Operating Engineers Local 150 (Brandenburg Industrial Service Co.)

522 325 NLRB No. 82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 Teamsters’ internal grievance procedure is not binding on Oper- ating Engineers. International Union of Operating Engineers, Local 150, AFL–CIO and Brandenburg Industrial Service Company, Inc. and Teamsters Union, Local 142, International Brotherhood of Team- sters, AFL–CIO. Case 13–CD–547 March 27, 1998 DECISION AND DETERMINATION OF DISPUTE MEMBERS FOX, HURTGEN, AND BRAME The charge in this Section 10(k) proceeding was filed October 27, 1997, by the Employer, Brandenburg Industrial Service Company, Inc., alleging that the Re- spondent, International Union of Operating Engineers, Local 150, AFL–CIO (Operating Engineers), violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to em- ployees it represents rather than to employees rep- resented by Teamsters Union, Local 142, International Brotherhood of Teamsters, AFL–CIO (Teamsters). The hearing was held December 19, 1997, before Hearing Officer Daniel E. Murphy. 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 Company, an Illinois corporation, is engaged in the business of demolition services, scrap, and recy- cling work from its facility located at the U.S. Steel, Gary Works refinery in Gary, Indiana. The parties stip- ulate, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Operating Engineers and Teamsters are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute Gary Works is a steel mill consisting of blast fur- naces, coke batteries, construction yards, and warehousing areas for material storage. Driving sur- faces within the facility are hilly and rough, with grav- el roads, muddy surfaces, and holes. Scrap produced within the facility and purchased from outside the facility is delivered to a marshaling yard, where the material is dumped, sorted, and proc- essed. After the scrap has been sorted and processed, it is loaded onto off-road hauling equipment and trans- ported to one of two furnaces on the mill premises to be recycled. Prior to 1996, over-the-road and off-the-road trucks used for hauling scrap to and within the facility had been driven by employees represented by Teamsters. In spring 1996, the Employer developed and engi- neered an off-road hauling vehicle designed to move material on rough surfaces with fewer loads of greater size. The Employer and Operating Engineers contend, and Teamsters does not seriously dispute, that because of the hauler’s size and complexity, the hauler requires frequent, even daily, maintenance and repair. Employees represented by Operating Engineers par- ticipated in the development and construction of the off-road hauler and operated the hauler during the re- engineering and testing phases of its development. They have operated the equipment exclusively since its incorporation into mill operations. Employees rep- resented by Teamsters were not involved in the re- search, design, assembly, testing, or operation of the hauler. Both Operating Engineers and Teamsters sought the assignment of the disputed work from the Employer while the hauler was still in development. From May until November, the Employer engaged in negotiations with the Unions to resolve the dispute. In August, Teamsters filed and continued to process grievances against the Employer related to the assignment of the work.1 In October, Operating Engineers notified the Employer that it would strike and/or picket if it reas- signed the disputed work to employees represented by Teamsters. The parties’ efforts to settle the dispute among themselves ultimately were unsuccessful. In November, the Employer assigned the disputed work to employees represented by Operating Engineers, citing as deter- minative factors in its decision the parties’ bargaining agreements and industry practice. The Employer and Operating Engineers executed a memorandum of agreement incorporating the off-road hauler work into their current collective-bargaining agreement. B. Work in Dispute The disputed work, as stipulated by the parties, con- sists of: [t]he operation of off-road haul equipment at Brandenburg Industrial Service Company’s oper- ation located at the U.S. Steel’s Gary Works. C. Contentions of the Parties The Employer and Operating Engineers contend that the disputed work is properly assigned to employees represented by Operating Engineers based on: their collective-bargaining agreement and memorandum of agreement; area and industry practice; employee skills, VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00522 Fmt 0610 Sfmt 0610 D:\NLRB\325.064 APPS10 PsN: APPS10 523 OPERATING ENGINEERS LOCAL 150 (BRANDENBURG INDUSTRIAL SERVICE CO.) 2 Teamsters contends, and Operating Engineers disputes, that a 1969 agreement to settle jurisdictional disputes, entered into by joint councils of Teamsters and Operating Engineers, assigns hauling work in a scrap yard to employees represented by Teamsters. Team- sters and Operating Engineers introduced into evidence a number of documents, which they claim, respectively, show either that the agreement is still viable or that it is not. Based on the record before us, we cannot determine this issue; and we need not. We find that the settlement agreement does not have legal significance in the ab- sence of clear proof of the status of the agreement. In any case, as- suming, without deciding, that the 1969 agreement remains viable, it sheds no new light on the issue before us. That agreement and a subsequent addendum covers jurisdictional issues regarding trucks and other heavy equipment then in use on sites where the Unions were jointly employed. It has not been shown that work performed by the more recently developed off-road hauler was within the con- templation of the parties when they entered into that settlement agreement. training, safety; efficiency and economy; and Employer past practices and preference. Teamsters claims the disputed work for employees it represents based on: its collective-bargaining agree- ment with the Employer; an alleged taint of the Em- ployer’s preference for assigning the work stemming from the conduct of Operating Engineers; Employer, area, and industry practice; relative skills of employ- ees; and economy and efficiency of operations. D. Applicability of the Statute The parties have stipulated that there is reasonable cause to believe that the Operating Engineers violated Section 8(b)(4)(D) by threatening the Employer with a strike if the Company changed its assignment of the work from employees represented by Operating Engi- neers to employees represented by Teamsters. The parties also have stipulated that there is no agreed-upon method for the voluntary adjustment of the dispute that is binding on all the parties. We find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed-upon method for voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. 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). The following factors are relevant in making the de- termination of this dispute. 1. Certifications and collective-bargaining agreements The parties stipulated that neither the Operating En- gineers nor the Teamsters has been certified by the Board as the collective-bargaining representative of any of the employees performing the disputed work. Both Unions have collective-bargaining agreements with the Employer. The Operating Engineers’ master agreement entitles employees represented by it to operate, maintain, re- pair, move, dismantle, and assemble all machines listed in the classification section of the agreement, regard- less of mode of power. Covered classifications include, inter alia, operators of backhoes, cranes and attach- ments, dozers, gradalls, highlifts, hydraulic backhoes, motor graders, scrapers, conveyors, bobcats and other skid-steer machines, and forklifts, but do not expressly cover off-road haulers. Also included are mechanics and mechanic helpers. As noted above, the Employer and Operating Engineers ultimately executed a memo- randum of agreement adding the classification of ‘‘off- road hauler’’ to their bargaining agreement. The Teamsters’ agreement entitles employees rep- resented by it to perform heavy and highway construc- tion and specified other work, including, inter alia, re- moval and disposal of rubbish from wrecking jobs, snow removal, hauling of specified materials and fill on construction jobs, delivery and spreading of con- struction site subsurfacing materials, back filling, digging, leveling and grading, and construction, slag and sludge hauling in or out of steel mills. It does not contain specific language that clearly obligates the Em- ployer to assign operation of the off-road hauler to em- ployees it represents. The parties modified the agree- ment in 1990 by a letter of understanding interpreting article 2 of their agreement, ‘‘Work Coverage.’’ There, the parties clarified Teamsters’ jurisdiction over the use of trucks to haul ‘‘material.’’ It does not expressly address the hauling of materials by means other than by truck; and it does not purport to affect the meaning of the term ‘‘material,’’ as contemplated by the bar- gaining agreement.2 Neither the Operating Engineers’ nor the Teamsters’ collective-bargaining agreement limits the Employer’s ability to introduce new equipment. Both do require bargaining over wages and, in Operating Engineers’ case, manning requirements. The collective-bargaining agreement between the Employer and the Operating Engineers, as amended by the memorandum of agreement, expressly covers the disputed work. The Employer contends that it was privileged by the management-rights clause of its bar- gaining agreement with Operating Engineers to enter into the memorandum of agreement. Although Team- sters contests the assignment of the disputed work to the Operating Engineers’ unit, no party disputes the contractual authority of the Employer and Operating VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00523 Fmt 0610 Sfmt 0610 D:\NLRB\325.064 APPS10 PsN: APPS10 524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 Thus, this case is distinguishable from cases in which an employ- er’s assignment of disputed work did not reflect the employer’s free and unencumbered choice. See, e.g., Teamsters 158 (Holt Cargo), 293 NLRB 217, 221 (1989), and Bricklayers Local 1 of Missouri (St. Louis Home Insulators), 209 NLRB 1072, 1074–1075 (1974), in which the employers were coerced into assigning disputed work to employees to whom they had not traditionally assigned such work in order to avoid threatened work stoppages. Engineers to amend their bargaining agreement. We find it unnecessary to decide the significance of the memorandum of agreement, however. It would not change our conclusion, infra, that as all other factors favor award of the disputed work to employees rep- resented by Operating Engineers, the disputed work is properly assigned to employees represented by Operat- ing Engineers. Accordingly, we find that this factor does not favor an award of the disputed work to the employees represented by either Union. 2. Employer preference The Employer has assigned the disputed work to employees represented by Operating Engineers and prefers that those employees keep the assignment. Teamsters contends that the Employer’s preference was tainted by pressure and strike threats made by Op- erating Engineers and, thus, that its assignment of the work to employees represented by Operating Engineers was obtained by coercion. We find no merit to this contention. As an initial matter, we find it significant that the Employer had expressed its preference that the work in dispute be performed by employees represented by Op- erating Engineers from the inception of its program to develop the off-road hauler early in 1996, through the production and testing phases of the project, and well in advance of Operating Engineers’ October 1997 strike threat. From May until November 1996, the Em- ployer engaged in protracted discussions with both Unions regarding the assignment of the disputed work and afforded each the opportunity to present any rel- evant evidence supporting its claim to the work. Dur- ing that period of time, the hauler was operated exclu- sively by employees represented by Operating Engi- neers, without incident. Operating Engineers delivered its strike threat only after months of discussions failed to resolve the permanent assignment of the work. It is the undisputed testimony of Company President Somerville that, following the parties’ discussions, he analyzed the assignment issue in light of the informa- tion before him and, in November 1996, made the per- manent assignment to employees represented by Oper- ating Engineers based on specific objective consider- ations, discussed herein.3 We do not find substantial evidence that Operating Engineers’ threat of possible job actions influenced Somerville’s decision, or more broadly that it coerced this employer to make an as- signment it would not otherwise have made. Accordingly, we find that this factor favors the award of the disputed work to employees represented by Operating Engineers. 3. Employer and industry practice Prior to the Employer’s development and introduc- tion of the off-road hauler in 1996, it had used em- ployees represented by the Teamsters, driving conven- tional over-the-road trucks, for all hauling work on and off the Gary Works jobsite. However, when the Em- ployer decided to develop the customized off-road hauler in spring 1996, it used employees represented by the Operating Engineers in the design, develop- ment, and construction of the hauler, and thereafter in the testing and re-engineering phases of its develop- ment. Witnesses for the Employer and Operating Engi- neers testified that the off-road hauler is a completely new, customized vehicle. It has special operating re- quirements, different from other haulers and from any equipment heretofore used by the Employer. The haul- er has a cab and controls in the front of the vehicle. In the rear, it has a bucket or box which is used to haul materials. It carries two to three times more mate- rial than the trucks the Employer had traditionally used. It features increased hydraulic capacity and a custom-mounted winch. The hauler exceeds in both size and weight vehicles that can be licensed for over- the-road use. Teamsters asserts generally that the hauler is ‘‘an oversized truck’’ which, except for its size, does not substantially differ from other trucks used in hauling. It did not adduce specific evidence showing similar- ities between the hauler and conventional trucks. Fur- ther, it does not categorically dispute the Employer’s description of the hauler, set forth above. Consistent with its position that hauler operation was not covered by any existing bargaining agreement, the Employer assigned the disputed work to employees represented by the Operating Engineers on its incorpo- ration into the routine mill operations at the Gary Works jobsite. Those employees exclusively have op- erated the equipment ever since then. The Employer and Operating Engineers adduced ex- tensive testimony and documentary evidence that the operation of off-road haulers by other contractors at the Gary Works site and, generally, within the steel mill industry in northwest Indiana, has been assigned to employees represented by Operating Engineers. Em- ployer President Somerville testified that he inves- tigated the area and industry practice concerning as- signment of off-road haulers similar to its new hauler and found that they were assigned to employees rep- resented by Operating Engineers. Operating Engineers VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00524 Fmt 0610 Sfmt 0610 D:\NLRB\325.064 APPS10 PsN: APPS10 525 OPERATING ENGINEERS LOCAL 150 (BRANDENBURG INDUSTRIAL SERVICE CO.) 4 Teamsters contends that this provision permits more than three changes in assignment if they are to one of the excluded vehicles. Employer President Somerville testified that the Employer has no spare trucks available to assign to employees represented by Team- sters during times when the hauler would be idle and, accordingly, would have to send a Teamsters-represented employee home or pay him for time spent not working. Business Representative Wayne Snider testified that, although the off-road haulers used at other local steel mills are not identical to the Employer’s new hauler, they are similar in size and characteristics to the Em- ployer’s machine. Teamsters did not present any evidence of off-road haulers being operated by employees it represents or any rebuttal evidence to that adduced by the Employer and Operating Engineers. Further, the evidence shows that Teamsters are still doing the same work they had performed prior to the introduction of the off-road hauler, except for the onsite scrap hauling now per- formed using the off-road haulers. There is no evi- dence that any employees represented by the Team- sters have lost their jobs as a result of the use of the haulers. Based on the above considerations, we find that this factor favors the award of the disputed work to em- ployees represented by Operating Engineers. 4. Employee skills, training, and safety Employees represented by Operating Engineers have been involved at every stage of the off-road hauler’s development and operation. Accordingly, they have ex- tensive experience with, and knowledge of, the vehi- cle’s capabilities and uses. Teamsters have not had any responsibility for operating the haulers. The Employer and Operating Engineers both pre- sented testimony that the off-road hauler must operate on rough, uneven surfaces. Because of its size and de- sign, particular skill is required to maneuver the hauler within the confined spaces of the jobsite and to posi- tion the vehicle for safe operation. Further, employees represented by Operating Engineers operate a variety of heavy equipment. Their familiarity with the oper- ation of other heavy equipment is helpful in operating the hauler safely around other equipment operating in the same area. Although employees represented by Teamsters have operated trucks to haul materials on the same terrain, there is no specific evidence that operating trucks on the mill premises is comparable to operating the haul- er. Operating Engineers has a training facility nearby in Plainfield, Illinois, where it trains workers in, among other things, the operation and maintenance of large off-road haulers similar to the one developed by the Employer. It has a system that allows employers to re- port any employee dispatched by the hiring hall who does not operate a piece of equipment competently. It has the right to refuse to dispatch from its hiring hall any employee about whom it receives complaints until the employee completes a retraining course. Teamsters contends that its members have dem- onstrated their truck driving skills at the Employer’s facility over a 15-year period. It did not adduce pro- bative evidence concerning the ongoing training of em- ployees it represents. Company President Somerville testified that employees represented by Teamsters could have been trained to drive the hauler. He also testified, however, that he did not believe that those employees could have been trained to maintain the hauler or to monitor the hydraulic system and the winch, as those functions have never been covered by the Teamsters bargaining agreement. Based on the above considerations, we find that this factor favors the award of the disputed work to em- ployees represented by Operating Engineers. 5. Economy and efficiency of operations Operating Engineers Business Agent C. Wayne Snider testified that the hauler is used in conjunction with other heavy equipment operated by employees it represents. Familiarity with other heavy equipment fa- cilitates more efficient loading of the hauler. Further, the Employer’s ability to obtain experienced heavy equipment operators from the Operating Engineers’ hiring hall gives it greater flexibility in staffing its op- erations. Employer President Somerville testified that overall efficiency of operations is enhanced by having em- ployees represented by Operating Engineers who oper- ate the hauler also perform repairs on it. Repair of heavy equipment is expressly covered under the Em- ployer’s bargaining agreement with Operating Engi- neers. Teamsters contends that the Employer should have assigned the disputed work to employees it rep- resents and resolved issues regarding jurisdiction over preventive maintenance on the hauler through collec- tive bargaining. The Operating Engineers bargaining agreement per- mits the Employer to assign the operator of the off- road hauler to other equipment when the hauler is not in use, without limits on the number of equipment changes. The Employer’s bargaining agreement with Teamsters permits no more than three changes in as- signment in a day, excluding changes to buses, pool service trucks delivering materials to jobsites, break- downs, and changes necessitated by the start of a new job.4 We find that this factor favors the award of the dis- puted work to employees represented by Operating En- gineers. VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00525 Fmt 0610 Sfmt 0610 D:\NLRB\325.064 APPS10 PsN: APPS10 526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Conclusions After considering all the relevant factors, we con- clude that employees represented by Operating Engi- neers are entitled to perform the work in dispute. We reach this conclusion relying on: Employer preference; Employer and industry practice; employee skills, train- ing, and safety; and economy and efficiency of oper- ations. In making this determination, we are awarding the work to employees represented by Operating Engi- neers, 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. Employees of Brandenburg Industrial Service Com- pany, Inc. represented by International Union of Oper- ating Engineers, Local 150, AFL–CIO, are entitled to operate the off-road haul equipment at Brandenburg In- dustrial Service Company’s operation located at the U.S. Steel’s Gary Works. VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00526 Fmt 0610 Sfmt 0610 D:\NLRB\325.064 APPS10 PsN: APPS10