International Union Of Operating Engineers, Local No. 139, Afl-Cio

National Labor Relations Board - Board DecisionsFeb 22, 1988

287 N.L.R.B. 1228 (N.L.R.B. 1988)

1228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Local No. 139, AFL-CIO and TCI General Contrac- tor, Inc . and Laborers' International Union of North America, Local No. 317, AFL-CIO. Case 18-CD-297 22 February 1988 DECISION AND DETERMINATION OF DISPUTE By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT The charge in this Section 10(k) proceeding was filed 31 August 1987 by the Employer (TCI), alleg- ing that the Respondent, International Union of Operating Engineers , Local No. 139, AFL-CIO, violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to employees represented by Local No. 317 of the Laborers' International Union of North America, AFL-CIO. The hearing was held 1 October 1987 before Hearing Officer David M. Biggar. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board affirms the hearing officer 's rulings, finding them free from prejudicial error. On the entire record, the Board makes the following find- ings. 1. JURISDICTION The Company, a Wisconsin corporation, is en- gaged in business as a general contractor with its principal place of business in La Crosse, Wisconsin. In the 12 months prior to the hearing, a representa- tive period, the Employer purchased and received goods and services in excess of $50,000 from points located outside the State of Wisconsin The parties stipulate, and we find, that the Employer is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Laborers and the Operating Engineers are labor organizations within the meaning of Section 2(5) of the Act. II. DISPUTE A. Background and Facts of Dispute The Employer, a general contractor, is bound to a collective-bargaining agreement between the Chippewa Valley Contractors Association of Eau Claire and Area and General Laborers' Local No. 317. Article XVI of this agreement guarantees the operation of forklifts to employees represented by the Laborers. The Employer signed a contract with Norenco, a subsidiary of Northern States Power Company, to perform certain erection work on a steam-gener- ating facility located in Eau Claire, Wisconsin. In the performance of this work, the Employer will utilize a single forklift to move materials on the jobsite. The work had not begun at the time of the hearing, but when the work was to begin, it was anticipated that the forklift would be operated 3 to 4 hours a day. On or about 27 August 1987 the Employer met with the project manager of the project. Representatives of three separate labor or- ganizations, including Operating Engineers Local No. 139, were also present at the meeting. Edward Guthman, business representative for the Operating Engineers, inquired whether the Employer intend- ed to use a forklift on the job. When the Employer answered affirmatively, Guthman presented the Employer with a contract. The Employer told Guthman that it had no agreement with the Oper- ating Engineers and had always assigned the oper- ation of forklifts to employees represented by the Laborers. Guthman replied that there would be "problems" if employees represented by the Labor- ers were used to operate the forklift. The Employ- er's project manager and general superintendei.i testified that Guthman threatened picketing. Guth- man testified that he did not recall saying that the Operating Engineers would put a picket on the job but did admit that the "problems" he alluded to could include picketing. On 1 October 1987 the Employer assigned the operation of the forklift to employees represented by the Laborers. The work had not yet begun as of the hearing. B. Work in Dispute The disputed work involves the operation of a forklift at the NORENCO Steam Supply facility, Eau Claire, Wisconsin jobsite. C. Contentions of the Parties The Employer contends that the disputed work should be awarded to employees represented by the Laborers based on its collective-bargaining agreement with the Laborers, its past practice and preference, skills, industry practice, and economy and efficiency of operations. The Operating Engineers contends that the work should be awarded to employees whom it repre- sents based on area practice. The Laborers contends that in this jurisdiction, laborers who operate forklifts either carry dual membership cards or permits from the Operating Engineers. Neither the Laborers nor the Operating Engineers filed a brief. Although, in response to 287 NLRB No. 130 OPERATING ENGINEERS LOCAL 139 (TCI CONTRACTOR) 1229 questions at the hearing, the Laborers would nei- ther claim nor disclaim jurisdiction over the disput- ed work, the business agent for the Laborers testi- fied that if assigned the work, members represented by his Union would perform it. i D. Applicability of the Statute Before the Board may proceed with a determina- tion of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that the parties have not agreed upon a method for the voluntary adjustment of the dis- pute. It is undisputed that Guthman, the Operating Engineers' business representative, told the Em- ployer there would be "problems" if it did not sign an agreement with the Operating Engineers and assign the operation of the forklift to employees represented by his Union. The Employer's project manager and general superintendent testified that Guthman threatened to picket if his demand was not met. Guthman testified that he did not recall saying there would be picketing but testified that "problems" could include picketing. We find reasonable cause to believe that a viola- tion of Section 8(b)(4)(D) has occurred and there is no contention that there is an agreed-on method for voluntary adjustment of the dispute. Accord- ingly, 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 af- firmative 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 bal- ancing the factors involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the determination of this dispute. 1. Collective-bargaining agreements TCI and the Laborers are bound by a collective- bargaining agreement which contains a provision indicating that the operation of forklifts is to be performed by employees represented by the Labor- ' Because the Employer assigned the work to employees represented by the Laborers, the Laborers' disclaimer has no force or effect, because it is inconsistent with the Laborers' willingness to accept an assignment of the work for its members if such were made Consequently, we find there are competing claims to the disputed work ers. TCI does not have a collective- bargaining agreement with the Operating Engineers. We find this factor favors an award of the disputed work to employees represented by the Laborers. 2. Company preference and past practice The record reflects that the Employer, since its inception, has assigned the operation of forklifts to employees represented by the Laborers. We find that this factor favors an award to employees rep- resented by the Laborers. Jim Webb, Frank Kistler, and Chris Weiss, TCI's project manager, general superintendent, and presi- dent respectively, testified that the Employer pre- fers that the disputed work be performed by em- ployees represented by the Laborers. Consequent- ly, we find that the factor of employer preference also favors an award to employees represented by the Laborers. 3. Area and industry practice Jim Griglak, business manager for the Laborers, and Edward Guthman, business representative for Operating Engineers Local 139, testified that in the jurisdiction where this work is to be performed, forklifts are operated by both laborers and operat- ing engineers , but when a laborer performs the work, he must either hold dual cards or obtain a permit from the Operating Engineers. Although the evidence indicates that laborers perform the disputed work in other areas, there was no evi- dence pertaining to the Eau Claire area other than Griglak's and Guthman's testimony. No contrary evidence was presented. We find the factor of area practice favors awarding the disputed work to em- ployees represented by the Operating Engineers. 4. Relative skills Webb, Kistler, and Weiss all testified that em- ployees represented by the Laborers were qualified to operate the forklift Griglak testified that em- ployees represented by the Operating Engineers are also qualified to operate the forklift. We therefore find this factor is inconclusive in determining the award of the disputed work. 5. Economy and efficiency of operations Webb, Kistler, and Weiss testified that when not engaged in operating the forklift, a laborer can per- form other tasks, including tending the carpenters building foundations by bringing them buckets of ties, helping strip or taking material as it is stripped off a foundation and piling it for further transporta- tion, mixing mortar, bringing mortar to the masons, and cleaning up. However, when the forklift is not 1230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in operation, an operating engineer would be idle. As noted above, it is anticipated that the forklift will only be in operation 3 to 4 hours a day. Ac- cordingly, we find that the factors of economy and efficiency favor an award of the disputed work to employees represented by the Laborers. Conclusions After considering all the relevant factors, we conclude that employees represented by the Labor- ers are entitled to perform the work in dispute. We reach this conclusion relying on the factors of the collective -bargaining agreement, employer prefer- ence and past practice, and economy and efficien- cy. In making this determination , we are awarding the work to employees represented by the Labor- ers, not to that Union or its members. The determi- nation is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Employees of TCI General Contractor, Inc., represented by Laborers' International Union of North America, Local No. 317, AFL-CIO, are en- titled to perform the work of operating the forklift at the Norenco Steam Supply facility Eau Claire, Wisconsin jobsite. 2. International Union of Operating Engineers, Local 139, AFL-CIO, is not entitled by means pro- scribed by Section 8(b)(4)(D) of the Act to force TCI General Contractor, Inc. to assign the disput- ed work to employees represented by it. 3. Within 10 days from this date, International Union of Operating Engineers, Local 139, AFL- CIO, shall notify the Regional Director for Region 18 in writing whether it will refrain from forcing the Employer, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination.