cause to believe that Section 8(b)(4)(D) has been
violated. This requires finding 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-
INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS, LOCAL 3, AFL–CIO 3
force its claim to the work in dispute. See, e.g., Electri-
cal Workers Local 3 (Slattery Skanska, Inc.), 342 NLRB
173, 174 (2004). “‘This reasonable cause standard is
substantially lower than that required to establish that the
statute has in fact been violated. In addition, the Board’s
Section 10(k) procedure, unlike the unfair labor practice
procedure, does not call for assessments of the credibility
of witnesses.’” Plumbers Local 562 (Charles E. Jarrell
Contracting), 329 NLRB 529, 531 (1999) (quoting
Plumbers Local 562 (C & R Heating & Service Co.), 328
NLRB 1235, 1235 (1999)). Additionally, the Board will
not proceed under Section 10(k) if there is an agreed-
upon method for voluntary adjustment of the dispute that
binds all parties. See, e.g., Operating Engineers Local
150 (R&D Thiel), 345 NLRB 1137, 1139 (2005).
1. Competing claims to work in dispute
First, we find reasonable cause to believe that there
were competing claims to the disputed bronze refinishing
work. There is no dispute that unrepresented Mid Amer-
ica employees were prepared to perform the work that
had been subcontracted to Mid America. Further, as
noted above, the Union’s business manager claimed the
work in at least three discussions with Otis managers.
Additionally, the business manager twice proposed that
Otis pay one or more Union-represented employees to
stand by while Mid America employees performed the
work, and the Board has found that comparable pay-in-
lieu grievances are essentially claims for disputed work.
See, e.g., Operating Engineers, Local 18 (Nerone &
Sons, Inc.), 363 NLRB No. 19, slip op. at 3 (2015); La-
borers Local 265 (AMS Construction), 356 NLRB 306,
308 (2010).
2. Use of proscribed means
Second, we find reasonable cause to believe that the
Union used proscribed means to enforce its claims to the
disputed work. As stated above, Union-represented em-
ployees twice refused to park and lock elevators with
their doors open so that Mid America employees could
do refinishing work. On both occasions, the employees
said that the Union would not allow them to do so.
Shortly following those refusals, the Union’s business
manager telephoned Otis’ modernization superintendent
to claim the refinishing work, and the business manager
conveyed the same claim to Otis’ senior field operations
manager. During those calls, the business manager
threatened that the Union would continue to instruct em-
ployees it represents to refuse to park and lock the eleva-
tors with the doors open in order to prevent Mid America
employees from performing the disputed work. He also
stated that Union-represented employees would never
comply with Otis’ instructions to leave the elevators with
the doors open because the interior refinishing work was
the Union’s work. These comments by the business
manager are undisputed.
In finding reasonable cause to believe that the Union
used proscribed means to enforce its claims to the dis-
puted work, we reject the Union’s arguments that Otis’
parking and locking directions related only to elevator 2
and that employees decided of their own accord not to
follow Otis’ directions due to concerns about safety and
personal liability.3 As all concede, Mid America was not
scheduled to perform disputed work on elevator 2 during
the relevant time period (July 2015). The modernization
and renovation work on elevator 2 was not yet complete.
It would have been contrary to industry practice and to
the terms of Otis’ contract with BSI for Mid America to
have started its refinishing of elevator 2 before the other
work on that elevator was finished.
In contrast, there is no question that modernization and
renovation work on elevators 3 and 4 was complete in
July and that those elevators were ready for Mid Ameri-
ca’s employees to perform interior refinishing work.
Consequently, the evidence provides reasonable cause to
believe that Otis directed Union-represented employees
to park and lock elevators 3 and 4 in July, not elevator 2.
Further, there were no safety and personal liability con-
cerns relating to elevators 3 and 4 that might have given
Union-represented employees pause about leaving those
elevators parked and locked with the doors open. More-
over, the evidence suggests that individual employees did
not arrive at safety and personal liability concerns on
their own. Rather, the Union suggested those concerns
to them as reasons for refusing to do assigned tasks.
3. No voluntary method for adjustment of disputes
The Union and Otis stipulated that there is no volun-
tary adjustment procedure in place to resolve the jurisdic-
tional dispute.
Based on the foregoing, we find that there are compet-
ing claims for the work in dispute, reasonable cause to
believe that Section 8(b)(4)(D) has been violated, and no
agreed-upon method for the voluntary adjustment of the
dispute. Accordingly, we find that the dispute is proper-
ly before the Board for determination, and we deny the
Union’s motion to quash the notice of hearing.

3 The Union’s efforts to defeat a “reasonable cause” finding by rais-
ing purported evidentiary conflicts are without merit. “It is well settled
that a conflict in testimony does not prevent the Board from proceeding
under Sec. 10(k) because in this type of proceeding the Board is not
charged with finding that a violation did in fact occur, but only that
reasonable cause exists for finding a violation.” E.g., Elevator Con-
structors Local 5 (Stuart-Dean Co.), 310 NLRB 1189, 1191 fn. 4
(1993).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
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, 576-586 (1961).
The Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on common
sense and experience, reached by balancing the factors
involved in a particular case. Machinists Lodge 1743
(J.A. Jones Construction), 135 NLRB 1402, 1410–1411
(1962).
The following factors are relevant to our determination
of this dispute.
1. Board certifications and collective-bargaining
agreements
There are no relevant Board certifications.
Mid America’s employees are unrepresented and
therefore are not covered by a collective-bargaining
agreement. The tasks or functions that fall within the
Union’s work jurisdiction are specified in Article IV of
the collective-bargaining agreement between the Union
and the National Elevator Bargaining Association. That
provision does not expressly cover interior refinishing.
The Article IV language on which the Union relies states
that bargaining-unit employees are entitled to perform
“[t]he assembly of all cabs complete.” That wording
does not establish that the Union has jurisdiction over
interior refinishing work, which does not involve “as-
sembly.” Further, the Union does not dispute Otis’ as-
sertion that there are no court rulings or arbitration
awards supporting the Union’s claim to such work.
Thus, we find that this factor does not favor the assign-
ment of the disputed work to either Union-represented
employees or Mid America’s employees.
2. Employer preference, current assignment,
and past practice
Otis assigned the disputed work to Mid America’s un-
represented employees, and the evidence indicates that
Otis was satisfied with the work quality of those employ-
ees. Otis has used Mid America or one of its competitors
to do interior refinishing on all of its elevator moderniza-
tion and renovation projects in the St. Louis area and
throughout the country. The Union does not dispute that
fact.
The Union presented one witness who testified con-
cerning the performance of interior refinishing work by
Union-represented employees. This witness testified
about one instance of a Union-represented employee
performing interior refinishing. He did not say that it
was common for Union-represented employees to do
interior refinishing work, and there is no such evidence
in the record. Evidence of “isolated instances” does not
show a past practice of using Union-represented employ-
ees to perform interior refinishing work. See Laborers’
Local 310 (KMU Trucking & Excavating), 361 NLRB
No. 37, slip op. at 4 (2014). We find, therefore, that the
factors of employer preference, current assignment and
past practice favor assigning the disputed work to em-
ployees of Mid America.
3. Industry and area practice
The overwhelming weight of evidence establishes that
both in the St. Louis area and throughout the country,
Otis and other large elevator modernization and renova-
tion contractors exclusively use specialty contractors like
Mid America to do interior refinishing work. Otis man-
agers with decades of experience testified that they had
always used specialty contractors like Mid America to do
interior refinishing work. An experienced manager with
KONE, Inc., a competitor of Otis, testified that he has
exclusively used specialty firms for interior refinishing
work.
A Mid America executive testified concerning numer-
ous projects on which Mid America has performed inte-
rior refinishing work for Otis and other elevator renova-
tion contractors. Documentary evidence shows that Mid
America has performed specialty refinishing work in
Missouri, Georgia, Texas, North Carolina, South Caroli-
na and elsewhere. On the other hand, a Union witness
testified to one instance of a Union-represented employee
performing interior refinishing work. The record evi-
dence shows that the use of specialty firms by Otis and
other large elevator contractors to perform interior refin-
ishing work is an area and industry practice. Thus, the
factors of industry and area practice favor assigning the
work to employees of Mid America.
4. Relative skills and training
Unchallenged testimony established that Mid America
employees receive extensive training in every aspect of
interior refinishing work and in the safe use of hazardous
chemicals involved in that work. This training includes
opportunities to work on a mock-up elevator at a Mid
America facility. In contrast, the Union’s apprenticeship
program does not include any training in refinishing
work. In discussions with Otis, the Union’s business
manager conceded that Union-represented employees
might not have the training or skills to do the work. He
argued, however, that Otis should either provide the nec-
essary training or use Union-represented employees on
composite crews with employees who possess the requi-
site skills and training. The business manager also sug-
gested that the skills deficit be solved by paying Union-
INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS, LOCAL 3, AFL–CIO 5
represented employees to watch the work being per-
formed by Mid America employees.
Based on all of the relevant evidence, we find that the
factor of relative skills and training favors awarding the
work to employees of Mid America.
5. Economy and efficiency of operations
As discussed above, Union-represented employees do
not have training or experience in refinishing elevator
cab interiors. In order to perform the disputed work, they
would first have to be trained to do it, at a substantial
cost in time and money. In contrast, employees of Mid
America already possess the necessary skills and can
perform the disputed work without delay. The Union
suggests that Otis utilize composite crews of qualified
(Mid America) and unqualified (Union-represented) em-
ployees or that Otis pay Union-represented employees to
watch as the work is performed by employees of Mid
America, for whose work Otis must also pay. However,
both proposals would be less economical and efficient
than simply having employees of Mid America perform
the work. As a result, we find that the factor of economy
and efficiency of operations strongly favors awarding the
work to employees of Mid America.
6. Prior Board cases
In Elevator Constructors Local 5 (Stuart-Dean Co.),
310 NLRB 1189 (1993), the Board awarded elevator
interior refinishing work to the employees of a specialty
subcontractor, Stuart-Dean Co., Inc., rather than to the
principal elevator contractor’s employees represented by
another International Union of Elevator Constructors
local. Stuart-Dean is a competitor of Mid America and is
identified as such in the record in this case. The nation-
wide multiemployer collective-bargaining agreement
applicable in that case was a predecessor of the National
Elevator Bargaining Association contract here, and the
other relevant facts were strikingly similar to this case in
every respect. Consequently, the factor of prior Board
cases also favors awarding the disputed work to employ-
ees of Mid America.
CONCLUSION
After considering all of the relevant factors, we con-
clude that employees of Mid America are entitled to per-
form the work in dispute. We reach this conclusion rely-
ing on the factors of employer preference, current as-
signment, past practice, industry and area practice, rela-
tive skills and training, economy and efficiency of opera-
tions, and a prior Board decision.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
1. Employees of Renaissance Metals, Inc. d/b/a Mid
America Metals are entitled to perform the refinishing of
bronze front returns, panels, entrance jambs and headers
inside three passenger elevator cabs at the Lennox Hotel
in St. Louis.
2. International Union of Elevator Constructors, Local
3, is not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force Otis Elevator Company to
assign the disputed work to employees represented by it.
3. Within 14 days from this date, International Union
of Elevator Constructors, Local 3, shall notify the Re-
gional Director for Region 14 in writing whether it will
refrain from forcing Otis Elevator Company, by means
proscribed by Section 8(b)(4)(D), to assign the disputed
work in a manner inconsistent with this determination.
Dated, Washington, D.C. October 21, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD