Operating Enginneers Local 542

DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Local 542, AFL-CIO and C. J. Langenfelder and Son, Inc. and General Teamsters, Chauffeurs and Help- ers Union Local 470, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 4-CD-446 March 29, 1979 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following a charge filed by C. J. Langenfelder and Son, Inc., herein called the Employer, alleging that Interna- tional Union of Operating Engineers, Local 542, AFL-CIO, herein called Local 542, had violated Sec- tion 8(b)(4)(D) of the Act by engaging in certain pro- scribed activity with an object of forcing or requiring the Employer to assign certain work to its members rather than to employees represented by General Teamsters, Chauffeurs and Helpers Union Local 470, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called the Teamsters. Pursuant to notice, a hearing was held before Hear- ing Officer John D. Breese on April 5 and 6, May 2, and August 29, 1978. 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 the Teamsters 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 Hearing Officer's rul- ings 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, and we find, that the Em- ployer, a Maryland corporation, is engaged in con- struction and material handling operations, including a material handling operation for United States Steel' at its Morrisville, Pennsylvania, facility. During the i Local 542 did not file a brief However. it notified the Board that it joins in the brief filed by the Employer. 2 Hereinafter U.S. Steel. past 12-month period, the Employer has provided services to customers located outside the State of Maryland valued in excess of $50,000 and has pro- vided services valued in excess of $50,000 to U.S. Steel at its Morrisville facility. The parties have fur- ther stipulated, and we find, that the Employer is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the pur- poses of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Local 542 and the Teamsters are labor organizations within the meaning of Section 2(5) of the Act. Ill. THE DISPUTE A. Background and Facts The Employer for a number of years has had a materials handling contract with U.S. Steel at the Morrisville site. The current 5-year agreement effec- tive April 15, 1976, provides that the Employer shall haul and stockpile iron ore and "other types or raw materials ... (such as pellets, sinter, coke breeze, im- ported coal, coke, ferromanganese, etc.) on an inter- mittent or emergency basis when required and desig- nated by U.S. Steel . . ."' The record reveals that normally iron ore constitutes about 95 percent of the materials hauled by the Employer for U.S. Steel, the remaining 5 percent representing the aggregate of the other materials hauled.4 The evidence also reveals that, on any given day, the Employer may be directed by U.S. Steel to haul and stockpile iron ore and var- ious other materials according to its particular needs. Prior to 1974 the hauling and stockpiling of iron ore by the Employer had been accomplished with the use of vehicles known as "scrapers." operated by employ- ees represented by Local 542. During that period, rear-dump and bottom-dump trucks called "Euclids" were used by the Employer to haul materials other than iron ore and were operated by teamsters. In late 1974, the Employer decided to discontinue using scrapers to haul iron ore and, instead, to per- form this work with the rear-dump Euclids. Initially, the Employer assigned this work to the employees represented by the Teamsters. However, after Local 542 complained that this work should be performed by operating engineers, the Employer reassigned the work to employees represented by Local 542. After Sec. 2(a) and (b). 4During the latter part of 1977, the percentage of noniron ore materials hauled by the Employer increased temporarily to approximately 70 percent due to the influx of imported foreign coal as hereinafter discussed. 241 NLRB No. 69 562 OPERATING ENGINEERS. LOCAL 542 the work was reassigned. the Teamsters, pursuant to their collective-bargaining agreement with the Em- ployer, filed a grievance with the Joint Committee of the Contractors Association of Eastern Pennsylva- nia.5 The Committee found that the Employer had violated the provision of the contract which requires that, in the event of a jurisdictional dispute, "the craft performing the work at the time the dispute arises will continue in such capacity until settlement is reached." The Committee did not reach the merits of the dis- pute and representatives of Local 542 and Teamsters subsequently agreed to meet and resolve the dispute. The substance of the subsequent discussions was the source of conflicting testimony at the hearing. The Teamsters presented evidence that Local 542 claimed only the work of hauling iron ore which had previ- ously been performed by employees represented by Local 542 using scrapers and that the hauling of all other materials would continue to be within the juris- diction of the Teamsters. In contrast, William Con- nell, a member of Local 542 and a master mechanic at the Employer's facility, testified that the Teamsters recognized Local 542's jurisdiction over the Employ- er's entire material handling operation and requested merely that the pickup truck and water truck, when in use, be operated by employees represented by Teamsters. He further testified that both Local 542 and the Teamsters have exclusive "wall-to-wall" agreements at other employers irrespective of the type of equipment being operated. He stated that, in ex- change for an agreement by Local 542 that it would refrain from contesting Teamsters jurisdiction at other jobsites over equipment normally operated by employees represented by Local 542, the Teamsters agreed not to contest Local 542's jurisdiction over the operation of Euclids when hauling all types of mate- rial at the Morrisville site. In any event, on March 31, 1975, the parties ex- ecuted the following memorandum of understanding: RE: Ore Stocking Operation U.S. Steel Corporation Morrisville, Pennsylvania We have examined the Agreement between Operating Engineers Local Union No. 542 and the C. J. Langenfelder and Son, Inc. and recog- nize this as an agreement covering the entire ore stocking operation at the above-mentioned facil- ity, with the following exceptions: Pick-Up Trucks which haul on the Highway, Water Trucks, and Trucking Sub-Contractors. Should any question arise in the future con- cerning problems of this kind, both Local Unions will meet in an effort to resolve such matters. 5 This committee is composed of Teamsters representatives and represen- tatives of employers under contract with Teamsters locals. From the date of the above agreement until some- time in December 1977, the Euclids used by the Em- ployer were operated exclusively by employees repre- sented by Local 542. As was the case prior to 1975, when teamsters operated these vehicles, other materi- als in addition to iron ore were hauled by the Em- ployer in Euclids at U.S. Steel's direction. However, the Teamsters claims no knowledge that any materi- als other than iron ore were hauled during this period. In November 1977, U.S. Steel began importing for- eign coal due to a coal strike. Unlike shipments of domestic coal, which arrived by railroad, the im- ported coal was transported by ship, and U.S. Steel directed the Employer to unload this coal over its conveyor system and to haul and stockpile it using the Euclids.6 Shortly thereafter, the Teamsters filed a grievance with the Joint Committee of the Contrac- tors Association, claiming that the Teamsters had ju- risdiction over the operation of Euclids carrying ma- terials other than iron ore. Local 542 was not a party to this proceeding and, after a hearing at which Local 542 was not present, the Committee ruled in favor of the Teamsters.7 On or about February 8, 1977, Local 542's pres- ident and business manager, Joe O'Donohue, told the Employer's labor relations specialist, John Murray, that if the Employer assigned operation of the Euclids to the employees represented by Teamsters, Local 542 would "shut the rest of you down." It is this state- ment by Local 542's official that gives rise to the Em- ployer's charge in the instant proceeding. B. The Work in Dispute The work in dispute, which was stipulated to by the parties, involves "[t]he hauling of materials, other than iron ore, by use of a Euclid type vehicle at the United States Steel facility in Morrisville, Pennsylva- nia." C. Contentions of the Parties The Employer contends, with Local 542 in agree- ment, that the Employer's assignment of the work in dispute to employees represented by Local 542 is con- sistent with the Employer's preference and practice since April 1975. The Employer further asserts that the efficiency and economy of its operation require that operating engineers operate the Euclids when hauling other materials as well as iron ore.8 I The record reveals that the number of Euclids used by the Employer during this period increased from 2 or 3 to I -13. The Teamsters award was denied enforcement by the U.S. District Court for the Eastern District of Pennsylvania. It then brought an amended griev- ance and again prevailed, obtaining a second award. This award has never been enforced. 'The Employer additionally argues that the other criteria customarily considered by the Board favors neither the Teamsters nor Local 542. 563 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Teamsters argues that the statement made by Local 542's president and business manager, Joe O'Donohue, does not constitute reasonable cause to believe that Local 542 has violated Section 8(b)(4)(D) of the Act and, even if it does constitute a threat to strike, said threat is merely a pretext to confer juris- diction upon the Board. The Teamsters further con- tends that the construction site jurisdictional agree- ment between the Teamsters and the Operating Engineers constitutes an agreed-upon method for set- tling the instant dispute. With respect to the merits of the dispute, the Team- sters contends that its collective-bargaining agree- ment with the Employer clearly confers jurisdiction over the disputed work upon employees represented by it. Although the Teamsters concedes that the 1976 agreement between Local 542 and the Employer also covers the work in dispute, it argues that this agree- ment was a unilateral attempt by the signatories thereto to unlawfully extend jurisdiction over the Eu- clids to the employees represented by Local 542. In addition, the Teamsters contends that the practice of the Employer at its other facilities and the industry practice indicate that Euclids are customarily oper- ated by teamsters. 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 be- lieve that Section 8(b)(4)(D) has been violated, and that there is no agreed-upon method for the voluntary settlement of the dispute. As set forth above, Respondent's president and business manager, Joe O'Donohue, informed John Murray, the Employer's labor relations official, that if the Employer assigned the disputed work to the em- ployees represented by the Teamsters, Local 542 would "shut the rest of you down." The Teamsters contends that this statement does not constitute a threat to strike, and, even if it does, it is a mere pre- text on the part of Local 542 in order to bestow juris- diction upon the Board. We do not agree. The state- ment on its face constitutes a threat to strike. Accordingly, we are satisfied that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred.9 The contract between the Teamsters and the Em- ployer provides that, in the event of a jurisdictional dispute, the Employer "agrees to accept and comply with the decision or settlement of the Unions or I We also note it is irrelevant that the party making the threat is the one presently doing the disputed work. Hod Carriers' Union Local No. 116, La- borers' International Union of North America, AFL-CIO (E. a S. Masonry, Inc.), 187 NLRB 482, 483 (1970). Union tribunals which have the authority to deter- mine such dispute."'° The agreement further provides that "[e]xisting international jurisdictional agree- ments shall be respected by both parties."" The only jurisdictional agreement introduced into evidence at the hearing was a construction site jurisdictional agreement between the Teamsters International and Local 542's International, by which the Unions agree to "settle jurisdictional disputes between the two or- ganizations on construction sites." The Teamsters contends that the Employer's facility is a "construc- tion site" within the meaning of that agreement and, therefore, that said agreement constitutes an agreed- upon method for voluntary adjustment of the dispute within the meaning of Section 10(k). In support of this contention, the only evidence introduced by the Teamsters was testimony that this agreement had been found applicable in a recent dispute between it and Local 542 involving American Bridge Division, another contractor at the Morrisville site. Although the Employer, by virtue of its agreement with the Teamsters, has bound itself to comply with existing jurisdictional agreements, we find the con- struction site jurisdictional agreement inapplicable to the Employer's Morrisville operation. The agreement by its very terms applies only to "construction sites." The Employer's contract with U.S. Steel specifies its obligation as "handling, hauling, stocking and de- stocking" of iron ore and "various other types of raw materials."' There is no reference in that agreement to any obligation to perform construction work. Moreover, the record discloses that, unlike American Bridge Division, which is in fact engaged in construc- tion as part of its building and equipment mainte- nance function at Morrisville, the Employer is not engaged in any activity that may be construed as con- struction work. The Teamsters vice president and business agent, Ronald Egan, admitted that, to his knowledge, the Employer has done no construction work at the Morrisville site since March 31, 1975. Therefore, its material handling operation at Morris- ville cannot be considered construction work at a "construction site" within the meaning of the con- struction site jurisdictional agreement and that agree- ment is not applicable to instant dispute. In view of the above, we find that there exists no jurisdictional agreement to which all parties are bound. Therefore, no agreed-upon method for volun- tary adjustment of the dispute exists within the mean- ing of Section 10(k) of the Act. Accordingly, we find that the dispute is properly before the Board for de- termination. ' Art. XXV, sec. 25.1. " Art. XXV, seC. 25.2. 2 Sec. 2(a) and (b). 564 OPERATING ENGINEERS. LOCAL 542 E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to various relevant factors.'3 The Board has held that its determination in a jurisdic- tional dispute is a judgment based upon common sense and experience reached by balancing those fac- tors involved in a particular case.'4 I. Collective-bargaining agreements Both the Teamsters and Local 542 have collective- bargaining agreements with the Employer. The agree- ment with the Teamsters is a "pattern agreement" negotiated by them with an area multiemployer group and subsequently signed by the Employer. The contract, which covers "the employees within the ju- risdiction of the UNION who are employed by the EMPLOYER," specifically refers to the "Euclid Type, Off-Highway Equipment" as a classification covered by the agreement." Local 542's 1974 agreement with the Employer rec- ognized Local 542 as "the collective-bargaining agent for all persons performing work at the Company's Morrisville. Pennsylvania, ore stocking operation."'6 The wage section of the agreement did not include back-dump or rear-dump Euclid truck operator as a job classification. However, the 2-year agreement ef- fective January 1, 1976, which was in effect at the genesis of the instant dispute, provided that Local 542 was the exclusive bargaining agent for "all persons performing work at the Company's Morrisville, Penn- sylvania ... materials handling operations."'7 In ad- dition, the wage provision of this agreement contains the classification of "Rear Dump Operator."'l It is clear that both the Teamsters "pattern agree- ment" with the Employer and Local 542's 1976 agree- ment with the Employer, on their face, cover the work in dispute.'9 Since the agreements between thee parties give both Local 542 and the Teamsters a colorable claim to the work in dispute, we find that these agreements favors neither party to the dispute.20 II N.L.R.B. v. Radio & Television Broadcast Engineers Union. Local 1212, International Brotherhood of Electrical Workers, A FL-CIO (Columbia Broad- casting System), 364 U.S. 573 (1961). 14 International Association of Machinists, Lodge No. 1743 AFLCIO (J. .. Jones Construction Company), 135 NLRB 1402 (1962). " Art. XIV, sec. 14.1. '6 Art. 1. sec. 1. 7 Art. I, sec. 1. ' Art. 111. sec. I. 1s We also note that the terms of the 1975 memorandum of understanding between the Teamsters and Local 542 is subject to varying interpretations and could reasonably be construed to grant jurisdiction over the disputed work to either party. 0 The Teamsters contention that this factor favors them is without merit since the collective-bargaining agreement in effect between Local 542 and the Employer at the time the dispute arose also covers the disputed work. 2. Industry practice The Teamsters contends that the industry practice, including the practice of the Employer at its other facilities, indicates that Teamsters customarily oper- ate Euclids in connection with ore handling opera- tions. In support of its claim, the Teamsters intro- duced evidence that the Employer's operations for U.S. Steel at Gary, Indiana, and at the Bethlehem facility at Sparrows Point, Maryland, utilize team- sters to operate the Euclids. In addition, evidence was presented which indicates that the Euclids used by the Warner Company, another contractor at the Mor- risville facility, are operated exclusively by teamsters. However, the record also reveals that the operating engineers are the exclusive operators of Euclids for the General Crushed Stone Company at its Glen Mills, Pennsylvania, operation and for Heckett, Divi- sion of Harsco Corporation, which is also a contrac- tor for U.S. Steel at the Morrisville site. In view of the fact that both the Teamsters and Local 542 have exclusive operating agreements at the Morrisville site and elsewhere, we find that the indus- try practice favors neither party. 3. Employer's assignment and preference As stated above, the Employer assigned the task of transporting iron ore and other materials on the U.S. Steel premises by Euclid rear-dump trucks to employ- ees represented by Local 542. This assignment has been consistently followed since the resolution of the original dispute in 1975. Moreover, the Employer prefers that this work continue to be performed by these employees. Accordingly, these factors favor an award of the disputed work to the employees repre- sented by Local 542. 4. Relative skills Employees represented by the Teamsters and by Local 542 possess the necessary skills to operate the Euclid dump truck and the procedure for hauling non-ore materials is identical to that for handling iron ore. It does not appear that either group of employees is more skilled in performing the disputed work than the other. Therefore, this factor favors neither group of employees. 5. Economy and efficiency of operation The Employer's contract includes the responsibility of unloading ships docking at the facility. Since it is difficult to predict the arrival time of these ships, the Employer often receives little advance notice from U.S. Steel and must make hasty arrangements for its 565 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unloading operation. Moreover, the evidence indi- cates that the number of Euclids in operation at a particular time varies depending upon the assignment the Employer receives from U.S. Steel and, on any given day, the Euclids in operation may alternately carry iorn ore and other materials pursuant to U.S. Steel's directions. At present, employees represented by Local 542 operate all of the Employer's equipment at the Mor- risville site, with the exception of the pickup truck and the water truck, when in use. There was testi- mony that operating engineers are shifted from one job to another as needed. The Employer argues that, due to the various materials that are hauled during the course of the day, it would be inefficient and un- economical if it were required to bring in teamsters to operate the Euclids whenever it is required by U.S. Steel to haul even one load of material other than iron ore. We agree with this contention and find that the factors of economy and efficiency of operation favor awarding the disputed work to employees represented by Local 542. Conclusion Upon the record as a whole, and after full consider- ation of all relevant factors involved, we conclude that the Employer's employees represented by Local 542 are entitled to perform the work in dispute. We reach this conclusion relying on the Employer's pref- erence and assignment and the economy and effi- ciency of operation, all of which favor awarding the disputed work to the employees represented by Local 542. In making this determination, we are assigning the work to employees represented by Local 542, and not to that Union or its members. The present deter- mination 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 pro- ceeding, the National Labor Relations Board makes the following Determination of Dispute: Employees who are represented by the Interna- tional Union of Operating Engineers, Local 542, are entitled to perform the work of operating Euclid dump trucks for C. J. Langenfelder and Son, Inc., at the United States Steel facility at Morrisville, Penn- sylvania. 566