Operating Engineers Local 825 (D & V Wrecking Corp.)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 825, International Union of Operating Engi.. neers, AFL-CIO and D & V Wrecking Corpora.. tion and Teamsters Local 11, a/w International Brotherhood of Teamsters, Chauffeurs, Ware.. housemen and Helpers of America Local 825, International Union of Operating Engi- neers, AFL-CIO and Cruz Contractors, Inc. and Local 15024, United Steelworkers of America, AFL-CIO Local 825, International Union of Operating Engi- neers, AFL-CIO and Tri-State Metal Erectors, Inc. and Local 373, International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO. Cases 22-CD-307, 22-CD-308, and 22-CD-309 January 18, 1978 DECISION AND ORDER QUASHING NOTICE OF HEARING BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing three separate charges alleging that Local 825, International Union of Operating Engineers, AFL-- CIO, herein called Operating Engineers, has violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring each of the Charging Parties named in the caption to assign certain work to its members rather than to employees represented by other unions. In Case 22-CD-307, a charge was filed by D & V Wrecking Corporation, herein called D & V, on June 1 and amended on June 29, 1977,1 alleging that Operating Engineers was engaging in proscribed activity with an object of forcing D & V to assign certain work to its members rather than to D & V's employees who are represented by Teamsters Local 11, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Teamsters. In Case 22-CD-308, a charge was filed By Cruz Contractors, Inc., herein called Cruz, on July 5, alleging that Operating Engineers was engaging in proscribed activity with an object of forcing Cruz to assign certain work to its members rather than to Cruz' employees represented by Local 15024, United Steelworkers of America, AFL-CIO, herein called Steelworkers. In Case 22-CD-309, a charge was filed by Tri- State Metal Erectors, Inc., herein called Tri-State, on July 6, alleging that Operating Engineers was engag- ing in proscribed activity with an object of forcing Tri-State to assign certain work to its members rather than to Tri-State's employees represented by Local 373, International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, herein called Ironworkers. On July 22, the Regional Director for Region 22 ordered the consolidation of the three cases against Operating Engineers. Pursuant to notice, a hearing was held before Hearing Officer Gregory M. Burke on August 16 and 17. Each of the three Charging Parties was represent- ed at the hearing. However, neither Teamsters, Steelworkers, Ironworkers, nor Respondent Operat- ing Engineers appeared or was represented. All parties were afforded full opportunity to appear, to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. None of the parties filed briefs. 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 Board has reviewed the Hearing Officer's rulings 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 EMPLOYERS D & V Wrecking Corporation is a New Jersey corporation engaged in the demolition business. During the preceding fiscal year, D & V derived gross revenues in excess of $1.5 million from provi- sion of its services, and during the same period it purchased and caused to be delivered to its New Jersey locations goods and materials valued in excess of $50,000 directly from suppliers located outside the State of New Jersey. Cruz Contractors, Inc., is a New Jersey corporation engaged in the construction business, primarily in the utility field. During the last 12-month period, Cruz derived gross revenues in excess of $10 million from provision of its services, and during the same period it purchased and caused to be delivered to its New Jersey locations goods and materials valued in excess of $50,000 directly from suppliers located outside the State of New Jersey. Tri-State Metal Erectors, Inc., is a New Jersey corporation engaged in the subcontracting of sheet I Unless otherwise indicated, all dates are 1977. 234 NLRB No. 42 292 OPERATING ENGINEERS, LOCAL 825 metal and ironwork in the construction business. During the last 12-month period, Tri-State derived gross revenues in excess of $50,000 from provision of its services, and during the same period it purchased and caused to be delivered to its New Jersey location goods and materials valued in excess of $50,000 directly from suppliers located outside the State of New Jersey. Based on the foregoing, we find that D & V Wrecking Corporation, Cruz Contractors, Inc., and Tri-State Metal Erectors, Inc., are employers en- gaged 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 assertjurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED Operating Engineers, Teamsters, Steelworkers, and Ironworkers are labor organizations within the me- aning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute Because the background facts vary with regard to each of the Charging Parties, they will be discussed seriatim. Case 22-CD-307 (D & V Wrecking Corporation): D & V is a demolition contractor, which in early May was engaged in the dismantling of a concrete and steel ramp at the American Cyanamid plant in Bound Brook, New Jersey. D & V also had two other contracts involved in the instant dispute, both for demolition of buildings for the Paterson Redevelop- ment Agency in Paterson, New Jersey. Consistent with its past practice, D & V awarded the work of operating the heavy equipment necessary for the performance of these demolition contracts to its employees who are represented by Teamsters Local 11. At all times relevant to this proceeding, D & V and the Teamsters have had a collective-bargaining agreement in effect which covers the employees performing the disputed work. In early May, Vernon Chevalier, the president of D & V, received a telephone call from Thomas Rowe, a business agent of Operating Engineers, regarding the Bound Brook project. Rowe called Chevalier to inquire about what equipment D & V was using on the Bound Brook project, what employees were operating the equipment, and also whether D & V was performing work in Paterson. Chevalier in- formed Rowe that D & V was then doing a job in Paterson, and that the D & V demolition equipment was being operated by its own employees who were members of Teamsters. Rowe then asked Chevalier why D & V did not have employees represented by Operating Engineers running the heavy equipment, and expressed the opinion that it was rather strange they were not using operating engineers on any of their sites. Rowe commented that many men repre- sented by Operating Engineers Local 825 were unemployed, and suggested that Chevalier consider using operating engineers on the D & V equipment. Chevalier replied that he did not believe Operating Engineers had a monopoly on that kind of work, particularly since dismantling and demolition work requires special training and skills. Subsequently, on May 26, George J. Collins, executive vice president of D & V, received a call from the Paterson jobsite informing him that there was a large group of picketers at Broadway carrying signs which stated that Operating Engineers Local 825 had no grievance with any employer other than D & V, and that D & V was paying substandard wages and offering substandard working conditions. Upon arriving at the jobsite, Collins observed 25 to 30 such picketers. D & V's president, Chevalier, testified, however, that D & V was paying the area Federal prevailing wage rate pursuant to its contract with the Paterson Redevelopment Agency. Further, agents of Operating Engineers had not asked either the president or executive vice president of D & V any questions regarding wages, benefits, or working conditions prior to the picketing. Chevalier testified that D & V was fulfilling its commitments under both its Paterson Redevelopment Agency contract and its collective-bargaining agreement with Team- sters Local 11. A few days after the picketing began, Collins asked Art Mazzarelli, another Operating Engineers busi- ness agent, what D & V could do to have the pickets removed. Mazzarelli told him that D & V would have to sign a contract with Operating Engineers and put its members to work on the equipment. Collins refused, referring to D & V's contract with Team- sters. The picketing continued throughout D & V's completion of the Broadway demolition job, and then began at another of its demolition sites at Madison Avenue in Paterson. The latter picketing, which commenced in late June, continued until D & V was granted injunctive relief on July 27. Case 22-CD--308 (Cruz Contractors, Inc.). Cruz, a construction company involved primarily in the utility construction field, was engaged in the installation of a sewer line in Lincoln Park, New Jersey, in early May. 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 293 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Steelworkers have had a collective-bargaining agreement in effect at all times relevant to this proceeding which covers the employees performing the work in dispute. Cruz was contacted by the Operating Engineers 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 president of the Company, testi- fied that at a meeting on May 10 in East Orange, New Jersey, representatives of Operating Engineers requested that Cruz employ operating engineers to operate the heavy equipment at its Lincoln Park and Middlesex County jobsites. Operating Engineers also requested that Cruz sign a contract with it. One requirement of the contract proposed by the Operating Engineers was that Operating Engineers Local 825 would have hiring hall rights, and that all men working on Cruz projects would have to go through the Operating Engineers hiring hall proce- dure. Thus, present Cruz employees operating the heavy equipment who are represented by Steelwork- ers would have had to be replaced by workers hired through the Operating Engineers hiring hall under the proposed agreement. Cruz testified that they discussed hiring some operating engineers in addi- tion to the Steelworkers-represented employees cur- rently operating the heavy equipment, but that that proposal was rejected by the Operating Engineers business manager who stated that Operating Engi- neers would have to have the hiring hall rights. Cruz refused to sign the Operating Engineers contract. Thereafter, on June 23, Operating Engineers Local 825 picketers, with signs saying that Cruz was not paying area wages and benefits, appeared 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, informed him that Cruz should resolve the situation with Operating Engineers because this was just the start of their activities against Cruz, and that Operating Engineers would also be up in Middlesex County as soon as operations began there. On July 27, the district court granted a temporary injunction and the picketing ceased and has not since resumed. Case 22-CD-309 (Tri-State Metal Erectors, Inc.): Tri-State, a company which performs sheet metal and ironwork subcontracting on construction projects, was engaged in the installation of metal floor decking at the Monmouth Mall open parking deck in Eatontown, New Jersey, in late June. Tri- State was installing the floor decking under a subcontract with Oxhandler Structural Enterprises, and the operation of an electric welding machine used in the installation of the floor decking had been assigned by Tri-State to its employees who are represented by Ironworkers Local 373. Although Tri- State has no formal collective-bargaining agreement with Ironworkers, it has customarily operated under an informal oral agreement with the Ironworkers whereby Tri-State pays the current Ironworkers wages and benefits and adheres to other provisions of their standard contract. It was acting in compli- ance with this agreement when it awarded the work in dispute. On June 29, Patsy Listo, Tri-State's president, received a call from Alan Jones, a business agent of Operating Engineers, requesting Listo to hire an operating engineer to stand by the electric welding machine. Listo refused, citing Tri-State's agreement with Ironworkers and the lack of need for an additional worker to perform this function. Thereaf- ter, on July 1, about a dozen picketers appeared at the entrance to the jobsite carrying signs saying that Tri-State was unfair to Operating Engineers Local 825. Other employees at the Eatontown jobsite refused to cross the picket line, prompting Listo to notify the Operating Engineers International in Washington, D.C., that the Local was putting up an illegal picket line. Listo further testified that he sought and was granted a temporary restraining order which was served on Jones at the jobsite on July 6, but that the pickets did not move. Meanwhile, Oxhandler Struc- tural Enterprises, whose construction contract con- tained a time-is-of-the-essence clause, agreed with the Operating Engineers to pay for an operating engineer to stand by the Tri-State welding machine in order to stop the picketing and allow the construc- tion work to proceed. Thus, Listo stated, the picket line came down the morning of July 6 following the Oxhandler/Operating Engineers agreement. Tri- State did not allow the operating engineer hired by Oxhandler to touch the welding machine, but once this operating engineer was on the jobsite no further work stoppages occurred. B. The Work in Dispute The work in dispute in each of the three cases, as described in the notice of hearing, is as follows: In Case 22-CD-307, the work in dispute is the operation of heavy equipment, including loaders, cranes, dozers, hydraulic cranes, lowbed trucks, and trailers at D & V'sjobsites. In Case 22-CD-308, the work in dispute is the maintenance and operation of all Cruz' heavy equip- ment including backhoes, front-end loaders, bulldoz- 294 OPERATING ENGINEERS, LOCAL 825 ers, cranes, water pumps, rollers, and paving ma- chines at Cruz' construction jobsites 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. In Case 22-CD-309, the work in dispute is the maintenance, servicing, and operation of Tri-State's welding machine used in the installation of metal floor decking at Tri-State's jobsite located at the open parking deck at Monmouth Mall, intersection of Routes 35 and 36, Eatontown, New Jersey. C. The Contentions of the Parties Each of the Employers contends that its assign- ment of the disputed work is consistent with all the factors on which the Board normally relies in assigning disputed work. The Employers specifically contend, inter alia, as follows: In Case 22-CD-307, D & V contends that the work in dispute is properly assigned to the Teamsters under a valid collective-bargaining agreement be- tween D & V and the Teamsters, that the work has traditionally been assigned to the Teamsters, and that Operating Engineers has no claim to the work. In Case 22-CD-308, Cruz contends that the work is properly assigned to the Steelworkers under a valid collective-bargaining agreement between Cruz and the Steelworkers, that the work has traditionally been assigned to the Steelworkers, and that Operating Engineers has no claim to the work. In Case 22-CD-309, Tri-State contends that the work is properly assigned to the Ironworkers under a valid agreement between Tri-State and the Ironwork- ers, that the work has traditionally been assigned to the Ironworkers, and that Operating Engineers has no claim to the work. The Teamsters, Steelworkers, and Ironworkers neither appeared at the hearing nor made any statement of their respective positions. Presumably, however, each agrees that it is entitled to the work. Operating Engineers also did not appear at the hearing. However, the Hearing Officer stated at the beginning of the hearing that on the morning of the hearing the attorney for Respondent Operating Engineers telephoned him and informed him that Respondent would not be represented at the hearing, that by a previous letter Respondent had disclaimed any interest in the work involved in any of these three cases, that the picket lines had been removed and would not be replaced, and that Operating 2 General Building Laborers' Local Union No. 66 of the Laborers' International Union of North America (Georgia-Pacific Corporation), 209 NLRB 611 (1974), and cases cited therein. Engineers would not engage in any action inconsis- tent with that stated position. The record further shows that, by letter received in the Board's Regional Office for Region 22 on July 29, counsel for Respondent had advised that Respon- dent disclaims any interest in the assignment of the work in dispute, and that Respondent would not engage in any conduct which may be contradictory to the disclaimer. The Regional Director treated this disclaimer as a motion to quash the 10(k) notice of hearing. Cruz, by letter received at the Regional Office on August 3, requested that the hearing proceed for a determination of the dispute. It claimed that Respondent had demonstrated a pro- pensity to engage in conduct violative of Section 8(b)(4)D), and that Cruz intends to continue per- forming the disputed work at several locations in New Jersey. The Regional Director, on August 4, denied Respondent's motion to quash the notice of hearing on the ground that the issues raised in the consolidated cases could best be resolved by the Board after a hearing thereon. D. Applicability of the Statute Section 10(k) of the Act directs the Board to hear and determine disputes out of which 8(b)(4)(D) charges have arisen in circumstances where the assignment of work is in dispute. It is well settled, however, that a jurisdictional dispute no longer exists where one of the competing unions or parties effectively renounces its claim to the work.2 As stated by the Supreme Court in N.LR B. v. Plasterers' Local Union No. 79, Operative Plasterers' & Cement Masons' International Assn., AFL-CIO [Texas Slate Tile & Terrazzo Company], 404 U.S. 116, 135 (1971), "A § 10(k) hearing is a comparative proceeding aimed at determining which union is entitled to perform certain tasks. Its function evaporates when one of the unions renounces and refuses the work." Since Respondent Operating Engineers has dis- claimed any interest in the work in dispute in any of the three cases herein, both by letter received in the Regional Office on July 29, and by an oral reaffirma- tion of the disclaimer which was communicated to the Hearing Officer on August 16, prior to the commencement of the hearing, we find that no jurisdictional dispute exists. The contention of Cruz that the Board should make a determination of the disputed work because of Respondent's alleged propensity to violate Section 8(bX4XD) has not been substantiated by evidence of unlawful activity other than that described here against any of these Em- ployers. As stated, however, the Operating Engineers 295 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has disclaimed any further interest in this work and has given assurances that it will take no action inconsistent with such disclaimer. Further, Respon- dent's alleged threat to engage in future picketing of Cruz at jobsites in Middlesex County is encompassed in Respondent's disclaimer of the work described by the notice of hearing. Thus, the disputed work as described in Case 22-CD-308 included work "at all other of the Employer's construction jobsites." Ac- cordingly, we accept Respondent's disclaimer and find that it covers the Middlesex work as well. Having determined that a jurisdictional dispute no longer exists within the meaning of the Act, we shall quash the notice of hearing issued herein. ORDER It is hereby ordered that the notice of hearing issued in this case be, and it hereby is, quashed. 296