Operating Engineers Local 25

National Labor Relations Board - Board DecisionsAug 27, 1980

251 N.L.R.B. 1191 (N.L.R.B. 1980)

OPERATING ENGINEERS LOCAL 25 1191 International Union of Operating Engineers, Local 25, Marine Division, AFL-CIO and Great Lakes Dredge & Dock Company and United Marine Division, Local 333, International Long- shoremen's Association, AFI.-CIO. Case 5- CD-256 August 27, 1980 DECISION AND ORDER QUASHING NOTICE OF HEARING BY CHAIRMAN FANNING ANI) MEIMBERS JENKINS AND TRLUESDAI E This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Great Lakes Dredge & Dock Company, herein called the Employer, alleging that International Union of Operating Engineers, Local 25, Marine Division, AFL-CIO, herein called the Respondent, had 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 United Marine Division, Local 333, International Longshoremen's Association, AFL- CIO, herein called ILA. Pursuant to notice, a hearing was held before Hearing Officer John M. Glynn on February 26, March 21 and 26, and May 5, 1980. All parties ap- peared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. 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 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: 1. BUSINESS OF THE EMPIOYER The parties stipulated, and we find, that the Em- ployer, a New Jersey corporation with its principal place of business in Oakbrook, Illinois, is engaged in performing dredging and marine construction in the Chesapeake Bay/Maryland area and in other locations in the United States. During the past year, the Employer purchased goods and materials from outside the State of Maryland having a value of $50,000. The parties also stipulated, and we find, that the Employer is engaged in commerce within 251 NLRB No. 158 the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. II. IHE ILABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Interna- tional Union of Operating Engineers, Local 25, Marine Division, AFL-CIO, and United Marine Division, Local 333, International Longshoremen's Association, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The Employer was engaged in dredging oper- ations in the Chesapeake Bay area pursuant to a contract with the U.S. Army Corps of Engineers. The work required the use of a dredging barge, a tug, and a launch. The barge is filled with the dredged material and a towing tug then tows it to a designated area where the material is dumped. On November 26, 1979, the John A. Downs, herein Downs, a towing tug owned by the Employer, sailed from the New York Harbor area to the Chesapeake Bay. The Downs is manned by two nine-man crews. Each crew consists of a captain, a mate, two licensed engineers, four deckhands, and one cook. These employees were members of, or represented by, Local 333, ILA. The Employer also assigned the manning of the barge and the launch to employees who were members of, or rep- resented by, the Respondent. The Respondent de- manded that the work of manning the Downs also be assigned to employees represented by it. The Employer refused and the Respondent thereafter refused to refer or provide employees to man the barge or the launch as requested by the Employer. The Regional Director for Region 5, pursuant to Section 10(1) of the Act, petitioned the U.S. Dis- trict Court for the District of Maryland for an in- junction alleging violation of Section 8(b)(4)(D) of the Act. Before the issuance of any injunction, the Employer and the Respondent entered into a stipu- lation whereby the Respondent agreed to refer or provide employees to man the launch and the dredging barge pending disposition of this case by the Board. The work continued, without interrup- tion, until completion. B. The Work in Dispute The work in dispute involves the manning of the tugboat John A. Downs when used in the Chesa- peake Bay/Maryland area in conjunction with dredging operations pursuant to a contract with the U.S. Army Corps of Engineers. 1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Contentions of the Parties The Respondent essentially contends that the issue is moot. It states that the work has been com- pleted; that it effectively disclaimed the work, and that nothing in the record indicates that the Re- spondent would attempt to use proscribed means to obtain any future work assignments, or that it is an- ticipated that the Employer will return to the job- site. In the alternative, the Respondent cites its col- lective-bargaining agreement with the Employer which it contends favors an award of the disputed work to employees who are represented by the Re- spondent. The ILA primarily contends that the issue is sub- ject to the internal disputes procedure set forth in article XX of the AFL-CIO constitution under which both it and the Respondent are bound and therefore the Board should defer to this voluntary method of adjustment. Alternatively, it contends that its collective-bargaining agreement with the Employer, the Employer's preference, efficiency, and the past practice of the Employer are factors which favor the awarding of the disputed work to employees who are members of, or represented by, the ILA. The Employer contends that, based on past prac- tice and the collective-bargaining agreement be- tween it and the ILA, its assignment of the work in dispute was correct. The Employer states that there has been no effective disclaimer by the Re- spondent and that because it is the largest dredging company in the United States there is a likelihood that it will be engaged in similar work in the Chesapeake Bay area. It also argues that because it is not a party to the internal dispute procedure it is not bound by any decision which may result there- from and consequently there is no voluntary method of adjustment of the dispute. 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 there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that the parties have not agreed upon a method for the voluntary adjustment of the dis- pute. As to the latter point, we agree with the Em- ployer's contention that because it is not a party to or bound by the internal disputes procedure con- tained in article XX of the AFL-CIO constitution there is no agreed-upon method for the voluntary adjustment of this dispute.' With respect to wheth- er reasonable cause exists to believe Section I International Longshoremen's Association, e al. (Sea-Land Service, Inc. (Atlantic Division)), 249 NLRB 620 (1980). 8(b)(4)(D) has been violated, we note that the Re- spondent concedes that, after being denied the work of manning the Downs, it refused to refer em- ployees it represents to man the dredging barge or the launch. Accordingly, we conclude that there is reasonable cause to believe that a violation of Sec- tion 8(b)(4)(D) has occurred and that there exists no agreed-upon method for the voluntary adjust- ment of the dispute within the meaning of Section 10(k) of the Act. E. Merits of the Dispute Notwithstanding our conclusion that there exists reasonable cause to believe a violation of Section 8(b)(4)(D) has occurred in this case, because of the unusual circumstances involved, we are quashing the notice of hearing herein. As we noted above both the Respondent and the ILA, although for different reasons, urge the Board not to decide the matter. Consequently, both Unions presented little substantive evidence on the issues. However, both have submitted their respec- tive collective-bargaining agreements with the Em- ployer. The jurisdictional clauses of the agreements appear to be conflicting and yet there is nothing in the record to assist us in resolving these conflicts. The Employer, for its part, maintains that its initial assignment was correct. However, during the hear- ing the Employer stipulated that it was neutral as to the assignment of the work in dispute under the contract with the Army Corps of Engineers. It also stipulated that it would offer no evidence that an assignment to either of the Unions would create greater efficiency, economy, or any business advan- tage to the Employer. The Employer's brief to the Board centers primarily on its contention that there is a valid dispute before the Board. It appears from the record before us that there is no discernible past practice, and what scant evi- dence has been submitted is of little probative value. The Unions, for the most part, argue that the matter has been mooted. The Employer, be- cause of its pledge of neutrality, merely argues that the Board should award any future work to either one of the two groups of employees without pre- senting evidence upon which the Board could base its award. Thus, we are unable to award the work in dispute because, on the record before us, we cannot evaluate meaningfully the traditional factors used in determining which competing employee group should be awarded the disputed work. We are also mindful that the work in dispute has been completed and that the Employer is unable to state when or if it will return to the Chesapeake Bay area or, obviously, what type of vessels will be required if it does return. We realize that generally OPERATING ENGINEERS LOCAL 25 1193 completion of the work does not ordinarily mean the end of a 10(k) proceeding.2 However, consider- ing the unusual posture of the record before us, we regard this to be a relevant factor, and for the rea- sons set forth above, we shall quash the notice of hearing in the above-captioned case. 2 Local 24, The United Association of Journeymen and Apprentices of the Plumbing and Pipefittring Industry of the United States and Canada. AFL- CIO (E.L. & S. Contracting Co.. Inc.). 231 NLRB 158 (1977). ORDER It is hereby ordered that the notice of hearing issued in this case be, and it hereby is, quashed.