Caretti, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1998

325 N.L.R.B. 947 (N.L.R.B. 1998)

947
325 NLRB No. 173
OPERATING ENGINEERS LOCAL 542 (CARETTI, INC.)
1 Caretti also has a collective-bargaining relationship with the
Bricklayers Local 5, which is not involved in this dispute.
2 Employee Wayne Miller, a member of the Laborer’s Local 130,
received 1 day’s formal training on the operation of the Pioneer
Model 4000 crane and 1 day of practice in the Employer’s yard.
International Union of Operating Engineers, Local
Union No. 542, AFL–CIO and Caretti, Inc. and
Laborers District Council of Eastern Pennsyl-
vania, Local No. 130 a/w Laborers Inter-
national Union of North America, AFL–CIO.
Case 4–CD–966
June 17, 1998
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HURTGEN
The charge in this Section 10(k) proceeding was
filed August 27, 1997, by Caretti, Inc. (Caretti or Em-
ployer) alleging that the Respondent, International
Union of Operating Engineers, Local Union No. 542,
AFL–CIO (Operating Engineers), violated Section
8(b)(4)(D) of the National Labor Relations Act by en-
gaging in proscribed activity with an object of forcing
the Employer to assign certain work to employees it
represents rather than to employees represented by La-
borers District Council of Eastern Pennsylvania, Local
No. 130 a/w Laborers International Union of North
America, AFL–CIO (Laborers). The hearing was held
October 21, 1997, before Hearing Officer Carmen P.
Cialino Jr.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.
I. JURISDICTION
The Employer, a Pennsylvania corporation, is a ma-
sonry contractor operating out of its principal place of
business in Camp Hill, Pennsylvania. During the past
year, the Employer purchased and received goods val-
ued in excess of $500,000 outside the Commonwealth
of Pennsylvania. The parties stipulate, and we find,
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
the Operating Engineers and the Laborers are labor or-
ganizations within the meaning of Section 2(5) of the
Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer is a subcontractor of Daniel Keating,
a general contractor at a construction project at the
Lackawanna Prison in Scranton, Pennsylvania. The
project involves additions to the prison by building
four masonry towers around the existing structure. At
the time of the hearing, the Employer was in the first
of two phases of the project, which is scheduled to be
completed in 1998.
The Employer is a member of the Masonry Contrac-
tors Association of Central Pennsylvania (the Associa-
tion) and is signatory to a multiemployer agreement
between the Association and the Laborer’s District
Counsel of Eastern Pennsylvania, with which the La-
borers is affiliated. Caretti has assigned all its work of
supporting its masons and bricklayers to laborers.1 In-
cluded in this assignment is the operation of a Pioneer
Model 4000 crane, which Caretti recently purchased.
The crane is mounted on a 1997 Ford truck and has
the capacity to lift materials to a height of 100 feet and
carry 30 tons of material.
B. Work in Dispute
The disputed work involves the operation of the Pio-
neer Model 4000 crane mounted on a 1997 Ford truck
chassis, to be used to assist in performing the Employ-
er’s masonry subcontract at the Lackawanna County
Prison.
C. Contentions of the Parties
The Employer contends that the employees rep-
resented by the Laborers have the exclusive right to
operate the Pioneer Model 4000 crane by virtue of its
collective-bargaining relationship with the Laborers.
Caretti has no collective-bargaining relationship with
the Operating Engineers. The Employer also argues
that it has a practice of assigning laborers to operate
this new crane as well as leased cranes of a similar ca-
pacity, although it has leased operators for heavier
cranes of larger capacity. In addition, the Employer
contends that it is the Employer’s preference that the
work be assigned to employees represented by the La-
borers for, among other reasons, the economy and effi-
ciency achieved by the crane operator’s performing
other laborer duties when not operating the crane, and
because its employees have been trained in the oper-
ation of the specific Pioneer Model 4000 crane.
The Operating Engineers argues that the industry
and area practice of assigning heavy crane work to op-
erating engineers requires assignment of the work to
employees it represents. In addition, the Operating En-
gineers contends that its members’ 4-year apprentice-
ship and specialized training in crane operation, as
compared with the cursory training received by the la-
borers, necessarily enhances the safety of the worksite.
By contrast, the relative lack of training provided to
the laborers,2 Operating Engineers argues, undermines
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948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 There is no evidence whether the leased operator was a member
of a labor organization.
the efficient operation of the crane and increases the
risk of injury on the job.
D. Applicability of the Statute
On August 25, 1997, Caretti employees drove the
crane to the prison project and began using it to lift
masonry supplies. Shortly thereafter, Operating Engi-
neer Vice President and Business Agent Michael
Mazza confronted crane operator Wayne Miller, and
asked him if he was a member of a union. When Mil-
ler told Mazza he was a member of the Laborers,
Mazza accused the Laborers of taking work away from
the Operating Engineers through Miller’s operation of
the crane. Mazza also complained to the Employer’s
job superintendent, Roger Derr, and to a Laborer’s
steward on the job that a laborer was running the crane
and informed them that he would not permit the Em-
ployer to establish the standards for the area.
The following day pickets arrived at the jobsite, led
by Mazza, bearing placards of the Operating Engineers
protesting the Employer’s destruction of area stand-
ards. The picket line led to a work stoppage for that
day as members of other trades refused to cross the
picket line. The pickets have not returned since that
day and work at the project has proceeded uninter-
rupted.
We find reasonable cause to believe that the Operat-
ing Engineers engaged in picketing at the Employer’s
jobsite with the object of forcing the Employer to as-
sign the work of operating the Pioneer Model 4000
crane to employees represented by it rather than to em-
ployees represented by the Laborers, in violation of
Section 8(b)(4)(D). We also find that there exists no
agreed-upon method for voluntary adjustment of the
dispute within the meaning of Section 10(k) of the
Act. Accordingly, we find that the dispute is properly
before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative award of disputed work after considering various
factors. NLRB v. Electrical Workers IBEW Local 1212
(Columbia Broadcasting), 364 U.S. 573 (1961). The
Board has held that its determination in a jurisdictional
dispute is an act of judgment based on common sense
and experience, reached by balancing the factors in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Certification and collective-bargaining
agreement
There is no evidence that either labor organization
has been certified to represent any of the Employer’s
employees. The Employer has had a collective-bargain-
ing relationship with the Laborers through its multiem-
ployer association. The contract encompasses the use
of equipment necessary to lift masonry material, but
the Employer admits that the contract does not ex-
pressly apply to crane operation. However, by letter
dated August 13, 1997, the Employer informed the La-
borers that it was assigning the work of operating the
crane on the prison project to the Laborers in recogni-
tion of the fact that, under the collective-bargaining
agreement, ‘‘mason tenders have the assignment of op-
eration and use of certain equipment as is necessary to
lift, transfer, stock, and otherwise support the brick-
layers installation of unit masonry and other masonry
craft materials.’’ The Laborers accepted the assignment
in writing on August 22.
The Employer does not have a collective-bargaining
relationship with the Operating Engineers, although it
is undisputed that the Operating Engineers’ contracts
with other employers clearly cover crane operation.
We view the Employer’s August 13 written assign-
ment of the disputed to work the Laborers and the sub-
sequent written acceptance of this work by the Labor-
ers as a modification to the collective-bargaining
agreement. Thus, we find that the factor of collective-
bargaining agreement favors an award of the work in
dispute to employees represented by the Laborers.
2. Employer preference and past practice
Caretti’s chief executive officer, Hess, testified that
Caretti prefers to assign the disputed work to employ-
ees represented by the Laborers and that it has never
assigned any of its work to operating engineers. Hess
testified that the Pioneer Model 4000 crane at issue is
the first crane owned directly by Caretti. In the past,
Caretti has leased truck-mounted cranes of similar ca-
pacity and has assigned the work of operating the
leased cranes to its employees represented by the La-
borers. On occasions when Caretti has required cranes
with a higher height or weight capacity, it has leased
both the crane and the operator.3
Caretti has used the Pioneer Model 4000 crane at
one other jobsite—a 1-week project at Kutztown Uni-
versity—and used its Laborer-represented employee,
Wayne Miller, to operate the crane.
Accordingly, we find that this factor of employer
preference and past practice favors an award of the
disputed work to the Employer’s employees rep-
resented by the Laborers.
3. Area and industry practice
Operating Engineers Vice President and Business
Agent Michael Mazza testified without contradiction
that operating engineers operate the cranes on nearly
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949OPERATING ENGINEERS LOCAL 542 (CARETTI, INC.)
4 In a small number of jobs, Teamster-represented employees may
operate the cranes mounted on the trucks they drive to the construc-
tion sites
5 The Employer has moved to expand the issue as to work in dis-
pute beyond the Lackawanna Prison project to include the operation
of its Pioneer Model 4000 crane at all future jobsites. The Employer
has presented no evidence that the operation of its Pioneer Model
4000 crane has been a ‘‘continuous source of controversy in the rel-
evant geographic area or that it is likely to recur.’’ See Laborers
(Paschen Contractors), 270 NLRB 327, 330 (1984). Nor has the
Employer demonstrated that Operating Engineers Local No. 542 has
demonstrated a ‘‘proclivity to engage in further unlawful conduct in
order to obtain the work in dispute.’’ Id. Indeed, beyond the brief
picketing that occurred August 26, 1997, the Operating Engineers
has caused no further interruptions at the project. Accordingly, we
deny the Employer’s motion for a broad order covering the work in
dispute.
all the union jobs in the area.4 There is no evidence
that laborers typically operate cranes in the geographi-
cal jurisdiction. Accordingly, this factor favors an
award of the disputed work to employees represented
by the Operating Engineers.
4. Relative skills and training
Caretti’s employee, Wayne Miller, completed a 1-
day, manufacturer-approved training on the operation
of the Pioneer Model 4000 crane and practiced in the
Company’s yard before operating the crane for 1 week
at the Kutztown University jobsite. Hess testified that
he believes that Miller’s training, coupled with his ex-
tensive experience lifting masonry supplies with the
Company’s forklifts and all terrain vehicles, enables
him to operate the Pioneer Model 4000 crane safely.
Mazza testified that the Operating Engineers have a
4-year, Department of Labor-approved apprenticeship
program and that its members are extensively trained
to operate cranes. Mazza testified that he has referred
hundreds of operating engineers to operate truck-
mounted cranes but could not recall sending anyone to
operate a Pioneer Model 4000 crane specifically. It is
undisputed that employees do not require a license to
operate a Pioneer Model 4000 crane in Pennsylvania.
Although there is no dispute that operating engineers
receive superior training on crane operation in general,
the record does not establish that operators of this par-
ticular crane require more training than Miller received
in order to operate the crane safely. Nor is there any
evidence that Miller was, in fact, operating the Pioneer
Model 4000 crane in an unsafe manner. Accordingly,
we find that this factor does not favor an award to em-
ployees represented by either Union.
5. Economy and efficiency of operations
Hess testified that his operations run more effi-
ciently because his Laborer-represented employees
who operate the Pioneer Model 4000 crane can per-
form other work when not required to operate the
crane. On the other hand, Mazza testified that on occa-
sion his members assist other trades at projects where
they are employed as crane operators. Moreover,
Mazza testified that Miller was slow and inefficient
when Mazza observed him operate the Pioneer Model
4000 crane. We find, therefore, that this factor does
not favor an award of the work in dispute to employ-
ees represented by either union.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by the Laborers are
entitled to perform the work in dispute. We reach this
conclusion relying on the factors of collective-bargain-
ing agreements and employer preference and past prac-
tice. In making this determination, we are awarding the
work to employees represented by the Laborers, not to
that Union or its members. The determination is lim-
ited to the controversy that gave rise to this proceed-
ing.5
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of Caretti, Inc., represented by Labor-
ers District Council of Eastern Pennsylvania, Local
No. 130 a/w Laborers International Union of North
America, AFL–CIO, are entitled to operate the Em-
ployer’s Pioneer Model 4000 crane at the Lackawanna
County Prison project in Scranton, Pennsylvania.
2. International Union of Operating Engineers, Local
No. 542, AFL–CIO is not entitled by means proscribed
by Section 8(b)(4)(D) of the Act to force Caretti, Inc.
to assign the disputed work to employees represented
by it.
3. Within 14 days from this date, International
Union of Operating Engineers, Local No. 542, AFL–
CIO shall notify the Regional Director for Region 4 in
writing whether it will refrain from forcing Caretti,
Inc. by means proscribed by Section 8(b)(4)(D), to as-
sign the disputed work in a manner inconsistent with
this determination.
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