Cruz Contractors, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 825, International Union of Operating Engi- neers, AFL-CIO and Cruz Contractors, Inc. and Local 15024, United Steelworkers of America, AFL-CIO. Case 22-CD-308 November 28, 1978 ORDER GRANTING MOTION AND DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On January 18, 1978, the National Labor Rela- tions Board issued its Decision and Order Quashing Notice of Hearing in the above-captioned proceed- ing,' finding that a jurisdictional dispute no longer existed within the meaning of the National Labor Relations Act, as amended, because Local 825, Inter- national Union of Operating Engineers, AFL-CIO (hereinafter called Operating Engineers), had dis- claimed any interest in the work in dispute. Thereaf- ter, by letter dated January 25, 1978, Operating Engi- neers notified the Board and the parties that it was not its intention to disclaim interest in work at any jobsite of Cruz Contractors, Inc. (hereinafter the Em- ployer), in Middlesex County, New Jersey, "if, in fact, that job was not operational at the time of the [10(k)] hearing." Operating Engineers further alleged that it knew of no such jobs at the time of the hear- ing. On February 2, 1978, the Employer filed a mo- tion for rescission of the Board's Order Quashing Notice of Hearing and requested that the Board make an affirmative determination of the work in dispute, contending that the Operating Engineers January 25 letter constituted a rescission of its previ- ous disclaimer of the work in dispute.2 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. In accepting Operating Engineers disclaimer in the original 10(k) proceeding, we found that that dis- claimer covered work of the Employer in Middlesex County, New Jersey, as well as in the Borough of 234 NLRB 292 (1978). 2 The Decision and Order Quashing Notice of Hearing in this proceeding covered charges filed against Operating Engineers by three separate em- ployers in three separate cases which were consolidated by the Regional Director for Region 22 pursuant to Sec. 102.33 of the Board's Rules and Regulations. Series 8, as amended. Inasmuch as the parties in Cases 22- CD-307 and 22-CD-309, with which the instant case was consolidated. have not filed any motion for rescission or reconsideration of the Board's Decision and Order Quashing Notice of Hearing as to their cases, we make no rulings as to those cases herein. Lincoln Park, New Jersey. Operating Engineers claims error by the Board's inclusion of the Employ- er's Middlesex County work as part of the work in dispute covered by its decision. Specifically, Operat- ing Engineers asserts that by its disclaimer it only intended to disclaim the construction jobsites which were currently operational and that, since it knew of no construction jobsite of the Employer in Middlesex County, New Jersey, at the time of the hearing, there was no basis for disclaiming interest in any such work. The Employer, conversely, contends that its work for the Middlesex County Sewerage Authority was in fact work in dispute in the 10(k) proceeding; that Operating Engineers had knowledge of that work; that Operating Engineers demanded the work; that Operating Engineers threatened to picket said jobsites: and that said work was commenced at the time the charge was filed. We find no merit in Operating Engineers conten- tion that the Board should accept its disclaimer as limited only to the work at the Employer's Lincoln Park jobsites, as a review of the record herein disclos- es nothing to cause us to change our conclusion that Operating Engineers disclaimer encompassed job- sites of the Employer in Middlesex County as well. Thus, the Employer's charge, filed on July 5, 1977, and served on Respondent on July 7, 1977, alleged that Operating Engineers had engaged in and was engaging in unfair labor practices in violation of Sec- tion 8(b)(4)(D) of the Act at various public streets, Borough of Lincoln Park, and various locations, County of Middlesex, New Jersey. The work in dis- pute, as described in the 10(k) notice of hearing is- sued on July 13, 1977, included work at Lincoln Park jobsites at which Operating Engineers had picketed, "and at all other of the Employer's construction job- sites." Further, Operating Engineers, in advising the Board by letter received in the Regional Office on July 29, 1977, that it disclaimed any interest in the work assignments involved in the 10(k) proceeding, made no differentiation between Lincoln Park job- sites and any other jobsites in that disclaimer. Nor did the attorney for Operating Engineers so differen- tiate in orally reaffirming Operating Engineers dis- claimer to the Hearing Officer on August 16, 1977, prior to commencement of the hearing. Finally, the evidence as adduced at the hearing clearly indicated that Operating Engineers wanted the work the Em- ployer was going to do in Middlesex County, re- quested that the Employer sign a contract by which it would be obligated to hire all employees in the future through the Operating Engineers hiring hall and re- place its present employees represented by Steel- workers with employees represented by Operating Engineers, and warned the Employer at the time of 490 LOCAL 825, OPERATING ENGINEERS, AFL-CIO its Lincoln Park picketing that it should resolve the situation with Operating Engineers because this was just the start of its activities against Cruz and that Operating Engineers would also be up in Middlesex County as soon as operations began there. That Operating Engineers was in fact concerned with the Middlesex County work is further evidenced by the testimony of the Employer's vice president, Edward Cruz, who stated that, at a meeting with Op- erating Engineers representatives occurring in May 1977, Operating Engineers Business Manager Pat Campbell indicated that the Middlesex County work in particular was very much of interest to Operating Engineers, "because it represented a large contracts [sic], a lot of work, and that they had to have their men put on those projects in addition to the Lincoln Park project." Cruz testified at that time that the Em- ployer was in the process of mobilizing on one of its two Middlesex County Sewerage Authority contracts and, when queried as to what that meant, replied, "'That means we are in the process of setting up field offices in the yard for conducting the work." We find, based on the above, that Respondent had adequate notice that the work in dispute precipitat- ing the filing of charges and the conduct of a 10(k) hearing in the instant case included sewer construc- tion work in Middlesex County, New Jersey. We fur- ther find that Respondent was afforded full opportu- nity to appear, to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on issues relevant to that charge in the 10(k) proceeding, but declined to participate. Respondent chose instead to rely on its statement that it dis- claimed any interest in the work in dispute. However, because we find Respondent's January 25, 1978, let- ter stating that it did not intend to disclaim the Mid- dlesex County work inconsistent with its previous disclaimer, accepted by us, we have decided to de- termine the dispute on its merits. ORDER In view of the foregoing, we hereby grant the Em- ployer's motion for rescission of our Decision and Order Quashing Notice of Hearing to the extent that it applies to this Employer's operations, and shall de- termine the dispute in Case 22-CD-308 on its merits. THE DISPUTE A. The Work in Dispute The work in dispute, as described in our previous decision, is as follows: The maintenance and operation of all Cruz' heavy equipment including backhoes, front-end loaders, bulldozers, cranes, water pumps, rollers, and paving machines at Cruz' construction job- sites located on Comly Road at Tuland Place, Anthony Boulevard at Arthur Road, Ryerson Road at William Street, and Ryerson Road at Hazel Street, all in the Borough of Lincoln Park, New Jersey, and at all other of the Employer's construction jobsites. B. Background and Facts of the Dispute The background and relevant facts surrounding this dispute are set forth in our prior Decision and Order as follows: Cruz, a construction company involved pri- marily in the utility construction field, was en- gaged in the installation of a sewer line in Lin- coln Park, New Jersey, in early May [19773 ]. Cruz also had contracts for the construction of two other sewer projects, both in Middlesex County, New Jersey, on which work had not yet begun. The maintenance and operation of the heavy equipment on all of these sewer projects had been awarded by Cruz to its employees who are represented by Steelworkers Local 15024. Cruz and the Steelworkers have had a collective- bargaining agreement in effect at all times rele- vant to this proceeding which covers the em- ployees performing the work in dispute. Cruz was contacted by the Operating Engi- neers early in May through Cruz' attorney, Ron Tobia, and a meeting was set up to discuss the proposed use of Operating Engineers on Cruz construction projects. Edward Cruz, vice presi- dent of the Company, testified that at a meeting on May 10 in East Orange, New Jersey, repre- sentatives of Operating Engineers requested that Cruz employ operating engineers to operate the heavy equipment at its Lincoln Park and Mid- dlesex County jobsites. Operating Engineers also requested that Cruz sign a contract with it. On requirement of the contract proposed by the Operating Engineers was that Operating En- gineers Local 825 would have hiring hall rights, and that all men working on Cruz projects would have to go through the Operating Engi- neers hiring hall procedure. Thus, present Cruz employees operating the heavy equipment who are represented by Steelworkers would have had to be replaced by workers hired through the Op- erating Engineers hiring hall under the proposed agreement. Cruz testified that they discussed hir- Unless otherwise indicated. all dates are 1977. 491 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing some operating engineers in addition to the Steelworkers-represented employees currently operating the heavy equipment, but that that proposal was rejected by the Operating Engi- neers business manager who stated that Operat- ing Engineers would have to have the hiring hall rights. Cruz refused to sign the Operating Engi- neers contract. Thereafter, on June 23, Operating Engineers Local 825 picketers, with signs saying that Cruz was not paying area wages and benefits, ap- peared at four locations at Cruz' Lincoln Park jobsite. Edward Cruz testified, however, that Cruz was in compliance with its contracts both with the Borough of Lincoln Park under which it was required to pay the prevailing Federal area wage rates, and with Steelworkers Local 15024. Cruz further testified that Peter Strannemar, a business agent of the Operating Engineers, in- formed him that Cruz should resolve the situation with Operating Engineers because this wasjust the start of their activities against Cruz, and that Oper- ating Engineers would also be up in Middlesex County as soon as operations began there. On July 27, the district court granted a temporary injunc- tion and the picketing ceased and has not since resumed. C. Contentions of the Parties The Employer contends that its assignment of the disputed work is consistent with all the factors on which the Board normally relies in resolving work assignment disputes. Thus, Cruz maintains that the work is properly assigned to its employees, pursuant to its collective-bargaining agreement with the Steel- workers covering the work, and that the work has traditionally been assigned to those employees. It also asserts that the Operating Engineers has no valid basis for claiming the work. The Steelworkers neither appeared at the hearing nor made any statement of position. Operating Engineers also did not appear at the hearing and has made no explicit claims concern- ing any basis for awarding the disputed work to em- ployees it represents. Its sole statement of position prior to the 10(k) hearing was that it disclaimed any interest in the work in dispute, that the picket lines had been removed and would not be replaced, and that it would not engage in any action inconsistent with that stated position. 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 and that the parties have not agreed upon a method for the voluntary adjustment of the dispute. Based on the foregoing evidence that Operating Engineers established and maintained picket lines at Cruz jobsites in Lincoln Park, New Jersey, and threatened also to picket the Employer's Middlesex County, New Jersey, jobsites, following Cruz' refusal to sign a contract with Operating Engineers and em- ploy its members rather than Cruz' own employees, we conclude that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred. The record does not indicate that any agreed-upon method for the voluntary adjustment of the dispute exists within the meaning of Section 10(k) of the Act. Further, as stated above, we find Respondent's Janu- ary 25, 1978, letter stating that it did not intend to disclaim the Middlesex County work inconsistent with its previous general disclaimer of the work in dispute. Accordingly, we find that this 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.4 The Board has held that its determination in a jurisdic- tional dispute is an act of judgment based on com- monsense and experience reached by balancing those factors involved in each particular case.5 The following factors are relevant in determining the dispute before us: I. Certification and collective-bargaining agreements Neither of the labor organizations herein has been certified as the collective-bargaining representative for a unit of the Employer's employees. The Em- ployer, however, has had a continuing bargaining re- lationship with Steelworkers, dating from June 1972.6 The Employer's most recent contract with that union is effective from January 31, 1976, to December 31, 1978, and relates to all phases of its construction 4 N.L.R.B. v. Radio & Television Broadcast Engineers Lnion. Local 1212. International Brotherhood of Electrio al Workers. A Ft ('10 (Columbia Broad- asting Svstern. 364 U.S 573 (1961). 5International Associarion of Machinists, Lodge No 1743. AFL-(0IO(J A Jones Construction Company). 135 NLRB 1402 (1962). 6 Although the parties have had successive collective-bargaining agree- ments from that date, both have existed as predecessor organizations during that time period. Thus. Athens Construction Company as the predecessor of Cruz Contractors, Inc.. and District 50. Allied and Technical Workers of the United States and Canada. which merged with the Steelworkers, preceded Steelworkers in this collective-bargaining relationship. 492 LOCAL 825, OPERATING ENGINEERS, AFL-CIO work and allied fields. Employer's vice president, Cruz, testified that its heavy equipment operators, truckdrivers, and other construction job classifica- tions are covered under this contract. There is no evidence that the Employer is a party to any collec- tive-bargaining agreement with Operating Engineers. We conclude, therefore, that considerations of collec- tive-bargaining history and agreements favor assign- ment of the work to the Employer's employees repre- sented by Steelworkers. 2. Employer, industry, and area practice The Employer has assigned the maintenance and operation of the heavy equipment on all of its sewer construction projects to its employees who are repre- sented by Steelworkers. Vice President Edward Cruz, who stated that he is a past president of the Utility Contractors Association of New Jersey and is currently president of the National Utility Contractors Associa- tion, testified that it is his opinion that the majority of employees operating heavy equipment in the construc- tion utility field in New Jersey are nonunion but, of those equipment operators who are represented by unions, more are represented by Steelworkers than by Operating Engineers. Accordingly, we find that the Employer's own practice and the industry and area practice favor awarding the work to the Employer's employees who are represented by Steelworkers. 3. Skills and training of employees The Employer's employees are proficient in the operation of its heavy equipment, primarily due to their time and experience in utility construction work. The Employer's backhoe operators, for exam- ple, dig trenches to within an inch or less of grade without the aid of calibration instruments in the cab of the machines; the crane operators are especially skilled in lifting a load, such as pipe, traveling with it, and then placing it in an excavation where the opera- tor does not have visual contact with the object being put in the ground, and certain of the Employer's em- ployees have been specially trained in the operation of specialized equipment, such as the Koerhing 1266 hydraulic excavator, which is a type of construction equipment operating engineers may not generally be qualified to operate without specialized training. Further, the Employer's operators have performed their work in a safe manner, and have satisfactorily completed portions of the work required under the Lincoln Park contract. It is clear, therefore, that the Employer's employees are qualified to perform the work. We are reluctant, however, to find that the skills and special training of the Employer's employ- ees renders them more skilled or better qualified to perform this work than employees represented by Operating Engineers would be, as it is well recog- nized that Operating Engineers represents employees who are skilled in the operation of heavy equipment. Thus, we do not rely on these factors in determining which group of employees should be awarded the disputed work. 4. Efficiency and economy of operations The record indicates that the Employer's employ- ees may, in addition to operating its heavy equip- ment, perform other construction work-such as ir- onwork or carpentry work-at times when no operator of heavy equipment is required. Operating Engineers-represelted workers, on the other hand, do not, insofar as the record indicates, do work that is not categorized as operating engineer work. There- fore, the use of its own employees would appear to result in the faster and more economical completion of the Employer's construction projects than if the disputed work were assigned to employees repre- sented by Operating Engineers. Accordingly, we find that efficiency and economy of operations tend to support assignment of the work to the Employer's employees represented by Steelworkers. Conclusion Upon the record as a whole, and after full consid- eration of all relevant factors involved, we conclude that the Employer's employees represented by Steel- workers are entitled to perform the work in dispute. We reach this conclusion on the basis of the Employ- er's assignment and preference, the Employer's col- lective-bargaining agreement with Steelworkers, the industry and area practice with which such an assign- ment is consistent, and the fact that the Employer's assignment will tend to result in greater efficiency and economy of operations. In making this determi- nation, we are awarding the work in question to em- ployees represented by Steelworkers, but not to that Union or its members. The present determination is limited to the work in dispute which gave rise to this proceeding. Thus, it includes work at the Employer's Lincoln Park, New Jersey, jobsites, where Operating Engineers picketing occurred, and also includes work pursuant to the Employer's two contracts with the Middlesex County Sewerage Authority, which sites Operating Engineers threatened to picket. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the 493 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foregoing findings and the entire record in this pro- ceeding, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees of Cruz Contractors, Inc., who are represented by Local 15024, United Steelworkers of America, AFL-CIO, are entitled to perform the fol- lowing work: The maintenance and operation of all Cruz' heavy equipment including backhoes, front-end loaders, bulldozers, cranes, water pumps, rollers, and paving machines at Cruz' construction job- sites located on Comly Road at Tulane Place, Anthony Boulevard at Arthur Road, Ryerson Road at William Street, and Ryerson Road at Hazel Street, all in the Borough of Lincoln Park, New Jersey, and at all other of the Employer's construction jobsites established pursuant to its two contracts with the Middlesex County Sewer- age Authority, Middlesex County, New Jersey. 2. Local 825, International Union of Operating Engineers, AFL-CIO, is not entitled by means pro- scribed by Section 8(b)(4)(D) of the Act to force or require Cruz Contractors, Inc., to assign the disputed work to employees represented by that labor organi- zation. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 825, Interna- tional Union of Operating Engineers, AFL-CIO, shall notify the Regional Director for Region 22, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Sec- tion 8(b)(4)(D) of the Act, to assign the disputed work in a manner inconsistent with the above deter- mination. 494