Local 25, Marine Division, Operating Engineers

292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 25, Marine Division , International Union of Operating Engineers, AFL-CIO and Local 333, National Maritime Union, AFL-CIO and Great Lakes Dredge & Dock Co. Case 5-C D-12 7 Maritime Union , AFL-CIO, are labor organizations within the meaning of the Act. III. THE DISPUTE August 29, 1969 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by the Great Lakes Dredge & Dock Co , on November 5, 1968, alleging that Local 25, Marine Division, International Union of Operating Engineers, AFL-CIO, had violated Section 8(b)(4) (D) of the Act. Pursuant to notice, a hearing was held at Baltimore, Maryland, on December 6, 1968, and January 22 and 30, 1969, before Leslie Aronin, and on March 6, 1969, before Walter H. Mahoney, Jr., Hearing Officers. The named parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing upon the issues The rulings of the Hearing Officers made at the hearing are free from prejudicial error and are hereby affirmed. Local 25 and Local 333 filed briefs with the Board. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel Upon the entire record of this case, the Board makes the following findings 1. THE BUSINESS OF THE COMPANY The parties stipulated to the following facts Great Lakes Dredge & Dock Company is a New Jersey corporation which maintains its principal office in Chicago, Illinois. It is engaged in dredging and related operations throughout the United States. During the preceding 12 months it performed services valued in excess of $50,000 within the State of Maryland and during the same period the Company purchased and received materials from outside the State of Maryland valued in excess of $50,000 Accordingly, we find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated , and we find , that Local 25, Marine Division, International Union of Operating Engineers , AFL-CIO, and Local 333, National A. Statement of Facts The Employer is engaged in certain dredging operations for Bethlehem Steel Company off Sparrows Point, Maryland. Such work requires the use of a dredge and various tugs and barges. The Garden State, a launch owned by the Employer, was towed from the New York Harbor area to the Sparrows Point operation for the purpose of carrying employees from dockside to the dredge and back at shift changes Normally the launch is manned by a crew of two-a captain or mate and a deckhand. When the Employer placed the Garden State in service around November 6, 1968, it employed a member of Local 333 as captain and requested Local 25 to supply one of its members as deckhand. Local 25 refused to do so on the ground that its members were entitled to the captain's position as well. It also refused to let its members who operated the dredge use the launch at shift change, thereby requiring the Employer to divert one of its tugs to carry personnel at such times. Also, around this time, one of Local 25's representatives told a company officer that both men on the launch had to be members of his union or else the "mustard would hit the fan." B Contentions of the Parties Local 333 contends essentially that general East coast past practice providing for a split crew-Local 333 captain and Local 25 deckhand - is controlling here and emphasizes that in the past the Garden State has, in its New York Port area operations, carried such a crew. Local 333 also introduced certain contracts in support of its position As for Local 25, it takes the position, basically, that local Baltimore-Sparrows Point practice is alone relevant, and argues that such practice supports awarding the disputed position to employees it represents. It also presented in support of its position its contract running from October 1968 to September 1971 covering, inter alia, the Baltimore area, which contract sets forth a unit including captains of "launches" used in connection with dredging operations. The Company, though assigning the captain's position to Local 333 members, take no position as to which union's members are entitled to the job. C. Applicability of the Statute The Board must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated before it may proceed with a determination of dispute pursuant to Section 178 NLRB No. 48 LOCAL 25, MARINE DIVISION, OPERATING ENGINEERS 10(k) of the Act. The record, as indicated, shows that Local 25 refused to supply a deckhand for the Garden State, ordered its members not to use that vessel in traveling to and from the dredge, and threatened unspecified disruptive action if the captain of the Garden State was not an employee it represented In these circumstances, we find that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and that the dispute is properly before the Board for determination under Section 10(k) of the Act ' D. Merits of the Dispute The operation here involved is, as indicated above, one limited to the shore to dredge and back transportation of operating personnel at Sparrows Point, Maryland. Consequently, it is not related to and did not grow out of any activities or job in the New York Port or other areas outside that of the Baltimore Harbor and its vicinity. Thus, crewing practices beyond the Baltimore-Sparrows Point location are clearly not controlling here and are, in the circumstance, of relatively little consequence. This conclusion is supported by the facts that the Garden State was towed on a barge and without any crew from New York and that when it was placed in service at Sparrows Point it was necessary to obtain a new crew. As for the local practice, it appears that Local 25 has provided for many years the full crew for launches such as the Garden State in Baltimore Harbor and vicinity. Furthermore, its contract with the Company covers that area and specifically applies to the crews --- captains and deckhandsi- of launches used in connection with dredging operations. As for the contracts placed in evidence by Local 333, they do not by their terms apply to 'Local 333 contends, inter atia , that the case does not present a jurisdictional dispute within the meaning of Sec 10(k) because the "captains" in dispute are statutory supervisors and not employees The fact that the "captains" are in charge of a vessel with a crew of one is not enough, taken alone, to support a finding they are statutory supervisors See Seaboard Packing Company, 91 NLRB 361 Additionally, though the evidence in the record before us shows that the captain directs, to some extent the activities of the deckhand, it is meagre at best and wholly insufficient to support a finding that the "captains" exercise or possess supervisory authority as defined in Sec 2(11) of the Act 293 the area here under consideration. In fact, there is some evidence that Local 333 has not in the past, with perhaps some rare exceptions, represented any employees working in Baltimore Harbor and vicinity Finally, it can be noted that both Unions seem capable of furnishing employees competent to occupy the disputed captain's position E Conclusions as to the Merits of the Dispute In the circumstances here, we believe that the employees represented by Local 25 are entitled to perform the work in dispute. Both past practice in the Baltimore Harbor area and Local 25's contract with the employer support such a result. Other factors frequently considered by the Board in resolving disputes under Section 10(k) of the Act do not favor either union with respect to an award.' We wish, however, to emphasize that in making the award, we are assigning the work to employees represented by Local 25 and not to that labor organization itself or its members. 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 period, the National Labor Relations Board hereby makes the following Determination of Dispute. Employees of Great Lakes Dredge & Dock Co. represented by Local 25, Marine Division, International Union of Operating Engineers, AFL-CIO, are entitled to perform the job or fill the position of captain or mate on the launch Garden State, while operating in connection with dredging operations in the Baltimore-Sparrows Point harbor area 'An employer's assignment of work is, of course, a relevant consideration and here the Company, as pointed out, assigned the captain's position to employees represented by Local 333 However, such an assignment was not to the Company's own employees, did not reflect any area past practice, and was not insofar as any one claims motivated by considerations of efficiency, economy or other business advantage It seems to have been based mainly on a continuation of New York harbor manning practices for the Garden State From Local 25's point of view, it represented a breach of contract, from ours, it seems in the particular circumstances to be of no controlling consequence with respect to resolving the dispute before us