Operating Engineers, Local 181

National Labor Relations Board - Board DecisionsFeb 14, 1973

201 N.L.R.B. 871 (N.L.R.B. 1973)

OPERATING ENGINEERS, LOCAL 181 871 International Union of Operating Engineers, Local Union No. 181 , AFL-CIO and R. R. Dawson Bridge Company and United Steelworkers of America, AFL-CIO-CLC.i Case 9-CD-267 effectuate the purposes of the Act for the Board to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS February 14, 1973 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by R. R. Dawson Bridge Company, hereinafter called the Employer, alleging that Inter- national Union of Operating Engineers, Local Union No. 181, AFL-CIO, hereinafter called Operating Engineers or Respondent, had violated Section 8(b)(4)(D) of the Act. A duly scheduled hearing was held before Hearing Officer Earl L. Ledford on October 18, 1972, in Hazard, Kentucky. Operating Engineers, the Employer, and United Steelworkers of America, AFL-CIO-CLC, hereinaf- ter called Steelworkers, and counsel for the Regional Director 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. No briefs were filed. 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 rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: 1. THE EMPLOYER The parties stipulated, and we find, that R. R. Dawson Bridge Company is a Kentucky partnership engaged in the highway construction business with its principal offices located in Bloomfield and Lexington, Kentucky. During the past year, a representative period, the Employer purchased goods and materials valued in excess of $50,000 from firms located outside the State of Kentucky which it caused to be shipped directly to its Kentucky jobsites. The parties also stipulated, and we find, that the Employer is engaged in interstate commerce within the meaning of the Act and that it will ' The name of the Party to the Dispute appears as corrected at the hearing The parties stipulated , and we find , that Operating Engineers and Steelworkers are labor organizations within the meaning of the Act. III. THE DISPUTE A. The Work at Issue The work in dispute is the operation of the second grease truck on the Employer's highway construction project at Letcher County, Kentucky. B. Background and Facts of the Dispute The Employer is the general contractor for 9 miles of highway construction under contract with the Kentucky Department of Highways in Letcher County, Kentucky. This work involves the utilization of approximately 40 pieces of heavy equipment which are operated by members of Operating Engineers . Other employees working for the Employ- er on the project include those in the classifications of laborers and truckdrivers and they are represented by Steelworkers. The project concerned was operated for about 1 year with one grease truck operated solely by an employee represented by Respondent. In August 1972, the Employer decided that a second grease truck would soon be required on the project because of the increase in the number of pieces of equipment being used . In anticipation of the pending assignment , both Respondent and Steelworkers claimed that the work should properly be assigned to employees represented by them. On September 6, 1972, the second grease truck was brought to the jobsite by an employee represented by Respondent. About 9 a.m., an employee represented by Steelworkers was assigned to assist the employee represented by Respondent in operating the second grease truck . Immediately thereafter, Melvin Ingra- ham, Respondent' s steward , gave a prearranged signal to the other employees on the job represented by Respondent that a second grease truck had been added to the job and that an employee represented by Steelworkers had been assigned to the truck. Upon receipt of this signal, all employees represented by Operating Engineers shut down their equipment. At this time, Ingraham telephoned Julian McEvoy, the Employer's job superintendent , and asked him whether he was going to take the Steelworkers man off the grease truck or whether the employees 201 NLRB No. 129 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD represented by Respondent were going to have to take him off. McEvoy informed Ingraham that it was the Employer's decision to man the grease truck in question with one employee represented by Steel- workers and one represented by Respondent. At that point, Ingraham replied that the employees repre- sented by Respondent were not going to work. The employees represented by Respondent re- mained at the jobsite until after lunch that day, but did not work. The following day, about 15 employees represented by Respondent arrived at the job but, upon being informed by McEvoy that there had been no change in the Employer's position as to assign- ment of grease truck operators on the second grease truck, they did not go to work. The next day, three or four of the employees represented by Respondent showed up, but did not work as the dispute had not been resolved. After the work stoppage, R. Dawson, Jr., one of the Employer's partners, contacted Henry Ison, the president of the Operating Engineers, on Wednesday evening, September 6, 1972. Ison indicated that he had just been made aware of the work stoppage by a message left for him. Dawson asked what would be necessary to get the men back to work and Ison stated that all he knew was for the Employer to take the employee represented by Steelworkers off the grease truck. Dawson stated that the Employer's position had been reached after considerable thought and he did not think their position could be changed. A meeting was held between representatives of the Employer and Respondent at the jobsite on Monday, September 11, 1972. It appeared that the positions of the parties could not be reconciled and the only discussion was with regard to some kind of interim arrangement to resume work pending resolution of the dispute. Ison stated that he would discuss the matter with the men. The following day, Respondent agreed to return to work if the Employer would remove the second grease truck from the job. The Employer agreed to this demand and work was resumed on Wednesday, September 13, 1972, with only one grease truck on the job manned by an employee represented by Respondent. It is undisputed that none of the parties is bound to the National Joint Board for the Settlement of Jurisdictional Disputes and there is no contract provision providing for resolution of jurisdictional disputes. C. The Contentions of the Parties The Employer' s position , as expressed at the hearing, is that the assignment of the work to a two- man crew of employees represented by Respondent and Steelworkers should not be changed because it is obligated under its bargaining contract with Steel- workers to assign an employee represented by Steelworkers on a 50-50 basis with an employee represented by Respondent when more than one individual is used in carrying out greasing operations on any one job. The Employer further contends that due to its extensive operations within the State of Kentucky an areawide assignment is appropriate. At the hearing, the Steelworkers agreed with the Employer's position and also relied on an interunion agreement concerning the disputed work. The Operating Engineers, as expressed at the hearing, takes the position that the work of operating all greasing facilities is covered by its contract with the Employer and that it is entitled to the work in dispute. It also contends that the work should be assigned to employees represented by it on the basis of area practice. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the 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) the parties have not agreed upon a method for the voluntary adjustment of the dispute. In this case, it is undisputed that the Operating Engineers threatened to cause a work stoppage and did cause a work stoppage on the Employer's jobsite with the object of requiring the Employer to assign all the disputed work to its members. We -also conclude that there exists no effective method for the voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. 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 determination. 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 various factors .2 The Board has held that its determination in a jurisdictional dispute is an act of judgment based on commonsense and experience reached by balancing those factors involved in a particular case .3 The following factors are relevant in making the determination of the dispute before us: 2 N.L.R.B. v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting System 1, 364 U.S. 573. 3 International Association of Machinists, Lodge No. 1743, AFL-CIO Q. A. Jones Construction Company), 135 NLRB 1402. OPERATING ENGINEERS, LOCAL 181 873 1. Collective-bargaining agreements The Employer has recognized and bargained with Operating Engineers and Steelworkers for a number of years. Neither of these two Unions has been certified by the Board. The Employer is signatory to contracts with both Unions at the present time. The contracts for both Unions were negotiated on their behalf by Highway Contractors, Inc., under a power of attorney from the Unions. The applicable contract between the Employer and Respondent concerning the Letcher County project provides that Respondent shall provide the classifica- tion of "greaser on grease facilities servicing heavy equipment . . . ." This contract covers Class A, B, and C equipment operators. The relevant contract between the Employer and the Steelworkers provides that Class A, B, and C equipment operators will be exempted from coverage thereunder. However, the final paragraph of that contract provides: JURISDICTION OF GREASE TRUCK When the grease truck is being used on the project, it shall be manned fifty-fifty by both a District 50 and A F of L man. According to the uncontradicted testimony of John Leinenbach, a negotiator for Highway Contractors, Inc., who negotiated the contract between the Employer and the Steelworkers, contrary to the actual language quoted above, the agreement at the negotiat. ig session was that Respondent would provide the operators on a project requiring only one grease truck, but subsequent trucks would be manned on a 50-50 basis. Dawson states that it interpreted the clause in its contract with Steelworkers as requiring it to assign the disputed work on a 50-50 basis with one operator represented by Respondent and one operator repre- sented by Steelworkers. We find that this factor favors the position of the Employer and the Steelworkers as the clause in the Employer's contract with the Steelworkers, as under- stood by the parties, specifically deals with the disputed work, i.e., the manning of a second grease truck, and the Employer's interpretation of this clause in assigning the truck on a 50-50 basis was not an unreasonable one. 2. Area practice Operating Engineers introduced evidence that tended to show a number of jobs where only employees represented by it were operating two or more grease trucks or where two or more employees manned single grease trucks. The Steelworkers adduced evidence relating to the fact that its members had been used on a 50-50 basis on second grease trucks on a number of jobs throughout the State of Kentucky with members of Respondent. As the evidence is inconclusive, we do not find that this factor tends to favor the positions of any of the parties. 3. Skills of the employees The record shows that both Unions have employ- ees qualified to perform all greasing operations. Accordingly, we do not find that this factor tends to favor the positions of any of the parties. 4. Economy and efficiency The Employer stated that it had made no cost study as to whether or not it would be more economical to use employees of both Unions to man its greasing facilities . In these circumstances, we do not find that this factor tends to favor the positions of any of the parties. 5. Union agreements Charles Cantrell, the president of Steelworkers, stated that there was a gentlemen 's agreement since 1965 between Respondent and Steelworkers provid- ing that Respondent would provide the operator on a project requiring only one grease truck but that if there was need for a subsequent truck or if an employer needed two operators on an existing truck the truck or trucks would be manned on a 50-50 basis by employees represented by both Unions. Respondent, in effect, denied the existence of any such agreement by stating that it knew of no projects on which two grease truck operators were required that employed any operators represented by Steel- workers. As the evidence is inconclusive, we do not find that this factor tends to favor the positions of any of the parties. Conclusion Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that the work in dispute should be assigned to a composite crew of employees represented by Operating Engineers and Steelworkers, rather than exclusively to employees represented by Operating Engineers. We reach this conclusion relying on the Employer's assignment of the disputed work to the composite crew which is based on the Employer's reasonable interpretation of a specific clause dealing with the disputed work in its existing collective- bargaining agreement with the Steelworkers. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In making this determination, we shall award the disputed work to employees who are represented by Operating Engineers and Steelworkers, but not to those Unions or to their members. In consequence, we shall also determine that Operating Engineers were not and are not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require the Employer to assign the disputed work to members of the Operating Engineers. Our present determination is limited to the particular 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 proceeding , the National Labor Relations Board hereby makes the following Determination of Dis- pute: A. Employees of R. R. Dawson Bridge Company currently represented by International Union of Operating Engineers , Local Union No. 181, AFL-CIO, and by United Steelworkers of America, AFL-CIO-CLC, are entitled jointly to perform the following work: Operating of the second grease truck on the Employer's highway construction project at Letcher County, Kentucky. B. International Union of Operating Engineers, Local Union No. 181, AFL-CIO is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require R. R. Dawson Bridge Company to assign the above-described work to members of the aforesaid Union exclusively. C. Within 10 days from the date of this Decision and Determination of Dispute, International Union of Operating Engineers, Local Union No. 181, AFL-CIO, shall notify the Regional Director for Region 9, in writing, whether it will refrain from forcing or requiring R. R. Dawson Bridge Company, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to truckdrivers represented by International Union of Operating Engineers, Local Union No. 181, AFL-CIO, exclu- sively.