International Union of Operating Engineers, Local 150, AFL-CIO (Jack Gray Transport, Inc., d/b/a Lak

National Labor Relations Board - Board Decisions

Oct 21, 2016

364 NLRB No. 132 (N.L.R.B. 2016)

364 NLRB No. 132
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
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International Union of Operating Engineers, Local
150, AFL–CIO and Jack Gray Transport, Inc.
d/b/a Lakes & Rivers Transfer and Internation-
al Longshoremen’s Association, Local 1969,
AFL–CIO. Case 25–CD–178156
October 21, 2016
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act (the Act).
Jack Gray Transport, Inc. d/b/a Lakes & Rivers Transfer
(the Employer) filed a charge on June 13, 2016, alleging
that International Union of Operating Engineers, Local
150, AFL–CIO (Operating Engineers) violated Section
8(b)(4)(D) of the Act by threatening to engage in pro-
scribed activity with an object of forcing the Employer to
assign certain work to employees represented by Operat-
ing Engineers rather than to employees represented by
International Longshoremen’s Association, Local 1969,
AFL–CIO (Longshoremen). A hearing was held on June
28, 2016, before Hearing Officer Derek A. Johnson.
Thereafter, Operating Engineers and Longshoremen filed
posthearing briefs.
The National Labor Relations Board affirms the hear-
ing officer’s rulings, finding them free from prejudicial
error. On the entire record, the Board makes the follow-
ing findings.
I. JURISDICTION
The parties stipulated that the Employer, an Indiana
corporation, in the 12 months prior to June 28, 2016,
performed services valued in excess of $50,000 in states
other than Indiana; purchased and received at its Indiana
facilities goods valued in excess of $50,000 directly from
points outside of Indiana; and derived gross revenues in
excess of $500,000 from conducting its business opera-
tions. The parties further stipulated, and we find, that the
Employer is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that Operating Engi-
neers and Longshoremen are labor organizations within
the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is a stevedore company that loads and
offloads ships and barges at the Port of Indiana in Por-
tage, Indiana. The Employer is signatory to collective-
bargaining agreements with both Operating Engineers
and Longshoremen.
Historically, the Employer has assigned employees
represented by Operating Engineers to operate Mani-
towoc lattice boom-crawler cranes (lattice cranes) to load
and offload ships and barges, and has assigned employ-
ees represented by Longshoremen to operate all other
equipment, including, but not limited to, ship-based
cranes, payloaders, conveyors, fork lifts, front-end load-
ers, and bobcats.
The work in dispute is the operation of a hydraulic ma-
terial handler. The Employer became interested in ac-
quiring a material handler sometime in 2015. Instead of
immediately purchasing a material handler, the Employer
borrowed one from a customer. The Employer presented
testimony that it plans to use the material handler to re-
place a lattice crane to load and offload barges in the
event one of its two working lattice cranes is out of ser-
vice. As of the date of the hearing, however, because of
concerns over creating a jurisdictional dispute between
Operating Engineers and Longshoremen, the Employer
had not yet used the material handler to load or offload
cargo but had only “exercised” it, once to move the ma-
terial handler to a different area of the dock and once to
move scrap material in the warehouse.
When the material handler was moved on or about
April 7, 2016, a manager asked an employee represented
by Operating Engineers to perform the work simply be-
cause the employee happened to be standing nearby. On
April 14, 2016, Longshoremen filed a grievance claiming
that the assignment violated its collective-bargaining
agreement with the Employer. On May 12, 2016, in re-
sponse to Longshoremen’s pursuit of its grievance, Op-
erating Engineers sent a letter to the Employer claiming
the work and stating that Operating Engineers would
“engage in any and all means, including picketing, to
enforce and preserve its work assignment.”
The Employer then filed an unfair labor practice
charge, alleging that Operating Engineers’ threat violated
Section 8(b)(4)(D) of the Act.
B. Work in Dispute
The parties stipulated, and we find, that the work in
dispute is the operation of any hydraulic material handler
for the Employer at its Port of Indiana-Burns Harbor
location.
C. Contentions of the Parties
The parties agree that there is reasonable cause to be-
lieve that Operating Engineers has violated Section
8(b)(4)(D) and that there is no voluntarily agreed-upon
method to adjust the dispute that would bind all parties.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On the merits, Operating Engineers contends that the
factors of collective-bargaining agreements, employer
preference and past practice, area and industry practice,
relative skills and training, and economy and efficiency
of operations favor an award of work to employees rep-
resented by Operating Engineers. Longshoremen asserts
that the factors of collective-bargaining agreements, em-
ployer past practice, area and industry practice, economy
and efficiency of operations, and relative skills and train-
ing favor an award of work to the employees it repre-
sents. Longshoremen additionally contends an award of
the disputed work to Operating Engineers would repre-
sent a significant loss of work for its approximately 50
active members, and only a minimal gain of work for the
approximately 23,500 members of the Operating Engi-
neers.
The Employer did not file a posthearing brief. How-
ever, at the hearing, the Employer’s representative testi-
fied that the Employer prefers to assign the work in dis-
pute to Operating Engineers based on its threat to strike
and the fact that the material handler would be used to
functionally replace or augment the lattice crane, which
has historically been operated by Operating Engineers.
D. Applicability of the Statute
The Board may proceed with a determination of a dis-
pute under Section 10(k) of the Act only if there is rea-
sonable cause to believe that Section 8(b)(4)(D) has been
violated. Operating Engineers Local 150 (R&D Thiel),
345 NLRB 1137, 1139 (2005). This standard requires
finding that there is reasonable cause to believe that there
are competing claims to the disputed work and that a
party has used proscribed means to enforce its claim to
the work in dispute. Additionally, there must be a find-
ing that the parties have not agreed on a method for the
voluntary adjustment of the dispute. On this record, we
find that these requirements have been met.
1. Competing claims for work
The parties stipulated, and we find, that Operating En-
gineers and Longshoremen both claim the work in dis-
pute.
2. Use of proscribed means
The parties stipulated, and we find, that there is rea-
sonable cause to believe that Operating Engineers used
means proscribed by Section 8(b)(4)(D) to enforce its
claim to the disputed work when, in its May 12, 2016
letter to the Employer, Operating Engineers stated that it
would “engage in any and all means, including picketing,
to enforce and preserve” its claim to the disputed work.
The Board has long considered this type of threat to be a
proscribed means of enforcing claims to disputed work.
Laborers Local 110 (U.S. Silica), 363 NLRB No. 42, slip
op. at 3 (2015).
3. No voluntary method for adjustment of the dispute
The parties stipulated, and we find, that there is no
agreed-upon mechanism for the voluntary resolution of
this dispute.
Because we find that all three prerequisites for the
Board’s determination of a jurisdictional dispute are es-
tablished, we find that this dispute is properly before the
Board for resolution.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive award of disputed work after considering various
factors. NLRB v. Electrical Workers IBEW Local 1212
(Columbia Broadcasting), 364 U.S. 573, 577–579
(1961). The Board’s 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, 1410–1411
(1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Certifications and collective-bargaining agreements
The parties stipulated that the Employer “is not failing
to conform to an order or certification of the Board
determining the bargaining representative for the em-
ployees performing the work in dispute.”
Operating Engineers and Longshoremen are each party
to a collective-bargaining agreement with the Employer.
The Employer and Operating Engineers were parties to a
collective-bargaining agreement which expired on May
31, 2016, after the dispute arose. Article I of the expired
agreement stated that its terms were applicable to “the
loading and unloading of ships, barges and vessels and
all other crane work when such equipment is used on
docks, piers, and in harbor areas handling cargo within
the geographical jurisdiction of the Union and the opera-
tion and repair of all cranes and derricks and machines of
a like nature regardless of motive power or type of mo-
bility shall come within the occupational jurisdiction of
the Union.”1

1 The Operating Engineers and the Employer negotiated a successor
agreement in which the jurisdictional language was amended and a new
classification and corresponding wage rate for a “material handler” was
added. Because the new agreement was reached after the instant dis-
pute arose, we do not consider it in making our determination herein.
See Carpenters Northeast Ohio Council Local 1929 (Luedtke Engineer-
ing), 307 NLRB 1323, 1325 (1992) (“[W]e look to the state of the
Employer’s contractual obligations at the time it made the assignment
of work.”); Machinists Local 225 (Cessna Aircraft), 246 NLRB 24, 27
fn. 6 (1979).
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 150, AFL-CIO 3
(JACK GRAY TRANSPORT, INC. D/B/A LAKES & RIVERS TRANSFER)
The Employer and Longshoremen are parties to a cur-
rent collective-bargaining agreement, which is effective
from January 1, 2013, through December 31, 2017. Ar-
ticle 2 defines the bargaining unit as
employees of the Company and/or Employer in steve-
dore, transit sheds, warehouses and yard operations
such as Longshoremen, Warehousemen, Yard-workers,
Light Power Equipment Operators, Checkers, Signal-
men, Winch-men, Coopers, Light Pay-Loader Opera-
tors, Gearmen, Hatch Bosses, Mechanics, Apprentice
Crane men, Crane Operators, Scrap-Crane Operator,
Bulldozer Operators, Track-Mobile Operators, Walk-
ing Bosses, Heavy Pay-loader Operators, Conveyor
Maintenance Operators, Container Machine Operators,
Carpenters, Welders, Dispatcher, Ship Crane Operator,
Linesmen, Tank Farm Operator, Hopper Operator,
Hose men, Light and Heavy fork-lift Operators, Driv-
ers, and Shuttle Truck Drivers (CDL) … who are em-
ployed by the Employer to work on wharves, bulk-
heads; quays, piers, docks and other berthing locations
and adjacent storage or contiguous areas and structures
associated with the primary movements of cargo or
commodities from vessel to dock or dock to vessel, al-
so including structures which are devoted to receiving,
handling, holding, consolidation and loading or deliv-
ery of waterborne and other shipments, … including
areas devoted to the maintenance of the terminal or
equipment, and all work now being performed, and all
work that has been historically and traditionally per-
formed by the members of ILA Local 1969 . . . .
Although neither agreement specifically mentions the
operation of a material handler, the language of both
agreements is broad enough to cover the disputed work.
Accordingly, this factor does not favor an award to either
group of employees.
2. Employer preference
The factor of employer preference is generally entitled
to substantial weight. See Iron Workers Local 1 (Goebel
Forming), 340 NLRB 1158, 1163 (2003). Bryan Ryberg,
a contract consultant hired by the Employer to manage
its stevedore operations at the Port of Indiana, testified
that it was the Employer’s preference to have Operating
Engineers perform the disputed work, both “to avoid a
strike” and because the material handler would be used to
perform loading and offloading work that Operating En-
gineers–represented employees have historically per-
formed using a lattice crane, in the event one of the Em-
ployer’s lattice cranes is out of service.2 Although the
strike threat is accorded limited weight,3 coupled with the
Employer’s preference based on the prior division of
work, we find that this factor favors an award of the dis-
puted work to employees represented by Operating En-
gineers.
3. Employer past practice
There is no Employer past practice with respect to the
work in dispute because it involves new equipment that
has not been used previously. As discussed above, how-
ever, Ryberg testified that the Employer plans to use the
material handler to load and offload barges in the event
one of the Employer’s two working lattice cranes breaks
down. Because the material handler will be used to func-
tionally replace equipment that has historically been op-
erated by Operating Engineers, this factor weighs in fa-
vor of awarding the work in dispute to employees repre-
sented by Operating Engineers. Electrical Workers
IBEW Local 3 (New York News, Inc.), 255 NLRB 320,
321 (1981); Machinists Local 225 (Cessna Aircraft), 246
NLRB at 27.
4. Area and industry practice
Both Longshoremen and Operating Engineers operate
material handlers for employers in the Port of Indiana
and elsewhere. Operating Engineers–represented em-
ployees operate material handlers for Phoenix Services,
Tube City IMS, Tri-River Docks, and Beemsterboer Slag
Corporation, all in the Port of Indiana. Additionally,
Operating Engineers–represented employees operate
material handlers for employers at other locations in In-
diana and Illinois.
Longshoremen employees operate a material handler
for NLMK in the Port of Indiana. Longshoremen did not
present specific evidence of other locations where its
members operate material handlers. However, Long-
shoremen International Vice President Raymond Sierra
testified that employers at ports across North America
almost exclusively assign Longshoremen to operate any

2 Ryberg testified that the Employer’s preference to have Operating
Engineers–represented employees perform the disputed work was
based, in part, on the fact that “we were replacing a crane with a mate-
rial handler.” He testified further “we are taking a crane out of service
and we are putting another piece of equipment into service. . . . [W]e
have two cranes that we use to offload, and then we have a material
handler to offload and load. So if we have a breakdown on one of the
cranes, we have a material handler that we can go back to and utilize.”
3 The Board has long refused to accord much weight to a factor or
preference that may not be representative of a free and unencumbered
choice. See Teamsters Local 158 (Holt Cargo), 293 NLRB 917, 921
(1989); Int’l Longshoremen’s Local No. 50 (Brady-Hamilton Stevedore
Co.), 223 NLRB 1034, 1037 (1976), reconsideration granted and deci-
sion rescinded on other grounds 244 NLRB 275 (1979).
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
machinery, including material handlers, used to load and
offload cargo from ships and barges.4
In view of the fact that both Operating Engineers–
represented and Longshoremen-represented employees
operate material handlers at the Port of Indiana and else-
where, we find that the area and industry practice favors
neither group of employees.
5. Economy and efficiency of operations
Longshoremen contends that this factor favors an
award of the disputed work to employees it represents
because there are more Longshoremen than Operating
Engineers working for the Employer, and the Long-
shoremen are therefore better able to absorb the work.
Additionally, Longshoremen contends that it utilizes a
system where two employees work together, one as an
operator and one as a signalman, both of whom are quali-
fied operators. Hence, if the disputed work is awarded to
Longshoremen-represented employees, the operator and
signalman will be able to substitute for one another,
eliminating the need for a relief operator.
Longshoremen and Operating Engineers both also con-
tend that employees they represent can perform the dis-
puted work more economically based on their respective
contractual wage and benefit rates. However, the Board
does not consider wage differentials as a basis for award-
ing disputed work. Southwest Regional Council of Car-
penters (Standard Drywall, Inc.), 346 NLRB 478, 483
(2006); Painters Local 91 (Frank M. Burson, Inc.), 265
NLRB 1685, 1687 (1982).5
Considering the evidence, we find this factor favors an
award of the disputed work to employees represented by
Longshoremen. Seafarers, United Industrial Workers of
North America (Albin Stevedore Co.), 182 NLRB 633,
637 (1970) (finding that economy and efficiency of oper-
ations favored award of work to union that has more
members readily available to perform disputed work and
who are qualified to substitute for one another).

4 Sierra also testified that in 1984, a verbal interunion agreement was
reached between Operating Engineers and Longshoremen pursuant to
which Operating Engineers would operate lattice cranes to load and
offload ships and barges at the Port of Indiana, and Longshoremen
would operate all other machines for its signatory employers at the
Port. Operating Engineers did not deny the existence of the agreement.
However, Sierra’s testimony regarding the agreement is vague and it is
not clear that the agreement covers the disputed work, which involves
the operation of machinery that was not in use at the time the agree-
ment was reached.
5 Operating Engineers also argues that Ryberg testified that it would
be more economically efficient for the Employer to assign the work to
employees represented by Operating Engineers. However, it appears
from Ryberg’s testimony that the Employer was primarily concerned
with the economic loss it would incur if Operating Engineers engaged
in a work stoppage.
6. Skills, safety, and training
Employees represented by both unions possess the
skills necessary to perform the disputed work and they
are experienced in doing so. Both unions also provide
training to their members. Operating Engineers owns a
training facility at which members can receive formal
training in crane work and occupational safety, among
other things. However, no evidence was presented that
Operating Engineers provides specialized training for
operating a material handler.
Longshoremen provides on-the-job training. Members
who have seniority working on a certain machine and are
considered “master at the top grade” train new employ-
ees. New employees must be trained and approved by a
senior member before they can operate a machine.
Longshoremen currently has eight members qualified to
operate a material handler and four in training.
As employees represented by both unions possess the
skills necessary to perform the disputed work and both
offer some training, this factor does not favor employees
represented by either Union.
Conclusion
After considering all of the relevant factors, we con-
clude that employees represented by Operating Engineers
are entitled to perform the work in dispute. We reach
this conclusion even though assigning the work to em-
ployees represented by Longshoremen would result in
slightly greater economy and efficiency of operations.
The Employer’s preference and past practice of assigning
loading and unloading work to Operating Engineers
when performed with a lattice crane, which the material
handler will functionally replace, however, conclusively
favor assigning the work to employees represented by
Operating Engineers. Such an assignment is not incon-
sistent with the area and industry practice or the Employ-
er’s collective-bargaining agreements either with Operat-
ing Engineers or Longshoremen. Nor is it clearly incon-
sistent with the agreement between the two Unions con-
cerning the division of work. We emphasize, in this re-
spect, that our award in this proceeding encompasses
only the operation of the material handler when it is used
to functionally replace a lattice crane. In making this
determination, we award the work to employees repre-
sented by Operating Engineers, not to that labor organi-
zation or to its members.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of Jack Gray Transport, Inc. d/b/a Lakes &
Rivers Transfer who are represented by International
Union of Operating Engineers, Local 150, AFL–CIO, are
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 150, AFL-CIO 5
(JACK GRAY TRANSPORT, INC. D/B/A LAKES & RIVERS TRANSFER)
entitled to operate any hydraulic material handler for the
Employer at its Port of Indiana-Burns Harbor location
when the material handler is used to functionally replace
a lattice crane.
Dated, Washington, D.C. October 21, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD