Shank/Balfour Beatty v. INTERN. BROTH., LOCAL 99 , 497 F.3d 83 ( 2007 )

United States Court of Appeals
For the First Circuit
No. 06-2480
SHANK/BALFOUR BEATTY, a Joint Venture of
M. L. Shank, Co., Inc. and Balfour Beatty Construction, Inc.,
Plaintiff, Appellant,
v.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
LOCAL 99, a/k/a IBEW LOCAL 99,
Defendant, Appellee.
ERRATA SHEET
The opinion of this Court issued on August 6, 2007 is amended
as follows:
Delete the text of footnote 4 on page 15 in its entirety and
replace it with the following:
Shank/BB correctly argues that an affirmative claim for work
need not be explicit and that the actual performance of the work by
union-represented employees may be sufficient. Performance of the
work might in some instances be "evidence" of a claim on the work
that creates a jurisdictional dispute. See, e.g., Int'l
Longshoremen's & Warehousemen's Union, Local 62-B v. N.L.R.B.
(Alaska Timber), 781 F.2d 919, 924-26 (D.C. Cir. 1986); Int'l
Longshoremen's & Warehousemen's Union, Local 14 (Sierra Pacific),
314 N.L.R.B. 834, 936 (1994), aff'd 85 F.3d 646, 651-53 (D.C. Cir.
1996). It is not clear that these cases help the company, which
assigned the "electrical" work to other unions willing to do it.
The real dispute is still between Shank/BB and the electrical
union. And the NLRB precedent, which only plays the role of
background context for contract construction, involves NLRA
jurisdictional disputes, which by statute are resolved by a third
party, and not one of the disputing participants. See 29 U.S.C.
§ 158(b)(4)(D); id. § 160(k).
Page 11, line 16: insert apostrophe after "laborers"
Page 16, line 19: insert "operating" before "engineers'"