Laborers, Local No 1241

LABORERS, LOCAL NO 1241 877 Industrial Manufacturing and Maintenance Employ- ees' Union Local No. 1241, Laborers' International Union of North America, AFL-CIO and Ross Island Sand and Gravel Co. and International Union of Operating Engineers, Local No. 701, AFL-CIO. Case 36-CD-96 April 4, 1973 DECISION AND DETERMINATION OF DISPUTE year, the Employer purchased supplies and materials originating from outside the State of Oregon valued in excess of $50,000. During the same period, the Employer realized gross revenues in excess of $500,000. 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 BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Ross Island Sand and Gravel Co., herein called the Employer, alleging that Industrial Manufacturing and Maintenance Employ- ees' Union Local No. 1241, Laborers' International Union of North America, AFL-CIO, herein called Laborers, has violated Section 8(b)(4)(D) of the Act. The charge alleges, in substance, that the Laborers, by threats of economic action, violated the Act in that one of the purposes of such conduct was to force the Employer to continue to assign certain work to its members rather than to members of International Union of Operating Engineers, Local 701, AFL -CIO, herein called Engineers. Pursuant to notice, a hearing was held in Portland, Oregon, before Hearing Officer Joseph L. Davis, on November 20 and 21, 1972. All parties appeared and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to present- evidence bearing on the issues. Thereafter, the Employer filed a Motion to Reopen the Record i and a brief, and the Engineers filed a brief. The briefs have been duly considered by 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 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 case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The Employer, an Oregon corporation with its principal office and place of business in Portland, Oregon , is engaged in the manufacture and sale of sand, gravel , and related products . During the past The Employer's unopposed motion is hereby granted, and the proffered exhibit, an Order of the United States District Court for the The parties stipulated, and we find, that Laborers and Engineers 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 has operated a "crushing plant," manufacturing and selling sand, gravel , and various sizes of crushed rock since at least 1941 . Using a permanent complement of employees to operate this crushing plant, the Employer maintains collective- bargaining agreements with at least five labor organizations , including the Laborers and the Engi- neers. Members of the Laborers operate, maintain, and service all crushing plant and batching equip- ment as well as perform "quality control" and certain accounting functions . Members of the Engineers handle the ancillary functions of operating the clamshell bucket and bulldozer. The Engineers claims that, in light of the "manning provision" in the Engineers most recent collective- bargaining contract with the Employer, a majority of the work performed by laborers at the crushing plant contractually belongs to members of the Engineers. In response to the Engineers demand, the Laborers advised the Employer, by letter, that any attempt by the Employer to assign the work to engineers would result in the Laborers taking appropriate economic action. B. The Work in Dispute The work in dispute involves the manufacture of crushed rock, sand, and gravel, specifically, the operation, maintenance, and servicing of all crushing plant and batching equipment, at the Employer's Willamette River plant in Portland, Oregon. C. Contentions of the Parties The Employer, the Charging Party herein, con- tends that, following the Engineers demand for the District of Oregon staying proceedings in that court pending a decision by the Board, is hereby received into evidence 202 NLRB No. 126 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disputed work, the Laborers threatened economic action if the Company attempted to assign such work to members of the Engineers and that, therefore, a violation of Section 8(b)(4)(D) has occurred. It also asserts that laborers' performance of the disputed work is satisfactory and that, because of its practice of using laborers for such work since 1941, its collective-bargaining contract with the Laborers, and the efficiency and flexibility of operations as a result of the use of laborers, it favors the continued assignment of the work to its present employees who are members of the Laborers. The Laborers, affirming that its letter to the Employer was intended to put the Employer on notice that a strike would occur if the work were reassigned to members of the Engineers, contends that its members are entitled to the disputed work pursuant to the terms of its collective-bargaining agreement with the Employer and their performance of the work in the past. Maintaining that no reasonable grounds exist for believing that a violation of the Act has occurred, the Engineers argues that the Employer is bound under the terms of the manning provision of its labor contract to award the disputed work to its members. D. Applicability of the Statute The charge herein alleges a violation of Section 8(b)(4)(D) of the Act. The facts show that the Employer assigned the disputed work to its employ- ees who are represented by the Laborers. The Engineers demanded that the Employer take the work away from members of the Laborers and assign it to its members. In response to this demand, the Laborers informed the Employer by letter that it would take economic action if such work were assigned to engineers. The Employer testified that it interpreted this letter as a bona fide threat of strike, and at the hearing the Laborers affirmed that "economic action" referred to a strike and reiterated its threat of such action. Accordingly, we find that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated. The three parties have not agreed upon a method of settling this jurisdictional dispute. The Engineers initiated proceedings, to which the Laborers is not a party, in the United States District Court for the District of Oregon to compel the Employer to submit to arbitration the issue of whether the disputed work falls within the Engineers jurisdiction under its collective-bargaining contract. On October 20, 1972, the district court ordered the Employer to submit the dispute to arbitration. On December 8, 1972, 2 Art II, Jurisdiction [T ]he jurisdiction of the Union shall cover the washing, screening. however, that order was modified, staying the district court proceeding pending a decision by the Board. Thus, it is clear, and we find, that at the time of the instant dispute there did not exist any agreed-upon or approved method for the voluntary adjustment of the dispute to which all parties to the dispute are bound. Accordingly, the matter is properly before the Board for determination under Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to all relevant factors involved. The following factors are relevant in making a determination of the dispute before us. 1. Certifications and collective-bargaining agreements There is no Board certification determining the bargaining representative for the employees assigned to perform the work in dispute. Neither of the labor organizations involved herein has been certified by the Board as the collective-bargaining representative for a unit of the Employer's employees. The record shows that the Employer is a party to collective-bargaining agreements with both of the Unions claiming the work herein. The language of each of these contracts can be construed to award the disputed work to members of the respective Union. In view of the foregoing, we are unable to give determinative weight to the collective-bargain- ing agreements. However, we note that the Employ- er's contracts with the Laborers and its predecessor included the disputed work since 1946, whereas only the Engineers most recent contract can be said to include such work. 2. Employer's assignment and past practice Pursuant to article 112 of its current labor agree- ment with the Laborers, the Employer assigned the work here involved to its employees represented by the Laborers. Moreover, similar language has been included in contracts of the Laborers and its predecessor since 1946, and the Employer has used laborers to perform all of the work in question since 1941. 3. Relative skills, efficiency, and economy of operations The Employer strongly favors an award to its employees represented by the Laborers because of crushing, batching, conveying, maintenance, repair and boating operations LABORERS , LOCAL NO 1241 879 their experience in performing the disputed work and the resulting efficiency and economy of operations. Laborers have performed the disputed work since 1941. Moreover, most of the 16 employees currently performing the work have had several years experi- ence, and 7 employees have been so employed between 20 and 30 years. In addition to experience in performing the disputed work, the laborers have acquired skills and experience in highly technical quality control and certain accounting functions and currently perform such duties in addition to the disputed work. These functions are not claimed by the Engineers, whose members evidence no experience or skills in these areas, nor have engineers expressed a willingness to perform such functions should they be awarded the disputed work. Neither of the contending Unions provides its members with formal training in the rock-crushing industry; rather, skills are attained through on-the- job training. Some of the skills possessed by laborers required several years of training and experience. Hence, not only would the Employer be forced to lay off experience-trained laborers in order to hire engineers, but, if required to assign this work to engineers, the Employer would have to bear the burden and expense of training additional employees to perform the work properly. Additionally, since the disputed work does not encompass all the functions now performed by laborers, if the Employer were required to hire engineers to perform the disputed work, it would still be necessary for laborers to come in to perform quality control and certain accounting functions. Such a requirement would obviously result in unwarranted inefficiency and greatly increase the cost of operations. We are, therefore, persuaded that the factors of experience, training, efficiency, and economy of operations justify the award of the disputed work to the Employer's employees who are represented by the Laborers. Conclusion Upon the entire record in this proceeding and after full consideration of all of the relevant factors, in particular the Employer's practice, the experience of members of the Laborers in performing the disputed work, and the efficiency and economy of operations, we conclude that the employees of the Employer who are represented by the Laborers are entitled to the work in question and we shall determine the dispute in their favor. In making this determination, we award the work to the employees of the Employer who are represented by the Laborers but not to that labor organization 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 proceeding, the National Labor Relations Board hereby makes the following Determination of Dis- pute: Employees employed by Ross Island Sand and Gravel Co., who are represented by Industrial Manufacturing and Maintenance Employees' Union Local No. 1241, Laborers' International Union of North America, AFL-CIO, are entitled to perform the work iri dispute which involves the manufacture of crushed rock, sand, gravel, and other related products at the Employer's Willamette River plant in Portland, Oregon.