Operating Engineers Local 150 (Patten Industries)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 348 NLRB No. 33 672 International Union of Operating Engineers, Local 150 and Patten Industries, Inc. and Interna- tional Association of Machinists and Aerospace Workers, Local No. 701. Case 13–CD–746 September 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). Patten Industries, Inc. (Patten Industries) filed a charge on April 26, 2006, alleging that Respondent International Union of Operating Engineers, Local 150 (the Operating Engineers) violated Section 8(b)(4)(D) of the Act by en- gaging in proscribed activity with an object of forcing Patten Industries to assign certain work to employees it represents rather than to employees represented by Inter- national Association of Machinists and Aerospace Work- ers, Local No. 701 (the Machinists). The hearing was held on May 16, 2006 before Hearing Officer Denise R. Jackson-Riley. Thereafter, Patten Industries, the Operat- ing Engineers, and the Machinists each filed a posthear- ing brief. 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 Patten Industries, a Delaware corporation with facili- ties in Illinois and Indiana, is engaged in the sales and service of construction equipment in northern Illinois and northern Indiana. Patten Industries annually provides services valued in excess of $50,000 directly to custom- ers outside the State of Illinois, and annually purchases and receives at its Illinois jobsites goods valued in excess of $50,000 directly from suppliers located outside the State of Illinois. The parties stipulate, and we find, that Patten Industries is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Operating Engineers and the Machinists are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute Patten Industries is engaged in sales and service of Caterpillar construction equipment in northern Illinois and northern Indiana. It employs three types of techni- cians: shop technicians, lube technicians, and field tech- nicians. Shop technicians diagnose and repair heavy equipment that is brought into a shop for service. Lube technicians perform scheduled preventative maintenance on heavy equipment. This work is performed in the field, i.e., on customer jobsites where the equipment is located, but lube technicians regularly return to the vari- ous Patten Industries facilities to replenish supplies and discard used oil. Field technicians repair broken or dam- aged equipment at customer jobsites. Certain repairs cannot be made in the field; thus, field technicians occa- sionally remove broken parts from the equipment in the field, return to the closest Patten Industries facility to make the necessary repairs, and then return to the field to reinstall the repaired part. Patten Industries operates seven facilities; the dispute herein relates only to certain work performed at the facil- ity in Elmhurst, Illinois. The Machinists represents sepa- rate units at five of Patten’s seven facilities, including the Elmhurst facility, where, according to Robert Keppler, the Machinists assistant directing business, it has been “certified” as the employee representative for approxi- mately 45 or 50 years. The most recent collective- bargaining agreement covers a unit of “lead person, ma- chinist, field technician, technician, welder, painter, tool crib attendant, helper . . .” and is effective from October 1, 2005, through September 30, 2010. In 2000 or 2001, Patten Industries purchased a facility in Joliet, Illinois. In March 2001, Patten Industries vol- untarily recognized the Operating Engineers and exe- cuted a collective-bargaining agreement with it covering a unit at Joliet of “Shop Mechanic, Field/Lead Mechanic, Lubeman, Small Equipment Mechanic, Yardworker/ Helper, Apprentice Mechanic. . . . ”1 That collective- bargaining agreement was effective from March 1, 2001 through February 28, 2006, and contained an automatic year-to-year renewal clause. Prior to Patten Industries’ acquisition of the Joliet fa- cility, technicians represented by the Machinists per- formed the duties of field and lube technicians (which include, but are not coextensive with, the work in dispute here) at the Elmhurst facility. After the Joliet facility opened, the Machinists-represented technicians contin- ued performing these duties at Elmhurst. In approxi- mately December 2005, Patten Industries General Man- ager Tom O’Neill informed the Machinists that the field- and lube-technician functions were being transferred to the Joliet and Elburn facilities.2 At the hearing, Service 1 The following year, Patten Industries acquired its facility in Elburn, Illinois, the employees at which are also represented by the Operating Engineers. 2 The record demonstrates that many of the employees who per- formed these functions at Elmhurst followed the work to Joliet and Elburn, and that at least 22 changed their affiliation from the Machin- ists to the Operating Engineers. OPERATING ENGINEERS LOCAL 150 (PATTEN INDUSTRIES) 673 Manager Luke Mueller explained that the field- and lube- technician work was transferred because customers pre- ferred to work with the Operating Engineers, and because customers were not making requests of the Machinists- represented facilities for field- and lube-related services. At the time of the hearing, 37 of Patten Industries’ 40 field technicians and lube technicians were represented by the Operating Engineers and worked out of the Joliet and Elburn facilities. Because these technicians perform the majority of their work in the field, they frequently report directly to the jobsite without first going to a Patten Industries facility. Once in the field, these techni- cians will pick up any necessary parts and perform any necessary duties, including the work in dispute, at the nearest Patten Industries facility. In performing their field duties since December 2005, the Operating Engineers–represented technicians have had occasion to enter the Elmhurst facility to perform the work in dispute. Specifically, Operating Engineers– represented field technicians have brought broken track links in from the field to the Elmhurst facility and used the Track Press to repair them. Also, Operating Engi- neers–represented lube technicians have brought their trucks to the Elmhurst facility and used hoses and pumps there to dump old oil and refill their trucks. The Machin- ists-represented employees at the Elmhurst shop filed several grievances about these “non bargaining-unit em- ployees doing bargaining-unit work.” These grievances were consolidated and set for arbitration. Before the grievances could be arbitrated, Operating Engineers Vice President James Sweeney wrote a letter to Patten Indus- tries stating, in pertinent part: It has come to my attention that the Employer is contemplating the reassignment of certain work per- formed by [the Operating Engineers]-represented employees at the Joliet facility and elsewhere to em- ployees of another bargaining unit. Specifically, it is my understanding that employees of the Patten In- dustries facility in Elmhurst, Illinois, represented by [the Machinists] are claiming work performed by employees represented by [the Operating Engineers] including the dumping and refilling of oil and the use of a [track press]. Please be advised that in the event the Company follows through on its plan to assign [the Operating Engineers] work to another union, [the Operating Engineers] will engage in all lawful means including a strike at Patten locations to protect that work. Shortly thereafter, Patten Industries filed the charge that initiated this proceeding. B. Work in Dispute The Board’s notice of hearing states, and the parties stipulate, that the work in dispute is “the use of hoses and pumps to fill lube trucks and the operation of the Track Press work performed by Patten Industries, Inc. at its jobsite in Elmhurst, Illinois.” The record shows that the location where the work is performed is Patten Indus- tries’ facility in Elmhurst rather than at a jobsite. The record also shows that the work in dispute, as it pertains to “the use of hoses and pumps,” covers not only “fill[ing] lube trucks” but also “dumping” oil removed from serviced machinery. Finally, the record shows, and, in its brief to the Board, Patten Industries takes the posi- tion, that the Track Press work claimed by the Operating Engineers is limited to “the operation of the track press work performed by Patten Industries in repairing track links brought in [to the Elmhurst facility] from the field by a field technician.” Accordingly, we find that the description of the work in dispute set forth in the notice of hearing and stipulated to by the parties is both inaccurate and overly broad, and we revise and narrow it to encompass the following work: “the use of hoses and pumps to dump oil and fill lube trucks at the Patten Industries, Inc. facility in Elm- hurst, Illinois, and the operation of the Track Press for work performed in repairing track links brought to the Elmhurst facility from the field by field technicians.” See Operating Engineers Local 150 (R & D Thiel), 345 NLRB No. 94, slip op. at 2 (2005) (citing Machinists (Hudson General Corp.), 326 NLRB 62, 64 (1998)). C. Contentions of the Parties The Operating Engineers contends that all the prereq- uisites for 10(k) jurisdiction have been satisfied: all par- ties stipulated that (1) there are competing claims for the work in question, (2) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and (3) the parties have not agreed on a method for the voluntary adjustment of the dispute. As to the merits of the dis- pute, the Operating Engineers contends that the work in dispute should be assigned to employees represented by the Operating Engineers, based on the collective- bargaining agreement between Patten Industries and the Operating Engineers, employer assignment, employer preference, relative skills, and economy and efficiency of operations. The Machinists stipulated at the hearing to the prereq- uisites for 10(k) jurisdiction and, on brief, does not dis- pute that this case is properly before the Board for de- termination. As to the merits of the dispute, the Machin- ists contends that the work in dispute should be assigned to employees represented by the Machinists, based on the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 674 collective-bargaining agreement between Patten Indus- tries and the Machinists, Board certification, employer past practice, employer preference, area and industry practice, and economy and efficiency of operations. Patten Industries agrees that all the prerequisites for 10(k) jurisdiction have been satisfied based on the par- ties’ stipulations. Patten Industries contends that the work in dispute should be assigned to employees repre- sented by the Operating Engineers, based on the collec- tive-bargaining agreement between Patten Industries and the Operating Engineers, employer assignment, employer preference, employer past practice, area and industry practice, relative skills, and economy and efficiency of operations. 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 R & D Thiel, supra, 345 NLRB No. 94, slip op. at 3 (cit- ing Electrical Workers Local 3 (Slattery Skanska, Inc.), 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 dis- pute. Id. 1. Competing claims to work in dispute The parties stipulated at the hearing that both unions claim the work in dispute. Accordingly, the existence of competing claims has been established. 2. Use of proscribed means It is undisputed that on April 6, 2006, James Sweeney, vice president of the Operating Engineers, wrote to Patten Industries that “employees . . . represented by [the Machinists] are claiming work performed by employees represented by [the Operating Engineers]” and that “in the event the Company follows through on its plan to assign [the Operating Engineers] work to another union, [the Operating Engineers] will engage in all lawful means including a strike at Patten locations to protect that work.” This threat is sufficient to constitute a viola- tion of Section 8(b)(4)(D) even if it is not followed by other action. See Plumbers Local 562 (Grossman Con- tracting), 329 NLRB 516, 520 (1999). Moreover, all parties stipulated that this threat provides reasonable cause to believe that the Operating Engineers used pro- scribed means to enforce its claim to the work in dispute. 3. No voluntary method for adjustment of dispute All parties stipulated that there is no agreed-upon method for voluntary adjustment of the dispute within the meaning of Section 10(k), and we so find. Accord- ingly, the prerequisites for 10(k) jurisdiction have been established, and the dispute is properly before the Board for determination.3 E. Merits of the Dispute The 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 dis- pute. NLRB v. Electrical Workers Local 1212 (Columbia Broadcasting), 364 U.S. 573, 579 (1961). While the Act does not set out the standards the Board is to apply in making this determination, the Supreme Court has ex- plained that “[e]xperience and common sense will supply the grounds for the performance of this job which Con- gress has assigned the Board.” Id. at 583. Consistent with the Court’s opinion, the Board announced in Ma- chinists Lodge 1743 (J.A. Jones Construction), 135 NLRB 1402, 1410–1411 (1962), that in making the de- termination that the Supreme Court found was required by Section 10(k), the Board 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. See generally R & D Thiel, supra, slip op. at 4. We have considered the following relevant factors, and, for the reasons set forth below, conclude that Patten Industries’ Operating Engineers-represented employees are entitled to perform the work in dispute. 1. Certifications and collective-bargaining agreements Patten Industries has collective-bargaining agreements both with the Machinists and with the Operating Engi- neers. Robert Keppler, assistant directing business for the Machinists, testified that the Machinists is “certified at Elmhurst”; however, the Machinists did not submit a certification into evidence or otherwise demonstrate that the certification covers the work in dispute here. The unit described in Patten Industries’ agreement with the Machinists specifically covers “field technicians” but not “lube technicians.” Nevertheless, the work in dispute 3 We note that the Machinists stipulated at the hearing to each of the prerequisites for 10(k) jurisdiction, and that it has not moved to quash the notice of hearing or otherwise argued that this dispute is not prop- erly before the Board for determination. See Machinists District 190 Local 1414 (SSA Terminal, LLC), 344 NLRB No. 126, slip op. at 3–4 (2005); see also Teamsters Local 107 (Safeway Stores), 134 NLRB 1320 (1961). OPERATING ENGINEERS LOCAL 150 (PATTEN INDUSTRIES) 675 clearly falls within the scope of that agreement, which covers all work “relating to the repair of all construction equipment and attachments, whether in shop or on field job sites.” Further, employees represented by the Ma- chinists at the Elmhurst facility performed the work in question under the terms of that agreement until Decem- ber 2005, when Patten Industries transferred the field technician and lube technician functions to the Joliet and Elburn facilities. On the other hand, Patten Industries’ agreement with the Operating Engineers specifically covers employees classified as “Lubeman,” i.e. lube technicians, and “Field/Lead Mechanic,” but the record does not demonstrate the scope of work covered by that contract.4 Nevertheless, the parties agree that the work in dispute consists of tasks traditionally performed as part of the field duties of lube technicians and field techni- cians, all of whom are now represented by the Operating Engineers. The Board will refuse to give controlling weight to a collective-bargaining agreement executed at a time when employees covered by an existing contract are perform- ing the work in dispute under the terms and conditions set forth in the existing contract. Metal Lathers Local 68 (State Lathing Co.), 153 NLRB 1189, 1194 (1965). Em- ployees represented by the Machinists were performing the work in dispute under the terms and conditions set forth in the Machinists contract with Patten Industries at the time Patten Industries entered into its collective- bargaining agreement with the Operating Engineers. Further, employees represented by the Machinists con- tinued to perform the work in dispute for almost 4 years after Patten Industries executed its agreement with the Operating Engineers. Thus, we do not give controlling weight to the Operating Engineers collective-bargaining agreement. Nevertheless, because both contracts arguably cover the work in dispute, the factor of certification and collec- tive-bargaining agreements does not favor awarding the disputed work to employees represented by either Union. 2. Employer preference, current assignment, and past practice Patten Industries, in accordance with its preference, currently assigns the work in dispute to employees repre- sented by the Operating Engineers. This is a departure from its past practice, which, until approximately De- cember 2005, had been to assign the work to employees represented by the Machinists at the Elmhurst facility. 4 In the agreement, the “Scope of Work” provision states that the scope “shall be as set out in the preamble of this Agreement . . . ”; however, the preamble to the agreement was not submitted into evi- dence. Under that practice, however, those employees per- formed that work as part of their general field duties, i.e., their work in providing lubrication and repair services for machinery at customer jobsites. Those functions have now been transferred to employees represented by the Operating Engineers and are not in dispute here. Thus, no award of the work in dispute will be fully consistent with Patten Industries’ past practice. Accordingly, Patten Industries’ preference and current assignment fa- vor awarding the work in dispute to employees repre- sented by the Operating Engineers, while past practice does not favor awarding the work in dispute to employ- ees represented by either Union. 3. Industry and area practice The record demonstrates that both the Machinists and the Operating Engineers have contracts with employers providing similar services as Patten Industries, and under which employees they represent perform work similar to the work in dispute here. The parties agree that they “share the industry.” Accordingly, the factor of industry and area practice does not favor awarding the work in dispute to employees represented by either Union. 4. Relative skills Neither party presented evidence relevant to training programs specifically pertaining to the work in dispute. The record demonstrates that employees represented by either Union are equally skilled in using the Track Press. Elmhurst Service Manager Mueller testified that the work in dispute, insofar as it pertains to the use of hoses and pumps to fill lube trucks, is either “semi-skilled” or “unskilled” work that employees represented by either of the Unions could perform. Thus, the factor of relative skills does not favor awarding the work in dispute to em- ployees represented by either Union. 5. Economy and efficiency of operations Patten Industries asserts that it can perform the work more efficiently and economically with employees repre- sented by the Operating Engineers. Assigning the work to those employees allows a continuous operation in us- ing the Elmhurst shop equipment to make the repairs necessary for field jobs. Efficiency is promoted when disputed work is assigned to employees who are per- forming other aspects of the project, particularly when the disputed work is incidental to other work performed on the project. Machinists District 118 (Meredith Print- ing), 243 NLRB 892, 896 (1979). The work in dispute here may fairly be characterized as incidental to the field work performed by the lube technicians and by the field technicians. Assigning it to employees represented by the Machinists would reduce the efficiency of both groups of employees. The shop technicians represented DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 676 by the Machinists would have to interrupt their regular work to handle the work in dispute as it came in. The lube technicians and field technicians represented by the Operating Engineers would stand idly while the shop technician performs the work. An assignment is ineffi- cient when one group of employees stands idle while another performs the work. See, e.g., Bricklayers (W.R. Weis Co.), 336 NLRB 699, 702 (2001). Accordingly, this factor supports awarding the work in dispute to em- ployees represented by the Operating Engineers. Conclusions After considering the foregoing factors, we conclude that employees represented by the Operating Engineers are entitled to perform the work in dispute. We reach this conclusion relying on the factors of employer prefer- ence, current assignment, and economy and efficiency of operations. In making this determination, we emphasize that we are awarding the work to employees represented by the Operating Engineers, not to that labor organiza- tion or its members. The determination is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the follow- ing Determination of Dispute: Employees of Patten Industries represented by Interna- tional Union of Operating Engineers, Local 150 are enti- tled to use hoses and pumps to dump oil and fill lube trucks at the Patten Industries facility in Elmhurst, Illi- nois, and to operate the Track Press for work performed by Patten Industries, Inc. at its facility in Elmhurst, Illi- nois in repairing track links brought in from the field by field technicians.