Cloverland District Council

CLOVERLAND DISTRICT COUNCIL Cloverland District Council, United Brotherhood of Carpenters, Local 958, AFL-CIO and Luedtke Engineering Company and Seafarers International Union, AFL-CIO.1' Case 30-CD-72 August 2, 1977 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MEMBERS MURPHY AND WALTHER This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Luedtke Engineering Company, herein called the Employer, alleging that Cloverland District Council, United Brotherhood of Carpenters, Local 958, AFL-CIO, herein called Carpenters, has 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 employees represented by it rather than to employees represented by Seafarers International Union, AFL- CIO, herein called Seafarers. Pursuant to notice, a hearing was held before Hearing Officer Nancy Eggert on January 4 and 5, 1977, at Marquette, Michigan. 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, briefs were filed by the Employer, Carpenters, and Seafarers. 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: I. THE BUSINESS OF [HE EMPLOYER The Employer, a Michigan corporation, with its principal office at Frankfort, Michigan, is engaged in the business of constructing docks, breakwaters, and marine-related structures throughout the midwestern part of the United States. The parties have stipulated, and we find, that during the past year, a representa- tive period, the Employer had gross revenues in excess of $500,000 and purchased and received at Michigan locations goods valued in excess of $50,000 directly from points outside the State of Michigan. The parties further have stipulated, and 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 purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Carpenters and Seafarers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute Pursuant to a construction contract with the Bechtel Company, the Employer in September 1976 began performing work on a project designated as "Units 7 and 8, and water discharge line," at the Presque Isle power plant, Marquette, Michigan. At a prejob conference conducted by the Employer on August 23, 1976, Carpenters and Seafarers made conflicting claims for particular work to be per- formed; namely, the construction of three main sections of subaqueous pipeline and all dredging and backfilling necessary to permanently secure the pipeline in correct position. Immediately after the conference, Karl Luedtke, the Employer's president, met with representatives of both Unions and in- formed them that he was assigning the above- described work to the Employer's employees repre- sented by Seafarers. At this meeting Carpenters Representative Montagna told Luedtke that there was "[n]o way we are going to allow the [Seafarers] to take our work." On or about September 24, 1976, the Employer held a further meeting with representatives of both Unions and various officials of Bechtel in an attempt to resolve the conflicting claims to the work. At this meeting Montagna withdrew the Carpenters claim to the dredging and backfilling work which would be needed to construct the three sections of the pipeline, but maintained the Carpenters claim for the unload- ing, handling, and placement of the pipes. In this regard, Montagna told Luedtke that Carpenters would picket the Employer's Presque Isle power plant project the minute Seafarers "hooked on or tried to pick up a pipe." Subsequently, in October and November 1976, Carpenters again asserted its claim to the work in dispute in discussions with Luedtke. On December 1 and 2, 1976, Carpenters picketed the Presque Isle power plant project. Montagna admitted at the hearing that Carpenters picketing was for the purpose of forcing the Employ- The name of the Union appears as amended at the hearing. 231 NLRB No. 18 79 DECISIONS OF NATIONAL LABOR RELATIONS BOARD er to assign the work involved herein to employees represented by it. B. The Work in Dispute The work in dispute consists of the unloading, handling, and placement of pipes involved in the construction of a subaqueous pipeline on a project designated as units 7 and 8 and water discharge line in the forebay and open lake area of the Presque Isle power plant, Marquette, Michigan. C. The Contentions of the Parties The Employer and Seafarers contend that the Employer's assignment of the disputed work is consistent with the currently effective collective- bargaining agreement between the Employer and Seafarers, and that it is consistent with the Employ- er's preference. The Employer further asserts that the factors of skills, safety, and economy and efficiency in its operations favor an award of the work in dispute to employees represented by Seafarers. Carpenters takes the position that the work in dispute should be assigned to employees represented by it based on its current collective-bargaining agreement with the Employer. It further contends that the area practice with respect to marine construction work in the Marquette, Michigan, area favors an award of the disputed work to employees represented by it. 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 the voluntary adjustment of the dispute. As noted above, Seafarers and Carpenters made conflicting claims to the disputed work at a prejob conference on August 23, 1976, and at a meeting held immediately thereafter the Employer informed the Unions that it was assigning the work in dispute to employees represented by Seafarers. Carpenters Representative Montagna immediately informed the Employer's president that Carpenters would not tolerate members of Seafarers performing the work in dispute at the Presque Isle power plant project. At a subsequent meeting in late September, Montagna informed the Employer that Carpenters would picket the Presque Isle power plant the moment members of Seafarers commenced performing the work in dis- pute. Thereafter, Carpenters asserted its claim to the disputed work at a number of other meetings with the Employer. On December 1, the employees of the Employer represented by Seafarers commenced performing the work in dispute. On that date and on the following day, Carpenters picketed the Presque Isle power plant jobsite for the admitted object of forcing or requiring the Employer to assign the work in dispute to employees represented by it. Based on the foregoing, and the record as a whole, we find that reasonable cause exists to believe that Carpenters violated Section 8(b)(4)(D) of the Act. The parties stipulated, and we find, that there is no current agreed-upon method for the voluntary adjustment of the dispute to which all parties are bound. Accordingly, the matter 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. 1. Certification and collective-bargaining agreements Neither of the labor organizations involved herein has been certified as the collective-bargaining repre- sentative for a unit of the Employer's employees. The Employer has a current collective-bargaining agree- ment with Seafarers, effective May 22, 1975. Article I of that agreement, entitled "Recognition," provides as follows: This agreement applies to employees employed on tugboats, launches, other self-propelled boats, on dredges, derrickboats and other floating equipment engaged in dredging, all types of construction work, towing operations and land equipment engaged in stevedoring operations, owned, operated, chartered to or by, or otherwise controlled by or on behalf of, the employer in connection with his business on, and including, but not limited to the Great Lakes, it's [sic] connecting and tributary waters and all inland lakes and rivers in the continental United States on which the EMPLOYER does not now have a valid labor agreement with another recognized AFL-CIO union. This includes, but is not limited to Service Truck Drivers, Firemen, Linemen, Oilers, Welders, Divers, Rangemen, Tankermen, Deckhands, Lead Deckhands, Scowmen, Engi- neers, Captains, Mates, Operators, Piledrivers and Laborers. About a month after the Employer's assignment of the work in dispute to Seafarers, the Employer, at Bechtel's request, became party to an agreement between Michigan Chapter of the Associated Gener- 80 CLOVERLAND DISTRICT COUNCIL al Contractors of America and the Cloverland District Council of the United Brotherhood of Carpenters and Joiners of America and their affili- ated local unions, including Carpenters Local 958. This agreement provides that it . . . covers all employees performing carpentry work and all division of the craft engaged in general building and heavy construction coming under jurisdiction of the United Brotherhood of Carpenters and Joiners of America by Determi- nation of the National Joint Board for Settlement of Jurisdictional Disputes, and by area practices in the area covered by this agreement. The agreement provides specific rates of pay for carpenters working on waterfront work on the Great Lakes or connecting water navigable to Lake carriers, as well as specific rates for divers. The record discloses that the disputed work is marine construction work involving the use of derrickboats and launches and requiring the services, inter alia, of tenders, divers, and deckhands. It is clear that the language of the Employer's contract with Seafarers specifically pertains to marine con- struction and refers to the types of equipment and job classifications needed to perform the work in dispute. In contrast, the Employer's agreement with Carpenters primarily refers to general building and heavy construction work on the waterfront. Accord- ingly, we find that the Employer's collective-bargain- ing agreement with Seafarers encompasses the disputed work and favors the Employer's assignment. 2. Employer's past practice and preference The record discloses no past practice by the Employer with respect to the assignment of work identical to that in dispute herein. This factor, therefore, is not helpful to our determination. At the hearing, the Employer, through the testimo- ny of its president, expressed its preference that the disputed work be awarded to its employees repre- sented by Seafarers. While we do not afford controlling weight to this factor, we find that it tends to favor an award of the work in dispute to employees represented by Seafarers. 3. Area practice Carpenters presented evidence that in 1973 Peter Kiewit and Sons, a contractor, constructed subaque- ous water intake and discharge lines at the Presque Isle power plant and that the work of unloading, handling, and laying the pipes was performed by See, e.g.. International Brotherhood of Electrical Workers, Local No. 610 (Landau Outdoor Sign Compan,'. Inc.), 225 NLRB 320(1976). employees represented by Carpenters. Montagna testified, however, that during the past I I years there have been no other projects in the area involving similar work. We find that this single instance of a prior project involving the same work as that in dispute here is insufficient to establish an area practice. 2 Accordingly, we find that the factor of area practice is not determinative. 4. Relative skills, safety, and economy and efficiency of operations The Employer presented undisputed testimony that its employees represented by Seafarers possess the requisite skills to perform the disputed work. Carpen- ters presented testimony that employees represented by it also possess the skills necessary to perform the work in dispute. The Employer's president, however, although stating that some carpenters possessed adequate skills to perform the work in dispute, testified without contradiction that he did not believe that there were a sufficient number of such carpen- ters available to perform the work on a project of this size. Furthermore, its president testified that marine construction work, and particularly the work of divers in laying subaqueous pipe, is not readily subject to inspection and that, therefore, the Employ- er insists on performing such work with its own current employees or those who have previously worked for it and have demonstrated their abilities. The Employer additionally presented undisputed testimony that considerations of safety are para- mount in performing the .work in dispute and, particularly, the work of the divers in laying subaqueous pipes. In this regard, the Employer stresses that its employees represented by Seafarers have been employed by it for some years, are experienced in working together as a unified crew, and have confidence and trust in each other. The Employer further presented uncontradicted testimo- ny that these employees have previously performed similar marine construction work in a safe manner. We therefore find that the combined factors of relative skills and safety favor an award of the work in dispute to employees represented by Seafarers. The Employer presented undisputed evidence that an award of the work in dispute to employees represented by Seafarers will result in greater flexibility in the utilization of its work force and in greater efficiency and economy of operations. As noted above, employees represented by Seafarers have been assigned the related work of dredging and backfilling on the project. The Employer's president testified without contradiction that at least some of 81 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its employees who have been assigned the work in dispute can perform such related work during periods when they are not engaged in laying pipe. Furthermore, employees represented by Seafarers, by virtue of having performed marine construction work in the past for the Employer, are familiar with the Employer's equipment and its methods of operation. Carpenters did not present evidence sufficient to establish that it would be at least as efficient and economical to utilize employees represented by it. Accordingly, we find that the factors of efficiency and economy favor the Employer's assignment. Conclusion Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that the Employer's employees represented by Seafarers are entitled to perform the work in dispute. We reach this conclusion upon the facts that such assignment is consistent with the Employer's current collective-bargaining agreement with Seafar- ers; the employees represented by Seafarers possess the requisite skills to perform such work and that they can perform such work in a safe manner; such assignment will result in greater efficiency and economy of operations; and it is consistent with the Employer's preference. Accordingly, we shall deter- mine the dispute before us by awarding the work in dispute to the Employer's employees represented by Seafarers, but not to that Union or its members. In consequence, we also find that Carpenters is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer to assign the disputed work to employees represented by it. The present determination is limited to the particular controversy which gave rise to this proceeding. 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 makes the following Determination of Dispute: 1. Employees of Luedtke Engineering Company who are currently represented by Seafarers Interna- tional Union, AFL-CIO, are entitled to perform the unloading, handling, and placement of pipes in- volved in the construction of a subaqueous pipeline on a project designated as units 7 and 8 and water discharge line in the forebay and open lake area of the Presque Isle power plant, Marquette, Michigan. 2. Cloverland District Council, United Brother- hood of Carpenters, Local 958, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Luedtke Engineering Company to assign the above work to employees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Cloverland District Council, United Brotherhood of Carpenters, Local 958, AFL-CIO, shall notify the Regional Director for Region 30, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to employees represented by Carpenters rather to employees represented by Seafarers. 82