Local No. 374, Longshoremen

National Labor Relations Board - Board DecisionsSep 7, 1972

198 N.L.R.B. 1236 (N.L.R.B. 1972)

1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local No. 374-8, L.T.P.P.A., International Longshore- men's Association , AFL-CIO and Janke Industrial Marine , Inc. and International Union of Operating Engineers, Local No. 139, AFL-CIO. Case 30-CD-48 September 7, 1972 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Janke Industrial Marine, Inc., hereinafter called Employer, alleging that Local No. 374-8, L.T.P.P.A., International Longshoremen's Association, AFL-CIO, hereinafter called Licensed Tugmen, 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 certain work to employees represented by Licensed Tugmen rather than to employees represented by Internation- al Union of Operating Engineers, Local No. 139, AFL-CIO, hereinafter called Operating Engineers. Pursuant to notice, a hearing was held before Hearing Officer James H. Warmoth on May 24, 1972. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, the Employer and Licensed Tugmen filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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. They are hereby affirmed. Upon the entire record in this proceeding, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that the Employer, Janke Industrial Marine, Inc., is a Wisconsin corporation with principal offices located at Athens, Wisconsin, and is engaged in the marine construction industry. During the past year, a representative period, the Employer purchased and received goods and materi- als valued in excess of $50,000 from locations outside the State of Wisconsin. The parties further stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) 198 NLRB No. 188 of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties did not contest, and we find, that Licensed Tugmen and Operating Engineers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute In April 1972, the Employer was engaged in two marine construction projects in Milwaukee County, Wisconsin. One consisted of laying an air condition- ing unit intake and discharge pipeline in Lake Michigan for the University of Wisconsin. The other consisted of laying a water intake pipeline in Lake Michigan for the city of Cudahy. The work in dispute consists of the operation of harbor mules, which are working barges propelled by outboard motors. Harbor mules are used to transport employees and equipment to and from jobsites. They are equipped with a hydraulic backhoe which is used to dig the trench for the pipe and a crane with a boom which is used to lay the pipe on the bottom of the lake. The Employer's operating practice has been to employ on board the harbor mule two operators represented by Operating Engineers and a diver represented by Piledrivers, an affiliate of the Carpen- ters Union. One operator operates the mule from the shore location, which is about 3 miles from both projects, to the jobsite on the lake. He also operates the power spuds on the barge which are raised and lowered into the lake by air winches to anchor the barge. The other operator runs the backhow or the crane, whichever is in use. Both employees can operate any of the equipment on the barge. They also operate a small work boat, called a dinghy, which is carried along with the barge and used in emergencies to reach shore, and a recently purchased larger boat used to transport company officials and civil engi- neers to and from the jobsite. The diver checks the trench in the lake bottom and connects the pipe together. He is not involved in the work dispute herein. The record shows that since its inception in 1968, the Employer has assigned the disputed work to employees represented by the Operating Engineers. The parties stipulated at the hearing that the picketing of Employer's Milwaukee County premises by Licensed Tugmen in April 1972 was designed to secure the assignment of the operation of harbor mules and all other marine propulsion equipment for LOCAL NO. 374, LONGSHOREMEN members of Licensed Tugmen pursuant to the agreement which Licensed Tugmen claims to have with the Employer.' B. The Work in Dispute As stated above, the work in dispute consists of the operation of harbor mules which are working barges propelled by outboard motors, and two smaller boats, all used to transport employees and equipment to and from the jobsites in question. C. Contentions of the Parties The Employer and Operating Engineers contend that all work,done on the harbor mules and the two smaller boats has been properly assigned to employ- ees represented by Operating Engineers pursuant to their recently expired collective-bargaining agree- ment. Licensed Tugmen asserts that operation of the marine vehicles in question should be performed by its members. Licensed Tugmen further contends that the Employer is bound by the Licensed Tugmen agreement which Janke Construction Co., Inc., signed on July 11, 1968. D. Applicability of the Statute Before the Board may proceed with a determina- tion of 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 there is no agreed-upon method for the voluntary adjustment of the dispute. The charge alleges a violation of Section 8(b)(4)(D) of the Act. The parties stipulated that the picketing of Employer's Milwaukee County premises by Licensed Tugmen in April 1972 was designed to secure the assignment of the operation of all marine propulsion equipment for members of Licensed Tugmen. There is no evidence that the parties have agreed to any voluntary method of settlement of the dispute. Based on the foregoing and the entire record, we find that reasonable cause exists to believe that Licensed Tugmen violated Section 8(b)(4)(D) of the Act and that the dispute is properly before the Board for determination under Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving The Hearing Officer permitted testimony to be taken concerning operation of other marine vehicles even though the notice of hearing specifically limited the hearing to operation of propelled barges, or harbor mules The Hearing Officer reserved for the Board, however, the decision of whether or not to consider this expanded issue In view of the parties' 1237 due consideration to various relevant factors. The following factors are relevant in making a determina- tion of the dispute before us. 1. Certification and collective-bargaining agreements Neither of the labor organizations involved herein has been' certified by the Board as the collective- bargaining representative for a unit of the Employ- er's employees. The Employer has recognized Operating Engineers and is signatory to collective-bargaining agreements negotiated by Allied Construction Employers Associ- ation, Inc., and Operating Engineers, including the Floating Agreement-Great Lakes, which covers all floating equipment and appears to contemplate that employees represented by Operating Engineers are to perform the work in dispute. This agreement, which expired on April 30, 1972, was in effect during the period of Licensed Tugmen's picketing of the Employer's premises in April 1972. The Employer's general superintendent testified that the Employer intended to enter into the new marine agreement with Operating Engineers when it was presented for execution. Licensed Tugmen entered into an agreement with Janke Construction Co., Inc., on July 11, 1968, which it contends covers the work in dispute. This agree- ment, by its terms, applies to captains, engineers, and operators employed on tugboats, launches, or other self-propelled boats owned, operated, or chartered by the Employer. The Employer asserts that it owns only barges, a fishing dinghy, and a speed boat. Employer's general superintendent testified that Janke Construction Co. is a separate entity, has different ownership, is engaged in a different type of work, and has performed no work on either of the projects involved herein. He further testified that Licensed Tugmen presented a copy of its new 1972 agreement to him and that the Employer declined to enter into any agreement with that Union. 2. Company and industry practices The Employer has been engaged in marine con- struction in the Wisconsin-Lake Michigan area since 1968. The record indicates that the Employer has consistently assigned all work on the harbor mules and other marine vehicles to its employees in the unit represented by Operating Engineers. As for the area or industry practices, apart from the Employer's own stipulation that the dispute involves all the Employer 's present marine vehicles, in making our determination herein we have considered in addition to the harbor mules , the operation of the two smaller boats concededly also involved in the dispute 1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practice, Employer's general superintendent testified that he knew of no other employer in the area that uses harbor mules. There is no other evidence of area or industry practice. In the absence of evidence of any relevant area or industry practice favoring Licensed Tugmen, the Employer's established practice in assigning operat- ing engineers to perform the work favors assignment of the disputed work to employees represented by Operating Engineers. 3. Skills, efficiency, and economy In the years that the Employer has operated the harbor mules, operating engineers have demonstrat- ed to the Employer's satisfaction that they possess the knowledge and skill necessary to operate the harbor mules, as well as all of the equipment on board these barges. While Licensed Tugmen mem- bers may also possess the necessary skills to perform these duties, there is no showing that they have ever been assigned the work in dispute or have ever operated any of the equipment on the barges. Furthermore, there is nothing in the record to indicate that Licensed Tugmen operators could perform the work in dispute with greater skill than operating engineers, or to the greater satisfaction of the Employer. Employer's general superintendent testified that if licensed tugmen operated the harobr mule, operating engineers employed by the Employer would also be on board to operate the equipment on the barge and that the Licensed Tugmen operator would be idle except for the approximately 1 hour a day he would operate the boats. We find these factors favor the assignment of the work in dispute to employees represented by the Operating Engineers. Conclusions Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that the Employer's employees who are represented by Operating Engineers are entitled to perform the work in dispute. We reach this conclu- sion upon the Employer's assignment of the work in dispute to its employees who are represented by Operating Engineers; the fact that this assignment is consistent with its own past practice; the further fact that operating engineers employed by the Employer have the requisite skill and are familiar with, and perform, all facets of the work; and the attendant efficiency and economy of the established opera- tions. We shall therefore determine the dispute before us by awarding the work in dispute at the Employer's University of Wisconsin and city of Cudahy projects located in Milwaukee County, Wisconsin, to those employees represented by Operating Engineers, but not to that Union or its members. Accordingly, we find that Licensed Tugmen is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer to assign the work in dispute to employees represented by it. The Employer requests that the Board's award be extended to cover all projects performed by the Employer in any geographical area where both the Licensed Tugmen and any local of the Operating Engineers which is covered by the Floating Agree- ment claim geographical jurisdiction. The Employer argues that it does work on other projects which might be affected by the same claim. Although the Board need not restrict its award to a single job if there is evidence that similar disputes will occur in the future,2 we conclude that a broad award is not justified by the evidence herein. Thus, the record does not indicate that there had been any dispute cognizable under Sections 8(b)(4)(D) and 10(k) of the Act between Licensed Tugmen and Operating Engineers involving the work in question prior to the present dispute; that any such dispute existed during the period in question at any other jobsite; or that similar disputes will occur in the future. Therefore, we cannot conclude that there is a sufficient likelihood of a recurrence of the dispute to extend our determination beyond the projects presently under consideration. 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 hereby makes the following Determination of Dis- pute: 1. Employees of the Employer, Janke Industrial Marine , Inc., who are represented by International Union of Operating Engineers , Local No. 139, AFL-CIO , are entitled to perform the work of operating harbor mules and two smaller boats used by the Employer to transport employees and equip- ment to and from the Employer 's University of Wisconsin and city of Cudahy projects located in Milwaukee County, Wisconsin. 2. Local No. 374-8, L.T.P.P.A., International Longshoremen 's Association , AFL-CIO, is not entitled , by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Janke Industrial 2 Loral 294, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (Bethlehem Steel Corporation), 174 NLRB 30,33 LOCAL NO . 374, LONGSHOREMEN 1239 Marine , Inc., to assign the above work to employees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute , Local No . 374-8, L.T.P.P.A., International Longshoremen 's Associa- tion , AFL-CIO, shall notify the Regional Director for Region 30, in writing, whether or not it will refrain from forcing or requiring Janke Industrial Marine, Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to employees represented by Licensed Tugmen , rather than to employees represented by Operating Engi- neers.