Recon Refractory & Construction Inc. v. National Labor Relations Board

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RECON REFRACTORY & 
CONSTRUCTION INC.,
Petitioner,
INDUSTRIAL PROFESSIONAL &
TECHNICAL WORKERS INTERNATIONAL
UNION, SUINA, AFL-CIO,
Petitioner-Intervenor, No. 03-73064
v. NLRB Nos.
NATIONAL LABOR RELATIONS  21-CD-635
BOARD, 21-CD-637
Respondent, OPINION
INTERNATIONAL UNION, International
Union of Bricklayers and Allied
Craftworkers, and the International
Union of Bricklayers and Allied
Craftsworkers, Local 4,
Respondent-Intervenor.

On Petition for Review of an Order of the
National Labor Relations Board
Argued and Submitted
March 7, 2005—Pasadena, California
Filed September 13, 2005
Before: Cynthia Holcomb Hall, Kim McLane Wardlaw, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Paez
13117
13120 RECON REFRACTORY & CONSTRUCTION v. NLRB
COUNSEL
Steven D. Atkinson, Thomas A. Lenz, and Scott K. Dauscher,
Cerritos, California, for the petitioner.
Howard Z. Rosen, Los Angeles, California, for petitioner-
intervenor Industrial, Professional and Technical Workers
International Union.
RECON REFRACTORY & CONSTRUCTION v. NLRB 13121
Margery E. Lieber, Eric G. Moskowitz, and Corrine E. Your-
man, Washington, DC, for the respondent.
Daniel T. Purtell and Jeffrey B. Demain, San Francisco, Cali-
fornia, for respondent-intervenor International Union of
Bricklayers and Allied Craftworkers, Local 4.
OPINION
PAEZ, Circuit Judge:
We are called upon to resolve a dispute between Recon
Refractory & Construction Inc. (“Recon”) and the Interna-
tional Union of Bricklayers & Allied Craftworkers, Local 4
(“Bricklayers” or “Local 4”). To decrease its labor costs,
Recon reassigned work previously performed by Bricklayers
members, and protected by the Bricklayers’ collective bar-
gaining agreement (“CBA”), to employees represented by the
Industrial, Professional and Technical Workers International
Union (“IPTW”). The dispute at issue is fundamentally a
work-preservation dispute between Recon and the Bricklay-
ers, not an inter-union jurisdictional dispute between the
Bricklayers and the IPTW. Because Recon itself precipitated
the dispute in an attempt to avoid its obligations to the Brick-
layers, we deny Recon’s petition for review of the National
Labor Relations Board’s (“Board”) decision quashing notice
of hearing under section 10(k) of the National Labor Rela-
tions Act (“NLRA”), 29 U.S.C. § 160(k). Indus., Prof’l &
Technical Workers Int’l Union (Recon Refractory), 339
N.L.R.B. 825 (2003).
I.1
1
We derive this statement of facts from the Board’s decision and order
and from testimony taken at the hearing.
13122 RECON REFRACTORY & CONSTRUCTION v. NLRB
Dan Bellamy founded Recon, a refractory installation com-
pany,2 in 1990. Shortly thereafter, the company signed on to
the National Refractory Agreement (“NRA”), the Bricklayers’
CBA, with the International Union of Bricklayers & Allied
Craftworkers (“International”). Recon used Local 4 members
to perform all refractory work for the next decade. Specifi-
cally, pursuant to the explicit terms of the NRA, Local 4
Bricklayers installed not just refractory brick, but “all refrac-
tory materials” including ceramic fiber (also known as Kao
Wool), plastics, and spray insulation (or gunite). The NRA
also included a clause preserving the Bricklayers’ right to per-
form “all work which has been historically or traditionally
assigned” to Bricklayers.3
In early 1995, the Bricklayers eliminated its class of
2
Refractories are heat-resistant materials that are used to line high-
temperature furnaces, reactors, and other processing units. Recon Refrac-
tory, 339 N.L.R.B. at 825 n.1.
3
The full text of the NRA’s work scope provision, which has remained
unchanged through each revision and update, provides:
The Employer agrees to assign to employees represented by [the
Bricklayers] all work which has been historically or traditionally
assigned to members of the International Union of Bricklayers
and Allied Craftsmen, including but not limited to: dipping, set-
ting, buttering, bedding, hanging, pointing, grouting, caulking,
cutting, toothing, fitting, plumbing, aligning, laying, flagging,
leveling, installation of gaskets and expansion joint material,
grinding, vibrating, tamping, guniting, insulating, and spraying of
all refractory materials, anchoring of all refractory materials by
all means including bolting and welding, ceramic welding,
removal and cleaning of masonry materials to be reinstalled, final
sandblasting of surfaces to receive additional refractory materials,
installation of chemical coatings, fire-proofing, and membrane
materials by any method required, surface spraying of all refrac-
tory materials, and leaning of coke oven walls, chambers and
flues. Temporary bracing in coke oven repairs shall be done by
employees represented by [the Bricklayers], in coordination with
other trades.
NRA Article II § C (1999).
RECON REFRACTORY & CONSTRUCTION v. NLRB 13123
unskilled members, or “bricklayers’ helpers.” Recon, how-
ever, needed a union to represent those unskilled employees
for a job at US Borax Company, which required that its con-
tractors use union labor. Rather than using more expensive
journeyman Bricklayers to do the unskilled work, Recon
sought another union. On November 1, 1996, Recon entered
into a site-specific “project deal” with the IPTW to provide
unskilled laborers who would work with Bricklayers on the
US Borax job. The IPTW-represented laborers performed
only unskilled support tasks, and did not install brick or non-
brick refractory materials. Furthermore, Recon’s contract with
the IPTW did not include a thorough work assignment or
preservation clause. To the contrary, the IPTW contract sim-
ply stated: “Work assignments shall be entirely at the discre-
tion of the Company without regard to seniority or
classification.” For the first several years of this arrangement,
Recon assigned IPTW laborers support tasks, such as demoli-
tion, cleanup, and supply of refractory materials to Bricklay-
ers for installation.
Recon’s agreement with the IPTW was, as the Bricklayers
describe it, “unusual.” Bellamy testified that the company
itself “pursued” the union to represent its unskilled laborers.
Executives at Recon “made several phone calls, talked to
some other contractors that were covered by collective bar-
gaining agreements and eventually ended up with the IPTW.”
The IPTW-represented laborers were required to join the
union and required to sign withdrawal cards to “deactivate”
themselves from membership at the end of each job. Recon
essentially paid those employees’ union dues, increasing their
pay to offset the added cost. Through these maneuvers, Recon
ensured that its laborers were not represented by any union on
any job other than US Borax.
Prompted by its customer Arco Refinery’s demand for
wage caps, Recon began negotiating with the Bricklayers in
1999 to decrease wage rates. On March 30, 1999, Bellamy
requested that the Bricklayers International freeze the $0.75
13124 RECON REFRACTORY & CONSTRUCTION v. NLRB
per hour annual wage increase. The Bricklayers would not
agree to concessions and would not do the work at the rates
Recon proposed. In August, Recon again sought concessions,
this time in the form of a 20% wage reduction, which the
Bricklayers similarly refused. On August 16, Bellamy notified
the Bricklayers of his intent to terminate the CBA effective
November 14, 1999, or “as soon as permitted by law or con-
tract.” After negotiations reached an impasse on October 14,
Bellamy reaffirmed his intent to terminate the CBA the fol-
lowing month. The NRA expired on November 14, 1999. On
December 7, Frank Collins, president of Bricklayers Local 4,
notified the union membership that Recon had refused to sign
the current NRA and therefore left “no choice but to regard
Recon as a non-signatory contractor.”
While these negotiations were in process and before the
NRA expired, Bellamy mentioned to David Bohannan, who
worked with him at Recon, that he wanted to “giv[e] some-
body else some of the Bricklayers work,” and specifically
mentioned the work in dispute.4 “[Bellamy] figured if [the
Bricklayers] are not going to give him a freeze he would just
go ahead and get somebody else to do the work.” Bohannan
testified that Bellamy “personally told me he was going to
stick it to the International and the Bricklayers especially
Frank Collins. . . . [b]ecause they will not go his way, they
will not help Recon out by taking a freeze on the wages.”
Mauro Romagnoli, a Bricklayers officer, testified that Bel-
lamy told him that another union was claiming the Bricklay-
ers work. When Romagnoli told Bellamy that would probably
force a jurisdictional dispute, “he told me that is where he
wanted it to go.” “He assured me that this was just the tool
to try and force Frank [Collins] and the International to do
something in order to meet his demands of a lesser wage or
special agreement, whatever he wanted at the time. And he
assured me he could break it off at any time[—the] use of
4
Bohannan testified that Bellamy “mentioned Kao Wool, castables,
welding and ramming,” and used the term “Bricklayers’ work.”
RECON REFRACTORY & CONSTRUCTION v. NLRB 13125
these other people to do the Bricklayers work.” After the
NRA expired in November, Recon expanded the scope of its
agreement with the IPTW to include nine job sites in addition
to the US Borax site, including Arco Refinery.5
On December 20, 1999, Recon signed a new contract with
the Bricklayers, effective retroactively to November 14, 1999,
which included the same scope of work provision as the 1990
agreement. In January 2000, however, the Bricklayers discov-
ered that Recon was performing nonbrick refractory installa-
tion work—the work in dispute—at the Arco job site with
non-Bricklayer employees,6 without informing Local 4 as the
NRA required. This was the first time since Recon’s founding
that employees other than Bricklayers had performed this type
of refractory work. Recon Refractory, 339 N.L.R.B. at 828.
The Bricklayers filed a grievance on January 28, 2000, alleg-
ing that the assignment of work to non-Bricklayers employees
violated their contract with Recon.
Recon took the position that the scope of the Bricklayers’
work included only refractory brick installation, and not
installation of other refractory materials such as ceramic fiber.
On February 1, Recon informed the IPTW of the Bricklayers’
grievance and solicited the IPTW’s response. The next day,
the IPTW formally claimed jurisdiction over the disputed
work and threatened “immediate economic action against
Recon” should the Bricklayers perform the work. At a meet-
ing on February 4, 2000, Recon informed the Bricklayers that
it was assigning all nonbrick refractory installation work at its
Arco Refinery job to the IPTW, and only brick work to the
Bricklayers. At this meeting, the Bricklayers learned that
5
The expanded list of IPTW-covered job sites included the Arco, Ultra-
mar, Tosco, Chevron, Equilon, Mobil, Paramount Petroleum, and Chimco
refineries, located mostly in Los Angeles.
6
The Bricklayers believed at the time that these employees were non-
union, and discovered only later that they were in fact represented by the
IPTW.
13126 RECON REFRACTORY & CONSTRUCTION v. NLRB
Recon was signatory with the IPTW at jobs beyond the US
Borax site, and that the employees performing the work in
dispute were represented by the IPTW. The Bricklayers’ rep-
resentatives at that meeting disputed Recon’s interpretation of
the NRA’s work assignment clause, and asserted their right to
the work in dispute.
The Bricklayers filed a complaint in the district court
against Recon on June 21, 2000, for breach of the CBA under
29 U.S.C. § 185(a).7 When Recon informed the IPTW on July
31, 2000, of the Bricklayers’ federal lawsuit, the IPTW again
threatened to “take economic action, including picketing” to
preserve its claim to the work should Recon reassign the work
to the Bricklayers. The IPTW claimed that Kao Wool installa-
tion was the historic work of its union and continued to assert
jurisdiction over the disputed work. The IPTW position ech-
oed Recon’s: “Bricklaying belongs to the Bricklayers” and all
other types of refractory installation materials could be
assigned to laborers. As noted above, however, Recon’s con-
tract with the IPTW provides only that “[w]ork assignments
shall be entirely at the discretion of the Company without
regard to seniority or classification.” Recon has continued to
use IPTW-represented employees to perform the disputed
work during the pendency of this case.
In response to the IPTW’s threats of economic action,
Recon filed unfair labor practice charges with the Board on
August 4, 2000. The Bricklayers filed a similar charge on
November 16, 2000. Both Recon and the Bricklayers claimed
that the IPTW violated § 8(b)(4)(D) of the NLRA, 29 U.S.C.
§ 158(b)(4)(D) (“§ 8(b)(4)(D)”), by engaging in proscribed
activity with an object of forcing Recon to assign certain work
to employees IPTW represents rather than to employees the
Bricklayers represent.8 A hearing officer of the Board heard
7
The district court action was stayed on September 13, 2000, pending
final resolution of this § 10(k) hearing.
8
In relevant part, § 8(b)(4)(D) of the NLRA provides:
It shall be an unfair labor practice for a labor organization or its
RECON REFRACTORY & CONSTRUCTION v. NLRB 13127
the evidence summarized above during an eighteen-day hear-
ing pursuant to NLRA § 10(k), 29 U.S.C. § 160(k)
(“§ 10(k)”), which allows the Board to resolve jurisdictional
disputes by making an award of the disputed work to one or
the other of the competing unions.9 Pursuant to Board proce-
dure, the hearing officer transferred the case directly to the
Board for decision. 29 C.F.R. §§ 101.34, 102.90. On July 24,
2003, the Board granted the Bricklayers’ motion to quash
notice of hearing. Recon Refractory, 339 N.L.R.B. at 828. The
Board found that this dispute is not a jurisdictional dispute
appropriate for resolution under § 10(k); instead, the dispute
was “created by Recon’s alleged breach of its contract with
Local 4,” and therefore “is a true work preservation dispute.”
Id.
II.
Recon challenges the Board’s decision to quash notice of
hearing on two grounds. First, it claims that the Board’s fac-
tual findings were not supported by substantial evidence. It
also objects to the Board’s authority to determine that Recon
itself created the dispute with the Bricklayers. Second, Recon
argues that the Board’s legal conclusions are erroneous, and
objects to the Board’s decision to look beyond the literal vio-
agents . . . to threaten, coerce, or restrain any person engaged in
commerce . . . , where . . . an object thereof is . . . forcing or
requiring any employer to assign particular work to employees in
a particular labor organization . . . rather than to employees in
another labor organization . . .
29 U.S.C. § 158(b).
9
Section 10(k) of the NLRA provides:
Whenever it is charged that any person has engaged in an unfair
labor practice within the meaning of [§ 8(b)(4)(D)], the Board is
empowered and directed to hear and determine the dispute out of
which such unfair labor practice shall have arisen . . .
29 U.S.C. § 160(k).
13128 RECON REFRACTORY & CONSTRUCTION v. NLRB
lation of § 8(b)(4)(D) to determine “the real nature and origin
of the dispute.” Id. at 827 (quotation marks omitted). We have
jurisdiction over Recon’s appeal from the Board’s final order
quashing notice of hearing under § 10(f) of the NLRA, 29
U.S.C. § 160(f). Foley-Wismer & Becker v. NLRB (Foley-
Wismer I), 682 F.2d 770, 775 (9th Cir. 1982) (en banc). We
reject each of Recon’s arguments and affirm the Board’s deci-
sion.
A. Substantial Evidence Supports the Board’s Factual
Findings
After reviewing the evidence taken at a lengthy evidentiary
hearing, the Board concluded that Bricklayers had performed
the work in dispute at all times prior to Recon’s reassignment
in January 2000. Recon Refractory, 339 N.L.R.B. at 828. Spe-
cifically, the Board found that the Bricklayers’ Local 4 mem-
bers had
performed the disputed work pursuant to the terms of
the successive NRAs for a decade prior to January
2000. Consequently, when Recon assigned the work
in dispute to IPTW-represented laborers at Arco, it
was the first time that Recon had failed to assign
refractory work in southern California to Local 4-
represented bricklayers.
Id. The Board also found that the dispute was fundamentally
of Recon’s own making. Id. Recon maintains that there is no
evidence to support these findings and that, in any event, the
Board was not empowered to make such a determination. We
disagree.
We review the Board’s findings of fact for substantial evi-
dence. NLRA § 10(e), 29 U.S.C. § 160(e). Under this stan-
dard, we must affirm where the relevant evidence is such that
“a reasonable mind might accept [it] as adequate to support a
conclusion”—even if it is possible to draw a contrary conclu-
RECON REFRACTORY & CONSTRUCTION v. NLRB 13129
sion from the evidence. Edlund v. Massanari, 253 F.3d 1152,
1156 (9th Cir. 2001) (“If the evidence is susceptible to more
than one rational interpretation, the court may not substitute
its judgment for that of the [agency].”); cf. Waterway Termi-
nals Co. v. NLRB, 467 F.2d 1011, 1018-19 (9th Cir. 1972)
(remanding a decision to quash notice of hearing as not sup-
ported by substantial evidence because the Board failed to
consider relevant contrary evidence in the record). Reviewing
for substantial evidence, we examine the Board’s findings
“with a deferential eye.” See Alderman v. SEC, 104 F.3d 285,
288 (9th Cir. 1997).
[1] Although the Board ultimately quashed notice of the
hearing, it made that decision after eighteen days of hearings
eliciting substantial testimony and documentary evidence.
Recon Refractory, 339 N.L.R.B. at 825. The facts underlying
the dispute were clearly before the Board and were a primary
subject of inquiry at the hearing; the Board’s order quashing
notice of hearing was based on those facts. The Board is
empowered to make factual findings in the course of deter-
mining its own jurisdiction under §§ 8(b)(4)(D) and 10(k) and
in determining whether an unfair labor practice has occurred
within the meaning of those sections. Section 10(k) in fact
explicitly “empower[s] and direct[s]” the Board “to hear and
determine the dispute out of which [a charged] unfair labor
practice shall have arisen.” 29 U.S.C. § 160(k). We therefore
find no basis for Recon’s challenge to the Board’s authority
to decide such factual questions.
[2] Furthermore, our review of the record suggests that the
evidence was more than sufficient to support the Board’s
findings. First, substantial evidence supports the finding that
Bricklayers had performed the disputed work at all times prior
to Recon’s reassignment at the Arco job site.10 Frank Collins,
10
Recon asserts that from the very beginning, the division of labor was
clear: “[B]ricklayers laid refractory brick and IPTW laborers performed all
nonbrick installation work.” But the only evidence to support the claim
13130 RECON REFRACTORY & CONSTRUCTION v. NLRB
for example, testified that to his knowledge, non-Bricklayer
laborers never installed any refractory materials of any kind
prior to this dispute. Although Bricklayers field representa-
tives were charged with notifying Collins of changes in work
assignments and ensuring that Bricklayers’ work was not
assigned to other employees, no field representative ever noti-
fied him of any such changes before January 2000. Kenneth
Golden, a laborer foreman, testified that laborers did not per-
form installation of brick, ceramic fiber, castables, or any
other refractory material. He testified that he did not see
laborers performing refractory installation and that those tasks
were performed by Bricklayers exclusively. Romagnoli con-
firmed these accounts in his testimony.
[3] Second, the Board’s finding that Recon created the dis-
pute is also supported by substantial evidence. As noted
above, witnesses testified that Bellamy made his intentions
quite clear: he wanted to force a jurisdictional dispute as a
tool to gain wage concessions from the Bricklayers. He
acknowledged that he was using IPTW-represented laborers
“to do the Bricklayers work.” And Bricklayer Paul Garcia tes-
tified that he spoke with Bellamy on November 30, 1999, who
told him “if I wanted to come back to work that I was going
to have to show the laborers how to do the Bricklayers’
work.” There is significant evidence in the record to support
the finding that this dispute was created by Recon’s alleged
breach of its contract with the Bricklayers. We therefore reject
Recon’s objections to the Board’s factual findings.
that laborers performed the work in dispute prior to 2000 comes from tes-
timony of Recon executives, including Bellamy and Bohannan, which the
Board did not credit. In addition, Recon’s position is directly contrary to
the express terms of the NRA itself, which preserves for Bricklayers the
work of “guniting,” “ceramic welding,” and “spraying of all refractory
materials” and “installation . . . by any method required” (emphasis
added).
RECON REFRACTORY & CONSTRUCTION v. NLRB 13131
B. The Board’s Legal Conclusions Were Not Arbitrary
and Capricious
Based on these findings, the Board found this dispute inap-
propriate for resolution through a § 10(k) proceeding. Recon
Refractory, 339 N.L.R.B. at 828. Although viewed literally
the IPTW’s threats did provide reasonable cause to believe
that a violation of § 8(b)(4)(D) had occurred, the Board found
that the real nature of the dispute was a contractual one
between the Bricklayers and Recon over the preservation of
bargaining unit work for the union that had traditionally per-
formed it. Id. at 827. Citing the Board’s prior decisions in
Teamsters Local 578 (USCP-Wesco I), 280 N.L.R.B. 818
(1986), aff’d. sub nom. USCP-Wesco, Inc. v. NLRB (USCP-
Wesco II), 827 F.2d 581 (9th Cir. 1987), and Teamsters Local
107 (Safeway Stores), 134 N.L.R.B. 1320 (1961), the Board
concluded that
[w]here a dispute is fundamentally one between an
employer and a union, and concerns the union’s
attempt merely to preserve the work it previously
had performed, the Board will not afford the
employer the use of a 10(k) proceeding to resolve a
dispute of its own making.
Recon Refractory, 339 N.L.R.B. at 827-28. Accordingly, the
Board quashed notice of hearing and terminated the proceed-
ings. Id. at 828.
Recon objects to this decision, arguing that the Board erred
by considering whether the dispute was “actually jurisdiction-
al” rather than simply determining whether “reasonable
cause” existed to believe that a violation of § 8(b)(4)(D) had
occurred. “[T]he Board’s legal conclusions as to the jurisdic-
tional dispute must be upheld unless arbitrary and capricious.”
Foley-Wismer & Becker v. NLRB (Foley-Wismer II), 695 F.2d
424, 427 (9th Cir. 1982). We have explained that this standard
gives the Board “considerable deference” in interpreting the
13132 RECON REFRACTORY & CONSTRUCTION v. NLRB
NLRA and exercising its expertise. USCP-Wesco II, 827 F.2d
at 583; see also NLRB v. Int’l Longshoremen’s and Ware-
housemen’s Union, Local No. 50 (Pacific Maritime Ass’n),
504 F.2d 1209, 1218-19 (9th Cir. 1974). A Board decision is
subject to reversal if it ignores a controlling legal standard.
USCP-Wesco II, 827 F.2d at 583. However, “ ‘[i]f the Board’s
construction of the statute is “reasonably defensible,” it
should not be rejected merely because the courts might prefer
another view of the statute.’ ” Id. (quoting Int’l Alliance of
Theatrical and Stage Employees v. NLRB, 779 F.2d 552, 555
(9th Cir. 1985)).
The Supreme Court explained the deferential nature of the
arbitrary and capricious standard in Motor Vehicle Manufac-
turers Association of the United States, Inc. v. State Farm
Mutual Auto Insurance Company as follows:
Normally, an agency rule would be arbitrary and
capricious if the agency has relied on factors which
Congress has not intended it to consider, entirely
failed to consider an important aspect of the prob-
lem, offered an explanation for its decision that runs
counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a differ-
ence in view or the product of agency expertise.
463 U.S. 29, 43 (1983). The Court noted that the scope of
review is narrow and that we “must consider whether the
decision was based on a consideration of the relevant factors
and whether there has been a clear error of judgment.” Id.
(quotation marks omitted). Under this deferential standard, we
find no error in the Board’s decision.
[4] Ample precedent supports the Board’s conclusion that
an award of work under § 10(k) is not warranted where the
dispute is not “actually jurisdictional.” Recon Refractory, 339
N.L.R.B. at 827. Section 10(k) of the NLRA was enacted to
provide a mechanism for resolving jurisdictional disputes
RECON REFRACTORY & CONSTRUCTION v. NLRB 13133
between competing unions. The Supreme Court recognized
that the law was designed “to protect employers from being
‘the helpless victims of quarrels that do not concern them at
all.’ ” NLRB v. Radio and Television Broad. Eng’rs Union,
Local 1212 (CBS), 364 U.S. 573, 581 (1961) (quoting H.R.
Rep. No. 80-245, at 23 (1947)). In CBS, the Court noted that
the statutory scheme presumes “that the employer has been
placed in a situation where he finds it impossible to secure the
benefits of stability from either of these contracts, not because
he refuses to satisfy the unions, but because the situation is
such that he cannot satisfy them.” Id. at 582. In short, § 10(k)
was enacted to “protect employers trapped between two com-
peting unions.” USCP-Wesco II, 827 F.2d at 584. It was not,
however, intended to authorize the Board to resolve disputes
that are truly between an employer and a union. Id.
[5] With this goal of protecting innocent employers in
mind, the Board has established a test for determining when
a dispute is properly deemed jurisdictional and submitted to
a § 10(k) hearing. The Board typically conducts a three-step
inquiry to determine “whether there is reasonable cause to
believe that § 8(b)(4)(D) of the Act has been violated.” Int’l
Alliance of Theatrical and Stage Employees, Local Union No.
39 (Shepard Exposition Services), 337 N.L.R.B. 721, 723
(2002). This requires a finding of reasonable cause to believe
that (1) a union has used a proscribed means—such as picket-
ing or threatening to picket—to enforce its claim to the work
in dispute; (2) there are competing claims to the disputed
work between rival groups of employees; and (3) there is no
agreed-upon method for resolving the dispute voluntarily.
Laborers Int’l Union of N. Am., Local No. 1184 (Golden State
Boring), 337 N.L.R.B. 157, 158 (2001). When these require-
ments are met, the Board will award the disputed work to one
or the other of the vying unions, based on considerations such
as the employer’s past practice, industry custom, and contract
rights. CBS, 364 U.S. at 577, 579.
13134 RECON REFRACTORY & CONSTRUCTION v. NLRB
[6] In most situations where reasonable cause exists to
believe § 8(b)(4)(D) has been violated, the Board is
required to make an affirmative award of the work in dispute.
Id. at 586. The Board, however, recognizes an exception to
this rule upon a showing that “ ‘the union’s members had pre-
viously performed the work in dispute and the union was not
attempting to expand its work jurisdiction.’ ” Shepard Exposi-
tion Services, 337 N.L.R.B. at 723 (quoting Teamsters Local
107 (Reber-Friel Co.), 336 N.L.R.B. 518, 521 (2001)) (refer-
ring to this exception as a “work preservation defense”).
Thus, even when the three-part test outlined above is techni-
cally satisfied and “the dispute may literally fall within the
terms” of the NLRA, the Board will occasionally, as it did
here, quash notice of hearing on the ground that the dispute
is not “actually jurisdictional” and therefore not amenable to
resolution under § 10(k).11 See USCP-Wesco I, 280 N.L.R.B.
11
The Board’s ruling in this case is consistent with a number of other
Board decisions quashing notice of hearing under § 10(k) in similar cir-
cumstances. See, e.g., Int’l Ass’n of Machinists & Aerospace Workers,
Dist. 190 (SSA Terminal), 344 N.L.R.B. No. 126, at 3 (2005), available
at http://www.nlrb.gov/nlrb/shared_files/decisions/344/344-126.pdf
(quashing notice of hearing after looking beyond the technical violation of
§ 8(b)(4)(D) to the “real nature and origin of the dispute”); Int’l Bhd. of
Elec. Workers Local 103 (Buffalo Elec. Constr.), 298 N.L.R.B. 937, 940
(1990) (“although the facts here may literally fall within the terms of Sec-
tions 8(b)(4)(D) and 10(k), we conclude that the real nature of this dispute
is to retrieve jobs that were subcontracted, not to acquire new work”);
Plumbers and Gasfitters Local Union No. 36 (Weinheimers, Inc.), 219
N.L.R.B. 1016, 1018 (1975) (quashing notice of hearing where “the dis-
agreement which led to the strike stemmed from a claim to unit work and
the allegedly improper transfer of it out of the unit, rather than from the
competing claims of groups of employees to work on jurisdictional
grounds”); Chicago Web Printing Pressmen’s Union No. 7 (Metropolitan
Printing Co.), 209 N.L.R.B. 320, 322 (1974) (quashing notice of hearing
after determining that the dispute was over “unit work,” and finding that
“[t]o apply jurisdictional dispute principles to a unit work claim would
distort the statute”); Int’l Bhd. of Electrical Workers, Local 292 (Franklin
Broad. Co.), 126 N.L.R.B. 1212, 1215 (1960) (quashing notice of hearing
where the real dispute arose after the employer terminated a group of
union employees and assigned their duties to another group of employees;
the union’s objective in picketing to gain back those jobs for its members
was one “which the Congress, in enacting Section 8(b)(4)(D), did not
intend to proscribe”).
RECON REFRACTORY & CONSTRUCTION v. NLRB 13135
at 820. As the Board stated in Safeway Stores, “[c]ertainly it
was not intended that every time an employer elected to real-
locate work among his employees or supplant one group of
employees with another, a ‘jurisdictional dispute’ exists
within the meaning of” §§ 8(b)(4)(D) and 10(k). 134 N.L.R.B.
at 1322. That is simply not the type of dispute Congress
devised § 10(k) to resolve. Id. at 1323.
[7] The Supreme Court has recognized this exception with
approval, noting that “the Board has adopted the position that
jurisdictional strikes in support of contract rights do not con-
stitute violations of [§] 8(b)(4)(D) despite the fact that the lan-
guage of that section contains no provision for special
treatment of such strikes.” CBS, 364 U.S. at 577 n.12. We
also have adopted this exception, affirming Board decisions
quashing notice of hearing on the ground that the dispute was
not truly jurisdictional, despite a literal violation of
§ 8(b)(4)(D).12 See, e.g., USCP-Wesco II, 827 F.2d at 584-85
(affirming a Board decision to quash notice of hearing under
§ 10(k) because it was precipitated by the employer’s viola-
tion of its collective bargaining agreement and thus was not
actually jurisdictional); Foley-Wismer II, 695 F.2d at 427-28
(affirming a Board decision to quash notice of hearing where
no jurisdictional dispute existed because the work claimed by
one union had never been performed or sought by the other
12
The District of Columbia Circuit similarly applies § 10(k) only where
an “employer faces a jurisdictional dispute that is not of his own making
and in which he has no interest;” more specifically, that court has noted
that “[w]here . . . the employer created the dispute, § 8(b)(4)(D) and
§ 10(k) do not apply.” Int’l Longshoremen’s & Warehousemen’s Union,
Local 62-B v. NLRB (ILWU), 781 F.2d 919, 924, 925 (D.C. Cir. 1986).
ILWU involved facts very similar to those presented here: the employer
created the dispute and the two employee groups began their quarrel over
the disputed work only after the employer reassigned it away from the
group that traditionally had performed it. Id. at 925. The court declined to
characterize the dispute as “jurisdictional” and amenable to § 10(k) resolu-
tion because such a rule would allow an employer to create a jurisdictional
dispute at any time simply by reassigning work. Id.
13136 RECON REFRACTORY & CONSTRUCTION v. NLRB
union); c.f. Waterway, 467 F.2d at 1018 (remanding to the
Board for a decision on the merits under § 10(k) because the
Board’s decision to quash was based on factual findings
unsupported by the evidence).
There are good reasons for such a policy. As the Supreme
Court noted, “ ‘to fail to hold as controlling the contractual
preemption of the work in dispute would be to encourage dis-
regard for observance of binding obligations under collective-
bargaining agreements and invite the very jurisdictional dis-
putes Section 8(b)(4)(D) is intended to prevent.’ ” CBS, 364
U.S. at 577 n.12 (quoting Nat’l Ass’n of Broadcast Engineers
(NBC), 105 N.L.R.B. 355, 364 (1953)). The Board has
applied this rule out of respect for the bargain struck between
the union and the employer, as well as for the positive bene-
fits of work preservation clauses which would otherwise be
rendered unenforceable. USCP-Wesco I, 280 N.L.R.B. at 821
(“To hold that this dispute is a jurisdictional dispute to be
decided by the Board would not allow the [union] employees
the benefit of their negotiated work preservation clause.”); see
also SSA Terminal, 344 N.L.R.B. No. 126, at 3. We have
endorsed that rationale, adding that the Board’s decision to
quash notice of hearing in such cases advances the Congres-
sional policy favoring arbitration rather than Board resolution
of labor disputes. USCP-Wesco II, 827 F.2d at 586 (“Too
readily compelling Board resolution of labor disputes cor-
rodes the congressional policy decision to favor arbitration of
these disputes.”). Finally, the quashing of a § 10(k) hearing
does not leave an employer entirely without a remedy. As the
Board has noted, employers who create disputes by their own
actions “must use other means, such as arbitration, to resolve
conflicting work claims.” United Bhd. of Carpenters and
Joiners of Am., Local No. 13 (First Chicago NBD Corp.), 331
N.L.R.B. 281, 282 (2000).
This case is a far cry from the typical § 10(k) scenario in
which the unions’ quarrel “is of so little interest to the
employer that he seems perfectly willing to assign work to
RECON REFRACTORY & CONSTRUCTION v. NLRB 13137
either if the other will just let him alone.” CBS, 364 U.S. at
579. To the contrary, Recon intentionally created this dispute
in an attempt to avoid its contractual obligations and lower its
wage rates. Like USCP-Wesco, this case revolves around a
contractual dispute between an employer and the only union
whose members had historically performed the work in ques-
tion. 280 N.L.R.B. at 818. And like USCP-Wesco, the Board
based its decision to quash on the fact that “but for [the
employer’s] violation of the contract [the union] would not be
in any position to claim the work . . . .” Id. at 819.
[8] To be sure, Recon now faces competing claims to the
work in dispute by the Bricklayers and the IPTW. But
Safeway Stores held that where an employer creates a dispute
by transferring work to another group of employees who had
no previous claim to that work, the dispute is not “actually
jurisdictional” in the statutory sense and the Board will not
make a § 10(k) ruling.13 134 N.L.R.B. at 1323. Here, the
IPTW’s claim to the work very clearly postdates Recon’s
reassignment of the work in dispute. At the time of the reas-
signment, the Bricklayers were “the only group claiming the
work.” ILWU, 781 F.2d at 925. In Safeway Stores, the Board
quashed notice of hearing because, like here, “[t]he real dis-
pute is wholly between [the union] and [the employer] and
concerns only [the union]’s attempt to retrieve the jobs of its
13
In NLRB v. Plasterers’ Local Union No. 79, 404 U.S. 116 (1971), the
Supreme Court held that an employer is a party to a jurisdictional dispute
and therefore must be afforded a chance to participate in § 10(k) proceed-
ings. Id. at 126, 131. A settlement agreement between the two competing
unions therefore cannot bind an unwilling employer. Id. at 131. The Court
noted that under the “Safeway rule,” when one union renounces its claim
to the disputed work, Ҥ 10(k) proceedings are aborted despite legitimate
interests an employer may have in securing a Board decision.” Id. at 134.
This is because “by definition, [a jurisdictional] dispute cannot exist
unless there are rival claims to the work.” Id. (quotation marks omitted).
But the Court found the Safeway rule inapplicable in cases where the
unions have agreed to arbitrate, because such an agreement is not equiva-
lent to a union’s disclaimer of the work. Id. at 136. Nothing in the Court’s
decision disturbs the Board’s holding in Safeway Stores.
13138 RECON REFRACTORY & CONSTRUCTION v. NLRB
members, jobs which had been secured for more than 10 years
by a series of collective-bargaining agreements until [the
employer] suddenly terminated the bargaining relationship
. . . .” 134 N.L.R.B. at 1323.
[9] Recon attempts to distinguish Safeway Stores and
USCP-Wesco; there are, surely, certain factual differences
among the cases. USCP-Wesco, for example, involved two
employers and began as a dispute over subcontracting. 280
N.L.R.B. at 818. And in Safeway Stores, there was no indica-
tion that the union receiving the work had threatened or
engaged in any economic action—instead, the picketing union
was “attempt[ing] to retrieve the jobs of its members.” 134
N.L.R.B. at 1323. But these factual distinctions did not affect
the Board’s reasoning in either case. Instead, the critical fact
the Board relied on in each case was that the employer had
created the dispute by its own unilateral actions.14 Id.; see
USCP-Wesco I, 280 N.L.R.B. at 822; see also SSA Terminal,
344 N.L.R.B. No. 126, at 4 (quashing notice of hearing
because the employer “by its own unilateral actions . . . has
created a work preservation dispute”). This case therefore
falls clearly within the established precedent.
[10] Even if we had not decided that this case is squarely
controlled by precedent, it is clear that the Board’s reliance on
Safeway Stores and USCP-Wesco is “reasonably defensible.”
USCP-Wesco II, 827 F.2d at 583. The determination that this
case was not actually jurisdictional and therefore inappropri-
ate for resolution under § 10(k) cannot be considered arbitrary
and capricious. In sum, § 10(k) cannot be used as a tool to aid
employers in avoiding their contractual obligations to
14
The employers’ actions also distinguish these cases from Waterway.
The employer in Waterway reassigned work from non-employees to its
own employees without violating any collective bargaining agreement.
467 F.2d at 1013; see also USCP-Wesco II, 827 F.2d at 585. No party in
Waterway ever claimed that the employer had deliberately created the dis-
pute in order to evade its contractual obligations. Waterway is therefore
much less instructive here than either Safeway Stores or USCP-Wesco.
RECON REFRACTORY & CONSTRUCTION v. NLRB 13139
employees when the terms of those contracts become incon-
venient. We agree with the Board that this dispute is not
appropriate for resolution under § 10(k).
Recon’s petition for review of the Board’s decision and
order quashing notice of hearing is therefore DENIED.