Operating Engineers Local 14-14B

370 325 NLRB No. 53 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 Local 14-14B has moved to reopen the record for the introduc- tion of two letters purporting to show that a jurisdictional dispute in this matter does not exist. The Employer has opposed the motion. The letters, dated after the close of the hearing, do not reflect a clear and unequivocal disclaimer of the disputed work by Local 30 or the Laborers’ International Union of North America, AFL–CIO. More- over, Local 14-14B has made no showing warranting the acceptance of these letters after the close of the hearing. Thus, we deny the mo- tion. The Employer has moved without opposition to reopen the record to introduce documents relating to a similar jurisdictional dispute in- volving it and other locals of the Laborers and the International Union of Operating Engineers (‘‘the Pearl River dispute’’). The Em- ployer had presented testimony and submitted some exhibits con- cerning this dispute at the hearing, and the hearing officer requested that the Employer supplement the record with any other documents in its possession regarding that dispute. We grant the motion to re- open and accept as part of the record the documents attached to the Employer’s motion; but, as explained in sec. E,6 below, as a sub- stantive matter, we find that these documents are not relevant to the determination of this dispute. International Union of Operating Engineers, Local 14-14B, AFL–CIO and Island Lathing & Plas- tering, Inc. and Laborers’ International Union of North America, Local 30, AFL–CIO. Case 29–CD–463 February 10, 1998 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN GOULD AND MEMBERS FOX AND BRAME The charge in this Section 10(k) proceeding was filed on October 24, 1995, by Island Lathing & Plas- tering, Inc., the Employer, alleging that the Respond- ent, International Union of Operating Engineers, Local 14-14B, AFL–CIO (Local 14-14B), violated Section 8(b)(4)(D) of the National Labor Relations Act by en- gaging in proscribed activity with an object of forcing or requiring the Employer to assign certain work to employees it represents rather than to employees rep- resented by the Laborers’ International Union, Local 30, AFL–CIO (Local 30). A hearing was held in this proceeding on December 12 and 13, 1995, before Hearing Officer Peter Margolies. Upon the close of the hearing, the proceeding was transferred to the Board. Thereafter, the Employer and the Respondent Union filed briefs.1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board affirms the hearing officer’s rulings, find- ing them free from prejudicial error. On the entire record, the Board makes the following findings. I. JURISDICTION The parties stipulated that Island Lathing & Plaster- ing, Inc., is a New York corporation engaged in the business of lathing, plastering, fireproofing, and insu- lating at various construction sites located throughout the country. Annually, in the course of its business op- erations, the Employer derives gross revenues in ex- cess of $50,000 and purchases and receives materials and services in excess of that amount directly from vendors located outside the State of New York. We find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The parties stipulated, and we find, that Local 14-14B is a labor organization within the meaning of Section 2(5) of the Act. The record reflects, and we find, that Local 30 is also a labor organization under the Act. II. THE DISPUTE A. Background and Facts of Dispute The Employer is a member of the Plastering and Spray Fireproofing Contractors of New York (PSFC), an employer association that negotiates collective-bar- gaining agreements with Local 30. Through that asso- ciation, the Employer has had a collective-bargaining relationship with Local 30 for about 28 years, with the relevant agreement in effect from July 1993 through July 1996. The Employer is also a member of the As- sociation of Wall and Ceiling Industries (AWCI), an employer association that negotiates agreements with the Laborers’ International Union of North America, AFL–CIO (Laborers International Union). In the summer of 1995, Turner Construction Corp. (Turner), a general contractor in the construction in- dustry, awarded to the Employer the subcontract for fireproofing, insulation, and plastering at the United States Tennis Center in Flushing, Queens, New York. The subcontract also required the Employer to perform the maintenance of, and turning on and off of, the fire- proofing pump and the operation and maintenance of a scaffold known as a ‘‘scissor lift.’’ Turner is a mem- ber of the Contractors Association of Greater New York, Inc. (CAGNY), an employer association that is a party to a collective-bargaining agreement with Local 14-14B. The relevant CAGNY agreement, effective July 7, 1993, through July 2, 1996, provides that ‘‘[w]henever a pump or machine (regardless of size of hose) is used to pump or place fireproof material, acoustical material or any material of a similar nature or purpose, an Engineer will be employed.’’ The CAGNY agreement also provides for the pres- ence of a ‘‘master mechanic’’ at the worksite, and Carl Neff, a Turner employee represented by Local 14-14B, performed that function at the Tennis Center site. Under the CAGNY agreement, the master mechanic is designated by Local 14-14B, with the employer’s ap- proval, and is responsible for ‘‘the [Engineers’] per- formance of their duties.’’ The parties stipulated that Neff, as master mechanic, is the shop steward for Local 14-14B. Neff testified that, as master mechanic, VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00370 Fmt 0610 Sfmt 0610 D:\NLRB\325.041 APPS10 PsN: APPS10 371 OPERATING ENGINEERS LOCAL 14-14B (ISLAND LATHING & PLASTERING) 2 Unless otherwise noted, all subsequent dates are in 1995. 3 We find no merit in this contention. See fn. 1. his job is to ascertain whether the employer is comply- ing with the contract, keep track of the operating engi- neers’ work, make sure that the operating engineers are members in good standing of Local 14-14B, and sub- mit to Turner a weekly report of the hours each cov- ered employee has worked, so that Turner can, if nec- essary, seek reimbursement from subcontractors for overtime. If employees represented by Local 14-14B have complaints, they report them to Neff, who tries to resolve them with the employer, and keeps Local 14-14B informed of problems on the job. The Employer began fireproofing structural steel at the jobsite in late September or early October 1995.2 To perform such work, the Employer uses an em- ployee represented by Local 30 to load the hopper of a pump with fireproofing material. The pump is then turned on. Another employee, represented by a union not involved in this dispute, holds the hose and sprays the fireproofing material onto the steel. When nec- essary, this employee stands on a mechanical scaffold known as a scissor lift. A third employee, represented by Local 30, cleans up any debris from the spraying. If the pump breaks or its parts wear out, it is repaired away from the jobsite. The number of individuals em- ployed by the Employer at the site has ranged from one to five. The record, including a tape recording of a con- versation between Neff and Timothy Stevens, the Em- ployer’s president, indicates the following. Neff re- ceived permission from the Employer to hire an em- ployee represented by Local 14-14B. Although this employee appeared at the jobsite and was told how to turn on the pump and operate the lift, the Employer’s employees represented by Local 30, who had been per- forming the work, would not allow her to do so. After a few weeks, the Employer questioned whether the CAGNY agreement required that the employee rep- resented by Local 14-14B be paid for the full week, regardless of the number of hours spent working. Neff testified that Stevens told him in mid-October that he was ‘‘shutting down the job’’ and would not pay the employee represented by Local 14-14B for the previous week because the Employer did not have an agreement with the Operating Engineers. Neff de- manded that the employee represented by Local 14- 14B be paid, that Stevens sign an agreement with the Operating Engineers, which Stevens refused to do, and stated that when the Employer’s work started up again, Neff would ‘‘throw up a picket line and everybody will walk off the job.’’ When the Employer reported the incident to Local 14-14B’s business agent, Joseph Rizzuto Jr., the latter told the Employer that he would try to calm Neff down but commented that the work in dispute was operating engineer work. Subsequently, the employee represented by Local 14-14B was paid and left for another job, and was replaced by another employee represented by Local 14-14B. The Employer then filed the instant unfair labor practice charge against Local 14-14B. The relevant CAGNY agreement provides that all jurisdictional disputes are to be adjusted in accordance with the methods set forth in the New York Plan for the Settlement of Jurisdictional Disputes (the New York Plan). The CAGNY agreement also provides that its terms shall be binding on all subcontractors hired by the general contractor. Pursuant to its contract with Turner, the Employer agreed that all jurisdictional dis- putes shall be adjusted in accordance with any plan for the settlement of jurisdictional disputes ‘‘which may be in effect either nationally or in the locality’’ in which the work is being performed. The Employer’s PSFC agreement with Local 30 also provided that jurisdictional disputes were to be ad- justed in accordance with the principles of the New York Plan. Under the New York Plan, the employer enmeshed in the dispute is not permitted to participate. In contrast, the Employer’s AWCI agreement with the Laborers’ International Union provides that jurisdic- tional disputes will be referred ‘‘to the President or Executive Vice-President of the Association and re- spective General Presidents of the international Unions involved, for resolution’’ and that the employer in- volved in the dispute will participate in any settlement discussions. It further provides that if any of its provi- sions conflict with those of ‘‘State, Provincial, or Dis- trict council or Local Union agreements, the provisions of [the national agreement] shall supersede those con- tained in the District Council, or Local Union agree- ments.’’ B. Work in Dispute The disputed work involves maintaining and turning on and off the fireproofing pumps and the operation and maintenance of the scissor lift at the United States Tennis Center in Flushing Meadow Park, New York. C. Contentions of the Parties Local 14-14B contends that no cognizable jurisdic- tional dispute under Section 8(b)(4)(D) exists because Local 30 does not seek the work at issue.3 Alter- natively, it argues that, if the Board finds that a dispute exists, the notice of hearing should be quashed as the New York Plan for settlement is a voluntary adjust- ment mechanism for settling such disputes to which the parties have agreed. It further argues that, even if Neff made the alleged threat, it was a ‘‘hollow’’ one because he did not have the authority to call such an action. Local 30 did not make an appearance at the hearing and has not participated in this proceeding. VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00371 Fmt 0610 Sfmt 0610 D:\NLRB\325.041 APPS10 PsN: APPS10 372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Operating Engineers Local 318 (Kenneth E. Foeste Masonry), 322 NLRB 709, 712 (1996); Operating Engineers Local 150 (Austin Co.), 296 NLRB 938, 941 (1989); Operating Engineers Local 150 (D.H. Johnson Co.), 268 NLRB 1339, 1341 (1984), enfd. sub nom. Operating Engineers Local 150 v. NLRB, 755 F.2d 78 (7th Cir. 1985); Laborers Local 118 (D.H. Johnson Co.), 262 NLRB 1147, 1149 (1982). 5 Local 14-14B’s motion to quash is therefore denied. The Employer contends that no agreed-on method for the voluntary adjustment of disputes exists that binds of all parties. In this regard, the Employer notes that it has no collective-bargaining agreement with Local 14-14B and that, while its agreement with Local 30 provides for resort to the New York Plan, its agree- ment with the Laborers’ International Union, which it asserts supersedes its agreement with Local 30, binds it to participation in a settlement/arbitration procedure which, unlike the New York Plan, provides for the par- ticipation of the employer as a party. The Employer, relying on NLRB v. Plasterers Local Union No. 79, 404 U.S. 115 (1971), also contends that the New York Plan does not qualify as an agreed-on method of dis- pute resolution binding on all parties as contemplated by Section 10(k) because it does not allow for the par- ticipation of the employer. D. Applicability of the Statute Before the Board may proceed with a determination of dispute pursuant to Section 10(k) of the Act, it must be satisfied that reasonable cause exists to believe that Section 8(b)(4)(D) has been violated and that the par- ties have not agreed on a method for the voluntary ad- justment of the dispute. We find that there is reasonable cause to believe that the Respondent Union, International Union of Operat- ing Engineers, Local 14-14B, has threatened the Em- ployer with an object of forcing it to assign the dis- puted work to employees it represents, rather than to employees represented by Local 30, through master mechanic Neff’s threat to ‘‘throw up a picket line’’ and have employees walk off the job if the disputed work was not assigned to Local 14-14B-represented employees. We find that Neff was an agent of the Re- spondent Union because, as master mechanic, his du- ties included determining for Local 14-14B whether the collective-bargaining agreements were followed, keeping track of the operating engineers’ work, sub- mitting reports reflecting the hours worked by employ- ees represented by Local 14-14B, attempting to resolve those employees’ complaints, and performing other re- lated functions. We also note that the parties stipulated to his status as a job steward. See Carpenters Local 296 (Acrom Construction), 305 NLRB 822 fn. 1 (1991). Moreover, there is no evidence that the busi- ness agent, Rizzuto Jr., disavowed Neff’s threat to throw up a picket line after the Employer told him about Neff’s statements. Indeed, he repeated Neff’s as- sertion that the disputed work was indeed operating en- gineers’ work. We therefore find reasonable cause to believe that the Respondent Union violated Section 8(b)(4)(D). We also find that no agreed-on method exists for voluntarily resolving the dispute in a definitive man- ner. It is true, as Local 14-14B argues, that the Em- ployer, through its subcontract with the general con- tractor and its collective-bargaining agreement with Local 30, and Local 14-14B, through the CAGNY agreement, have agreed to resolve jurisdictional dis- putes through the New York Plan. However, the Em- ployer is also party to an agreement with the Laborers’ International Union which states that its provisions su- persede those in any district council or local union agreements. Under this agreement, unlike the New York Plan, the Employer is permitted to participate in proceedings involving jurisdictional disputes. In short, the Employer is bound to two agreements which pro- vide for conflicting methods of resolving jurisdictional disputes. In such circumstances, the Board has repeatedly held that no determinative agreed-on method exists for re- solving the dispute, because the Employer is at risk of finding itself subject to conflicting awards of the dis- puted work.4 A possible consequence of conflicting awards is that, if the Board does not resolve the dis- pute, it may not be resolved definitively. The purposes of Section 10(k) therefore require the Board to address the merits of the dispute. For the foregoing reasons, we find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed-on method for voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act.5 Accordingly, we find that the dispute is properly before the Board for determination. E. Merits of the Dispute Section 10(k) requires the Board to make an affirm- ative award of disputed work after considering various factors. NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U.S. 573 (1961). The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by balancing the factors in- volved in a particular case. Machinists Lodge 1743 (J.A. Jones Construction), 135 NLRB 1402 (1962). 1. Certifications and collective-bargaining agreements There are no Board certifications that are relevant to the resolution of this dispute. The Employer is signatory to a collective-bargaining agreement with Local 30 which covers the operation and maintenance of the fireproofing pumps. The Em- ployer has no collective-bargaining agreement with VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00372 Fmt 0610 Sfmt 0610 D:\NLRB\325.041 APPS10 PsN: APPS10 373 OPERATING ENGINEERS LOCAL 14-14B (ISLAND LATHING & PLASTERING) Local 14-14B. However, the CAGNY agreement, to which Turner and Local 14-14B are signatories, pro- vides that subcontractors will be bound by its terms and that an operating engineer will be employed when- ever a pump is used for fireproofing. Thus, Local 14- 14B claims jurisdiction over the operation and mainte- nance of the pumps and operation of the forklift. We find that this factor does not favor an award to em- ployees represented by one union over employees rep- resented by the other union. 2. Employer preference and past practice The Employer performs 150 to 200 jobs per year in the New York metropolitan area, and has performed many jobs for Turner. The Employer has assigned all work in connection with the operation and mainte- nance of the fireproofing pump to employees rep- resented by Local 30. The Employer’s stated pref- erence is to continue such assignments. It has never utilized operating engineers to maintain or operate the pump. We find that both the Employer’s preference and its past practice favor an award of the disputed work to employees represented by Local 30. 3. Area and industry practice The record reveals a mixed practice regarding the assignment of the work in question in the New York metropolitan area. Employer-members of the Plastering and Spray Fireproofing Contractors of New York, in- cluding the Employer, have assigned work in connec- tion with the operation and maintenance of the fire- proofing pump to employees represented by Local 30. Local 14-14B has had agreements with various con- tractors which provide that they be bound by the CAGNY agreement. These agreements generally pro- vide that when scissor lifts are used solely as scaffolds or welding platforms, they will not be manned by op- erating engineers, but when they are used as hoists for materials or other purposes, they will be operated by engineers. The CAGNY agreement provides that an operating engineer ‘‘will cover’’ a fireproofing pump. Neff and Local 14-14B’s business agent testified that they are aware of various instances in the New York area in which operating engineers have operated and maintained the pumps. We find that this factor is in- conclusive. 4. Relative skills The operation and maintenance of the pump and the operation of the scissor lift do not require any special- ized education or training. The employees who operate the pump have learned to do so on the job. The greas- ing of the pump and bearings, which are phases of the disputed work, also does not require any specialized education and the Employer has trained employees to grease bearings. The operation of the scissor lift also does not appear to require a significant level of spe- cialized skill. Evidence was presented that employees represented by Local 14-14B are generally more skilled than those represented by Local 30 in operating various types of machinery, such as cranes and back- hoes, that special licenses are required to operate many of these machines, and that many of the employees represented by the Local 14-14B have had specialized education or have participated in apprenticeship pro- grams. As noted above, however, both groups of em- ployees possess the skills to perform the work in dis- pute. We find that the factor of relative skills does not favor an award of the disputed work to employees rep- resented by one union over employees represented by the other union. 5. Economy and efficiency of operations Although both groups of employees are qualified to maintain and operate the pumps, only employees rep- resented by Local 30 perform other duties for the Em- ployer. Employees represented by Local 30 load the hopper of the pump with fireproofing material and clean up debris from the spraying. Operating engineers do not normally perform these duties. Thus, because operating and maintaining the pumps and operating the scissor lift do not occupy all of an operator’s day and the Employer has no other work to assign to employ- ees represented by Local 14-14B, those employees, in contrast to employees represented by Local 30, would be idle for a portion of each day. We find that the Em- ployer would have more operational flexibility and ef- ficiency if employees represented by Local 30 rather than employees represented by Local 14-14B were awarded the disputed work. Accordingly, the factor of economy and efficiency of operations favors an award of the disputed work to employees represented by Local 30. 6. Prior jurisdictional dispute determinations The Employer contends that a prior jurisdictional dispute resolution supports an award of the disputed work to employees represented by Local 30. The Em- ployer, through its posthearing motion, introduced doc- uments reflecting that, in settlement of a charge the Employer filed with the Board, Local 825 of the Oper- ating Engineers disclaimed the operation of a pump as- signed to employees represented by Local 754 of the Laborers’ International Union in a project in Pearl River, New York. However, as the matter was part of a settlement agreement, the Board did not issue a de- termination of dispute in that case. Accordingly, we find that this factor does not favor an award of the dis- puted work to employees represented either by Local 14-14B or Local 30. VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00373 Fmt 0610 Sfmt 0610 D:\NLRB\325.041 APPS10 PsN: APPS10 374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSIONS After considering all the relevant factors, we con- clude that the Employer’s employees represented by Local 30 are entitled to perform the work in dispute. We reach this conclusion relying on the factors of em- ployer preference and past practice and economy and efficiency of operations. In making this determination, we are awarding the work to employees represented by Local 30, not to that Union or its members. The deter- mination is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the fol- lowing Determination of Dispute. 1. Employees of Island Lathing & Plastering, Inc., represented by Laborers’ International Union of North America, Local 30, AFL–CIO, are entitled to perform the work of operating, turning on and off, and main- taining fireproofing pumps, and operating and main- taining the scissor lift at the Employer’s jobsite at the United States Tennis Center in Flushing, Queens, New York. 2. International Union of Operating Engineers, Local 14-14B, AFL–CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Island Lathing & Plastering, Inc., to assign the disputed work to employees represented by it. 3. Within 14 days from this date, Operating Engi- neers, Local 14-14B, AFL–CIO shall notify the Re- gional Director for Region 29 in writing whether it will refrain from forcing the Employer, by means pro- scribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination. 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