Operating Engineers Local 825 (Harms Construction)

OPERATING ENGINEERS ' LOCAL 825 (HARMS CONSTRUCTION) 833 Local 825, A, ' B, C, D and R, International Union of Operating Engineers, AFL-CIO and George Harms Construction ' ,Co., Inc. and its wholly- owned subsidiary G. R. Roberts Construction Co., Inc. and United Steelworkers of America, Local J5024, AFL-CIO, CLC. Case 4-CD-627 14 December 1984 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS The charge in this 10(k) proceeding was filed 11 April 1984 by the Employer, alleging that the Re- spondent, Local 825, A, B, C, D, and R, Interna- tional Union of Operating Engineers, 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 employees it represents rather than to employees represented by United Steelworkers of America, Local 15024, AFL-CIO, CLC (Steelworkers). The hearing was held 9 August 1984 before Hearing Officer David Berger. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board affirms the hearing officer's rulings, finding them free from prejudicial error. On the entire record, the Board makes the following find- ings. I. JURISDICTION The Company, George Harms Construction Company, Inc. and its wholly-owned subsidiary, G. R. Roberts Construction Company, Inc., a New Jersey corporation, is engaged in heavy and high- way construction, from its P.01 Box 817,, Farming- dale, New Jersey 07727 location. During the '12- month period prior to the hearing, the Employer's gross volume of btisiness was in 'excess of $500,000 and it purchased and received supplies valued in excess. of $50,000 directly ,from points located out- side the State of New Jersey. The parties stipulate, and we find, that the Employer is engaged in com- inerce within the meaning of Section 2(6) and (7) of the Act and that the Operating Engineers and Steelworkers are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute In 1983 the Employer was low bidder on a con- tract to replace the Bndgeboro Bridge on Route 130 which connects Delran Township with De- lanco and Willingboro Townships. The contract is with the New Jersey Department of Transportation and the project is funded with both Federal and state funds. Work began on the project in November 1983 and the target date for completion is December 1986. In addition to building a new bridge, the Em- ployer is involved in road construction at either end of the bridge, including, filling, grading, paving, and curb work. The Employer hired labor to do the work on its project through two wholly owned, subsidiaries, G. R. Roberts Construction Company, Inc. (a party to this proceeding), and George Harms Excavating Corporation. The Em- ployer employed employees represented by the Steelworkers to perform various tasks, including the operation of heavy and power-driven equip- ment. There were approximately 60 pieces of such equipment on the jobsite, including cranes, bulldoz- ers, graders, bucket loaders, compaction equipment loaders, and a concrete plant. According to testimony of the Employer's presi- dent George Harms in late September 1983 he met with Pat Campbell and Kenneth White, business manager and business agent, respectively, for the Operating Engineers. Campbell told Harms that he wanted to negotiate a contract for the Operating Engineers to operate heavy and power-driven equipment on the instant project. Harms replied that he could not negotiate such a contract with the Operating Engineers because he (i.e., the Em- ployer) already had a contract with the Steelwork- ers covering the work in dispute. According to Harms, Campbell asserted that the Employer's con- tract with the. Steelworkers was "no longer any good," because large bridge projects such as the in- stant one were "his [i.e., Campbell's] ballgame and we [i.e., Employer] had to employ his people to run the equipment." Harms offered to employ a couple of operating engineers. Campbell declared that to be "unacceptable." Instead, Campbell sug- gested that he would take the Employer's steel- workers into the Operating Engineers, and then the Employer could negotiate a contract with the Op- erating Engineers. Harms declined, and the meet- ing ended. Work began on the project shortly thereafter, in November 1983, with the Employer's employees represented by the Steelworkers performing, • the work in dispute. During the first week of January 1984 1 Campbell and White came te the jobsite. Campbell again sug- 1 Unless otherwise indicated, all dates are in 1984 273 NLRB No. 111 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gested that Harms negotiate a contract with the Operating Engineers. Harms again offered to hire a couple of employees represented by the Operating Engineers, but Campbell indicated that that was not an adequate solution. Campbell advised Harms to do what Harms thought he should do and that Campbell in turn would "do what he had to do." The following week, White came to the jobsite with a photographer who took pictures of employ- ees' personal vehicles as well as pictures of con- struction equipment at the site. There was no further contact between the Em- ployer and the Operating Engineers until April. According to Harms, rumors were circulating on 5 April that there was to be a "mass demonstration" on Saturday, 7 April, at the jobsite. On 7 April there was a demonstration of 400 to 500 people picketing the site. The picket signs read: NOTICE TO THE PUBLIC EMPLOYEES OF GEO. HARMS CONST. CO. INC. OPERATING POWER DRIVEN CONSTRUCTION EQUIPMENT AT THIS JOB SITE ARE RECEIVING LESS THAN LOCAL 825's AREA STANDARD WAGES AND CONDITIONS WE HAVE NO DISPUTE WITH ANY OTHER EMPLOYER AT THIS SITE - LOCAL 825, A-B-C-D&R INTERNATIONAL UNION OF OPERATING ENGINEERS AFL-CIO The Employer immediately obtained a court order limiting the number of pickets to 30. From 7 April onward, there was daily picketing of the job- site. As a result of the picketing a number of the Employer's suppliers refused to make deliveries, delaying work on the project. On 11 April the Employer filed an unfair labor practice charge against the Operating Engineers, alleging that the picketing was in violation of Sec- tion 8(b)(4)(D) of the Act. On 23 April the Region- al Director for Region 4 sought a temporary in- junction against the picketing under Section 10(1) of the Act in the United States District Court for the District of New Jersey. On 3 May, in a letter to the Regional Director, the Operating Engineers "specifically disclaim[ed] any and all interest in" the work in dispute. Subsequently, the Operating Engineers and the Regional Director entered into a consent decree of the Federal district court, under the terms of which the Operating Engineers were enjoined from picketing the jobsite for a period of 14 days, from 5 through 19 May. On 21 May the Operating Engineers resumed picketing at the jobsite with the same signs that had been used prior to the hiatus. On 6 July the Regional Director filed a motion for further injunc- tive relief under Section 10(1) of the Act. On 16 July the court granted the Regional Director's motion, and issued an order enjoining the Operat- ing Engineers from engaging in picketing the job- site for a period of 30 days, from 16 July through 16 August. 2 On 23 July in another letter to the Regional Di- rector, the Operating Engineers called the Region- al Director's attention to its earlier, 3 May, specific disclaimer of interest in the work in dispute, assert- ed that there was therefore no controversy over the assignment of the- work in dispute, and request- ed that the hearing in the instant case be "dis- missed." The Operating Engineers' request was not granted. B. Work in Dispute The disputed work involves the operation of heavy and power-driven equipment for George Harms Construction Company, Inc. and its wholly- owned subsidiary G. R. Roberts Construction Company, Inc., at the Bridgeboro Bridge construc- tion site on Route 130 in Willingboro, Delran, and Delanco Townships, New Jersey. C. Contentions of the Parties None of the parties to this proceeding filed briefs with the Board. However, statements of the par- ties' positions were made at the hearing. The Employer contends that a violation of Sec- tion 8(b)(4)(D) has been committed, that there is a dispute over the above-described work, and that the Operating Engineers' disclaimer is a hollow dis- claimer. The Employer contends further that the work should be assigned to the employees repre- sented by the Steelworkers, and that its collective- bargaining agreement with the Steelworkers, com- pany preference and past practice, and economy and efficiency of operation all favor that result. As seen, prior to the hearing the Operating Engi- neers had specifically disclaimed any interest in the work in dispute. At the start of the 9 August hear- ing, the attorney for the Operating Engineers stated that "We specifically, and unequivocally dis- claim any interest" in the work in dispute. The Op- erating Engineers steadfastly adhered to that dis- claimer during the hearing. The Operating Engi- 2 The hearing in this case closed on 9,August, at which time the 30- day injunction was still in effect OPERATING ENGINEERS LOCAL 825 (HARMS CONSTRUCTION) 835 neers argued that its picketing was at all times per- missible "area standards" picketing, and that it at no time had an unlawful object of forcing the Em- ployer to assign the work in dispute to employees represented by the Operating Engineers rather than to the Employer's employees represented by the Steelworkers. In the alternative, the Operating En- gineers argued that the initial 14-day hiatus in pick- eting, from 5 through 19 May, and the 16 July through 16 August hiatus in picketing in effect at the time of the 9 August hearing, brought on by the court injunction, "wiped the slate clean" of any arguably unlawful aspects of its picketing before and after the first hiatus; that in the absence of any evidence of potentially unlawful conduct on its part subsequent to the start of the 30-day hiatus in picketing on 16 July, there was no reason for con- ducting the hearing and it should be adjourned. The Operating Engineers' request for adjourn- ment of the hearing was not granted. Upon com- pletion of preliminary matters and statements of position, the attorney for the Operating Engineers, consistent with his position as summarized above, voiced a standing objection in advance to the intro- duction of any evidence about events prior to 16. July. Following the hearing officer's overruling of that objection, the attorney for the Operating Engi- neers left the hearing room and remained away for the duration of the hearing. With regard to the assignment of the work in dispute, the Steelworkers asserted at the hearing that they agreed completely with the position taken by the Employer. D. Applicability of the Statute Before the Board may proceed with a determina- tion of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that: (1) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and (2) there is no agreed-upon method for the voluntary resolution of the dispute. With respect to (1) above, the record establishes that in September 1983 and again in January 1984, before the start of its alleged area standards picket-, ing in April 1984, the Operating Engineers de- manded that the disputed work be assigned to em- ployees it represented, rather than to employees represented by the Steelworkers. On 7 April the Operating Engineers began picketing the jobsite and several suppliers refrained from making deliv- eries. As noted above the Operating Engineers later stopped picketing for 14 days pursuant to a consent decree and sent a letterr to the Regional Di- rector disclaiming the disputed work. After the 14- day hiatus they began picketing again carrying the same signs as they had carried prior to the hiatus. The Board in a 10(k) proceeding is only required to determine that reasonable cause exists to believe that Section 8(b)(4)(D) of the Act has been violat- ed. Here, the Operating Engineers made unequivo; cal demands for the work in dispute in September 1983 and again in Januar}, 1984. Although the Op- erating Engineers subsequently disclaimed the work in dispute at the time of its first hiatus in picketing pursuant to the May consent decree, and again disclaimed the work in dispute at the time of its second hiatus in picketing pursuant to the July court injunction, these disclaimers do not per se "wipe the slate clean" of the evidence of an unlaw- ful object shown by the earlier demands for the work in dispute. Moreover, the validity of the Op- erating Engineers' asserted area standards picketing is undermined by the fact that it made no attempt whatsoever to determine the accuracy of its claim that the Employer was paying less than area stand- ard wages. Indeed, had the Operating Engineers simply inquired, it Would have found out that, in view of the combined Federal and state-funding of the instant project, the Employer was required by both Federal and state statute to pay its employees on the project the prevailing area standard wages and benefits—which, as it turns out, are .no less than the wages and benefits that the .Operating En- gineers itself would receive for doing the work in dispute. 3 There is no evidence that the Employer failed at any time to pay the required area standard wages—a fact which the . Operating Engineers would have learned had it asked prior to starting, or at any time during, its alleged area standards picketing. In consideration of the above circumstances, we find reasonable cause to believe that the Operating Engineers' alleged area standards picketing was pretextual in nature, designed to mask an unlawful object of obtaining the work in dispute for its members, as evidenced by the demands for that work Made by the Operating Engineers prior to the onset of its alleged area .standards picketing. In this regard, we find that the Operating Engineers' initial 3 May disclaimer of the work in dispute was tainted by what we have reason to believe was sub- sequent pretextual area standards, picketing follow- ing the first hiatus, and that the validity of the Op- erating Engineers subsequent disclaimers on 23 July and again at the hearing are materially under- 3 , The Employer's president George Harms testified that the New Jersey prevailing wage law as well as the Federal Davis-Bacon Act ap- plied to the wages it paid on the instant project According to Harms, the prevailing wages and benefits paid pursuant to the state statute were the local union wage rates, i e, in this case, the Operating Engineers' wage and benefit rates Also according to Harms, the New Jersey prevailing wage rate on this project was higher than the wage rate that would have been required under the Davis-Bacon Act 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mined by the apparent invalidity of the initial dis- claimer. In sum, we find there is reasonable cause to be- lieve that Section 8(b)(4)(D) of the Act has been violated and that the Operating Engineers contin- ues to claim the work in dispute. With respect to an agreed-on method for the voluntary resolution of the dispute, there is no evi- dence in the record and no party otherwise con- tends that such a method binding on all parties exists for the voluntary resolution of this dispute. We therefore 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 af- firmative award of disputed work after considering various factors. NLRB v. Electric 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 bal- ancing the factors involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135' NLRB 1402 (1962). The following factors are relevant in making the determination of this 'dispute. 1. Certification and collective-bargaining agreement There is no evidence that either of the labor or- ganizations concerned herein has been certified by the Board as the collective-bargaining representa- tive for a unit of the Employer's employees. G. R. Roberts Construction Company, Inc., the wholly-owned subsidiary of the Employer respon- sible for performance of the work in dispute, has had a collective-bargaining agreement with the Steelworkers for about 12 years. The most recent agreement covers the period from 1 January 1982 to 31 December 1984. The agreement covers all persons employed by G. R. Roberts in the per- formance of construction work including employ- ees who operate heavy and power-driven equip- ment. - The Employer has no collective-bargaining agreement with the Operating Engineers. Accord- ingly, while there are no certifications which would favor award of the work to employees rep- resented by either labor organization, the collec- tive-bargaining agreement between the Employer and the Steelworkers favors an award of the dis- puted work to employees represented by the Steel- workers. ' 2. Company preference and past practice The Employer's president Harms testified that during the past 4 years the Employer has complet- ed three similar bridges. All three involved the same kind of work as the Bridgeboro Bridge in- cluding the operation of heavy and power-driven equipment. On these and other construction projects over many years, the Employer has em- ployed employees represented . by the Steelworkers to operate the heavy and power-driven equipment. Harms testified that the Employer has been fully satisfied with the work performed by employees represented by the Steelworkers, that they are effi- cient, multiskilled, and "get the work done" and the Employer prefers they be assigned the work in dispute. Accordingly, we find that company prefer- ence and past practice favor award of the work to employees represented by the Steelworkers. 3. Area and industry practice The record does not establish the existence of ,a particular area or industry practice of assigning the work in dispute to employees represented by either the Steelworkers or Operating Eningeers. Accord- ing to Harms, employees represented by the Oper- ating Engineers as well as employees represented by the Steelworkers operate heavy and power- driven equipment in the area. Accordingly, this factor does not contribute to the determination of the present dispute. 4. Relative skills Harms testified that its employees represented by the Steelworkers have operated heavy and power- driven equipment in a satisfactory manner, and that their skills and abilities are excellent. However, we also note that, according to Harms, employees rep- resented by the Operating Engineers also operate heavy and power- driven equipment in the local area. Accordingly, it is reasonable to infer that em- ployees represented by the Operating Engineers also possess the requisite skills to perform the work in dispute in a satisfactory manner. Accordingly, we find that the factor of relative skills does not favor the award of the work in dispute to either Union. 5. Economy and efficiency of operations The Employer asserts that working with employ- ees represented by the Steelworkers is more effi- cient and economical. However, the Employer pre- sented no basis for this belief. Accordingly, the Employer's view is considered in relation to Em- ployer preference. As to efficiency and economy, there is nothing in the record that indicates this OPERATING ENGINEERS LOCAL 825 (HARMS CONSTRUCTION) 837 factor favors award of the work in dispute to em- ployees represented by either Union. Conclusions After considering all the relevant factors, we conclude that employees represented by the United Steelworkers of America, Local 15024, AFL-CIO, CLC are entitled to perform the work in dispute. We reach this conclusion relying on the collective- bargaining agreement and the Employer's prefer- ence and past practice. In making this determina- tion, we are awarding the work to employees rep- resented by the United Steelworkers of America, Local 15024, AFL-CIO, CLC not to that Union 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 following Determination of Dispute. 1. Employees of the George Harms Construction Company, Inc. and its wholly-owned subsidiary G. R. Roberts Construction Company, Inc. represent- ed by the United Steelworkers of America, Local 15024, AFL-CIO, CLC are entitled to perform the operation of heavy and power-driven equipment for George Harms Construction Company, Inc. and its wholly-owned subsidiary G. R. Roberts Construction Company, Inc. at the Bridgeboro Bridge construction site on Route 130 in Willing- boro, Delran, and Delanco Townships, New Jersey. 2. Local 825, A, B, C, D, and R, International Union of Operating Engineers, AFL-CIO is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force George Harms Construction Company, Inc. and its wholly-owned subsidiary G. R. Roberts Construction Company, Inc. to assign the disputed work to employees represented by it. 3. Within 10 days from this date, Local 825, A, B, C, D and R, International Union of Operating Engineers, AFL-CIO shall notify the Regional Di- rector for Region 4 in writing" whether it will re- frain from forcing the Employer, by means pro- scribed by Section 8(b)(4)(D), to assign the disput- ed work in a manner inconsistent with this determi- nation.