International Union of Operating Engineers, Local 18 v. National Labor Relations Board
712 F. App'x 511
| 6th Cir. | 2017Background
- Local 18 (Operating Engineers) and Laborers Locals 894/310 each had contract claims to operate forklifts and skid steers at construction sites in Ohio/N. Kentucky.
- Several contractors (Donley’s, Cleveland Cement, B & B, Hunt, Precision) had for years assigned most of that work to Laborers, not Local 18.
- Local 18 demanded the work, picketed, struck at a Donley’s site, threatened further strikes, and filed “pay-in-lieu” grievances against contractors that used Laborers.
- Employers and Laborers threatened strikes in response; employers filed unfair-practice charges with the NLRB; section 10(k) proceedings awarded the disputed work to Laborers based on historical practice.
- The NLRB found Local 18 violated § 8(b)(4)(D) by using strikes, threats, and grievances to acquire (not merely preserve) work and ordered it to cease; Local 18 petitioned for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Local 18 engaged in unlawful 8(b)(4)(D) conduct by striking, threatening, and maintaining grievances to obtain work | Local 18: actions sought only to preserve work historically performed by its members | NLRB: evidence shows Local 18 sought to expand its share and acquire work long assigned to Laborers | Court: substantial evidence supports NLRB that Local 18 sought to acquire, not preserve, work; violation upheld |
| Whether Board erred by not first defining bargaining units or considering work across all signatory companies | Local 18: Board should have aggregated work across all companies; that would show Local 18’s larger historical share | NLRB: Board did consider broader scope but found the disputed work lay outside Local 18’s historical scope | Court: aggregation does not change that the new work was beyond Local 18’s prior scope; argument fails |
| Whether Local 18 had a “fairly claimable” right to the work under Board precedent | Local 18: even without exclusive past performance, the work was fairly claimable | NLRB: fairly-claimable theory hasn’t been applied to § 8(b)(4)(D) in this context; Laborers had the stronger claim | Court: fairly-claimable theory not persuasive here; historical practice favored Laborers |
| Whether alleged collusion between employers and Laborers precluded 10(k) proceedings or violated Local 18’s due process | Local 18: employers and Laborers colluded to manufacture a 10(k) contest, so hearings were improper | NLRB: Board had independent reason to hold 10(k) proceedings (competing claims and unfair-practice allegations by Local 18) | Court: Board’s initiation was proper; Local 18 itself provided reason for 10(k) hearings; due-process claim fails |
Key Cases Cited
- Kellogg Co. v. NLRB, 840 F.3d 322 (6th Cir. 2016) (standard for substantial-evidence review of NLRB findings)
- Orrand v. Hunt Constr. Grp., Inc., 852 F.3d 592 (6th Cir. 2017) (factual recognition of employers’ longstanding practice of assigning work to Laborers)
- Chicago & Ne. Ill. Dist. Council of Carpenters v. NLRB, 341 N.L.R.B. 543 (2004) (Board examines historical scope of work when unions compete for share)
- Highway Truckdrivers & Helpers, Local 107 v. NLRB, 134 N.L.R.B. 1320 (1961) (exclusive past performance can justify preserving work)
- Brotherhood of Teamsters & Auto Truck Drivers Local No. 85 v. NLRB, 224 N.L.R.B. 801 (1976) (statutory scope of § 8(b)(4)(D) not limited to single-employer situations)