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Case number 17-1122 at L. International Union of Operating Engineers, Local 18 Petition

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Good morning, Your Honor.

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Thank you.

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May it please the Court, Timothy Ronald Fadal on behalf of the Petitioner Cross Respondent International Union of Operating Engineers.

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With leave of the Court, we respectfully request five minutes of rebuttal time.

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Collective bargaining is an attempt to erect

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a system of self-government, utilizing agreed-upon rules which seek to avoid leaving matters subject to a temporary resolution dependent solely upon the relative strength at any given time of the contending forces.

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It is therefore long been federal policy to promote the use of collective bargaining as a way to ensure industrial stability and peace.

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It has also long been federal policy to encourage the use of the grievance and arbitration procedure as a process to resolve any disputes arising under the collective bargaining process.

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The policy favoring collective bargaining and the policy favoring arbitration of disputes arising in a labor setting under a collective bargaining agreement is no less applicable in cases where the dispute between the parties is a jurisdictional dispute.

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Indeed, the legislative history of Section 10-K of the Act, which was created to address jurisdictional disputes, demonstrates that Congress, when it passed that Act, intended that it would spur the parties, the employers,

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the unions to take it upon themselves, amongst themselves, to create a system of governance that would potentially avoid the need for the court to invoke, or excuse me, for the board to invoke its authority under Section 10-K and resolve a jurisdictional dispute.

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The congressional intent

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to allow the parties to collectively bargain in a way to avoid jurisdictional disputes was wholeheartedly adopted by the parties in this case.

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For decades, Local 18 has engaged in a collective bargaining process with the employers at issue in this case through their representatives.

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to create a collective bargaining system that is designed to avoid any possibility or semblance of jurisdictional disputes, and it does that collective bargaining relationship does so in several significant ways.

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First and foremost, the collective bargaining agreements that were negotiated by these parties specifically identify the type of work

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That belongs to the operating engineers and the employer specifically in entering into that collective bargaining agreement specifically acknowledge what work is properly within the union's jurisdiction.

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That work for decades has include included forklift and skid steer work.

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In addition to specifying the work that should be assigned to the operating engineers under the collective bargaining agreement, the collective bargaining agreement itself also provides a mechanism in case there is any dispute or misassignment of that work.

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Specifically, the collective bargaining agreement envisions a scenario where the employer may elect to assign work specifically identified in that collective bargaining agreement to somebody other than an operating engineer.

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In those circumstances, a collective bargaining agreement limits Local 18 in not seeking an assignment of that work.

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Instead, Local 18 is limited to seeking only damages that are directly attributable to that misassignment of work.

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And for years, when there were disputes about the assignment of forklifts and skid steers, that dispute was resolved in that manner, through the filing of a grievance and, if necessary, the arbitration of that grievance.

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In this case, the underlying facts relied upon by the board to resolve this case, as found by the ALJ, acknowledge that, and acknowledge that over the relevant period of time that the ALJ examined, there were no fewer than 13 settled grievances.

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where the operating engineers, local 18, documented an instance where a piece of equipment was assigned specifically a forklift or a skid steer to somebody else and the employer agreed not to invoke 10K but to honor the mandates of the collective bargaining agreement and in fact pay the damages as called for by the collective bargaining agreement.

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This long-established practice that had peacefully resolved these jurisdictional disputes for decades was rendered asunder when the employers took it upon themselves to avoid their obligations by engaging in essentially collusion with a third party, an outside labor organization, intended to ensure that they could reassign this work away without having to pay the damages.

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And they would do so by invoking Section 8B-4 or Section 10K of the Act and subsequently 8B-4D of the Act.

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And when they did so, when they attempted, and in that vein, this dispute does not arise from a misassignment of work.

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This dispute, why we are here today, is not because there is an employer that elected to assign work out of a bargaining unit.

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The dispute is the employer's refusal to honor and obey or honor and adhere to

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the terms and conditions of the damages clause in the collective bargaining agreement, which specify damages.

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The assignment is not what the union is after, merely it's damages.

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And they, for decades, there was free and fair collective bargaining agreement between these parties that specifically calls for damages.

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And to the extent that the board has invoked its Section 10K authority and subsequent authority under 8B4D of the Act,

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to render Local 18's grievances seeking damages an improper violation of its assignment of work under the 10K, that does harm to the fundamental purpose of the National Labor Relations Act, which is to encourage collective bargaining and the use of the grievance and arbitration procedure.

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And that damage and that violence to the National Labor Relations Act's fundamental purpose is further exacerbated in this case when there is clearly a way to honor both.

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where the section 10 case mandates of resolving jurisdictional disputes can still be honored and the assignment that the board awarded can still be honored as can the deference that needs to be paid to the party's decision to collectively bargain for a liquidated damages clause.

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In this case, that would simply go by the employers continuing to assign the work as they see fit while simultaneously paying damages in those instances where grievance was brought and damages were asserted and deemed to be justified or necessary.

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So to the extent that this board's ruling has invaded and done harm to the fundamental purpose of the act, the inner, excuse me, the respondent would believe that it needs to be addressed by this court.

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This is work that Local 310 had always been doing, right?

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This is work that Local 18 had always been doing, Your Honor.

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The collective bargaining agreements that issue in this case state... What am I missing in the facts?

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They thought the laborers had been traditionally doing this work.

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The testimony offered by the intervening employers was that, in some situate, their claim was that the laborers had always been performing this work.

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The ALJ did not find that to be the case.

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Whether you examine whether the work had been performed under a fractured bargaining unit that the analysis that the board adopted or the broader bargaining analysis that the union asserts is a proper analysis, both will show that this work had, in fact, been performed by Local 18 in the past.

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As it relates to the specific employers utilizing the fractured bargaining unit analysis adopted by the ALJ and the board, no fewer than two of the employers in this case, Independence and R.G.

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Smith, have a history of assigning this type of work specifically to the operating engineers.

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And that was a fact that was found by the ALJ and a factual finding that was not disturbed by the board.

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In the context of the larger multi-employer bargaining unit, the ALJ found as a matter of fact that there were hundreds of instances over the relevant time period where Local 18 actually performed the work in dispute.

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Did the ALJ find that the laborers had done this a lot?

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The ALJ found that the laborers had in fact performed this work as well.

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Yes, Your Honor.

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There was not neither Local 18 nor the laborers had an exclusive assignment to this work.

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My understanding from the record, and again I have to look back on this, was that the essential holding was that the laborers, much more so than the operating engineers, had been doing this work, even though the operating engineers had done some.

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That essential holding was based upon factual findings utilizing an analysis where the board avoided looking to the multi-employer bargaining unit as a whole.

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You're saying that you agree that it's a factual finding, but you think it's clearly erroneous?

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I believe that the factual finding was only reached because the board was able to ignore the hiring and... Are you saying the finding was clearly erroneous?

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I'm saying the finding is not supported by substantial evidence in light of the board's other findings.

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But you agree there is this finding?

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I agree that the board did make the determination that the laborers had in fact performed this work for a limited number of employers, but the employers that the board made the determination that the laborers performed the work for were limited to the interveners in this case.

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So essentially the board made that determination by looking at the only people who were complaining about the labor or local 18 requesting this.

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The collective bargaining agreement that we're talking about between these parties that creates the work preservation defense

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and that identifies a multi-employer bargaining unit as the appropriate unit.

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There is no question that that unit involves and includes hundreds of different employers.

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The ALJ found as much.

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That being said, Your Honor, when the Board went to analyze whether or not this work was appropriate for work preservation defense,

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It looked only to the hiring practices, not to the multi-employer unit as a whole, but to the individual hiring practices of each individual employer.

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And in so doing, was able to effectively make the determination, well, Local 18 never did this work for this individual employer.

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It ignored what it was required to do by its own general counsel's memorandum.

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to address whether or not that work is fairly claimable in the multi-employer bargaining unit as a whole that was created under that collective bargaining agreement.

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And with that, I notice, oh, John?

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You're into your rebuttal time that you reserved, if you want to?

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Let me, I'd like to ask one other question.

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Howard is essentially arguing in this case that you're raising something that has been disposed of.

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These matters have already been litigated.

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I believe the honor is referring to the Sikh Turk's opinion.

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Your honor, the only time the boards, those disputes were addressed and raised in a Section 10K proceeding underneath.

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That Section 10K proceeding is not a full and true adjudication of the rights.

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It's an intermediary step.

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I think at least on one of them, there was a following ULP proceeding.

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There was an AOJ proceeding by Judge Karisini.

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And it was, and their argument is, they've been resolved.

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They have been resolved, but in resolving it, the board applied the wrong law.

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But wait, the question is whether you can relitigate.

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The union is not seeking to relitigate the assignment of work, Your Honor.

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It is only seeking to relitigate whether or not its continued pursuit of its grievances in light of that assignment is prohibited under Section 8B40 of the Act.

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So the assignment of a work will stand, unless the employers elect to reopen the hearings based upon changed circumstances, which they are permitted to do.

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Were you seeking to preserve only the work that this union had previously done?

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We will seek and preserve the work that the employers have agreed to assign to the operating engineers by voluntarily entering into these collective bargaining agreements that identify that work.

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So is that a no?

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We will seek to preserve and protect that work which we have performed.

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In those situations, within the multi-employer bargaining unit, if we have not performed that work for an individual employer, but have a practice of performing it within the multi-employer bargaining unit as a whole, we would still pursue our claims against the individual employer.

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That is a deal which they agreed to.

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And the board said under the Act, there was a dispute here.

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The employer was getting squeezed by Local 18 and Local 310.

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That's exactly when the board can come into the situation.

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Why would an employer – the employer was being squeezed, and so they want a resolution on it.

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The employer was being squeezed not by two competing demands for the assignment of the work, which is what 10K envisions.

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The employer is being – You weren't demanding a work?

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We were demanding – we were demanding damages for failure to assign that work.

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My understanding was you first said we want the work, and when they said it's

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The laborers, then you say, well, we're entitled to damages.

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You just came in and said, we'll take damages.

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That was all that happened to you?

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That is what the collective bargaining agreement specifically calls for.

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No, no, that's not my question.

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That is exactly what happened here.

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So my understanding of the record is wrong.

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The union never made a request for the work.

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Your Honor, the demand for damages is based on a right to the work under the collective.

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That's not my question.

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Please note that this is really important because then I'm completely confused about your theory.

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Your honor.

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My understanding is the union said this is our work.

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We want our work.

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It is our work under the collective bargaining agreement.

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And then when you think you get the wrong answer, then you're saying, well, you have to pay us now.

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The work has been collectively bargained to be assigned to the operating engineers.

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And we have pointed out to these employers by filing these grievances that seek damages that by failing to assign.

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I'm not answering my question.

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Didn't you demand the work?

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Yeah, by virtue.

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Yes.

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Yes, your honor.

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We requested the work, but when the employer, but when the employer made the work, you demanded the work.

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That's all I'm asking.

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Yes, then that makes it clear to me that the NLR.

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applies and that the board may have a role.

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Of course you demanded the work.

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But when another party demanded the work, the local 18 said, we will no longer demand it.

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We will instead request only damages.

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And in processing each of his grievances, it utilized what we refer to as Miranda cards, which are specific cards that were handed to the employer at the time the grievance was filed that specifically disclaimed any assignment of the work and instead pointed out that we were only seeking damages.

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for the Mississippi.

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So you're saying if at that point the employer said, okay, you can have it, you would have turned it away?

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No, at that point we would no longer have a basis to file agreements at that point, Your Honor.

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There would be no longer any violation of the collective bargaining agreement.

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Thank you.

[00:15:40] Speaker 05:
Good morning.

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I'm Heather Beard for the NLRB, and we seek enforcement of the board's order against Local 18.

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So to begin, I agree with my opposing council.

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Congress intended to make Section 10K proceedings the peaceful and binding final determination of work assignments between unions.

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Here we have two unions competing demands for the same work.

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And the losing union here, my opponent, here's where I disagree, they cannot continue to flout the board's section 10K determinations either by seeking the work which they are seeking

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or by pursuing and filing grievances to get pay in lieu of the work.

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Both of those have been held by the circuit courts, including I believe this court in Sealand, that even seeking damages in lieu of the work is the same essentially as requesting the work in that any sort of distinction

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is ephemeral because if an employer is to give damages to one union versus the other union, the statutory provision against threatening or coercing an employer to give work to another labor union is invoked.

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And so under well-settled case law under Section 10K and 8B42D, that I do not believe Local 18 has even challenged in their opening brief with regard to the distinction, ephemeral as it may be, between seeking work and seeking damages.

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That was not challenged as something that was legally untoward by the board.

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So insofar as that is concerned, this is a classic Section 10K determination that the board made.

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Now, we also agree

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that the policy, national labor policy, does favor collective bargaining and arbitration.

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However, Section 10-K is not in conflict with this.

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When you have two unions, as you did here, that have two separate collective bargaining agreements, two competing claims for work,

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The very reason that the section was introduced was to keep commerce flowing and to keep the employer in business and able to give the work to one of the unions.

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And in this instance, when there is a section 10K determination, there are three threshold determinations that the board made.

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The board made those four different times throughout the course of this dispute, starting the work site at Donley's,

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making demands for the work to the entirety of the multi-employer unit, the CEA.

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Then they made demands to the employer's KMU, 21st Century, and then to Narone.

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And in all of those instances, the board found the three threshold issues it needed to determine a 10K.

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There were two complete competing claims for work.

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There was a prescribed means of seeking it, which was a strike threat, and here we have

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two strike threats that were made by the laborers when the employers told them, look, if we assign the work to the other union, you all are not going to get the work.

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And there was a strike threat that was made.

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And the board found in not only all four 10K determinations, but in the earlier ULP determination

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that was sparked after the first two 10Ks in Donley's Four, which was enforced by the Sixth Circuit, that there was no evidence presented by the local 18 of any collusion to create a sham jurisdictional dispute.

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All of that was rejected by the board four times and a fifth time in an unfair labor practice hearing.

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And so then we moved to the third threshold finding in a 10K determination, which is

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no voluntary method for the settlement of the dispute.

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And this is what I think is really important.

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My opponent's presentation was we could move on and we can just give the work to one union and pay damages to the other.

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The problem with that is that there is no voluntary method between all three parties to resolve this dispute.

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And so once the board makes that finding, those threshold findings, it goes on and gives

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the laborers or whichever union is before it, the opportunity to fight it out in front of the board as to who should get the work.

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And then there's five different merits findings that the board makes as to which union should be assigned the work.

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And then that is supposed to be it so that we can continue and the employers can continue to get their work done.

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This case is an example.

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A lot of complicated

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potential, lots of facts, but all of them are in the simple classic board 10K 8B42D rubric.

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The issue here that my opponent has raised throughout the briefs is that they have an affirmative defense, which is their burden to prove that they were merely seeking to preserve their own work.

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But as my opponent admitted to this court, the board made findings that with regard to all of the employers who were charging parties, not just regarding Donley's Four with those employers, but here,

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The charging employers here that the laborers did, as Judge Edward points out, do the majority of that work other than in rare and isolated instances.

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And those instances were for independents and R.G.

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Smith.

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And there was testimony in, exhaustively, the Donley's 410K, rather, 8B42D proceeding about those, the work done for these charging party employers.

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And there was, in the following, 210K.

[00:21:09] Speaker 02:
They did do work for these employers.

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before this kind of work.

[00:21:16] Speaker 05:
Yes, there were isolated instances where local 18 folks were in the seats of the skid steers.

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Yes, in the forklift.

[00:21:23] Speaker 02:
But what the board found was that... Aren't they then seeking to preserve their ability to do that kind of work?

[00:21:31] Speaker 05:
Under the board's test for work preservation, no, Your Honor.

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Under the board's test for work preservation, the employer, rather, the union needs to demonstrate who's making that claim that they

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are not trying to acquire new work.

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And one of the most important factors is whether they've done it exclusively.

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And here, because the union has not done it exclusively, indeed most of the time for the last 30 years, as Local 18 itself admitted, this work has been done by the laborers.

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And so if there are isolated instances, which the board found in the Shepard case not to be sufficient, that does not preclude a finding that the work is not being preserved because they're trying to grab

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all of the work at these particular projects.

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So the union's argument is not even in its reply brief, if I'm correct, that there's so much work that was done here for these charging party employers that the union is preserving it.

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Their argument is, let's do a test, the fairly claimable test throughout the entirety of the multi-employer unit.

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and find that dotted throughout there's some instances of Local 18 doing the work.

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The problem with that, that would completely eviscerate Section 10-K under the Act because the first threshold finding is whether there are two competing claims.

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So yes, there are going to be two competing claims here, but when the board goes through the threshold procedures and determines that what's happening is Local 18 is trying to take work,

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that it hasn't done for 30 years, it meets the board's classic.

[00:23:02] Speaker 02:
What if a union's just trying to preserve its share of the work that it previously had?

[00:23:06] Speaker 05:
If a union is trying, which would be a different case, that would definitely be a different story because what would be looked to is whether or not they're trying to get more than was just the work that they had performed.

[00:23:18] Speaker 01:
So yes, if that was the case, that would be different, but here... You're saying the threat for damages

[00:23:24] Speaker 01:
under the contract subsumed all of the work, not just the isolated instances that they had done.

[00:23:31] Speaker 05:
No, again, what I'm saying more precisely, Your Honor, thank you for the opportunity to clarify, is that the work that they were seeking under their grievances was work at the individual project sites of the employers that they had not been performing, just at those sites.

[00:23:46] Speaker 05:
That's what I was saying, Your Honor.

[00:23:49] Speaker 01:
That they had not been performing.

[00:23:50] Speaker 01:
Correct.

[00:23:50] Speaker 05:
Correct, not that they had not been performing.

[00:23:53] Speaker 01:
My question was, were they seeking grievance damages for work?

[00:24:02] Speaker 01:
Yes.

[00:24:03] Speaker 01:
Yes.

[00:24:05] Speaker 01:
Yes, Your Honor.

[00:24:06] Speaker 01:
Yes, Your Honor.

[00:24:06] Speaker 05:
And so for those reasons and for all of the reasons in our brief, we would ask that this controversy with regard to who gets the work at these particular job sites be resolved and that the board's order be enforced.

[00:24:23] Speaker 01:
What's the thrust of your relitigation point?

[00:24:27] Speaker 05:
The thrust of our re-litigation point is that with regard to collusion first, they cannot re-litigate the issue of collusion.

[00:24:37] Speaker 05:
The board has held in the case standard drywall that collusion being a threshold issue in a 10K determination is not properly re-litigated in AP42D.

[00:24:46] Speaker 05:
Nonetheless, the board also went ahead and said, even if we're wrong on the relitigation point, the evidence that's been put in throughout all of these cases and proffered, actually, is not sufficient in any event to demonstrate that there was any prejudice to them by not including it because it wouldn't meet the standard for collusion.

[00:25:07] Speaker 05:
Relitigation regarding the work preservation issue is a similar argument we're making, which is the board determines

[00:25:13] Speaker 05:
that a threshold issue in the 10K for which work preservation would be kind of an affirmative defense is done once the 10K has been completed.

[00:25:23] Speaker 05:
Now, in this instance, however, we have the unique situation where the board in Donnelly's Four did actually let them re-litigate work preservation once and bring in evidence.

[00:25:33] Speaker 05:
And so our position with regard to re-litigation in the... What, preceding the Donnelly's Four?

[00:25:38] Speaker 05:
There were two 10 K's before Donley's four and then Donley's four which was the ULP proceeding the board did allow in a lot of evidence on the multi-employer bargaining units and who was doing the work and then Determined that the correct test is one that looks to the charging party employers and not to the multi-employer unit and so our position is they shouldn't now after having a

[00:26:01] Speaker 05:
two 10Ks, a ULP determination, then two more 10Ks, relitigate the work preservation.

[00:26:08] Speaker 01:
Wait, are you saying the Sixth Circuit, affirming the board, takes care of all this?

[00:26:15] Speaker 01:
Is that what you're saying?

[00:26:16] Speaker 05:
The Sixth Circuit is definitely precedent that the work preservation defense

[00:26:22] Speaker 05:
is a defense they must prove as to not wanting to acquire work in the charging party employer units at issue.

[00:26:31] Speaker 05:
So Donley's Four, which was addressed by the Sixth Circuit, found it was appropriate for the board to take a look at work preservation only in terms of the charging party employer.

[00:26:40] Speaker 05:
So yes, that was determined in the Sixth Circuit upholding Donley's Four.

[00:26:44] Speaker 02:
Thank you very much.

[00:26:45] Speaker 02:
We'll hear from the intervener.

[00:27:03] Speaker 00:
Good morning, your honors.

[00:27:06] Speaker 02:
Good morning.

[00:27:07] Speaker 00:
May it please the court.

[00:27:08] Speaker 00:
My name is Meredith Shoop.

[00:27:09] Speaker 00:
I'm here on behalf of the charging party intervening employers in this case.

[00:27:17] Speaker 00:
I think it's worth explaining up front that in the construction industry, employers join multi-employer bargaining units.

[00:27:27] Speaker 00:
And those multi-employer associations negotiate contracts with various trade unions.

[00:27:34] Speaker 00:
In this case, in relevant part, the Construction Employers Association, for example, negotiated contracts with Laborers Local 310 and Operating Engineers Local 18.

[00:27:47] Speaker 00:
Operating Engineers Local 18's jurisdiction spreads throughout the state of Ohio and beyond.

[00:27:54] Speaker 00:
I believe it's either every county or almost every county in the state of Ohio.

[00:27:59] Speaker 00:
Laborers Local 310's jurisdiction is just a very small subset of the state of Ohio that's right around Cleveland, Ohio, around Cuyahoga County.

[00:28:09] Speaker 00:
The reason I mention this is because we have two collective bargaining agreements with inconsistent obligations on behalf of the employers, right?

[00:28:19] Speaker 00:
So that's exactly what Section 10K was designed to resolve.

[00:28:23] Speaker 00:
For employers who found themselves caught in the middle of work jurisdiction disputes between two unions.

[00:28:28] Speaker 00:
That's why Section 10K was introduced into the law.

[00:28:32] Speaker 00:
Under these circumstances, employers can, and in this case did, petition the board for a resolution.

[00:28:39] Speaker 00:
In order to resolve that issue, the board first looks to whether there's an actual dispute over the work, and if so, it reviews a number of factors, including the employer's past practice, efficiency, safety, the area practice, the industry practice, and the employer's preference.

[00:28:57] Speaker 00:
On balance, it then makes a determination as to which union should perform the work.

[00:29:01] Speaker 00:
This is basic Section 10K determination.

[00:29:04] Speaker 00:
However, at the Section 10K hearing, if an employer were to have manufactured a work jurisdiction dispute by, for example, unilaterally reassigning work that had been historically performed by one trade to assigning it to another trade, then the union whose members had historically done that work has an affirmative defense that renders a Section 10K determination inappropriate.

[00:29:29] Speaker 00:
This is the true work preservation defense.

[00:29:32] Speaker 00:
It can be seen, just for example, in the case like Machinist District 190, which is a 2005 NLRB case.

[00:29:40] Speaker 00:
That's the work preservation defense.

[00:29:43] Speaker 00:
Here, the operating engineers propose to turn the work preservation defense into a mechanism to undermine the entire purpose of Section 10K.

[00:29:53] Speaker 00:
as applied to employers who are members of these multi-employer bargaining associations.

[00:29:58] Speaker 00:
In particular, the operating engineers seek to assert work preservation where the work would otherwise be fairly claimable under Section 8B42B of the National Labor Relations Act.

[00:30:11] Speaker 00:
That is the hot cargo provision.

[00:30:14] Speaker 00:
I would just like to emphasize that cases under Section 8B42B say that a union can assert financial pressure to prevent employers with whom it has contracts from subcontracting work, for example, to non-union employers.

[00:30:28] Speaker 00:
That's a different circumstance.

[00:30:32] Speaker 00:
Specifically, unions can do that if the work in question is fairly claimable, meaning that it's the work that their members do.

[00:30:40] Speaker 00:
In hot cargo cases,

[00:30:42] Speaker 00:
The unit is applying pressure to encourage the employer to follow a contractual clause.

[00:30:50] Speaker 00:
It is not about not contracting work out to, for example, non-union employers.

[00:30:54] Speaker 00:
Here, under section 10K and section 8B4D, that standard makes no sense.

[00:31:02] Speaker 00:
If an employer has historically assigned work based on a composite crew, who has ever had consistencies in work assignment, or as in this case, is just a member of a multi-employer bargaining association, where that work is sometimes assigned to

[00:31:17] Speaker 00:
the competing union, then both of the unions could assert that the work was fairly claimable.

[00:31:24] Speaker 00:
Right?

[00:31:24] Speaker 00:
So under that analysis, Section 10-K would be rendered useless.

[00:31:28] Speaker 00:
It could not resolve work jurisdiction disputes that it was designated to address.

[00:31:32] Speaker 00:
And that is why the whole fairly claimable standard simply cannot apply.

[00:31:38] Speaker 00:
It puts employers back in the situation they were in before they ever filed a charge.

[00:31:43] Speaker 02:
Thank you very much.

[00:31:44] Speaker 00:
Thank you.

[00:31:48] Speaker 02:
You may have two minutes for a bottle.

[00:31:50] Speaker 03:
Thank you, Your Honor, and I will be brief.

[00:31:57] Speaker 03:
From local 18's perspective, the instances of its members performing this work for the employers that were part of the multi-employer bargaining unit or just part of the respondents to the board's case were not isolated instances.

[00:32:09] Speaker 03:
There were 391 jobs over the course of the years that were lost.

[00:32:14] Speaker 03:
As it relates to the specific employers at this issue, the testimony is addressing Local 18's principal brief about two longtime employees of Independence who, as a result of this dispute, lost their jobs.

[00:32:26] Speaker 03:
We're told those who talk don't work.

[00:32:28] Speaker 03:
When they complained about no longer being assigned the forklift and skid steer work, we're actually fired.

[00:32:34] Speaker 03:
So it's not isolated instances of us performing this work.

[00:32:38] Speaker 03:
It is a long and proud history and tradition of performing this work.

[00:32:41] Speaker 03:
I would also want to address the idea that exclusivity of performance of the work is a prerequisite to Local 18 asserting its work preservation claim.

[00:32:53] Speaker 03:
Exclusivity is not a prerequisite.

[00:32:56] Speaker 03:
The cases that the board and that the intervener rely upon to make that claim is prate installation versus carpenters, which was cited by the ALJ, by the board.

[00:33:06] Speaker 03:
by the interveners and by the Sixth Circuit.

[00:33:09] Speaker 03:
That case is completely in opposite.

[00:33:13] Speaker 03:
It involved two unions who had long agreed to form composite crews where both unions agreed that they would intermingle their work and would each perform the work of the others.

[00:33:24] Speaker 03:
And there was no dispute for years.

[00:33:25] Speaker 03:
What ended up happening is one of those unions decided they were going to claim all the work one day.

[00:33:30] Speaker 03:
And that led to the jurisdictional dispute.

[00:33:33] Speaker 03:
That's not the case here.

[00:33:34] Speaker 03:
It's clear Local 18 has never agreed with the laborers to split this work, nor is Local 18 claiming exclusive jurisdiction over all the work, only those isolated instances where breaches were observed and subject to grievance and arbitration procedure.

[00:33:48] Speaker 03:
Thank you, Your Honor.

[00:33:49] Speaker 02:
Thank you to all the counsel.

[00:33:50] Speaker 02:
The case is submitted.