Local 88, Laborers

LOCAL 88, LABORERS 891 Local 88, Laborers Intenational Union , AFL-CIO and S. J. Groves & Sons Company and Local 4, International Union of Operating Engineers, AFL-CIO. Case 1-CD-212 June 22. 1970 II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated and we find that Local 88, Laborers International Union, AFL-CIO, and Local 4, International Union of Operating Engineers, AFL-CIO, are labor organizations within the mean- ing of the Act. DECISION AND DETERMINATION OF DISPUTE BY MEMBERS MCCULLOCH, BROWN, AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing the filing of charges by S. J. Groves & Sons Company, herein called the Employer, alleging that Local 88, Laborers International Union, AFL-CIO, herein called Laborers, had 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 the work in dispute to employees represented by the Laborers rather than to employees represented by Local 4, International Union of Operating Engineers, AFL-CIO, herein called Engineers. Pursuant to notice, a hearing was held before Hearing Officer Arnold M. Marrow on April 1, 1970. All parties ap- pearing at the hearing were afforded full opportuni- ty to be heard, to examine and cross-examine wit- nesses, and to adduce evidence bearing on the is- sue. Thereafter, a brief was filed by the Employer. 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 powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Hear- ing Officer made at the hearing and finds that they are free from prejucicial error. The rulings are hereby affirmed. The Board has considered the Em- ployer's brief and the entire record in this case and makes the following findings: I. THE BUSINESS OF THE COMPANY S. J. Groves & Sons Company is a Minnesota corporation with operations throughout the nation. It is presently engaged in the construction of a tun- nel for a political subdivision of the Commonwealth of Massachusetts, more specifically in the Dorchester District of Boston, Massachusetts. The parties stipulated, and we find, that S. J. Groves & Sons Company is engaged in interstate commerce within the meaning of the Act. Accordingly, we find that it will effectuate the purposes of the Act to assert jurisdiction herein. III. THE DISPUTE A. The Background Facts The Employer is in the process of constructing an underground hardrock free air tunnel to be 6 miles in length for the Metropolitan District Commission, a political subdivision of the Commonwealth of Massachusetts, in districts near the city of Boston. The project requires the digging of a vertical shaft 250 feet in depth. From the bottom of the shaft the work has branched out in two directions, one toward the nearby town of Brookline, and the other toward Dorchester and the Atlantic Ocean. In con- nection with the drilling of the tunnel itself, the operation proceeding in the direction of Brookline involves the removal of solid rock and entails drilling, blasting, and excavating. This phase of the work is carried out at the head of the tunnel by miners who are represented by Laborers. The rock materials that are blasted or bored away to shape the tunnel are loaded into rail cars that are hauled by a diesel locomotive to the shaft area where they! are dumped onto a hoist and raised to ground level and ultimately disposed of. The locomotive used in the hauling operation (commonly called "dinky" engine) is described as being similar to a standard diesel locomotive, only much smaller. The present controversy stems from the Employer' s assignment of the operation of this vehicle to a member of En- gineers. Work was begun in February 1969. The engine involved in this dispute was not at the jobsite at this time. Apparently discussion promptly followed as to which union's members would operate the dinky engine . In October, Laborers Business Agent Richard Buck, informed Young, the Employer's project manager, that he (Buck) was claiming the manning of the motors used in the heading opera- tions on behalf of the Laborers. Young replied the Company had not resolved the question. A few days later a similar work claim was made by En- gineers Business Agent Carl Bucci. As a result of the two crafts claiming the same operation, the Employer arranged several meetings with the unions involved in an attempt to settle the dispute. Both Laborers and Engineers persisted in their claims. These meetings continued without suc- 183 NLRB No.j90 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cess and at the last meeting on February 9, 1970, a consensus was reached that the unions themselves, with the assistance of their parent bodies, would be left to resolve the matter. When agreement between the Unions failed to produce results, the Employer, on February 10, 1970, assigned the work in ques- tion to the Engineers. Laborers immediately indi- cated that the award was unacceptable. On the same day, the Employer was informed by Arthur Coyer, Local 88's International representative, that the Employer would have "labor trouble." When the Employer lowered the heading motor into the shaft, all the laborers in the tunnel stopped working and came out, and Laborers established a picket line at all entrances to the project. Although both the picketing and work stoppage ceased shortly thereafter, the parties have been unable to resolve the dispute. B. The Work in Dispute The work in dispute is limited to the operation of the locomotive engine (also referred to as the head- ing and working motor and dinky engine) from a point in the tunnel known as the switching area (a point between the shaft and tunnel head or excava- tion area) to the tunnel head. There is no dispute about the operation of the engine between the switching area and the shaft by operating engineers. C. Contentions of the Parties S. J. Groves & Sons Company, the Employer and Charging Party, contends that Respondent Laborers violated Section 8(b)(4)(D) of the Act by picketing and striking in an effort to have the work in question assigned to employees represented by that union . The Employer further contends that the work was properly awarded to employees represented by Engineers in view of (a) company, industry, and area practice; (b) economy and effi- ciency of operation; (c) considerations of safety; and (d) the fact that the collective-bargaining con- tract between the Employer and Engineers has a clause covering this classification of work whereas the contract between the Employer and Laborers does not. Engineers concurs with the position taken by the Employer. Respondent Laborers filed no brief but took the position at the hearing that all the work carried out in "the head area" properly belongs to employees represented by it on the basis of (a) possession of ' N L R B v Radio Television Broadcast Engineer Union Local 1212, In- ternational Brotherhood of Electrical Workers ( Columbia Broadcasting System), 364 US 573. requisite skills by members of that labor organiza- tion and (b) industry practice. 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. As set forth previously, Respondent Laborers has demanded the work connected with the operation of the dinky engine in the head area. Young testified that he was told by a Laborers representative that the Employer would have no labor problem if he assigned the work to that union. Further, upon the Employer's assignment of the work to Engineers, Laborers International Repre- sentative Coyer, told the Employer that the award was unacceptable and that the Employer would have "labor trouble." When the work began, Labor- ers members struck briefly and established a picket line at the jobsite. On these facts we believe that there is reasonable cause to believe that an object of the strike was to force the Employer to assign the disputed work to employees represented by Laborers, rather than employees represented by Engineers. 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 determina- tion. 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 the various relevant fac- tors.' 1. Collective-bargaining and union agreements There is no evidence that a Board certification covers the disputed work. The Employer has collective-bargaining agree- ments with both labor organizations involved. While neither contract has any clause which clearly covers the work in question, the agreement with Engineers does contain a work and wage classifica- tion for "[operators of] locomotives or machines used in place thereof." There is no such classifica- tion in the Employer's agreement with Laborers. Accordingly, as the wage classification for locomo- tive operators is in the contract with Engineers and LOCAL 88, LABORERS absent from the contract with Laborers, we find this factor tends to favor Engineers. 2. Company, industry, and area practice There is little direct evidence in the record as to a traditional company practice . It does appear, however, that in the eight areas throughout the country where the Employer has similar jobs under construction this type of work is done by Engineers. Accordingly, the present assignment appears con- sistent with the Company's national practice and is a factor favoring Engineers. There was some testimony that members of Laborers have operated engines in compressed air tunnels. However, evidence as to industry and area practice adduced by both the Employer and En- gineers shows that in free air, hardrock tunneling operations, as are here involved, the mechanical work such as the operation of the engine is tradi- tionally done by employees represented by the Operating Engineers . Accordingly , we find this fac- tor favors Engineers. 3. Skills and efficiency There is no showing that the disputed work requires skills not possessed by employee-members of Engineers . On the contrary , Young, the Em- ployer's project manager, testified that the Com- pany has been quite satisfied with performance of the operating engineers since the assignment of the disputed work to them. Additionally, the record shows that Laborers does not claim the work of operating the engine in the central shaft area. Under the Laborers demand, the engineer would take the machine to the last switch on the track. Upon reaching that area , the engineer would have to turn the engine over to a laborer who would proceed to the excavation area . The engineer would have to wait with nothing to do until the cars hauled by the engine are loaded in the excavation area and returned to the switching area by the laborer. The laborer in turn would have to wait idly at the switching area while the cars were taken to the shaft area, emptied , and returned to the switching area. This assignment of the disputed work to the laborers would result in fragmentation of the jobs into two operations along the track, in- volving one man being idle while the other completed a phase of the trip. Accordingly, from the standpoint of efficiency, these factors favor an award consistent with that made by the Employer. 4. Safety At the hearing, the Employer contended that 893 considerations of safety favored awarding the disputed work to employees represented by En- gineers . Counsel for Laborers argued that the same considerations favor an award to employees represented by that union . The record, however, does not reveal that assignment of the work in dispute to either union , as opposed to the other, will enhance job safety. Conclusion Having considered all pertinent factors , we con- clude that employees represented by Engineers are entitled to perform the work in dispute . Members of Engineers are at least as skilled as members of Laborers insofar as the disputed work is concerned, and the Employer has been satisfied with the quali- ty of their work and safety record. Moreover the as- signment to employees represented by Engineers is consistent with the Employer's interpretation of its contract with Engineers , its national practice, and also consistent with traditional industry and area practice and will result in more efficient operations. Accordingly, from the foregoing , we conclude that the Employer's assignment of the work to em- ployees represented by Engineers should not be disturbed. On the basis of the entire record, there- fore, we shall determine the existing jurisdictional controversy by awarding to the employees em- ployed by the Employer and represented by En- gineers, rather than to employees represented by Laborers, the operation of the locomotive (dinky) engine from a point on the tracks designated as the "heading switch" area to the point of excavation. The present determination is limited to the particu- lar 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 case, the National Labor Relations Board makes the following determination of dispute: 1. Engineers employed by the Employer and represented by Local 4, Intenational Union of Operating Engineers , AFL-CIO, are entitled to per- form the work of operating the diesel locomotive (dinky) engine between a point on the tracks designated as the "heading switch" area and the ex- cavation point involved in the construction of the hardrock free air tunnel in the Dorchester District of Boston, Massachusetts. 2. Local 88, Laborers International Union, AFL-CIO, is not entitled by means proscribed by Section 8(B)(4)(D) of the Act to force or require 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD S. J. Groves & Sons Company to assign such work notify the Regional Director for Region 1, in writ- to employees represented by the aforesaid Union. ing, whether or not it will refrain from forcing or requiring S. J. Groves & Sons Company by means 3. Within 10 days from the date of this Decision proscribed by Section 8(b)(4(D) to assign the work and Determination of Dispute, Local 88, in dispute in a manner inconsistent with the above Laborers International Union, AFL-CIO, shall determination.