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Circuit Court Rejects Operating Engineers' Claim to Forklifts and Skid Steers

November 13, 2017

Operating Engineers Local 18 has lost another battle in its war to regain jurisdiction over operation of forklifts and skid steers, this time in circuit court.  The U.S. Court of Appeals for the Sixth Circuit (KY, MI, OH, TN) on October 31 upheld decisions by the National Labor Relations Board (“NLRB” or “Board”) that members of the Laborers were entitled to the work and ordering Local 18 to cease striking, threatening to strike, and maintaining grievances against the employers involved.

Local 18 has collective bargaining agreements with AGC chapters covering parts of Kentucky and Ohio.  Laborers Locals 310 and 894 have similar agreements with the chapters.  Each of the agreements have language supporting the respective unions’ claims to the disputed work.  For many years, the majority of the disputed work – particularly that assigned by the five contractors involved in the lawsuit – has been performed by the Laborers.  Starting in or around 2012, Local 18 began aggressive efforts to regain jurisdiction over the work – even as they admitted that they “gave away” the right to perform all the work “a long time ago.”  The efforts included strike threats, picketing, and a barrage of pay-in-lieu grievances.  The dispute advanced to the NLRB.  In multiple 10(k) hearings, the NLRB concluded that employer preference and past practice, area and industry practice, and economy and efficiency of operations favored the Laborers’ claim, and it ordered Local 18 to back down.  Local 18 refused to comply with the orders and continued to file pay-in-lieu grievances.  Local 18 also petitioned the court to review the NLRB’s orders, and the NLRB sought enforcement of its orders.

Section 8(b)(4)(D) of the National Labor Relations Act (“NLRA”) prohibits unions from using strikes and threats to force an employer to assign work to their members over members of another union.  It also prohibits a union from maintaining pay-in-lieu grievances after the Board has awarded the work to another union.  A union may, however, use these tactics in a “work preservation” situation, in which it merely seeks to preserve work that it previously performed.

Here, the court rejected Local 18’s argument that it was pursuing a lawful work preservation claim.  The court agreed with the Board that the union’s objective was not work preservation but work expansion, stating:

Granted, Local 18 members did similar work for [one of the five contractors in the lawsuit] on some occasions, and for different Employers companies (not involved here) on others. That gave Local 18 a claim to some forklift and skid-steer work under the agreements. Yet when Local 18 began striking, threatening strikes, and filing grievances, it was laying claim to more. A Local 18 representative said as much: the union wanted to “take back” what it “gave away,” and to replace Laborers members in the process. But the record shows that, even if Local 18 members have done this sort of work under the agreements, they have never done it to the exclusion of other unions—and certainly not for the five companies involved here. Thus, a reasonable mind could find that the evidence adequately supports the Board's conclusion that Local 18 was not trying to preserve work, but to acquire more.

The court also rejected Local 18’s argument that the work was “fairly claimable.”  The Board has held that contract clauses that restrict the subcontracting of, or otherwise reserve, work that is “fairly claimable” by the signatory union may be lawful.  This may even include work that unit employees used to perform but have subsequently lost.  The court here noted that the Board has applied the “fairly claimable” theory only in cases alleging violations of NLRA Sections 8(b)(4)(B) and 8(e), which cover secondary activity.  The Board has not applied the theory in cases like the present one which allege violations of Section 8(b)(4)(D) in a jurisdictional dispute between competing unions representing employees employed by the same employer.

For more information on jurisdictional dispute issues, visit AGC’s Labor & HR Topical Resources web page and select the main category “Unions/NLRA” and subcategory “Jurisdictional Disputes.”  AGC-member login is required to view the resources.

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