International Union of Operating Engineers, Local Union No. 18, AFL-CIO (Luedtke Engineering Company)

DFCISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Local Union No. 18, AFL-CIO and Luedtke Engi- neering Company. Case 8-CD-367 September 30, 1982 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, JENKINS. AND ZIMMERMAN This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Luedtke Engineering Compa- ny, herein called the Employer, alleging that Inter- national Union of Operating Engineers, Local Union No. 18, AFL-CIO, herein called Local 18, had violated Section 8(b)(4)(D) of the Act by en- gaging in certain proscribed activity with an object of forcing or requiring the Employer to assign cer- tain work to its members rather than to unrepre- sented employees employed by the Employer. Pursuant to notice, a hearing was held before Hearing Officer Charles Z. Adamson on June 22 and 23, 1982. All parties appeared and were afford- ed full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, the Employer and Local 18 filed briefs. 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 rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this proceeding, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Em- ployer, a Michigan corporation with its principal place of business in Frankfort, Michigan, is en- gaged in marine engineering and contracting. During the past year, the Employer provided serv- ices valued in excess of $50,000 directly to custom- ers located outside the State of Michigan. The par- ties also stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectu- ate the purposes of the Act to assert jurisdiction herein. II. THE L.ABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that Local 18 is a labor organization within the meaning of Sec- tion 2(5) of the Act. II111. THE DISPUTE A. Background and Facts of the Dispute The Employer specializes in all types of con- struction work employing floating equipment, and since 1978 has utilized hydraulic dredging equip- ment to perform dredging work. The Employer contracted with the Department of the Army, Corps of Engineers, to construct a small boat harbor at West Harbor, Ohio. The Employer com- menced this project, which involves the dredging of new channels, in May 1981, and continued until the weather forced curtailment of the work in the fall of 1981. The Employer resumed work on the project on or about April 19, 1982, and such work is expected to continue through the end of Novem- ber 1982. The Employer's dredging work at the West Harbor site is performed by using a 14-inch hy- draulic dredge. which is operated during three 8- hour shifts per day by crews consisting of a fore- man, a deckhand, an operator, and an engineer. The major portion of the work involves on-the- water functions performed by the operator and en- gineer. In addition, the entire crew spends approxi- mately 5 to 6 hours per week engaged in onshore work involving the handling, fusing, and loading of plastic pipe, which is used in connection with the offshore dredging operations. The onshore work entails the use of a front-end loader, a forklift, and a small bulldozer. The foreman and deckhand positions, manned by employees represented by a local of the Seafarers' International Union, are not in dispute in the in- stant proceeding. The only positions at issue here are the operator's and engineer's classifications, which during the 1981 work season were filled by employees represented by Local 18 and by its sister Operating Engineers Local 324. During the 1982 dredging season, the Employer has assigned the six available operator and engineer positions to unre- presented employees who were referred to the Em- ployer by Local 486 of the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Historically, Local 25 of the International Union of Operating Engineers, located in Brooklyn, New York, has asserted jurisdiction over the operator's and engineer's positions on hydraulic dredges em- ployed in the Great Lakes area. During the past several years, however, Local 25 has not been en- 264 NLRB No. 115 858 OPERATING ENGINEERS LOCAL 18 gaged in dredging work on the Great Lakes be- cause of a decrease in such work. On or about August 29, 1981, Ray Frankhouse, district repre- sentative for Local 18, advised the Employer that Local 25 was asserting jurisdiction over the on- going hydraulic dredge work at the West Harbor site. In mid-September 1981, the Employer re- ceived a letter from Local 25 claiming that em- ployees represented by it had the right to man the Employer's dredge and that Locals 18 and 324 were improperly on the site. When the Employer refused to acquiesce to a change in the work as- signment, Local 25 dropped the matter and agreed to permit employees represented by Locals 18 and 324 to continue to fill the operator and engineer positions for the remainder of the 1981 dredging season at West Harbor. During the winter of 1981-82, the Employer had several contacts with officials of Local 25 in an at- tempt to resolve the manning of the hydraulic dredge for the 1982 season. These meetings proved unsuccessful, however, and the Employer declined to agree to a contract with Local 25 for the opera- tor and engineer positions at the West Harbor project. The Employer then attempted to obtain operators and engineers from both Local 18 and Local 324, but was informed that neither Local would furnish manpower for the job during the 1982 season. It is undisputed that in the spring of 1982 Local 18 notified its members "that they would not be dispatched to the hydraulic dredge work at West Harbor in the 1982 season." Subsequently, the Seafarers' International Union refused the Employer's request that it furnish oper- ators and engineers for the hydraulic dredge. On or about April 14, 1982, the Employer contacted Carl Havelda, business agent for Teamsters Local 486, concerning the Employer's manning needs. Team- sters Local 486 has for years provided manpower to hydraulic dredges in the Great Lakes area. Ha- velda agreed to supply an operator and an engineer for each of the Employer's three shifts, and those employees have held those positions since report- ing to work on April 19, 1982. Although the Em- ployer's president, Karl Luedtke, testified that he made some specific oral commitments to Havelda, Teamsters Local 486 and the Employer did not enter into a collective-bargaining or recognition agreement for the West Harbor project. A repre- sentation petition filed by Teamsters Local 486 for the unit of six operators and engineers at West Harbor currently is pending. On or about April 22, 1982, James MacMahon, a business agent of Local 18, went to the West Harbor site and asked Tom Steben, the Employer's job superintendent, how the Employer was man- ning the dredge and the onshore equipment. When Steben replied that teamsters were doing the work, MacMahon stated that Local 18 might have to "go to war" over teamsters' operation of the onshore equipment. MacMahon concluded this conversation by remarking that he wished Local 25 would stay on the east coast and allow Local 18 to have the work on the Lakes. MacMahon returned to the jobsite again on or about April 27, 1982, at which time he told Steben that the Operating Engineers International wanted Local 18 members on the shore equipment and that, if the Employer did not put Local 18 people on the job, Local 18 "would be willing to shut the job down." McMahon added that two existing con- tracts covered the project and that Local 18 "would be willing to go to war" because it had about 600 people out of work. On May 3, 1982, Local 18 Representative Frank- house telephoned Karl Luedtke and said that Local 25 no longer was interested in the West Harbor job and that Local 18 was ready to provide men to fill the operator and engineer positions. Luedtke told Frankhouse that he was too late, and that the Em- ployer was going to continue to use the men fur- nished by Teamsters Local 486. On that same day, the Employer filed the charge which is the subject of the instant proceeding alleging that Local 18 had threatened it to force a reassignment of the West Harbor work in violation of Section 8(b)(4)(D) of the Act. B. The Work in Dispute The work in dispute involves the offshore and onshore work performed by the operator and engi- neer related to the Employer's operation of its hy- draulic dredge in West Harbor, Ohio. C. The Contentions of the Parties Local 18 contends that there is no reasonable cause to believe that it violated Section 8(b)(4)(D) because there is no evidence of a direct threat of unlawful activity made against the Employer, and no strike or picketing occurred. In addition, Local 18 asserts that the Board should not make an award of the disputed work since only Local 18 is claiming the work and there is no other recogniz- able group or class of employees demanding the work. Further, Local 18 argues that its two current collective-bargaining agreements with the Employ- er cover the work at issue and precludes a finding that a jurisdictional dispute exists within the mean- ing of Section 10(k) of the Act. In the alternative, Local 18 takes the position that, if the Board deter- mines that there is reasonable cause to believe that it violated Section 8(b)(4)(D), the Board's tradition- 859 DECISIONS OF NATIONAL LABOR RELATIONS BOARD al standards require assignment of the work to em- ployees represented by Local 18. The Employer contends that Local 18 Business Agent McMahon's statements on April 22 and 27, 1982, to Job Superintendent Steben constituted threats in violation of Section 8(b)(4)(D). Accord- ingly, the Employer urges the Board to proceed to the merits of the dispute, and award the work to the unrepresented employees on the basis of the Board's traditional criteria, specifically the factors of efficiency and economy of operation, employer preference, and job impact. It is the Employer's position that Local 18, in order to avoid or termi- nate a jurisdictional dispute with Local 25, de- stroyed its past practice of furnishing crews to the Employer's hydraulic dredges. The Employer sub- mits that the unrepresented employees furnished by Teamsters Local 486 are an identifiable group with an active claim to the disputed work and that nei- ther of the two contracts it has with Local 18 covers the work. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(3)(D) has been violated and that the parties have not agreed upon a method for the voluntary adjustment of the dis- pute. It is uncontroverted that on April 22 and 27, 1982, Local 18 Business Agent McMahon told Job Superintendent Steben that Local 18 would be willing to "go to war" and "shut the job down" because the Employer was manning its onshore equipment with unrepresented employees rather than employees represented by Local 18. About a week later, Local 18 Representative Frankhouse notified the Employer that Local 18 wanted to provide employees for the operator and engineer positions on the hydraulic dredge. Local 18 contends that this case does not present a jurisdictional dispute as contemplated by Section 10(k), but only involves a dispute under the parties' collective-bargaining contracts. We reject this con- tention. That Local 18 basis its claim to the disput- ed work upon its collective-bargaining contracts with the Employer does not detract from the juris- dictional nature of the dispute.' Further, the unre- presented employees who are performing, and who desire to retain, the work are considered claimants See Carpenters Local Union No. 1298 (fempco Contracting d Supply. Inc.), 219 NLRB 320 (1975); Local Union 354. International Brotherhood of Electrical Workers. AFL-CIO (F. G. Johnson Company. Incorporated), 200 NLRB 599 (1972). to the work,2 and it is well settled that Section 8(b)(4)(D) encompasses competing claims of a labor organization and a group of unrepresented employees. 3 In view of the foregoing, we find that reasonable cause exists to believe that Section 8(b)(4)(D) of the Act has been violated. Since there is no agreed- upon method for the voluntary adjustment of the dispute to which all parties are bound, we con- clude that this dispute is properly before the Board for determination under Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various factors. 4The Board has held that its determination in a jurisdic- tional dispute is an act of judgment based on com- monsense and experience reached by balancing those factors involved in a particular case.5 The following factors are relevant in making the determination of the dispute before us: 1. Certification and collective-bargaining agreements Local 18 has not been certified by the Board as bargaining agent for the Employer's employees with respect to performance of the work in dis- pute, and therefore certification is not a factor fa- voring either group of employees. Local 18 currently is party to two contracts with the Employer-a multiemployer pact known as the Floating Agreement-Great Lakes, and a memoran- dum agreement which incorporates by reference the Ohio State Highway Heavy Agreement. We find that neither agreement covers the work in dis- pute. The recognition provision of the Floating Agree- ment states that it applies to the work of operators and engineers on floating equipment engaged in clamshell and dragline dredging only. Karl Luedtke, who participated in the negotiation of the Floating Agreement, testified that Hydraulic dredging purposely was excluded from its coverage because three of the four signatory companies had 2 See International Longshoremen's and Warehousemen's Union, Local No. 29 (Van Camp Sea Food Company. Division of Ralston Purina Compa- ny), 225 NLRB 624 (1976); Sheet Metal Workers Local Union No. 54 (The Goodyear Tire d Rubber Company and 0. T7: D. Corporation), 203 NLRB 74 (1973). 3 See Local Union No. 334, of the Laborers' International Union of North America, AFL-CIO (Dynamic Construction Co.), 236 NLRB 1131 (1978). ' N.L.R.B. v. Radio & Television Broadcast Engineers Union. Local 1212, International Brotherhood of Electrical Workers AFL-CIO (Colum- bia Broadcasting System], 364 US. 573 (1961). I International Association of Machinists Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402 (1962). 860 OPERATING ENGINEERS LOCAL 18 other, long-term historical agreements with Local 25 covering the operation of hydraulic dredges. The Ohio State Highway Heavy Agreement does refer to hydraulic dredging operations. The Employer, however, did not become party to that agreement until more that 1 month after the work in dispute commenced for the 1982 season. In any event, Local 18 Representative Frankhouse testi- fied that the primary purpose for executing that agreement was to cover the work which the Em- ployer was performing for the city of Toledo's sewage treatment plant, and Local 18 Business Agent McMahon testified that the Ohio State Highway Heavy Agreement did not apply to the work engaged in by the Employer at West Harbor. In sum, both by their terms and the parties' past practice, the two collective-bargaining agreements in question cannot be considered to cover the work at issue, and are not determinative of the dispute before us. 2. Employer practice and preference From 1978 until April 1982, the Employer always used employees represented by Local 18 or its sister Operating Engineers Locals 324 and 66 to perform the disputed hydraulic dredge work. As mentioned above, the Employer departed from this past practice when neither Local 18 nor Local 324 would furnish employees in time for the start of the 1982 dredging season at the West Harbor site. The Employer's practice for the years 1978 through 1981 ordinarily would favor awarding the disputed work to employees represented by Local 18, but Respondent abnegated this factor in the spring of 1982 when it refused to dispatch employees to the jobsite. Accordingly, the factor of employer prac- tice favors neither employees represented by Local 18 nor the unrepresented employees in making our determination. With respect to employer preference, it is un- equivocally clear that the Employer wishes to retain the unrepresented employees who are cur- rently performing the disputed work for the re- mainder of the 1982 dredging season. Accordingly, we find that the factor of employer preference favors awarding the disputed work to the unrepre- sented employees, rather than to employees repre- sented by Local 18. 3. Relative skills Employees represented by Local 18 satisfactorily performed the operator and engineer work on the Employer's hydraulic dredges for the years 1978 through 1981, and it is undisputed that such em- ployees could capably man those positions at the West Harbor project. Teamsters Local 486, which is based in Saginaw, Michigan, also has a long his- tory of providing manpower to employers that uti- lize hydraulic dredges in the Great Lakes area. Further, the parties stipulated that the unrepresent- ed employees furnished to the Employer by Team- sters Local 486 are well-qualified and able dredge- men. Accordingly, we conclude that the matter of relative skills is a neutral factor in reaching our de- termination. 4. Economy and efficiency of operation The Employer asserts that, since the unrepresent- ed employees are already on the job performing the disputed work, it is more efficient to permit them to continue the work that they began in April 1982, rather than to substitute three new crews of employees represented by Local 18 for the last sev- eral months of the 1982 dredging season. It is obvi- ous that an award of the disputed work to employ- ees represented by Local 18 would result in the layoff of six unrepresented employees at a relative- ly late time in the dredging season when they will be unable to obtain comparable employment. While the unrepresented employees agreed to man the Employer's dredge with the expectation that they would do so for the duration of the dredging season, employees represented by Local 18 had no expectation of employment on the Employer's dredge, having been told by their Union in the spring that "they would not be dispatched to the hydraulic dredge work at West Harbor in the 1982 season." We therefore find that the factors of job impact and economy of operation favor awarding the disputed work to the unrepresented employees presently performing the work. Conclusion Upon the record as a whole, and after full con- sideration of all relevant factors, we conclude that the unrepresented employees of the Employer re- ferred to it by Teamsters Local 486 are entitled to perform the work in dispute. We reach this conclu- sion relying on the factors of employer preference and economy and efficiency of operation, including job impact. 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. Unrepresented employees of Luedtke Engi- neering Company are entitled to perform the off- 861 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shore and onshore work of the operator and engi- neer related to the Employer's operation of its hy- draulic dredge in West Harbor, Ohio. 2. International Union of Operation Engineers, Local Union No. 18, 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 disputed work to employees repre- sented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Union of Operating Engineers, Local Union No. 18, AFL-CIO, shall notify the Regional Director for Region 8, in writing, whether or not it will refrain from forcing or requiring Luedtke Engineering Company, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work in a manner inconsistent with the above determina- tion. 862