Raymond Orrand v. Hunt Construction Grp.

852 F.3d 592, 2017 FED App. 0072P, 2017 WL 1173695, 208 L.R.R.M. (BNA) 3510, 2017 U.S. App. LEXIS 5515
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 30, 2017
Docket16-3822
StatusPublished
Cited by4 cases

This text of 852 F.3d 592 (Raymond Orrand v. Hunt Construction Grp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Raymond Orrand v. Hunt Construction Grp., 852 F.3d 592, 2017 FED App. 0072P, 2017 WL 1173695, 208 L.R.R.M. (BNA) 3510, 2017 U.S. App. LEXIS 5515 (6th Cir. 2017).

Opinions

GUY, J., delivered the opinion of the court in which GRIFFIN, J., joined. CLAY, J. (pp. 597-601), delivered a separate dissenting opinion.

OPINION

RALPH B. GUY, JR., Circuit Judge.

Plaintiffs in this Employee Retirement Income Security Act (ERISA) contribution action appeal the district court’s order granting defendants summary judgment. We hold that the National Labor Relations Board’s jurisdictional award precludes plaintiffs’ ERISA claims, and therefore affirm.

I.

Defendant employers are signatories to collective bargaining agreements (“CBAs”) with plaintiff funds’ union, Operating Engineers (“Operators”). The CBAs provided that “the Employer shall employ Operating Engineers for the erection, operation, [594]*594assembly and disassembly, and maintenance and repair of ... Forklifts, Skids-teers ... [which] shall be the work of the Operating Engineers (only applies to in-house crew), and within the jurisdiction as assigned to the Union by the American Federation of Labor.” The CBAs further stated, “[i]f the Employer assigns any piece of equipment to someone other than the Operating Engineer, the Employer’s penalty shall be to pay the first qualified registered applicant the applicable wages and fringe benefits from the first day of violation.” Defendants’ CBA with another union, Laborers International (“Laborers”), provided that “operation of forklifts ... [and] skid-steer loaders ... shall be the work of the laborer.” Defendants’ CBAs with Operators and Laborers thus set out conflicting assignments for the same work.

Defendants assigned the disputed work to Laborers. In response, Operators filed pay-in-lieu grievances and threatened to strike. Defendants sought a jurisdictional determination by the NLRB under the National Labor Relations Act (NLRA) § lO(k).1 The NLRB noted that defendants had assigned forklift and skidsteer work to Laborers for 15 to 26 years, and thus found no merit in Operators’ work-preservation claims, instead characterizing them as attempts at work acquisition. Operating Engineers, Local 18, 360 NLRB No. 113, slip op. at *6 (2014). The NLRB further found that Operators’ ongoing filing of pay-in-lieu grievances and threats to strike constituted unfair labor practices under NLRA § 8(b)(4).2 Id. at *5, *7-8. As to the jurisdictional dispute, the NLRB considered the relevant factors and ruled that Laborers were entitled to perform the work. Id. at *8-10.

While awaiting the NLRB’s decision, plaintiffs filed a complaint under ERISA § 5153 seeking payment of contributions defendant allegedly owed under the CBAs, access to audit defendants’ records, interest, costs, and injunctive relief. The NLRB [595]*595intervened. Defendants sought a stay of plaintiffs’ claims pending the NLRB’s § 10(k) ruling, which the district court granted. Following the NLRB’s ruling, the parties filed motions for summary judgment. The NLRB also moved for summary judgment, arguing that its jurisdictional award was dispositive of, and precluded, plaintiffs’ CBA claims. The district court agreed and held that the NLRB’s jurisdictional award was a defense and bar to plaintiffs’ claims. Plaintiffs appeal.

II.

This court reviews the district court’s ruling on summary judgment de novo. Therma-Scan, Inc. v. Thermoscan, Inc., 295 F.3d 623, 629 (6th Cir. 2002). Summary judgment is appropriate where there is no genuine issue of material fact and the movant is “entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We take the evidence, and any inferences therefrom, in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

III.

Plaintiffs argue that § 515 obligates defendants to make contributions to Operators’ funds despite lawful assignment of the disputed work to Laborers pursuant to the NLRB’s § 10(k) award. Plaintiffs are correct that, standing alone, an award of benefits causing an employer to double pay “would not be sufficient to relieve the employer of its contractual obligation to make contributions to the ERISA funds.” Tr. of B.AC. Local 32 Ins. Fund v. Ohio Ceiling and Partition Co., Inc., 48 Fed.Appx. 188, 196-97 (6th Cir. 2002). Ohio Ceiling, however, did not involve a § 10(k) determination. At issue is whether a conflicting jurisdictional award would render defendants’ contribution obligations “inconsistent with law” under § 515.

Every court to consider conflicts between § 10(k) determinations and other labor laws has held that jurisdictional awards prevail, and may preclude inconsistent claims. In Carey v. Westinghouse Elec. Corp., the Supreme Court recognized that “[t]he superior authority of the [NLRB] ” to decide jurisdictional disputes “may be invoked [by the employer] at any time” to avoid arbitrating conflicting contract claims. 375 U.S. 261, 272, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964). We have held that a § 10(k) determination “takes precedence over a contrary arbitrator’s award” stemming from a CBA and precludes conflicting actions under the Labor Management Relations Act. UAW Local 1519 v. Rockwell Int’l Corp., 619 F.2d 580, 583-85 (6th Cir. 1980). The Third Circuit recognized that § 10(k) “would not be serving its intended purpose of preventing work disruption” if “the disappointed union could still seek a contractual remedy.” Local 30, United Slate Workers Ass’n v. NLRB, 1 F.3d 1419, 1428 (3d Cir. 1993). In the D.C. Circuit, a party “cannot force an employer to choose between a Board [§ ] 10(k) award and a squarely contrary contract claim.” Int’l Longshoremen’s and Warehousemen’s Union v. NLRB, 884 F.2d 1407, 1414 (D.C. Cir. 1989). The Ninth Circuit held that a party’s “attempt to obtain payment for work to which it is not entitled would, if successful, completely undermine the [§ ] 10(k) work assignment.” Int’l Longshoremen’s Union, Local 32 v. Pacific Maritime Ass’n, 773 F.2d 1012, 1015 (9th Cir. 1985).

Plaintiffs note that the Seventh Circuit has avoided § 10(k) — CBA conflicts by distinguishing between jurisdictional awards (i.e., work assignments) and payment for work. See Hutter Constr. v. Int’l Union of Operating Eng’rs, Local 139, 862 F.2d 641, [596]*596644-45 (7th Cir. 1988). That circuit has limited its singular position, however, to the unique context of subcontractor work assignments not at issue here. See Advance Cast Stone Co. v. Bridge Workers, Local Union No. 1, 376 F.3d 734, 742 (7th Cir. 2004).

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852 F.3d 592, 2017 FED App. 0072P, 2017 WL 1173695, 208 L.R.R.M. (BNA) 3510, 2017 U.S. App. LEXIS 5515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/raymond-orrand-v-hunt-construction-grp-ca6-2017.