IUOE, Local 77

National Labor Relations Board - Board Decisions

Jul 31, 1981

257 N.L.R.B. 436 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers, Local
Nos. 77, 77-A, 77-RA, 77-B, 77-C, 77-D,
AFL-CIO' and C. J. Coakley Co., Inc. and La-
borers' International Union of North America,
Local Union 74, AFL-CIO. 2 Case 5-CD-266
July 31, 1981
DECISION AND DETERMINATION OF
DISPUTE
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by C. J. Coakley Co., Inc.,
herein called the Employer, alleging that Interna-
tional Union of Operating Engineers, Local Nos.
77, 77-A, 77-RA, 77-B, 77-C, 77-D, AFL-CIO,
herein called Operating Engineers, violated Section
8(b)(4)(D) of the Act by engaging in certain pro-
scribed activity with an object of forcing or requir-
ing the Employer to assign certain work to em-
ployees represented by it rather than to employees
represented by Laborers' International Union of
North America, Local Union 74, AFL-CIO, herein
called Laborers.
Pursuant to notice, a hearing was held before
Hearing Officer William D. Miller, Jr., on January
21, 1981. All parties appeared at the hearing and
were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to adduce
evidence bearing on the issues. Thereafter, the Em-
ployer, Operating Engineers, and Laborers filed
briefs which have been duly considered.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYE R
The parties stipulated, and we find, that the Em-
ployer, a Virginia corporation with its principal
place of business in Merrifield, Virginia, is engaged
in commercial construction. During the past 12
months, a representative period, the Employer had
gross revenues in excess of $500,000 and, during
that same period, performed services valued at
more than $50,000 outside the Commonwealth of
Virginia.
Based on the foregoing, we find that C. J. Coak-
ley Co., Inc., is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the purposes of the Act to
assert jurisdiction herein.
' Respondelt's nlame appears As arlended at the hearing.
The interested party's lnamle appears i amended at he hearing
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Operat-
ing Engineers and Laborers are labor organizations
within the meaning of Section 2(5) of the Act.
111. 1HE DISPUTE
A. Background and Facts of the Dispute
The Employer is a commercial contractor en-
gaged in lathe and plaster work, spray fireproofing,
and the installation of drywall and acoustical tile.
On July 24, 1980,3 the Employer entered into a
contract with Charles H. Tompkins Company to
perform interior finishing work at the Dirksen
Senate Office Building project in Washington, D.C.
This agreement states, inter alia, that Tompkins
"will provide hoist and hoist facilities" (i.e., a me-
chanical device used to move materials from floor-
to-floor) for the Employer at the jobsite. After the
parties executed the contract, however, Tompkins
offered to pay all costs involved in operating the
hoist if the Employer would provide the equip-
ment. The Employer subsequently agreed to erect
the hoist and operate it on a daily basis.
Consequently, in late October, the Employer
contacted Paul Schwesig, a member of Operating
Engineers, and asked him to serve as its hoist oper-
ator on the Dirksen project. Schwesig indicated his
willingness to perform the work, but stated that the
Employer would have to make arrangements with
Operating Engineers. Upon learning that the Em-
ployer had decided to employ Schwesig, Charles
Davidson, the Operating Engineers business repre-
sentative, contacted the Employer concerning the
hoist operation. Davidson told Cornelius Coakley,
the Employer's president, that Schwesig could
work at the jobsite if the Employer entered into a
collective-bargaining agreement with Operating
Engineers. Coakley indicated that he would sign
the contract after his lawyers had reviewed the
provisions contained therein. 4 Davidson subse-
quently delivered to the Employer a copy of the
existing areawide agreement between Operating
Engineers and the Construction Contractor's Coun-
cil. Pursuant to the understanding between Coakley
and Davidson, Schwesig began working for the
Employer on November 4.
Davidson then went out of town for about 3
weeks. On December 1, Davidson learned that the
Employer had not yet executed the Operating En-
gineers contract. At or about this time, the Em-
ployer began using forklifts, the subject of the in-
',All dates hereil are inl 98( unless otherwise indicated
PIrcviol I,. the lmiployer had rln c er been a party 1o a cllective-bar-
gaillilg agrleemellt ith ()peratiig Engineers
257 NLRB No. 17
436
IUOE, LOCAL 77
stant dispute, on the Dirksen project. The Employ-
er assigned this work to employees represented by
Laborers in accordance with its collective-bargain-
ing agreement with Laborers. Thereafter, during a
meeting on December 8, Davidson told Coakley
that Operating Engineers needed a contract with
the Employer so that it could lawfully collect
fringe benefit contributions on Schwesig's behalf.5
Coakley replied that he wanted more time to
review the proposed contract. Although he was
unsuccessful in his efforts to reach Coakley over
the next week, Davidson did leave several mes-
sages with Coakley's secretary. 6 On December 12
Davidson informed Coakley's secretary that there
was "an additional problem now that the Laborers
were using the forklift." On December 15 David-
son told Coakley's secretary that "there was a
problem with the forklift and the contract."
On December 18 Davidson and Coakley met in
the Employer's office to discuss the proposed con-
tract. Coakley stated that he would not sign the
Operating Engineers standard contract because it
would require the Employer to submit jurisdiction-
al disputes to the Impartial Jurisdictional Disputes
Board, herein called IJDB. In reference to David-
son's message of the previous week, Coakley also
mentioned that he could not execute an agreement
which contained a jurisdictional clause providing
for the assignment of forklift work to employees
represented by Operating Engineers. Coakley
noted that he already had assigned such work to
employees represented by Laborers. Davidson con-
tinued to demand, however, that Coakley sign the
Operating Engineers standard contract. In addition,
Davidson insisted that the Employer assign the
forklift work at the jobsite to employees represent-
ed by Operating Engineers. When Coakley sug-
gested that they sign a project agreement applying
only to Schwesig's work at the Dirksen site, Da-
vidson replied that Operating Enginers considered
"special agreements just like a sweetheart clause
.... " Davidson then told Coakley that he would
have to remove Schwesig from the job "because of
the fact that I can't have a man working for you if
I don't have a contract."
Before leaving the Employer's office, Davidson
contacted Hal Keefer, Tompkins' project superin-
tendent at the Dirksen project, and informed him
that Coakley would not sign a contract. Davidson
also called Paul Altman, vice president of Tomp-
kins, to advise him "he was going to have troubles
because Coakley would not sign [the] agreement."
After hiring Schhwesig on Noxemhcer 4, the Elnlplo er p id to ()pcr lt-
ing Engineers those fringe henefil con trlibutrons which A.uld lI il; bheei
required under the Uniolill' arceasside aigrcemenltl ith Ihe (onllrucli liil
Contractors, Counllil
Coak lc' % sccrel;lr (lid lnot test, i I t the hearing.
Thereafter, Davidson went directly to the Dirksen
jobsite, where he told Schwesig to stop work. Ac-
companied by Schwesig, Davidson then proceeded
to the office of Tom Yorty, the Employer's project
manager. Davidson informed Yorty of his decision
to pull Schwesig from the job because of the Em-
ployer's refusal to sign a contract. Davidson also
remarked "that he had men on the job [employed
by other employers] watching out and that [Yorty]
was not to touch the hoist or the forklift. If [Yorty]
did, something would happen. And you know what
that means." Concerned about its potential liability
for any labor problems under its subcontracting
agreement with Tompkins, the Employer decided
to shut down all operations involving the use of
forklifts or the hoist. The Employer continued its
other operations on the jobsite.
On December 20, Davidson again met with
Coakley to discuss the possibility of entering into a
collective-bargaining agreement. Coakley reiterated
his position that he would not sign a contract con-
taining either IJDB language or a jurisdictional
clause which covered forklift operations. Davidson
replied that "he had to have the forklift, that he
had a reduced rate for [the Employer] and that he
would let [the Employer] have an apprentice at the
$9.15 rate. But that he had to have it." Coakley
then discussed the possibility of entering into a pro-
ject agreement, but Davidson again refused to do
so. Before the meeting ended, Davidson told Coak-
ley that "he had to have this agreement signed be-
cause otherwise he could not get the health and
welfare benefits." The parties had no further dis-
cussions concerning this matter.
Thereafter, Tompkins, which has a collective-
bargaining agreement with Operating Engineers,
hired Schwesig as the hoist operator for the Dirk-
sen project. On December 23, the Employer re-
sumed its forklift operations utilizing employees
who are represented by Laborers.
On December 29, the Employer filed the instant
charge alleging that Operating Engineers had vio-
lated Section 8(b)(4)(D) of the Act. Operating En-
gineers subsequently advised the Regional Director
for Region 5 that it did not have any interest in ob-
taining the Employer's ride-on forklift work for the
employees it represents. During the hearing, Oper-
ating Engineers reiterated its disclaimer of the dis-
puted work and then moved to quash the notice of
hearing issued herein.
B. The IHork in Dispute
The parties stipulated at the hearing that the
work in dispute involves the operation of ride-on
forklifts which transport metal studs, wallboard,
and other materials from a loading area at the con-
437
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
struction site to the interior of the Dirksen Senate
Office Building.
C. Contentions of the Parties
Operating Engineers argues that there is no rea-
sonable cause to believe that it has violated Section
8(b)(4)(D) and that, therefore, the dispute is not
properly before the Board and the notice of hear-
ing should be quashed. Operating Engineers con-
tends that because it has disclaimed the disputed
work there is no existing work assignment dispute
in this proceeding. Alternatively, it asserts that
there is no clear showing that it threatened, co-
erced, or restrained the Employer with an object
of forcing the Employer to assign the disputed
work to employees represented by it. In this
regard, Operating Engineers claims that Schwesig's
removal from the jobsite was based solely on the
Employer's refusal to enter into a collective-bar-
gaining agreement with it. Operating Engineers
points out that it legally could not collect pension
and welfare contributions on Schwesig's behalf
until the Employer signed a contract. Finally, it
argued at the hearing that there is an agreed-upon
method for the voluntary adjustment of the dispute
based on the Employer's contract with Tompkins
and the affiliation of both labor organizations with
the Building and Construction Trades Department,
AFL-CIO.
The Employer argues that a jurisdictional dis-
pute exists in this case. The Employer contends
that there is reasonable cause to believe that Sec-
tion 8(b)(4)(D) of the Act has been violated since
Operating Engineers removed Schwesig from his
job as hoist operator in support of its demand that
the disputed work be assigned to employees repre-
sented by it, and then caused a work stoppage by
threatening the Employer's project manager with
adverse consequences if the Employer continued to
operate the hoist or forklifts at the jobsite. It fur-
ther argues that there is no agreed-upon method
for resolving the instant dispute because it does not
participate in and is not bound by determinations of
the Impartial Jurisdictional Disputes Board. Final-
ly, the Employer urges that its assignment of the
disputed work to its employees represented by La-
borers should be upheld on the basis of its collec-
tive-bargaining agreement with Laborers, its pref-
erence and past pactice, area practice, and efficien-
cy and economy of operations.
The Laborers position essentially agrees with
that of the Employer.
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: (1) there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated, and (2) there is no agreed-upon method
for voluntary resolution of the dispute.
With respect to (1), above, the record discloses
that the Employer assigned the work in dispute to
employees represented by Laborers in late Novem-
ber or early December. After the Employer re-
fused to sign Operating Engineers areawide con-
tract on December 18, Davidson immediately re-
moved hoist operator Schwesig from the Dirksen
project. Davidson then told the Employer's project
manager that "something would happen" if the
Employer touched the hoist or forklifts. The Em-
ployer remained on the jobsite, but shut down its
forklift and hoist operations. Thereafter, during a
meeting with the Employer on December 20, Da-
vidson insisted that the dispute could not be re-
solved until the Employer assigned the disputed
work to employees represented by Operating Engi-
neers. Davidson also mentioned that Operating En-
gineers would operate the Employer's forklifts at
an apprentice wage rate lower than that earned by
employees represented by Laborers. While David-
son denies that he engaged in proscribed activity to
obtain the Employer's forklift work for employees
represented by Operating Engineers,7 a conflict in
testimony does not prevent the Board from pro-
ceeding under Section 10(k) for, in this proceeding,
the Board is not charged with finding that a viola-
tion did in fact occur, but only that reasonable
cause exists for finding such a violation. Accord-
ingly, without ruling on the credibility of the testi-
mony at issue,8 we find that the Operating Engi-
neers conduct in removing Schwesig from the pro-
ject and its subsequent veiled threat to picket the
Employer on the jobsite clearly demonstrate that
there is reasonable cause to believe that Section
8(b)(4)(D) has been violated.
In reaching this conclusion, we note that Operat-
ing Engineers seeks to quash the notice of hearing
on the ground that it has disclaimed an interest in
the disputed work. It is well established that a ju-
risdictional dispute no longer exists when one of
the competing unions or parties effectively re-
nounces its claim to the work at issue.' The party
7 During the hearing, Davidson admitted tha;t, after removing Schwe
sig from the jobsite, he told Yorty, the Employer's project manager, "not
to touch the hoist." Davidson further testified on cross-examinatio that
he could have mentioned the forklifts, as well as the hoist, in his collcr-
satiion with Yort)y
See, e g.. Local Union No. 334, Laboerrs International nion o North
mnrica. .AFL-CIO ((C. . legt Corporation). 175 NI.RBI 6)R 8. (1969)
' General Blaildinlg l.aborers Lotal Union No. 66 )of the Laoremr Inter-
ilarionial Union oij :.orth .licrica (GCorgia-Pacific Co(rporation. 209 NI.RB
611 (1974), and cases cited therein.
438
IUOE, LOCAL 77
raising such an issue, however, has the burden to
satisfy the Board's requirements of a clear, un-
equivocal, and unqualified disclaimer of all interest
in the work in dispute.10 Applying this criteria to
the circumstances present in the instant case, we
conclude that the Operating Engineers disclaimer is
ineffective for the reasons set forth below and,
thus, does not warrant our quashing the notice of
hearing.
At the outset of the hearing, counsel for Operat-
ing Engineers read into the record a statement that
Operating Engineers would not engage in unlawful
conduct to secure the Employer's forklift work at
the Dirksen Senate Office Building project. He
subsequently made, inter alia, the following com-
ments in reference to this issue:
Whether or not at some future time under an
appropriate collective-bargaining agreement,
Local 77 [Operating Engineers] would seek to
exercise whatever rights it has under a collec-
tive-bargaining agreement is really something
that cannot be determined at this point in time.
Thereafter, during the course of the hearing, Da-
vidson was asked on cross-examination, "Do you
think when Coakley [the Employer] uses Laborers
to operate forklifts, that's your work?" Davidson
replied: "Sure, because it's stated in this book [the
Operating Engineers areawide contract] here." We
conclude on the basis of the foregoing statement by
the Operating Engineers counsel and its business
representative's record testimony that Operating
Engineers is continuing to assert a jurisdictional
claim to the Employer's forklift work on behalf of
the employees it represents. Thus, we find that the
Operating Engineers disclaimer should not be hon-
ored since it must be inferred from the Operating
Engineers conduct at the hearing that it will persist
in its efforts to obtain the disputed work. In these
circumstances, we believe that the policies of the
Act and the direction of Section 10(k) require that
the Board issue a Determination of Dispute in this
case. Accordingly, we hereby deny the motion to
quash the notice of hearing.
With respect to (2), above, Operating Engineers
argued at the hearing that an agreed-upon method
for the voluntary adjustment of this dispute exists
because the parties are bound to submit jurisdic-
tional disputes to the IJDB for determination. It is
undisputed that the Employer is not required to
submit such disputes to the IJDB under its existing
collective-bargaining agreement with Laborers.
Nevertheless, Operating Engineers asserted that the
Employer's subcontracting agreement with Tomp-
"' Laborers' International Union of North 4merica. Local 935. A.4FL-CIO
(C & S Construction Co.. Inc.), 206 NLRB 807 (1973)
kins obligates the Employer to IJDB procedures.
We find no merit in this contention.
Operating Engineers initially contended that the
Employer has stipulated to a provision in the prime
contract for the project which allegedly requires
the submission of all jurisdictional disputes to the
IJDB. In this regard, article V of the subcontract-
ing agreement between the Employer and Tomp-
kins requires that the Employer's "labor policy
. . . be in agreement with the prime contract and
the Subcontractor shall employ no labor that will
cause conflict with other labor employed at the
site." Since the parties did not introduce into evi-
dence the prime contract entered into by Tomp-
kins, we are unable to determine whether there is a
provision that stipulates Tompkins to IJDB proce-
dures. However, even if the prime contract did
contain such language, we would not regard as
controlling the vague provision, quoted above, in-
corporated into the Employer's subcontract. The
Board has consistently held that an employer is not
bound to the IJDB unless it has expressly agreed to
be so bound. "
In the alternative, Operating Engineers urges
that the Employer is bound to the IJDB by the fol-
lowing clause in its contract with Tompkins:
Article XI (b) - The Subcontractor agrees to
abide by the prevailing practice of the Con-
struction Industry and to request the assistance
of the Contractor's Construction Council in
any matters involving jurisdictional disputes.
Should this agency fail to resolve any such
matters, the Subcontractor shall request a deci-
sion from the National Labor Relations Board.
In rejecting the Operating Engineers argument, we
note that the foregoing provision does not even
mention the IJDB as a mechanism for resolving ju-
risdictional disputes. Accordingly, having previous-
ly found that reasonable cause exists to believe that
Operating Engineers violated Section 8(b)(4)(D) of
the Act, we find that the dispute is properly before
the Board for determination.
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work
after giving due consideration to various relevant
factors.2 As the Board has frequently stated, the
" See. e.g. Local N;. 17. Shet't .Metal Worker, Intrrnrationl .4woiatlon.
A4FL-CIO IJ. Sloinik Companv). 197 Nl.R 1127 (1972)
12 .. R.B. . Radio & Televion Broadcast Eilner, nion. Local
1212. Ilternational Brotherhood q' Electrical 14'rkrs. -I-L-CIO [Cllulm-
bia Broadcaiting System]. 364 I.S. 573 (1461); Itlrnttational .4owiation of
Machinits, Ldgc No. 1743. -IL-CIO (J. I Jowc Consruction Compa-
nv). 135 NLRB 1402 (1962)
439
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
determination in a jurisdictional dispute case is an
act of judgment based on commonsense and experi-
ence in weighing these factors. The following fac-
tors are relevant in making a determination of the
dispute before us.
1. Board certifications and relevant collective-
bargaining agreements
There is no evidence that either of the labor or-
ganizations concerned herein has been certified by
the Board as the collective-bargaining representa-
tive for a unit of the Employer's employees.
The Employer has no collective-bargaining
agreement with Operating Engineers. Article II,
section 2(B), of the existing collective-bargaining
agreement between the Employer and Laborers
provides, inter alia, as follows:
Tending shall consist of preparation of materi-
als and the handling and conveying of materi-
als to be used by mechanics of other crafts,
whether such preparation is by hand or any
other process. After the material has been pre-
pared, tending shall include the supplying and
conveying of said material and other materials
to such mechanic, whether by bucket, hod,
wheelbarrow, buggy, or other motorized unit
used for such purpose, including forklifts. [Em-
phasis supplied.]
Therefore, we conclude that Laborers contract
with the Employer covers the work in dispute.
Accordingly, while there are no certifications
which would favor an award of the disputed work
to employees represented by either Laborers or
Operating Engineers, we find that the Laborers ex-
isting collective-bargaining agreement with the
Employer favors an award of the ride-on forklift
work to employees represented by Laborers.
2. Employer assignment and preference
The Employer has assigned the work in dispute
to its employees who are represented by Laborers,
and has manifested a preference to continue that
assignment. We therefore find that this factor
favors an award of the disputed work to employees
represented by Laborers.
3. Relative skills
It is clear from the record that employees repre-
sented by either Laborers or Operating Engineers
are equally capable of operating the Employer's
ride-on forklifts to transport materials at the Dirk-
sen project. Accordingly, we find that this factor
does not favor an award of the disputed work to
employees represented by either labor organization.
4. Industry and area practice
There is no specific evidence regarding the in-
dustry practice concerning the work in dispute.
With respect to area practice, the Employer's presi-
dent testified that all contractors in the Employing
Plasterers' Association, of which the Employer is a
member, assign the disputed work to employees
represented by Laborers. The Operating Engineers
business representative, Davidson, also testified,
however, that employees represented by Operating
Engineers have performed the disputed work in the
Washington, D.C., area.
In view of the foregoing, we conclude that both
industry and area practice are inconclusive and do
not favor an award of the disputed work to em-
ployees represented by either Laborers or Operat-
ing Engineers.
5. Economy and efficiency of operations
The record indicates that the Employer's em-
ployees represented by Laborers ordinarily use the
ride-on forklifts about 2 hours each day. When the
forklifts are not in operation, the employees repre-
sented by Laborers are engaged in the preparation
and handling of materials for other building and
construction crafts. The Employer currently has no
employees represented by Operating Engineers.
Under these circumstances, employees represented
by Operating Engineers would be employed for the
purpose of performing only 2 hours' work per day
if they were awarded the disputed work. Accord-
ingly, we find that the factors of economy and effi-
ciency of operations favor an award of the disput-
ed work to employees represented by Laborers.
Conclusion
Upon the record as a whole, and after full con-
sideration of all the relevant factors involved, we
conclude that the Employer's employees who are
represented by Laborers' International Union of
North America, Local Union 74, AFL-CIO, are
entitled to perform the work in dispute. We reach
this conclusion based on the Employer's current
collective-bargaining agreement with Laborers, the
Employer's preference and past practice of assign-
ing the disputed work to these employees, and the
factors of economy and efficiency of the Employ-
er's operations. Accordingly, we shall determine
the instant dispute by awarding the disputed work
to employees represented by Laborers' Internation-
al Union of North America, Local Union 74,
AFL-CIO, but not to that Union or its members.
Additionally, we find that Operating Engineers is
not entitled by means proscribed under Section
8(b)(4)(D) of the Act to force or require the Em-
440
IUOE, LOCAL 77
ployer to assign the disputed work to employees
represented by it.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of
the foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Employees of C. J. Coakley Co., Inc., who are
represented by Laborers' International Union of
North America, Local Union 74, AFL-CIO, are
entitled to perform the work involved in operating
the Employer's ride-on forklifts at the Dirksen
Senate Office Building project.
2. International Union of Operating Engineers,
Local Nos. 77, 77-A, 77-RA, 77-B, 77-C, 77-D,
AFL-CIO, is not entitled by means proscribed by
Section 8(b)(4)(D) of the Act to force or require C.
J. Coakley Co., Inc., to assign the disputed work to
employees represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, International Union
of Operating Engineers, Local Nos. 77, 77-A, 77-
RA, 77-B, 77-C, 77-D, AFL-CIO, shall notify the
Regional Director for Region 5, in writing, wheth-
er or not it will refrain from forcing or requiring
C. J. Coakley Co., Inc., by means proscribed by
Section 8(b)(4)(D) of the Act, to assign the disput-
ed work to employees represented by it rather than
to employees represented by Laborers' Internation-
al Union of North America, Local Union 74,
AFL-CIO.
441