Dock Builders, Local 1456

DOCK BUILDERS, LOCAL 1456 453 Dock Builders, Shorers, House Movers, Pile Drivers and Foundation Workers, Local Union No. 1456, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Vibroflotation Foundation Company and Laborers' International Union of North America, Local Union No. 343, AFL-CIO' and Local Union No. 825, International Union of Operating Engineers, AFL-CIO.' Case 22-CD-210 the purpose of increasing the load-bearing capacity of the soil. During the 12 months preceding the hearing, the Company received approximately $3 million for services performed in 12 States of the United States. We find that the Company is engaged in commerce within the meaning of the Act and that it will effectu- ate the policies of the Act to assert jurisdiction herein. II THE LABOR ORGANIZATIONS INVOLVED September 29, 1972 DECISION AND DETERMINATION OF DISPUTE The Dock Builders, the Laborers, and the Oper- ating Engineers are labor organizations within the meaning of the Act. III. THE DISPUTE BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended , following a charge filed by Vibroflotation Foundation Compa- ny, hereinafter called the Company , alleging that Dock Builders, Shorers, House Movers, Pile Drivers and Foundation Workers, Local Union No. 1456, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, hereinafter called the Dock Builders, violated Section 8(b)(4)(D) of the Act. A hearing was held before Hearing Officer , James J. Pirretti on June 9, 12, 14, and 15, 1972. All parties appearing were afforded full opportunity to be heard, to examine and to cross-examine witnesses, and to adduce evidence bearing upon the issues. Thereafter, the Dock Builders and the Company filed briefs. On July 13, 1972, the Dock Builders moved to reopen the record to receive allegedly newly discovered evidence. On July 13, 1972, the Company filed a response to the above motion. The motion is disposed of infra. 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. 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 case, the Board makes the following findings: I. THE BUSINESS OF THE COMPANY The Company is a Pennsylvania corporation en- gaged in the compaction of sand and granular soil for 1 Hereinafter referred to as Laborers and Operating Engineers , respective- ly. Although notified of the hearing, neither the Laborers nor the Operating Engineers appeared. A. Background and Facts of the Dispute At the time of the dispute herein the Company was engaged as a subcontractor by E. J. Frankel Construc- tion Company to increase the load-bearing capacity of the soil below ground level by simultaneous vi- bration and saturation, known as the "Vibro process" at a construction site in Long Branch, New Jersey. This process requires the use of a special machine, called a vibroflot, which consists of a vibrator sus- pended from the boom of a crane and a built-in water jet system whereby water is pumped out of the bottom of the machine at a rate faster than it can be absorbed into the soil. As the heavier granular particles of sand settle into a more dense mass, the excess water floats the finest particles of sand to the surface and washes them away, allowing the vibroflot to sink into the soil until it reaches the desired depth. At that point the vibrator is set in motion and the vibroflot is slowly withdrawn to the surface. As the sand continues to settle, additional sand is added from a front-end load- er to fill the void so that when the vibroflot is com- pletely withdrawn the compacted sand has attained the desired load-bearing capacity. The Company was also using two cranes, one water pump, one electric power generator, and one front-end loader on the job. The Company employed eight members of the Operating Engineers in the following categories: two crane operators, two oilers, one pump operator, one general operator, one front-end loader operator, and one lead-engineer foreman who supervised the above- described operators. In addition the Company em- ployed four laborers, two on each crane. The duties of the laborers consisted of shoveling sand dumped from the front-end loader into the hole to fill the void caused by the "compaction" of granular soil beneath the surface, moving hoses and cables to keep the rig from damaging or running over them, and repairing hoses if they began to leak. The process involved herein was described by the 199 NLRB No. 53 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company as a soil improvement and treatment pro- cess, rather than a pile-driving process. It is so de- scribed because the technique used actually changes the character of the soil to increase its load-bearing capacity, whereas a pile-driving process does not in- crease the soil's load-bearing capacity. In the latter process, a foreign object, such as wood, steel, or con- crete is driven or placed at a depth underground where material with sufficient load-bearing capacity can be found. Dockbuilders are traditionally em- ployed in pile driving but, since the "Vibro process" is not considered a pile-driving process, the Company has never employed members of the Dock Builders to perform any of the work on the numerous jobs it has performed. On April 19, 1972, the Company commenced op- erations at the site and assigned the work described above to members of the Operating Engineers and the Laborers'? On April 25, 1972, Arthur Helt, business agent for the Dock Builders, visited the jobsite, met with Michael S. Hapsis, the job superintendent, and asked the latter, "where are the dock builders?" Hap- sis replied "we do not use dock builders, we use labor- ers and operating engineers." Helt then stated that the Company was engaged in a pile-driving operation, that the work was dockbuilders work, and that the Company would have to place dockbuilders on the job, or it could not perform the work. The Company refused Helt's demand to employ members of the Dock Builders. Thereafter, on April 26, 1972, the dockbuilders began picketing the jobsite with signs which read: NOTICE TO PUBLIC THE WORKING CONDITIONS AND WAG- ES ON THIS JOB OF VIBROFLOTATION FOUNDATION CO. ARE BELOW STAND- ARDS OF DOCK BUILDERS LOCAL 1456. WE ARE PICKETING TO IMPROVE THESE CONDITIONS. THIS SIGN IS NOT MEANT TO IMPEDE INGRESS OR EGRESS TO THE JOB. his equipment from the jobsite. The job was shut down until the general contrac- tor, Frankel, agreed to lease the Company's equip- ment, hire members of the Laborers and Operating Engineers who had worked for the Company, and hire in addition 10 dockbuilders? The picket line was re- moved and the operation resumed. The 10 dockbuild- ers were assigned to keeping the logs and to assist the laborers in moving the hoses. B. The Work in Dispute The dispute arises out of the Company's decision to award the work involved in the "Vibro process" to members of the Operating Engineers and the Labor- ers rather than to members of the Dock Builders. The work includes guiding the probe (vibroflot), the main- tenance of the cables and hoses, the keeping of the log, the operation of valves, and the repair work on machinery at the Long Branch, New Jersey, jobsite. C. Contentions of the Parties The Dock Builders contends that: (1) Nojurisdic- tional dispute exists because there are no rival unions or employee groups claiming the assignment of the work in dispute; and (2) assuming arguendo that there has been a showing of violation of Section 8(b)(4)(D), industry and area practice establishes that the work in question has been performed by dockbuilders and the Board should award the work in dispute to its mem- bers. The Company contends that the dispute is prop- erly before the Board for determination under Section 10(k) and that the record establishes reasonable cause to believe that the Dock Builders has engaged in con- duct violative of Section 8(b)(4)(D) of the Act. The Company also contends that the disputed work should be awarded to members of the Operating Engi- neers and the Laborers and that the award should be made applicable to the States of New York and New Jersey, or to such other geographical area as the Board deems proper. As a result of the picketing the job was shut down and Helt told Frankel's officials that the pickets would remain until dockbuilders were employed. Members of the Operating Engineers respected the picket line, but members of the Laborers did not, indicating they would fight the Dock Builders if the latter attempted to take over work of laborers. In addition the owner of the front-end loader removed D. Applicability of the Statute Before the Board may proceed with the 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) of the Act has been violated. We find no merit to Dock Builders' contention that there are no claims for the same work by compet- 2 The Company is a party to a national agreement with the Operating 3 The record shows that Respondent Dock Builders Local 1456 supplied Engineers and had a verbal agreement with the Laborers to abide by the six dockbuilders and that a sister local in Philadelphia supplied the other Laborers standard national agreement four DOCK BUILDERS, LOCAL 1456 ing groups of employees and that therefore no juris- dictional dispute exists 4 Contrary to the assertions in the Dock Builders' brief, the record shows that mem- bers of the Laborers crossed the Dock Builders' picket line because of their desire to continue to perform the work to which they had been assigned but no work could be performed because members of the Operat- ing Engineers honored the picket line. Moreover, as stated by the Court in N.L.R.B. v. Local 1291, Interna- tional Longshoremen's Association [Pocahontas Steam- ship Co.], 368 F.2d 107 (C.A. 3):5 [I]f workmen, who are entitled to a job under the terms of a labor contract, agree to forego the obligation of working but not the concomitant right to payment, they have not disclaimed any significant right. When, as in this case, one group insists that work, for which another group has contracted and is being paid, be assigned to it, the fact that both groups are claiming pay for the same work suffices to create a jurisdictional dis- pute, and it is irrelevant that either group, or both, may manifest a willingness to take the pay and forego the work .6 We also find no merit in the Dock Builders' con- tention that the dispute is primary in nature because the acts of the Company in refusing to hire dockbuild- ers violated a collective-bargaining contract between the Dock Builders and the Company. The record con- tains no contract in support of such claim. To the contrary, the testimony is that the Company did not have a collective agreement with the Dock Builders at the time of the dispute .7 In any event the Board has held that, even though a labor organization seeks an assignment of work based on a contract, this does not detract from the jurisdictional nature of the dispute.8 We therefore 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 determination under Section 10(k) of the Act. ° International Brotherhood of Electrical Workers, Local Union No. 743, AFL-CIO (Bender & Shoemaker, Inc). 185 NLRB No 106. 5 Enfg. 152 NLRB 676, cert denied 386 U.S. 1033. 6 Hoisting and Portable Engineers, Local No 450 (United Engineers & Con- structors, Inc.), 186 NLRB No. 125, upon which Respondent relies in support of its contention that no jurisdictional dispute exists in the present case, is distinguishable. In that case, the dispute between the employer and the union was essentially over whether one or two members of the respondent union should be employed on a truck The Board found that in the circumstances there were no competing claims to the work between rival groups of employ- ees and therefore no jurisdictional dispute existed. 7 Respondent's motion to reopen the record to receive allegedly newly discovered evidence that the Company was bound by a collective-bargaining contract between Respondent and New York Genial Contractors Associa- tion is hereby denied because Respondent has failed to set forth facts which would establish that such evidence was previously unavailable or could not have been made available at the scheduled hearing by the exercise of proper diligence. Crew Builders Supply Co, 154 NLRB 1747, 1748, In. 1. 8 International Longshoremen 's and Warehousemen 's Union and Internation- al Longshoremen 's and Warehousemen's Union, Local No 19 (American Mail Line, Ltd and Mobile Crane Company), 144 NLRB 1432, 1439. 455 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 relevant factors.9 1. Certification and collective-bargaining agreements None of the labor organizations involved herein has been certified by the Board nor is there evidence indicating that a Board certification covers the disput- ed work. As noted, supra, the Company assigned the work in dispute to its employees who are covered by collec- tive-bargaining agreements with the Operating Engi- neers and the Laborers. The Company had no agreement with the Dock Builders at the time of the dispute herein. Accordingly, we find that this factor favors the Company's assignment. 2. Company and area practice The Company has never employed dockbuilders to perform the work in question. The Company has performed more than 800 jobs, many of which were in the New York-New Jersey area, and has always em- ployed only operating engineers and laborers. Indeed the only times that dockbuilders have ever been em- ployed on a job where the "Vibro process" was in use occurred on a few j obs where the Company's equipment was leased to other employers because of threats by the Dock Builders to shut the job down, as was the case herein, or because a builder was apprehensive about labor trouble with the Dock Builders. We find that com- pany and area practices favor the Company's assign- ment. 3. Skills and efficiency There is nothing specially skilled about the work in dispute that would require the Company to assign it to dockbuilders. The work is relatively simple and routine and can be learned by doing it for a few hours. Members of the Laborers and Operating Engineers have per- formed the work to the Company's satisfaction for many years and the Company desires to continue with these assignments. Moreover, the Dock Builders' de- mand amounted simply to increasing the number of men on the job. According to the testimony of company officials, upon analyzing the logs, the employment of dockbuilders in addition to laborers and operating en- gineers resulted in decreased productivity while sub- 9 International Association of Machinists, Lodge No 1743, AFL-CIO (J.A Jones Cpnstruction Company), 135 NLRB 1402, 1411 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stantially increasing the total cost of labor. Clearly the factors of skill and efficiency favor the Company's as- signment. F. Conclusions as to the Merits of the Dispute Upon consideration of all the pertinent factors in this case, we shall affirm the Company's assignment of the disputed work to members of the Operating Engi- neers and the Laborers. In so doing, we give weight to the collective-bargaining agreements with Operating Engineers and Laborers, to the Company's practice, and to the efficiency and economy resulting from the Company's exclusive use of operating engineers and laborers. We therefore conclude that the Company's assignment should not be disturbed. In making this determination, we are assigning the disputed work to the employees of the Company who are represented by the Operating Engineers and the Laborers but not to those unions or their mem- bers. G. Scope of the Assignment The Company requests that the Board's deter- mination apply to work which it expects to obtain in the near future in the same general area . Because of the history of similar controversies , and the likelihood of the recurrence of such disputes, our determination will cover assignment of the disputed work whenever the Company operates in the New York or New Jersey area and whenever the geographical jurisdictions of the Dock Builders coincides with the jurisdiction of the La- borers and the Operating Engineers. 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 pro- ceeding, the National Labor Relations Board hereby makes the following Determination of Dispute: 1. Employees of Vibroflotation Foundation Company employed as laborers and operating engi- neers who are represented by Laborers' International Union of North America, Local No. 343, AFL-CIO, and Local Union No. 825, International Union of Operating Engineers, AFL-CIO, respectively, rather than employees represented by Dock Builders, Shor- ers, House Movers, Pile Drivers and Foundation Workers, Local Union No. 1456, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are entitled to perform the work involved in the "Vibro process" including guiding the probe, maintaining ca- bles and hoses, keeping the log, operating valves, and repairing hoses and machines. 2. Dock Builders, Shorers, House Movers, Pile Drivers and Foundation Workers, Local Union No. 1456, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is not entitled, by means pros- cribed by Section 8(b)(4)(D) of the Act, to force or require Vibroflotation Foundation Company to as- sign the above work to dockbuilders represented by it. 3. Within 10 days from the date of this Order, Dock Builders, Shorers, House Movers, Pile Drivers and Foundation Workers, Local Union No. 1456, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, shall notify the Regional Direc- tor for Region 22, in writing, whether it will refrain from forcing or requiring Vibroflotation Foundation Company, by means proscribed by Section 8(b)(4)(D), to assign the work in dispute to employees represented by it, rather than to employees repre- sented by Laborers' International Union of North America, Local Union No. 343, AFL-CIO, and Local Union No. 825, International Union of Operating En- gineers, AFL-CIO.