Local 571, Operating Engineers

National Labor Relations Board - Board Decisions

Jun 6, 1973

203 N.L.R.B. 1252 (N.L.R.B. 1973)

1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 571, International Union of Operating Engineers
and Affholder, inc.aand Local 1140, Laborer's
International Union of North America , AFL-CIO.
Case 17-CD-157
(7) of the Act and it will effectuate the policies of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS
June 6, 1973
DECISION AND ORDER QUASHING
NOTICE OF HEARING
BY MEMBERS FANNING, KENNEDY, AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
charges filed by Affholder, Inc., herein called Aff-
holder, alleging that Local 571, International Union
of Operating Engineers , herein called Operating Engi-
neers , had violated Section 8(b)(4)(D) of the Act by
engaging in certain proscribed activity with the object
of forcing Affholder to assign certain work to Operat-
ing Engineers rather than to employees represented
by Local 1140, Laborers' International Union of
North America, AFL-CIO, herein called Laborers.
Pursuant to notice, a hearing was held before Hear-
ing Officer John P. Hurley on May 25, 26, and 31,
1972, at Omaha, Nebraska. Affholder and Operating
Engineers appeared at the hearing' and were afford-
ed full opportunity to be heard, to examine and cross-
examine witnesses , and to adduce evidence bearing
on the issues . Thereafter, Affholder and Operating
Engineers filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed. The Board has considered the entire record
in this case and hereby makes the following findings.
1. THE BUSINESS OF THE EMPLOYER
Affholder, Inc., a Missouri corporation, is a tunnel-
ing and boring contractor engaged in the building and
construction industry with its principal place of busi-
ness located in St. Louis, Missouri. In the course and
conduct of its business, it annually performs services
valued in excess of $50,000 outside the State of Mis-
souri. Accordingly, we find, as stipulated by Affhold-
er and Operating Engineers, that Affholder is engaged
in commerce within the meaning of Section 2(6) and
Affholder and Operating Engineers stipulated, and
we find, that Operating Engineers and Laborers are
labor organizations within the meaning of Section
2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The work in dispute is the operation of the air-
operated loader or mining tool (also known as the
mucking machine) used in digging tunnels on the Pa-
pillion Creek Sanitary Outfall Sewer, City of Omaha
projects located in Sarpy County, Nebraska.
B. Background
In November 1971, Affholder began tunneling op-
erations on the Papillion Creek Sanitary Outfall Sew-
er, Sarpy County, Nebraska. The Company is in sole
control of the assignment of the work.
When Affholder used the mucking machine for the
first time on this particular job on January 11, 1972,
it was operated by two members of a St. Louis, Mis-
souri, Laborers Union local who received clearance
from Laborers' Local 1140 to work in the area. On
January 13, 1972, Peterson, an assistant business rep-
resentative of Operating Engineers, visited the jobsite
and informed Superintendent Hawkins that the
mucking machine should be operated by operating
engineers . Metzer, business manager of Local 571,
Operating Engineers, stated by phone to Hawkins
that the work should be assigned to engineers. Haw-
kins testified, and Peterson and Metzer denied, that
Peterson and Metzer threatened work stoppages.
On January 17, 1972, when the first shift was to
begin,2 the crane operator reported in sick and did not
work. The operators for the other two shifts that day
likewise called in sick and did not work. Operating
Engineers did not dispatch any substitute operators to
the job. After Affholder agreed, on January 19, 1972,
to stop using the machine, the crane operators re-
turned to work.
As a member of the Heavy Contractors Associa-
tion, herein called Association, Affholder was bound
by the terms of a collective-bargaining agreement be-
tween the Association and the Operating Engineers.
2 The mucking machine had broken down during the night shift on Janu-
There was no formal appearance made at the hearing by Laborers' Local ary 13, 1972 (Thursday), and was apparently not repaired and put back into
1140. use until the following Monday, January 17
203 NLRB No. 182
LOCAL 571, OPERATING ENGINEERS
The contract provided for settlement of jurisdictional
disputes by submission to the National Joint Board
for the Settlement of Jurisdictional Disputes of the
Building and Construction Trades Industry , herein
called Joint Board . The contract in effect between the
Association and Laborers provides for submission of
jurisdictional disputes for settlement through "meth-
ods prescribed by the International Unions." From
January 19, 1972 , to May 1, 1972, the respective Inter-
national Unions apparently attempted without suc-
cess to resolve the dispute herein . On or about May
1, 1972, the Association asked the Joint Board to re-
solve the dispute , prompting the latter to notify the
International Union of Operating Engineers to in-
struct Local 571 to honor Affholder 's assignment of
the work pending resolution of the dispute by the
Joint Board . Affholder was simultaneously notified to
proceed with the disputed work in accordance with its
original assignment . When Affholder attempted on
May 2 to proceed with the use of the mucking ma-
chine, the crane operator again left work complaining
of illness.
C. Contentions of the Parties
Affholder argues that the work in dispute should be
retained by Laborers. Reasons given include efficien-
cy, economy, and past practice . Affholder also con-
tends that the evidence in this case demonstrates that
the Regional Director had reasonable cause to believe
that Operating Engineers violated Section 8 (b)(4)(D)
of the Act. Finally, in regard to Joint Board jurisdic-
tion , Affholder argues that the Laborers would not be
bound by an award of the Joint Board . In a letter
dated March 13, 1972, Leonard Schaeffer , business
agent for Laborers ' Local 1140, stated to the Regional
Director for Region 17 that Local 1140 was not
bound , under its collective -bargaining agreement
with the Association, by decisions of the Joint Board.
Operating Engineers argues that the work in dis-
pute has been traditionally performed by its members
and accordingly should be awarded to them. Further,
Operating Engineers contends that its members left
work because of illness, and therefore the Regional
Director had no reasonable cause to believe that Op-
erating Engineers engaged in any activity proscribed
by Section 8(b)(4)(D) of the Act. Also , Operating En-
gineers argues that an agreed-upon method of settle-
ment has been entered into by all the parties.
D. Applicability of the Statute
Before the Board may proceed to the determination
of a dispute pursuant to Section 10(k) of the Act, it
must be satisfied that the parties have not agreed
1253
upon methods for the voluntary adjustment of the
dispute . For the reasons stated below , we find it un-
necessary to pass upon the merits with respect to a
proper award of the disputed work because from the
record it appears that all the parties involved in the
instant proceeding agreed to be bound by a determi-
nation of the Joint Board.
The present Joint Board was created on April 3,
1970, pursuant to an agreement between the Building
and Construction Trades Department , AFL-CIO,
and Participating Contractors Employers ' Associa-
tions . The collective-bargaining agreement between
Heavy Contractors Association (which includes Aff-
holder) and Operating Engineers provides for the set-
tlement of jurisdictional disputes by the Joint Board.
In view of the foregoing , we conclude that Affholder
and Operating Engineers have agreed to be bound by
determinations of the Joint Board.
Laborers Union is formally affiliated with the
Building and Construction Trades Department,
AFL-CIO, a signatory to the April 3, 1970, agreement
reconstituting the Joint Board . We therefore find that
Laborers also has agreed to be bound by determina-
tions of the Joint Board.
Accordingly, since all parties involved herein have
agreed to be bound by the determinations of the Joint
Board , we shall quash the notice of hearing issued
herein.
ORDER
It is hereby ordered that the notice of hearing issued
in this proceeding be, and it hereby is, quashed.
MEMBER KENNEDY , dissenting:
Contrary to my colleagues, I would not quash the
notice of hearing in this proceeding. As I have said in
V & C Brickcleaning Co., 199 NLRB No. 48, it is my
view that Section 10(k) of the Act requires the Board
to hear and determine the dispute except where the
parties have agreed upon methods which will effec-
tively resolve the jurisdictional dispute . In my view,
there is scant possibility of a fair , speedy , and effica-
cious resolution of the instant dispute.
While my colleagues would take notice that the
Laborers ' International has agreed to be bound by
determinations of the Joint Board , as a logical con-
comitant thereto , they are obliged to take notice that
the Joint Board has found Laborers to be in concom-
pliance with previous awards against its trade, and
that so long as its noncompliance continues, Laborers
is not entitled to a representative on the Joint Board
and no decision in any case decided in favor of Labor-
ers will be issued . Therefore , even though Laborers
would otherwise be entitled to a favorable award on
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the merits, the instant dispute could not be resolved
by the Joint Board until Laborers complied with past
awards. By sanctioning such needless delay, my col-
leagues do much to negate the congressional purpose
expressed in Sections 8(b)(4XD) and 10(k) and (1) of
the Act that jurisdictional disputes be expeditiously
resolved and thus be prevented from interfering with
the free flow of commerce. Additionally, the parties in
this case have no agreed-upon method to resolve this
dispute because the record demonstrates that Operat-
ing Engineers Local 571 has refused to comply with
the procedures of the Joint Board, contrary to its col-
lective-bargaining agreement with Affholder. Thus,
despite the telegraphic order of the Joint Board to
honor Affholder's assignment to the Laborers, pend-
ing resolution of the dispute, the Operating Engineers
reimposed its work stoppage, evidencing its intention
to refuse to acquiesce in any award which might issue
favoring the Laborers in this case.
For these reasons, and as explicated in my dissent
in V & C Brickcleaning Co., supra, I would find that
the Joint Board is not likely to effectively resolve the
dispute and that the dispute is properly before the
Board. In my view, the parties have not submitted to
the Board "satisfactory evidence that they have ad-
justed, or agreed upon methods for the voluntary ad-
justment of, the dispute," as required by Section 10(k)
of the Act. Accordingly, I would hear and determine
the dispute pursuant to the mandate of Section 10(k).