Operating Engineers Local 150 (Royal Components)

OPERATING ENGINEERS LOCAL 150 (ROYAL COMPONENTS, INC.) 348 NLRB No. 97 1369 International Union of Operating Engineers, Local 150 and Royal Components, Inc., and Interna- tional Brotherhood of Teamsters, Local 786. Case 13–CD–751 December 29, 2006 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS SCHAUMBER, KIRSANOW, AND WALSH This is a jurisdictional dispute proceeding under Sec- tion 10(k) of the National Labor Relations Act (the Act). Royal Components, Inc. (the Employer) filed a charge on July 17, 2006,1 alleging that the Respondent, Interna- tional Union of Operating Engineers, Local 150 (Engi- neers or Local 150), violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employ- ees it represents rather than to employees represented by International Brotherhood of Teamsters, Local 786 (Teamsters or Local 786). The hearing was held on Au- gust 8 before Hearing Officer Barbara J. Williams. Thereafter, the Employer filed a brief in support of its position, and Local 150 filed a posthearing brief.2 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 re- cord, the Board makes the following findings. I. JURISDICTION The Employer, an Illinois corporation, is engaged in the business of manufacturing construction supplies. During the 2005 calendar year, a representative period, the Employer, at its facility currently located at 2210 West 162nd Street, Markham, Illinois, purchased and received goods, products, and materials valued in excess of $50,000 directly from points outside the State of Illi- nois. The parties stipulated, and we find, that the Em- ployer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Engineers and the Teamsters are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute The Employer manufactures construction supplies, such as wall panels, deck panels, and roof trusses. Using trucks with attached cranes, also called “hoisting equip- ment,” drivers employed by the Employer deliver these supplies to construction sites and unload the supplies using the cranes. The Employer is a signatory to a col- 1 Unless otherwise indicated, all dates refer to 2006. 2 Local 786 did not file a posthearing brief. lective-bargaining agreement with Local 786. Since 1988, the Employer has used Teamsters-represented em- ployees to deliver and unload the construction supplies. The collective-bargaining agreement between the Em- ployer and Local 786 covers the crane truckdrivers. The Employer does not have a contract with Local 150. At all relevant times, Teamsters-represented employees have performed the work in dispute. In June, Local 150 began picketing at the Employer’s Markham, Illinois facility. The picketing continued through at least July 17. During this period, at either the Markham facility or one of the Employer’s jobsites, a Local 150 representative stated to the Employer’s em- ployees that Local 150 wanted the Employer’s “crane work.” Local 150 also circulated leaflets to customers of Centex, a general contractor for whom the Employer manufactures supplies, informing the customers of Local 150’s labor dispute with the Employer and urging them not to patronize Centex until it promised not to subcon- tract work to “labor law violators.” On July 17, the Em- ployer filed the instant charge, asserting that Local 150’s actions violated Section 8(b)(4)(D) of the Act. B. Work in Dispute The Board’s notice of hearing in this proceeding stated that the dispute concerned the following assignment of work: “The operation of boom cranes to place products of Royal Components on construction jobsites located in Yorkville, Illinois and Elgin, Illinois.” At the hearing, however, the parties stipulated to a narrower statement of the work in dispute, agreeing that the disputed work was “the driving of material delivery trucks with hoisting equipment attached by employees of Royal Components and the unloading of materials with those trucks at any place on the [Yorkville or Elgin] jobsite as directed by the contractor’s supervisors.”3 Pursuant to the parties’ stipulation at the hearing, we find that the narrower statement of disputed work is the work in dispute for the purposes of resolving this case. See Operating Engi- neers Local 150 (R & D Thiel), 345 NLRB No. 94, slip op. at 2 (2005). C. Contentions of the Parties The Employer contends that all of the prerequisites for 10(k) jurisdiction have been satisfied: Local 150 as- serted a claim to the crane work being performed by Teamsters-represented employees; Local 150 picketed the Employer in support of that claim; and there is no agreed-upon method for voluntary adjustment of the 3 The parties further agreed that the disputed work did not include the use of the trucks “to (1) hoist materials or equipment onto scaffolds or on to the building structure, (2) hoist materials or equipment into place, or (3) lower materials and equipment into place.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1370 work in dispute. As to the merits of the dispute, the Em- ployer asserts that the work in dispute should be assigned to Teamsters-represented employees based on the collec- tive-bargaining agreement between it and the Teamsters, employer preference, past practice and current assign- ment, industry practice, relative skills and training, and economy and efficiency. The Employer also requests that the Board issue a broad award of the work in dispute to the Teamsters-represented employees and a 10(j) in- junction4 restraining Local 150 from claiming the Em- ployer’s crane work and from picketing against the Em- ployer in order to obtain that work. Local 150 contends that no competing claims to the disputed work exist and therefore moves to quash the notice of hearing. In this regard, Local 150 acknowl- edges that, at the hearing, the parties stipulated to a nar- rower statement of the work in dispute. Notwithstanding this stipulation, however, Local 150 contends that it has effectively disclaimed any interest in the disputed work as stipulated to by the parties, so there are no competing claims for that work. On the merits of the dispute, Local 150 assents to an award of the work described in the par- ties’ stipulation to Teamsters-represented employees based on current assignment and employer preference. D. Applicability of the Statute Before the Board may proceed with determining a dis- pute pursuant to Section 10(k) of the Act, there must be reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated. This standard requires finding that there is reasonable cause to believe that there are competing claims to the disputed work among rival groups of employees and that a party has used proscribed means to enforce its claim to the work in dispute. See Electrical Workers Local 3 (Slattery Skanska), 342 NLRB 173, 174 (2004). Additionally, the Board will not proceed under Section 10(k) if there is an agreed-upon method for voluntary adjustment of the dispute. Id. 1. Competing claims to the work in dispute At the hearing, Local 150 contended that it had not ever made a claim for the work in dispute. We reject that contention. During the course of Local 150’s picketing of the Employer, a Local 150 representative asserted a claim to the Employer’s “crane work.” That work was then being performed by employees represented by Local 786. The Board has long held that a group of employees performing work is evidence of their claim to that work. See Chicago and Northeast Illinois District Council of 4 The Board, of course, has no authority to issue injunctions under Sec. 10(j). The General Counsel, through his Regional staff, may seek an injunction under Sec. 10(j) in Federal district court. We explain the procedure below. Carpenters (Prime Scaffold), 338 NLRB 1104, 1106 (2003), and cases cited therein. Thus, Local 150’s claim to the “crane work” competed with Teamsters’ claim to the work. Local 150 contends that the Board should quash the notice of Section 10(k) hearing because it has effectively disclaimed any interest in the disputed work as stipulated to by the parties. To be effective, a disclaimer must be a “clear, unequivocal, and unqualified disclaimer of all interest in the work in dispute.” Operating Engineers Local 513 (Thomas Industrial Coatings), 345 NLRB 990, 992 (2005) (citing Operating Engineers Local 150 (Interior Development), 308 NLRB 1005, 1006 (1992), and Operating Engineers Local 150 (Austin Co.), 296 NLRB 938, 939 (1989)). As discussed above, while picketing the Employer, Local 150 generally claimed the Employer’s “crane work.” Although the Board’s notice of hearing broadly described the disputed work as the “operation of boom cranes,” Local 150 made no request to amend the “broad” notice prior to the hearing. At the start of the hearing, Local 150 stipulated to the narrowed statement of disputed work, but subsequently, at the end of the hearing, asserted that it did not claim, and had not ever claimed, the disputed work as stipulated to by the parties. In these circumstances, we find that Local 150’s purported disclaimer of the disputed work, belatedly as- serted at the end of the Section 10(k) hearing, was inef- fective. See Electrical Workers IBEW Local 98 (Lucent Technologies), 324 NLRB 230, 231 (1997). Accord- ingly, we find that competing claims to the disputed work exist. 2. Use of proscribed means As discussed above, Local 150 began picketing the Employer in June. During the picketing period, a Local 150 representative asserted a claim to the Employer’s “crane work.” In these circumstances, the representa- tive’s statement indicated that there was a jurisdictional objective to Local 150’s picketing. See Thomas Indus- trial Coatings, supra at 992. Local 150 does not claim otherwise. Accordingly, we find that there is reasonable cause to believe that Local 150 used proscribed means to enforce its claim to the disputed work. See Electrical Workers Local 134 (Pepper Construction Co.), 339 NLRB 123, 125 (2003) (finding reasonable cause to be- lieve that a union used “proscribed means” where an object of its picketing was to obtain the assignment of disputed work). 3. No voluntary method for adjustment of dispute The parties stipulated that there is no agreed-upon method for voluntary adjustment of the dispute within the meaning of Section 10(k). Because we also find OPERATING ENGINEERS LOCAL 150 (ROYAL COMPONENTS, INC.) 1371 there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred, we therefore find that the dispute is properly before the Board for determina- tion, and we deny Local 150’s motion to quash the notice of hearing. E. Merits of the Dispute As we stated in Slattery Skanska, supra at 175–176, [t]he grant of authority in Section 10(k) for the Board to ”hear and determine” jurisdictional disputes requires the Board to make an affirmative award of the disputed work to one of the groups of employees involved in the dispute. While the Act does not set out the standards the Board is to apply in making this determination, the Supreme Court has explained that ”experience and common sense will supply the grounds for the per- formance of this job which Congress has assigned the Board.” Id. at 175 (citations omitted). Consistent with the Court’s directive, the Board has held that in making the determina- tion that the Supreme Court found was required by Section 10(k), “it would consider ‘all relevant factors,’ and that its determination in a jurisdictional dispute would be an act of judgment based on common sense and experience, reached by balancing the factors involved in a particular case.” Id. at 175–176 (citations omitted). We have considered the following factors, which we find relevant, and, for the reasons set forth more fully below, we conclude that the Employer’s employees rep- resented by Teamsters are entitled to perform the work in dispute. 1. Certifications and collective-bargaining agreements There is no evidence of any Board certifications con- cerning the employees involved in this dispute. Accord- ingly, we find that the factor of Board certifications does not favor awarding the disputed work to employees rep- resented by either union. See R & D Thiel, supra, slip op. at 4. The Employer’s collective-bargaining agreement with Teamsters covers the Employer’s crane truckdrivers en- gaged in, inter alia, the “delivery, . . . and unloading of [building materials] . . . to construction sites.”5 The Em- 5 The agreement provides, in pertinent part: This Agreement covers truck drivers and drivers operating delivery vehicles equipped with mechanical loading or unloading devices and truck drivers and drivers operating yard tractors, yard loaders, lifts or carriers, and yard cranes used wholly within the confines of Com- pany’s premises and engaged in the delivery, loading and unloading of lumber, lumber products, mill work, trim and building materials from yards, team tracks, or mills owned and/or operated by the Company, ployer does not have a collective-bargaining agreement with Local 150. Accordingly, the factor of collective- bargaining agreements favors awarding the work in dis- pute to Teamsters-represented employees. 2. Employer preference, current assignment, and past practice Consistent with its past practice, the Employer as- signed the disputed work to Teamsters-represented em- ployees and prefers to continue assigning the disputed work to these employees. We find that the Employer’s preference, current assignment, and past practice favor awarding the disputed work to Teamsters-represented employees. 3. Industry practice At the hearing, Employer representatives testified that the Employer’s procedure of having Teamsters- represented employees deliver its products to job sites and unload the products from the delivery truck using the attached crane is consistent with industry practice. Local 150 did not dispute this testimony. Accordingly, we find that the factor of industry practice favors awarding the disputed work to Teamsters-represented employees. 4. Relative skills and training The Employer presented testimony that, prior to oper- ating the cranes involved in performing the disputed work, Teamsters-represented employees receive training and are certified in the crane operation process. Local 150 did not present any evidence on this issue. Accord- ingly, on this record, we find that the factor of relative skills and training favors awarding the disputed work to Teamsters-represented employees. 5. Economy and efficiency of operations The Employer does not employ employees represented by Local 150 and asserts that it is more economical and cost-efficient to assign the disputed work to Teamsters- represented employees than to employees represented by Local 150. According to the Employer, one Teamsters- represented employee can perform all of the disputed work, but assigning the work to Engineers-represented employees would require using two employees and thereby increase the Employer’s labor costs. Local 150 did not dispute the Employer’s position. Accordingly, we find that this factor favors awarding the work in dis- pute to Teamsters-represented employees. or from any other point designated by the Company, to individuals, companies or corporations, and all construction sites, or any other place, as directed by the Company. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1372 Conclusions After considering all the relevant factors, we conclude that Teamsters-represented employees are entitled to continue performing the work in dispute. We reach this conclusion relying on the factors of collective-bargaining agreements, employer preference, current assignment and past practice, industry practice, relative skills and train- ing, and economy and efficiency of operations. In mak- ing this determination, we award the work to employees represented by Teamsters, not to that labor organization or to its members. Scope of the Award The Employer seeks a broad award that encompasses all of the Employer’s jobsites. The Board usually limits 10(k) awards to the jobsite or jobsites where the unlawful 8(b)(4)(D) conduct occurred or was threatened. How- ever, if two prerequisites are met, then the Board may issue a broad award. First, there must be evidence that the disputed work has been a continuous source of con- troversy in the relevant geographic area and that similar disputes may recur. Second, there must be evidence demonstrating the offending union’s proclivity to engage in further unlawful conduct in order to obtain similar work to that in dispute. See Sheet Metal Workers Local 19 (E.P. Donnelly, Inc.), 345 NLRB 960, 965 (2005). We find that the requirements for a broad award have not been satisfied. The Employer has presented no evi- dence that the disputed work in this case is likely to be a continuous source of controversy or that Local 150 has a proclivity to engage in unlawful conduct to acquire the disputed work. Although Local 150 was recently in- volved in a case before the Board where the work in dis- pute involved crane work, see R & D Thiel, supra, the work at issue in that case was not the same as the dis- puted work at issue here. Lastly, the Employer’s request for a 10(j) injunction should be brought to the Regional Director, not the Board. Under NLRB procedures, if both the Regional Director and the General Counsel determine that 10(j) relief is appropriate, then the General Counsel may re- quest authorization from the Board to seek injunctive relief. If the Board authorizes injunctive proceedings, then the General Counsel, through his Regional staff, files the case with an appropriate Federal district court. See Board’s Rules and Regulations Section 101.37; What Authority Does NLRB Have to Secure Injunctive Relief from a Court?, at www.nlrb.gov/about_us/overview/ fact_sheet.aspx (last visited Nov. 30, 2006). DETERMINATION OF DISPUTE The National Labor Relations Board makes the follow- ing Determination of Dispute. 1. Employees of Royal Components, Inc. represented by International Brotherhood of Teamsters, Local 786 are entitled to drive the material delivery trucks with hoisting equipment attached and to unload the materials with those trucks at any place on the Yorkville, Illinois or Elgin, Illinois jobsites as directed by the contractor’s supervisors. 2. International Union of Operating Engineers, Local 150 is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Royal Components, Inc. to assign the disputed work to employees it represents. 3. Within 14 days from this date, International Union of Operating Engineers, Local 150 shall notify the Re- gional Director for Region 13 in writing whether it will refrain from forcing Royal Components, Inc., by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination.