Local 88, Laborers

National Labor Relations Board - Board Decisions

Jun 22, 1970

183 N.L.R.B. 891 (N.L.R.B. 1970)

LOCAL 88, LABORERS 891
Local 88 , Laborers Intenational Union , AFL-CIO
and S. J. Groves & Sons Company and Local 4,
International Union of Operating Engineers,
AFL-CIO. Case 1-CD-212
June 22. 1970
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated and we find that Local 88,
Laborers International Union, AFL-CIO, and Local
4, International Union of Operating Engineers,
AFL-CIO , are labor organizations within the mean-
ing of the Act.
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS MCCULLOCH, BROWN, AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing the filing of charges by S. J. Groves & Sons
Company, herein called the Employer, alleging that
Local 88, Laborers International Union, AFL-CIO,
herein called Laborers, had violated Section
8(b)(4)(D) of the Act by engaging in certain
proscribed activity with an object of forcing or
requiring the Employer to assign the work in
dispute to employees represented by the Laborers
rather than to employees represented by Local 4,
International Union of Operating Engineers,
AFL-CIO, herein called Engineers. Pursuant to
notice, a hearing was held before Hearing Officer
Arnold M. Marrow on April 1, 1970. All parties ap-
pearing at the hearing were afforded full opportuni-
ty to be heard, to examine and cross-examine wit-
nesses , and to adduce evidence bearing on the is-
sue. Thereafter, a brief was filed by the Employer.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Hear-
ing Officer made at the hearing and finds that they
are free from prejucicial error. The rulings are
hereby affirmed. The Board has considered the Em-
ployer's brief and the entire record in this case and
makes the following findings:
I. THE BUSINESS OF THE COMPANY
S. J. Groves & Sons Company is a Minnesota
corporation with operations throughout the nation.
It is presently engaged in the construction of a tun-
nel for a political subdivision of the Commonwealth
of Massachusetts, more specifically in the
Dorchester District of Boston, Massachusetts. The
parties stipulated, and we find, that S. J. Groves &
Sons Company is engaged in interstate commerce
within the meaning of the Act. Accordingly, we
find that it will effectuate the purposes of the Act
to assert jurisdiction herein.
III. THE DISPUTE
A. The Background Facts
The Employer is in the process of constructing an
underground hardrock free air tunnel to be 6 miles
in length for the Metropolitan District Commission,
a political subdivision of the Commonwealth of
Massachusetts, in districts near the city of Boston.
The project requires the digging of a vertical shaft
250 feet in depth. From the bottom of the shaft the
work has branched out in two directions, one
toward the nearby town of Brookline, and the other
toward Dorchester and the Atlantic Ocean. In con-
nection with the drilling of the tunnel itself, the
operation proceeding in the direction of Brookline
involves the removal of solid rock and entails
drilling, blasting, and excavating. This phase of the
work is carried out at the head of the tunnel by
miners who are represented by Laborers. The rock
materials that are blasted or bored away to shape
the tunnel are loaded into rail cars that are hauled
by a diesel locomotive to the shaft area where they!
are dumped onto a hoist and raised to ground level
and ultimately disposed of. The locomotive used in
the hauling operation (commonly called "dinky"
engine ) is described as being similar to a standard
diesel locomotive, only much smaller . The present
controversy stems from the Employer' s assignment
of the operation of this vehicle to a member of En-
gineers.
Work was begun in February 1969. The engine
involved in this dispute was not at the jobsite at this
time . Apparently discussion promptly followed as
to which union's members would operate the dinky
engine . In October, Laborers Business Agent
Richard Buck, informed Young, the Employer's
project manager, that he (Buck) was claiming the
manning of the motors used in the heading opera-
tions on behalf of the Laborers. Young replied the
Company had not resolved the question. A few
days later a similar work claim was made by En-
gineers Business Agent Carl Bucci.
As a result of the two crafts claiming the same
operation, the Employer arranged several meetings
with the unions involved in an attempt to settle the
dispute. Both Laborers and Engineers persisted in
their claims. These meetings continued without suc-
183 NLRB No.j90
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cess and at the last meeting on February 9, 1970, a
consensus was reached that the unions themselves,
with the assistance of their parent bodies, would be
left to resolve the matter. When agreement between
the Unions failed to produce results, the Employer,
on February 10, 1970, assigned the work in ques-
tion to the Engineers. Laborers immediately indi-
cated that the award was unacceptable. On the
same day, the Employer was informed by Arthur
Coyer, Local 88's International representative, that
the Employer would have "labor trouble." When
the Employer lowered the heading motor into the
shaft, all the laborers in the tunnel stopped working
and came out, and Laborers established a picket
line at all entrances to the project. Although both
the picketing and work stoppage ceased shortly
thereafter, the parties have been unable to resolve
the dispute.
B. The Work in Dispute
The work in dispute is limited to the operation of
the locomotive engine (also referred to as the head-
ing and working motor and dinky engine) from a
point in the tunnel known as the switching area (a
point between the shaft and tunnel head or excava-
tion area) to the tunnel head. There is no dispute
about the operation of the engine between the
switching area and the shaft by operating engineers.
C. Contentions of the Parties
S. J. Groves & Sons Company, the Employer and
Charging Party, contends that Respondent
Laborers violated Section 8(b)(4)(D) of the Act by
picketing and striking in an effort to have the work
in question assigned to employees represented by
that union . The Employer further contends that the
work was properly awarded to employees
represented by Engineers in view of (a) company,
industry, and area practice; (b) economy and effi-
ciency of operation; (c) considerations of safety;
and (d) the fact that the collective-bargaining con-
tract between the Employer and Engineers has a
clause covering this classification of work whereas
the contract between the Employer and Laborers
does not. Engineers concurs with the position taken
by the Employer.
Respondent Laborers filed no brief but took the
position at the hearing that all the work carried out
in "the head area" properly belongs to employees
represented by it on the basis of (a) possession of
' N L R B v Radio Television Broadcast Engineer Union Local 1212, In-
ternational Brotherhood of Electrical Workers ( Columbia Broadcasting
System), 364 US 573.
requisite skills by members of that labor organiza-
tion and (b) industry practice.
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. As set forth previously, Respondent
Laborers has demanded the work connected with
the operation of the dinky engine in the head area.
Young testified that he was told by a Laborers
representative that the Employer would have no
labor problem if he assigned the work to that union.
Further, upon the Employer's assignment of the
work to Engineers, Laborers International Repre-
sentative Coyer, told the Employer that the award
was unacceptable and that the Employer would
have "labor trouble." When the work began, Labor-
ers members struck briefly and established a picket
line at the jobsite. On these facts we believe that
there is reasonable cause to believe that an object
of the strike was to force the Employer to assign
the disputed work to employees represented by
Laborers, rather than employees represented by
Engineers.
On the basis of the entire record, we find that
there is reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred and that the
dispute is properly before the Board for determina-
tion.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of disputed work after
giving due consideration to the various relevant fac-
tors.'
1. Collective-bargaining and union agreements
There is no evidence that a Board certification
covers the disputed work.
The Employer has collective-bargaining agree-
ments with both labor organizations involved.
While neither contract has any clause which clearly
covers the work in question, the agreement with
Engineers does contain a work and wage classifica-
tion for "[operators of] locomotives or machines
used in place thereof." There is no such classifica-
tion in the Employer's agreement with Laborers.
Accordingly, as the wage classification for locomo-
tive operators is in the contract with Engineers and
LOCAL 88, LABORERS
absent from the contract with Laborers, we find
this factor tends to favor Engineers.
2. Company, industry , and area practice
There is little direct evidence in the record as to
a traditional company practice . It does appear,
however , that in the eight areas throughout the
country where the Employer has similar jobs under
construction this type of work is done by Engineers.
Accordingly, the present assignment appears con-
sistent with the Company's national practice and is
a factor favoring Engineers.
There was some testimony that members of
Laborers have operated engines in compressed air
tunnels . However, evidence as to industry and area
practice adduced by both the Employer and En-
gineers shows that in free air, hardrock tunneling
operations , as are here involved , the mechanical
work such as the operation of the engine is tradi-
tionally done by employees represented by the
Operating Engineers . Accordingly , we find this fac-
tor favors Engineers.
3. Skills and efficiency
There is no showing that the disputed work
requires skills not possessed by employee-members
of Engineers . On the contrary , Young, the Em-
ployer's project manager, testified that the Com-
pany has been quite satisfied with performance of
the operating engineers since the assignment of the
disputed work to them . Additionally, the record
shows that Laborers does not claim the work of
operating the engine in the central shaft area.
Under the Laborers demand, the engineer would
take the machine to the last switch on the track.
Upon reaching that area , the engineer would have
to turn the engine over to a laborer who would
proceed to the excavation area . The engineer
would have to wait with nothing to do until the cars
hauled by the engine are loaded in the excavation
area and returned to the switching area by the
laborer . The laborer in turn would have to wait idly
at the switching area while the cars were taken to
the shaft area, emptied , and returned to the
switching area . This assignment of the disputed
work to the laborers would result in fragmentation
of the jobs into two operations along the track, in-
volving one man being idle while the other
completed a phase of the trip. Accordingly, from
the standpoint of efficiency, these factors favor an
award consistent with that made by the Employer.
4. Safety
At the hearing, the Employer contended that
893
considerations of safety favored awarding the
disputed work to employees represented by En-
gineers . Counsel for Laborers argued that the same
considerations favor an award to employees
represented by that union . The record, however,
does not reveal that assignment of the work in
dispute to either union , as opposed to the other,
will enhance job safety.
Conclusion
Having considered all pertinent factors , we con-
clude that employees represented by Engineers are
entitled to perform the work in dispute . Members
of Engineers are at least as skilled as members of
Laborers insofar as the disputed work is concerned,
and the Employer has been satisfied with the quali-
ty of their work and safety record . Moreover the as-
signment to employees represented by Engineers is
consistent with the Employer 's interpretation of its
contract with Engineers , its national practice, and
also consistent with traditional industry and area
practice and will result in more efficient operations.
Accordingly, from the foregoing , we conclude that
the Employer's assignment of the work to em-
ployees represented by Engineers should not be
disturbed. On the basis of the entire record, there-
fore, we shall determine the existing jurisdictional
controversy by awarding to the employees em-
ployed by the Employer and represented by En-
gineers , rather than to employees represented by
Laborers, the operation of the locomotive (dinky)
engine from a point on the tracks designated as the
"heading switch" area to the point of excavation.
The present determination is limited to the particu-
lar controversy which gave rise to this proceeding.
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
case, the National Labor Relations Board makes
the following determination of dispute:
1. Engineers employed by the Employer and
represented by Local 4, Intenational Union of
Operating Engineers , AFL-CIO, are entitled to per-
form the work of operating the diesel locomotive
(dinky ) engine between a point on the tracks
designated as the "heading switch" area and the ex-
cavation point involved in the construction of the
hardrock free air tunnel in the Dorchester District
of Boston , Massachusetts.
2. Local 88, Laborers International Union,
AFL-CIO , is not entitled by means proscribed by
Section 8 ( B)(4)(D) of the Act to force or require
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S. J. Groves & Sons Company to assign such work notify the Regional Director for Region 1, in writ-
to employees represented by the aforesaid Union . ing, whether or not it will refrain from forcing or
requiring S. J. Groves & Sons Company by means
3. Within 10 days from the date of this Decision proscribed by Section 8(b)(4(D) to assign the work
and Determination of Dispute , Local 88, in dispute in a manner inconsistent with the above
Laborers International Union, AFL-CIO, shall determination.