Local 2, Operating Engineers

LOCAL 2. OPERATING ENGINEERS Local 2, International Union of Operating Engineers, AFL-CIO and PVO International, Inc. and Local 545, Amalgamated Meatcutters and Butcher Work- men of North America, AFL-00.1 Case 14-CD-471 March 13, 1974 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing the filing of charges on September 14, 1973, by PVO International, Inc., herein called the Employer, alleging that Local 2, International Union of Operat- ing Engineers, AFL-CIO, herein called the Engi- neers, has violated Section 8(b)(4)(D) of the Act by threatening, coercing, and restraining the Employer with an object of forcing the Employer to assign certain work to employees represented by the Engineers rather than to employees represented by Local 545, Amalgamated Meatcutters and Butcher Workmen of North America , AFL-CIO, herein called Butchers. Pursuant to notice, a hearing was held before Hearing Officer Peter J. Salm on November 13 and 20, 1973 . All parties 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 . Thereafter, each party filed a brief in support of its position. 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 af- firmed.2 Upon the entire record in this case, including the briefs of the parties, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that PVO International, Inc., a California corporation with its principal office 1 The name of the party appears as amended at the heanng The Butchers orally moved during the hearing to stay the proceeding or alternately to terminate the proceeding and quash the notice of heanng on the ground that the Butchers was denied due process. In support of its motion, its witnesses testified that although the Butchers was served with a notice of charge filed, it was not served with a copy of the charge or a letter which the charge stated was attached thereto. The Butchers further contends that the Board's Regional Office refused to furnish it with a copy of the letter. The Hearing Officer refused to stay the proceedings and 673 located at San Francisco, California, is engaged in the refining and processing of vegetable oils and fats at its 3400 North Wharf, St. Louis, Missouri, facility. The Employer annually sells vegetable oils and fats valued in excess of $50,000 which are processed at its St. Louis facility directly to customers located outside the State of Missouri. 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 the Engineers and the Butchers are labor organizations within the meaning of Section 2(5) of the Act. Ill. THE DISPUTE A. Background The Employer refines vegetable oils and animal fats into shortening, margarine, puff paste, and salad oil. At present all waste resulting from production runs to a large float tank where a skimmer removes the fatty material which rises. This material is then processed into animal feed. The Employer had discharged the remaining wastes directly into the Mississippi River. In October 1972 the Employer ordered waste treatment equipment so it could meet Federal standards for waste disposal. The operation of the new treatment system, which was being installed at the time of the hearing herein, will be semiautomatic. Automatic equipment will measure the acidity of the water and increase its alkalinity by introducing caustic. Polymers will be injected into the waste to coagulate the suspended particles, which will be skimmed off the top. The sludge will be hauled away for disposal and the clear water discharged into municipal sewers. Operation of the system will include mixing and preparing the polymers, regulat- ing the automatic equipment, monitoring various measuring devices, and being prepared to change the operation if there is any major change in the acidity of the wastes. The treatment system will have an alarm to warn of any emergency. The Employer plans to operate the system with one employee on the first shift during the workweek. That employee will referred the motion to dismiss to the Board for decision. The Butchers, although generally contending that it was demed due process and that it was impaired in its preparation of this case , makes no contention or showing that it was prejudiced in any manner by not having been served copies of the charge and the letter . The Butchers did receive notice that a charge had been filed and was certainly aware of the underlying dispute. In addition, the record shows that the Butchers interests were fully represented and litigated at the heanng. Accordingly, the Butchers motion to dismiss this proceeding is hereby denied. 209 NLRB No. 109 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD perform most of the actual work , such as mixing the chemicals involved in operating the treatment sys- tem. However, someone will need to be present 24 hours a day, 7 days a week , to monitor and adjust the system to meet any emergency which might arise. The Employer regularly engages in production around the clock Monday through Friday, and occasionally on weekends. Employees represented by the Butchers are present only when production takes place and are, therefore , usually not present on weekends and holidays. The Employer's president testified that licensing requires that engineers be at the plant 7 days a week, 24 hours a day. On weekends , the Employer uses four employees repre- sented by the Engineers on the first shift and three on the other two shifts. The Employer has collective-bargaining agree- ments with the Engineers, which represents employ- ees in the engineroom, boilerroom, power mainte- nance department, and hydrogen plant , and with the Butchers, which represents production , maintenance, and office employees . The contracts had expired by the time of the hearing but were continued in effect by mutual agreement. In negotiations for new agreements, both Unions demanded assignment of the operation and maintenance of the waste treat- ment system. On October 6, 1972, the Employer received a letter from the Engineers stating that the operation of the waste treatment equipment was within the Engineers jurisdiction. On March 23, 1973, the Company received a second letter from the Engineers request- ing assignment of the work. Subsequently the Butchers also claimed the work for its members. The Employer tried to get the two Unions to settle the matter between themselves . On July 6, 1973, because it appeared to the Employer that the Unions could not agree to a solution, the Employer assigned the installation of the system to members of the Butchers and the operation and maintenance thereof to members of the Engineers. Subsequent to the Employer's assignment of the work the Butchers demanded that the matter be submitted to arbitration . Although the Employer initially resisted arbitration, upon threat of court action, the Employer consented to strike names from an arbitration panel list and an arbitrator was selected . The matter has, however , not been arbitrat- ed. Upon learning of the Butchers demand, the Engineers asserted that it should be a party to any such arbitration. The Butchers told the Employer that the Butchers took no position on permitting the Engineers to participate. The Employer then told the Engineers that it believed the Butchers would not allow the Engineers to participate in the arbitration. On September 14, 1973, the attorney for the Engineers informed the Employer's attorney by letter that if the operation and maintenance of the waste treatment plant were reassigned away from the Engineers, as demanded by the Butchers, the Engineers contemplated taking action , including picketing and cessation of work, to enforce the July 6 assignment of the disputed work. The Engineers stated at the hearing that it did intend and still intended to strike and picket if the assignment were changed by the Employer. B. Work in Dispute The disputed work consists of the operation and maintenance of the new waste treatment system being installed at the Employer's St. Louis, Missouri, plant. C. Contentions of the Parties The Employer contends that the work in dispute should be awarded to employees represented by the Engineers on the basis of the Employer's assignment, the economy and efficiency of assigning the work to employees who are regularly available to perform it, the skill and training encouraged and possessed by the Engineers, and local custom and experience. The Butchers argues that there is no reasonable cause to believe Section 8(b)(4)(D) of the Act has been violated because of the following : ( 1) the evidence is insufficient to establish a threat of proscribed activity in that the Engineers only "contemplates taking action," an indefinite term; (2) the Engineers cannot carry through on its threat because it is prohibited from striking by its contract with the Employer; (3) the underlying dispute should be deferred to arbitration ; (4) the underlying dispute involves contract terms, not work assignment, and should be deferred to the pending contract negotia- tions ; (5) the underlying dispute is a unit clarification issue rather than a jurisdictional dispute ; and (6) the matter is not ripe for resolution by the Board because the work has not yet commenced . Alternatively, the Butchers contends that the work in dispute should be awarded to employees it represents because those employees possess the necessary skills, work on equipment adjacent to the new waste treatment system, and have operated and maintained the existing waste treatment facility; and the work in dispute is production work which falls within its production and maintenance unit. The Engineers contends that the work in dispute should be awarded to employees it represents because its members are historically more susceptible to being trained to do the work, the work is the type performed by its members at the Employer's plant and elsewhere in the area, employees it represents are LOCAL 2, OPERATING ENGINEERS continually in the plant and available to do the work, and the Employer has assigned the work to engi- neers. D. Applicability of the Statute Before the Board may proceed with a determina- tion of 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) has been violated, and that there is no agreed-upon method for voluntary adjustment of the dispute. The record shows that the parties have not agreed to any method for settling the dispute. The parties have no contractual or other provision for submitting the matter to arbitration. Although the Butchers has sought to arbitrate the dispute and an arbitrator has been selected, the Engineers, a necessary party to any voluntary method of settlement, has not agreed to submit the dispute to arbitration or to be bound by an arbitration award in this matter. The Butchers contends that the Board should defer the dispute to settlement by the parties in their current contract negotiations. It is clear that jurisdic- tional disputes may be settled through collective bargaining. However, to require the parties to bargain to impasse on such issues would be contrary to the intent of Sections 8(b)(4)(D) and 10(k) of the Act. The Butchers urges dismissal of this proceeding on the ground that the dispute is not a jurisdictional dispute. The record establishes that the dispute concerns the assignment of the operation and maintenance of the new waste treatment facilities. It is not a dispute over the meaning of collective- bargaining agreements, but a dispute over which employees will perform the work. Since the Employ- er has made a formal assignment of the work, the fact that the work has not commenced is not controlling.3 We also find that the dispute is not a unit clarification question. "Work assignment dis- putes are not proper matters for consideration and resolution in representation proceedings." 4 We are satisfied that the evidence is sufficient to establish reasonable cause to believe that the Engineers threatened to engage in proscribed activi- ty. The letter sent by the Engineers to the Employer threatened that the Engineers contemplated striking and picketing. At the hearing, the Engineers business representative testified that it was then the intent of the Engineers to strike or picket and that it still is. The existence of a no-strike clause does not diminish 3 The Butchers reliance on Printing and Paper Trades Auxiliary Workers, Local No 520, AFL-CIO (The Cuneo Eastern Press, Inc of Pennsylvania), 168 NLRB 531, is misplaced. In that case not only had the work not begun, but the employer had made no assignment of the work , and no charge had been filed with respect to such work. 675 the threat. Unions have called strikes in such situations, and the Engineers business representative testified that the Engineers intended to strike, even in the face of the no-strike clause, if the work were reassigned. Accordingly, we find that the dispute is essentially over the assignment of work to members of one rather than another trade, craft, or class of employ- ees. We also 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. 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 various relevant factors.5 1. Certification and collective-bargaining agreements Since the waste treatment system is a new opera- tion, neither the 1941 Board certification of the Unions nor the most recent collective-bargaining agreements cover the disputed work. 2. Employer assignment The Employer's July 6, 1973, assignment of the disputed work to employees represented by the Engineers is a factor which favors awarding the work to such employees. 3. Employer and area practice There is no employer practice at this or other plants respecting the work in dispute. The division of work between employees represented by either of the Unions does not favor awarding the work to either group. The operation of the waste treatment facility appears from the record to be a nonproduction function. The old waste treatment process was primarily a product recovery or production opera- tion. Employees represented by the Engineers engage exclusively in service functions, but employees represented by Butchers also engage in nonproduc- tion functions. Both groups of employees are engaged in work which requires mixing of chemicals, testing for alkalinity or acidity, measuring, and monitoring-the type of work required to operate the waste treatment system. Witnesses testified that the Engineers represents employees engaged in sewage disposal and pollution i Gas Service Company, 140 NLRB 445.447. 5 N LR.B v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting System], 364 U.S. 573 (1961). 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD control for municipal sewage systems and industrial plants in and about St . Louis, Missouri. However, the work testified to appears significantly different from the work here in dispute . In sum, the record does not establish a sufficiently widespread area practice which would favor awarding the work to either group of employees. 4. Relative skills Employees represented by the Butchers and em- ployees represented by the Engineers both possess the necessary skills to safely perform the work in dispute. Employees of either group would require additional training. Conclusions Upon the entire record , and after full consideration of all relevant factors here involved, we believe that employees represented by the Engineers are entitled to perform the work in dispute . This award is supported by the Employer's assignment of the work, by the economy and efficiency of operation which will result, and by the fact that such assignment is not inconsistent with past practice , area practice, the certification, or the collective-bargaining agreements. In making this award, we are assigning the work to employees represented by the Engineers rather than to that organization itself or its members. Our present determination is limited to the particular controversy which gave rise to this proceeding. 5. Efficiency and economy Efficiency and economy of operations favor awarding the disputed work to employees represent- ed by the Engineers. At least three engineers are present 7 days a week, 24 hours a day, and on weekends they will have the time to monitor the system and take care of any emergencies . Employees represented by the Butchers are present on weekends and holidays only when production takes place. Using employees from this group to perform the disputed work would require the Employer to use additional employees on nonproduction days. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and on 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 of PVO International , Inc., who are represented by Local 2, International Union of Operating Engineers, AFL-CIO, are entitled to perform the disputed work of operating and main- taining the new waste treatment facility being installed at the Employer's St. Louis, Missouri, plant.