Local Union 7813, UMW

LOCAL UNION 7813, UMW Local Union No. 7813, United Mine Workers of America; District 20, United Mine Workers of America; United Mine Workers of America and Alabama Power Company and Local 833, Interna- tional Brotherhood of Electrical Workers. Case 10-CD-237 December 17, 1971 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, JENKINS, AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by Alabama Power Company, hereinaft- er called the Employer, alleging a violation of Section 8(b)(4)(D) by (1) Local Union No. 7813, (2) District 20, and (3) United Mine Workers of America, hereinafter collectively called the Mine Workers. Pursuant to notice, a hearing was held on June 29, 1971, at Birmingham, Alabama, before Hearing Officer Robert C. Batson. The Employer, the Mine Workers, and Local 833, International Brotherhood of Electrical Workers, hereinafter called the Electrical Workers, 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. The Employer and the Mine Workers filed briefs with the National Labor Relations 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 authority in this proceeding to a three-member panel. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the basis of the briefs and the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE COMPANY The Employer is an Alabama corporation engaged in generating, transmitting, and sale of electrical power at its Gorgas, Alabama, plant. During the past calendar year, which period is a representative period, the Employer purchased goods valued in excess of $50,000 directly from points located outside the State of Alabama, and sold goods valued in excess of $250,000 within the State of Alabama. We find, accordingly, that the Employer is engaged in a business affecting 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 in this proceeding. II. THE LABOR ORGANIZATIONS 619 The parties stipulated and we find, that the Mine Workers and the Electrical Workers 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 is an electric public utility. As part of its business, the Employer operates a steam-electric generating plant and a coal mine at Gorgas, Alabama. Raw coal mined in the Gorgas mine is transported to a coal preparation facility where the raw coal is washed and the rocks and noncoal materials are separated from the coal. Then the washed coal is transported to the Gorgas steam plant where it is used in the generating of electricity. From 1941 to 1967, employees represented by the Mine Workers transported raw coal from the mine to the coal preparation facility, a distance of approxi- mately 3 miles, by motor truck. In 1967, the Employer installed and began operating an overland conveyor belt to transport the raw coal from the mine to the coal preparation facility. Employees represented by the Mine Workers have operated and maintained this overland conveyor belt since it was installed. From 1941 to February 10 or 12, 1971, employees represented by the Electrical Workers transported washed coal from the coal preparation facility to the steam plant, a distance of approximately 1 mile, by a diesel-powered rail system. In February 1971, the Employer completed installa- tion of a new overland conveyor belt system, in three sections, to transport the washed coal from the coal preparation facility to the steam plant. The new belt replaced and essentially paralleled the diesel-powered rail system. Driven by electrical motors, the new belt is activated by a control located inside the steam plant. Two members of the Electrical Workers (whose jobs are not part of the disputed work) operate the controls. The new belt is divided into three sections by two transfer points located between the coal prepara- tion facility and the steam plant. These transfer points were situated to permit changes in direction of the new belt and also to accommodate load considera- tions. The washed coal is weighed and sampled for use in the steam plant at the first transfer point, located nearest the steam plant. The contractor who built the new belt for the Employer-not a party to this proceeding-operated and maintained the new belt from February until April 1971. In April, the Employer assigned two sections of the new belt, starting at the steam plant and extending back to the second transfer point, to 194 NLRB No. 112 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees represented by the Electrical Workers. Employees represented by, the Mine -Workers were assigned the remaining section of the new belt starting at the second transfer point and extending back to the coal preparation facility. On May 20, 1971, the Mine Workers began a work stoppage to protest the Employer's assignment of the work here in dispute. The work stoppage lasted until May 25, 1971, when the Employer filed the charges now before the Board. B. The Work in Dispute The work in dispute involves patrolling, reporting breakdowns, clearing away spilled coal, and mainte- nance of the new overland conveyor belt used to transport coal between the coal preparation facility and the steam plant. C. Contentions of the Parties The Employer has already made an assignment of the work here in dispute and at the hearing and in its brief argues that the Board sustain the assignment. The Employer contends that the work of moving the coal from the coal preparation facility to the steam plant has historically been the work of employees represented by the Electrical Workers. Further, the Employer argues that it is functionally desirable to continue this assignment because the belt is driven from a point inside the steam plant where the controls are handled by employees represented by the Electri- cal Workers. Finally, the Employer argues that efficiency and economy of operation, and the Employ- er's contract with the Electrical Workers support this position. The Electrical Workers stated at the hearing that it supports the Employer's assignment of the work here in dispute. The Mine Workers contends that its contract with the Employer provides the basis for its maintaining the entire overland conveyor belt system, including the new belt. The Mine Workers argues that the new belt is a continuation of the overland conveyor belt it has operated since 1967 and is part of a contiguous mine-related operation. It further argues that past practice supports its position, that is, its members presently operate and maintain the overland conveyor belt used to transport coal from the mine to the coal preparation facility; therefore, it should be responsi- ble for maintaining the new belt. D. Applicability of the Statute The charges herein allege a violation of Section 8(b)(4)(D) of the Act. The record shows, and the Mine 1 International Association of Machinists, Local No 1743, AFL-CIO (J A. Jones Construction Company), 135 NLRB 1402 2 The Mine Workers contract defines its jurisdiction as follows. "All Workers concedes, that on or about May 20, 1971, the Mine - Workers entered into, a strike, which strike continued until approximately May 25, 1971, growing out of the assignment of work here in dispute. On the basis of the entire record, we conclude 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 determination under Section 10(k) of the Act. E. The Merits of the Dispute As the Board stated in J. A. Jones Construction Company,1 we shall determine the appropriate assign- ment of disputed work in each case presented for resolution under Section 10(k) of the Act only after taking into account and balancing all relevant factors. 1. Contracts Although the Mine Workers contends that the language of its contract with the Employer requires assignment of the disputed work to employees represented by it, we find that neither the Mine Workers nor the Electrical Workers contract clearly covers the disputed work.2 2. Company practice The evidence presented at the hearing shows that employees represented by the Mine Workers have transported coal from the mine to the coal prepara- tion facility since the opening of the mine in 1941. Similarly, employees represented by the Electrical Workers have transported coal from the coal prepara- tion facility to the steam plant since 1941. The Employer's assignment alters this historical demarca- tion point, the coal preparation facility, by assigning employees represented by the Mine Workers a section of the territory between the coal preparation facility and the steam plant. The Electrical Workers did not contest this partial assignment to employees repre- sented by the Mine Workers. Therefore, we find that this factor does not favor either labor organization. 3. Skills and work involved Both parties introduced evidence which shows that they, have experience operating and maintaining conveyor belt systems. The employees represented by the Electrical Workers have operated and maintained a conveyor belt system inside the steam plant since 1954. The employees represented by the Mine. Workers have operated and maintained a conveyor belt system from the mine to the coal preparation hauling of coal, overburden, mine refuse in or about the mine, including hauling to screening, crushing, washing, or other preparation facility, or other contiguous mine-related operation." LOCAL UNION 7813, UMW facility since 1967. Consequently, we find that the operation and maintenance of a conveyor belt system is not unique to either party and, therefore, this factor does not favor either labor organization. 4. Employer preference The Employer assigned the work in dispute, and prefers an award, to employees represented by the Electrical Workers. This factor favors an award to employees represented by the Electrical Workers. 5. Job loss , The Electrical Workers was shown to have lost one job as a result of the Employer's change from the use of rail transportation to the overland conveyor belt. If the award were made to the Mine Workers, one additional part-time laborer would be affected. Also, the workload of the Electrical Workers maintenance crew, which currently handles the special mainte- nance problems on the disputed sections of the overland conveyor belt, would be proportionately reduced. Therefore, we find that this factor favors the Electrical Workers. 6. Economy of operation The Mine Workers testified that if it were awarded the work in dispute, one additional man would be required for one shift to patrol the conveyor belt. At present, two men who control the conveyor belt from inside the steam plant and one part-time laborer, all represented by the Electrical Workers, perform the work in dispute. The parties stipulated that the positions of the two men who control the conveyor belt are not in dispute and that they would not be replaced even if the Mme Workers were granted the award. However, the one man the Mine Workers would require would presumably replace the laborer who works part time at the work in dispute. Thus, the additional employee would cost the Employer more if this work were awarded to the Mine Workers. Conclusions In each case where a factor favored the assignment of the disputed work to employees represented by one of the parties, we have found that it favored the assignment of work to employees represented by the Electrical Workers. Thus, on the record we find no 621 compelling reason for disturbing the Employer's assignment of the work to employees represented by the Electrical Workers. Accordingly, we shall deter- mine the existing jurisdictional dispute by sustaining the Employer's assignment of the work to employees represented by the Electrical Workers. In making this , determination, we are awarding the work in question to employees represented by the Electrical Workers, but not to that Union or its members. Our present determination is limited to the particular dispute 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 proceeding, the National Labor Relations Board hereby makes the following determination of dispute: 1. Employees employed by the Employer who are represented by Local 833, International Brotherhood of Electrical Workers, are entitled to perform the work of maintaining two sections of the new overland conveyor belt, said sections starting at the steam plant and extending back to the second transfer point, in accordance with the Employer's assignment of work. Also in accordance with Employer's assignment of work, employees employed by the Employer who are represented by Local Union No. 7813, District 20, United Mine Workers of America, are entitled to perform the work of maintaining one section of the new overland conveyor belt, said section starting at the second transfer point and extending back to the coal preparation facility. 2. Local Union No. 7813, District 20, United Mine Workers of America, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Alabama Power Company to assign the work herein assigned to employees represented by the Electrical Workers to employees represented by them. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local Union No. 7813, District 20, United Mine Workers of America, shall notify the Regional Director for Region 10, in writing, whether or not it will refrain from forcing or requiring Alabama Power Company by means pros- cribed by Section 8(b)(4)(D) of the Act to assign the work awarded above in a manner inconsistent with the above determination.