International Union of Operating Engineers

INTERNATIONAL UNION OF OPERATING ENGINEERS International Union of Operating Engineers, Hoisting and Portable Local 16 and 16B andHicks Construc- tion Company, Inc. Case 17-CD-185 ' March 21, 1975 DECISION AND ORDER QUASHING NOTICE OF HEARING BY MEMBERS JENKINS, KENNEDY, AND PENELLO This is a proceeding brought under Section 10(k) of the National -Labor Relations Act, as amended, follow- ing a charge filed on October 29, 1974, by Hicks Con- struction Company, Inc., herein called the Employer, alleging that International Union of Operating Engi- neers, Hoisting and Portable Local 16 and 16B, herein called the Engineers, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the employer to assign certain work to members of the Engineers, rather than to its nonunion employees. A hearing was held before Hearing Officer William Bevan, III, on November 25 and 26, 1974. All parties appeared at the hearing and were afforded full oppor- tunity to be heard, to examine and cross-examine wit- nesses, and to adduce evidence bearing upon the issues. Briefs have been filed by the Employer and the Engi- neers. 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 rul- ings 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 EMPLOYER Hicks Construction Company, Inc., is a Missouri corporation engaged in the Springfield, Missouri, area in the construction industry as a concrete contractor, specializing in curb and guttering work. In 1974 Hicks purchased approximately $85,000 to $90,000 of ready- mixed concrete from Concrete Company of Springfield which in turn purchased in excess of $500,000 of sand and cement, the principal ingredients in ready-mixed concrete, directly from sources outside the State of Missouri. We find that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction. II THE LABOR ORGANIZATION INVOLVED 19 The parties stipulated, and we find, that the Engi- neers is a labor organization within the meaning of Section 2(5) of the Act. III THE DISPUTE A. The Facts During October 1974' the Employer was acting as the prime contractor for the street construction work at the Huff Industrial Park Building project, a privately developed industrial park. The Employer was also per- forming all the curb and guttering work on the project. On October 21 or 22, Engineers business manager, Bob Page, telephoned the Employer's president, Dave Hicks, to discuss -his Union's position regarding the Huff project. Hicks agreed to meet with Page at a later date. According to Hicks, the purpose of the proposed meeting was to discuss who should be assigned the operation of a CMI SF- 100 Slip Form Paver, a member of the Engineers or the Employer's current employee who had no union affiliation. Hicks testified that the initial meeting, attended by Hicks, Page, and Tom Pirtle, Engineers business agent, took place on October 24. According to Hicks, the conversation consisted of Page stating that he wanted Hicks to sign a contract with the Union and that a union member should replace the current operator of the CMI machine. Hicks testified that Page admitted that his union did not have personnel qualified to oper- ate the machine in question. After explaining the eco- nomic disadvantages of Page's proposal, Hicks claimed that he offered to put a union member on the job, pay him the going union rate, but have him perform some other work. Failing to reach an agreement as to who should operate the machine in question, Page, accord- ing to Hicks, stated that he would have to put a "ban- ner" on the Huff project. Page testified that he and Hicks had met prior to the aforementioned meeting and discussed why Hicks had not contacted Page to obtain an operator for the CMI. Hicks replied that he had spoken to a few members of the Engineers, and that they had refused to work for the Employer. Hicks at that time remained steadfast in his position not to sign a contract with the Engineers. Contrary to Hicks' testimony, Page testified that at the October 24 meeting he did not concede that his Union lacked personnel knowledgeable in the operation of the CMI machine; he only asked Hicks to sign a collective- bargaining contract; and he did not threaten to set up a banner at the Huff project. On October 25, Hicks contacted the Employer's at- torney, Donald Jones, and informed him of the conver- I All dates referred to hereinafter occurred in 1974. 217 NLRB No. 2 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sation that had taken place with Page. Jones then tele- phoned Page to say that it was his understanding that there would be a picket on the Huff project and to inquire what the problem was. Page replied, according to Jones, that he wanted one of his union members to operate the CMI machine, and the Employer to sign a collective-bargaining contract. When Jones asked about language on the picket sign, Page replied, as testified by Jones, that it would be organizational. Ac- cording to Page, there was no mention of picketing in the telephone conversation with Jones; the latter only requested a meeting to work out the problem with Hicks. On October 26, Hicks, Jones, and Page met to find a solution to their problem. Jones testified that Page requested the Employer to sign a collective-bargaining contract with the Engineers,2 and to replace the cur- rent CMI operator with a union member if he did not join the Engineers. Jones and, Hicks also inquired if an agreement were signed whether Page would incorpo- rate therein a provision permitting the CMI operator to do labor work. Page would not agree to such a proposal. Hicks and Jones both asked Page if he could not leave the "problem" to be resolved at another job- site. Page refused, but said that a remedy might be at hand since Pirtle was presently trying to "sign up" the CMI operator. According to Jones, Page then said that the Engineers would picket the job until Hicks agreed to put a member of the Engineers on the CMI machine. In his testimony as to this meeting, Page denied that he had ever requested the removal of the CMI operator. He admitted that if the standard collective-bargaining contract, which contains a 7-day union-security clause, were signed, it would be enforced against any operator, including the current operator, who failed to join the Engineers within the required 7-day period. He further testified that he did mention the possibility of picketing, but only if Hicks failed to sign a collective-bargaining contract. While admitting that several attempts have been made to "sign up" the current CMI operator, Page_denied saying that, if successful, this would re- solve the dispute between the parties. As of the date of the hearing, there has been no picketing by the Engineers at the Huff project or at any of the Employer's other construction sites. reasonable cause to-believe that the Engineers sought to compel it to assign the operation.of the CMI machine being used on the Huff project to one of its members in place of the nonunion operator and, in furtherance of that object, threatened to picket the project. The Engineers contends that there is no jurisdic- tional dispute because it was not seeking to displace the incumbent employee, but only to negotiate a collective- bargaining contract with the Employer. C. Applicability of the Statute Before making a jurisdictional dispute determina- tion, the Board must be satisfied that there is reason- able cause to believe that Section 8(b)(4)(D) has been violated. We are unable to make such a determination in this case. The Employer's own testimony adduced in support of its position casts doubt on its contention that the Engineers was seeking to replace the nonunion op- erator of the CMI machine rather than to negotiate a collective-bargaining contract with a 7-day union- security clause which would have required the operator to join the Engineers within the statutorily permitted 7-day period, as testified by the Engineers representa- tive. Thus, attorney Jones for the Employer testified that, at the meeting of October 26, Page for the Engi- neers requested the Employer to sign a collective-bar- gaining contract, and to replace the incumbent opera- tor if he did not join the Engineers. This is corroborative of Page's testimony as to his objective vis-a-vis the Employer, as is Jones' further testimony that Page said his Union was attempting to "sign up" the current CMI operator. The present dispute there- fore appears to be one over recognition and the terms of a collective-bargaining agreement, matters that do not fall within the contemplation of Section 10(k), which deals only with disputes involving competing claims for specific work. Accordingly, we find that the facts here do not present a jurisdictional dispute within the purview of Section 8(b)(4)(D) and 10(k) of the Act.3 We shall therefore quash the notice of hearing. ORDER It is hereby ordered that the notice of hearing issued in this proceeding be, and it hereby is, quashed. B. Contentions of the Parties The Employer asserts that the evidence establishes 2 The Employer had three employees who worked as machine operators, including the operator of the CMI machine 3 See Laborers' International Union of North Amenca, AFL- CIO, and its Local245 (Apex Contracting Inc ), 206 NLRB 896 (1973), Danville Printing Pressmen & Assistants Union No. 257, International Printing Pressmen & Assistants Union of North America, AFL-CIO (Recording & Statistical Com- pany, Division of Sperry Rand Corporation), 147 NLRB 1619 (1964)