Laborers International Union Of North America, Local 186, Afl-Cio

170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Laborers International Union of North America, Local 186, AFL-CIO and Laquidara, Inc. and International Union of Operating Engineers, Local 106, AFL-CIO. Case 3-CD-580 10 June 1987 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JOHANSEN, BABSON, AND STEPHENS The charge in this Section 10(k) proceeding was filed 10 December 1986 by the Employer, alleging that the Respondent, Laborers International Union of North America, Local 186, AFL-CIO (Labor- ers) violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed ac- tivity with an object of forcing the Employer to assign certain work to employees it represents rather than to employees represented by the Inter- national Union of Operating Engineers, Local 106, AFL-CIO (Operating Engineers). The hearing was held 28 January 1987 before Hearing Officer Jon B. Mackie. All parties appeared and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing on the issues. All parties waived the right to file briefs. 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 fmd- ings. I. JURISDICTION The Company, a New York corporation, is en- gaged in the general contracting business with its principal office in Ballston Spa, New York. During the 12 months preceding the hearing, the Employ- er's gross revenues exceeded $5 million and during that same period the Employer purchased in excess of $50,000 worth of materials and supplies which were shipped directly to its jobsites located in New York State from points outside the State. The par- ties stipulate, and we find, that the Employer is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Laborers and Operating Engineers are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute The Employer is engaged in the heavy construc- tion industry and currently specializes in the con- struction of electrical power plant and related fa- cilities. The Employer on 15 September 1986 1 con- tracted with SNC Company of Albany, New York, to build two hydroelectric power systems. Tunnel- ing work for the lower LaChute portion of the un- derground structure connecting the intake structure and the powerhouse was subcontracted to Louis- burg Construction of LaVal, Quebec, Canada. The Employer's tunneling work includes the dis- puted operation of the locomotive and mucking machine. After the initial vertical shafts were exca- vated to the appropriate depth, tunneling work began on a 2600-foot horseshoe-shaped tunnel. After about 40 feet of tunnel had been cleared, tracks were installed and locomotives and drilling machines were positioned on the tracks. Drilling and blasting were to take place in one arm of the tunnel while mucking of areas already drilled and blasted was to take place in the tunnel's other arm. On completion of the work in each arm of the tunnel, the machines would be switched to the other arm. The mucking machine operates like a front-end loader by lifting its load and dumping the material to be removed into mucking cars or wagons. The locomotive, jumbo drill, mucking ma- chine, and mucking cars all run on tracks, but only the locomotive is self-propelled. At a 6 October prejob conference the Employer signed Laborers' current Heavy and Highway, and Tunnel and Shaft collective-bargaining agreements. The Employer previously had executed Operating Engineers' 1985-1988 Heavy and Highway Con- struction Agreement. Laborers Business Agent Ken Dumas testified that after the meeting, Louisburg's project manager Sam Habib stated that laborers would be performing all shaft or tunnel work on the job, including equipment operation. Laborers advised Laquidara's project manager Michael Johnson, by letter of 10 October, "that all jurisdiction in the tunnel is Laborers." Dumas testi- fied that during a 29 October meeting with the Employer's project superintendent Frank Hamilton, and a Louisburg representative, an agreement was reached that the locomotive and mucking machine were within the Laborers' jurisdiction. About 12 November Operating Engineers Business Manager William LaBarge asked the Employer to assign the disputed work to employees represented by Local 106 in accordance with the 1985-1988 contract. 1 All dates are 1986, unless noted otherwise 284 NLRB No. 17 LABORERS LOCAL 186 (LAQUIDARA, INC.) 171 LaBarge also requested documentation confirming that the work had been given to operating engi- neers. The Employer responded with a letter stat- ing that lain equipment used in the construction of this project that falls within the jurisdiction of Local No. 106 as defined in said agreement is hereby assigned to Local No. 106, whether equip- ment is being used in the tunnel shaft or any and all geographic areas of the project." Project Manager Johnson, at a 20 November meeting to discuss the jurisdictional dispute, as- signed the operation of the locomotive to laborers and postponed assignment of the mucking machine until it arrived and could be looked at. Operating Engineers objected to this assignment, and Labor- ers claimed all tunnel work for laborers. After reviewing the basis for assigning the dis- puted work to laborers, the Employer's principal Peter Laquidara instructed Johnson to change the assignment. Thus, at a 1 December jolbsite confer- ence the Employer announced its decision to assign the work of operating the locomotive and the mucking machine to operating engineers. By 8 De- cember the railroad tracks had been installed and the locomotive, drilling rig, and mucking machine were in position within the tunnel. That same day Laborers Business Agent Dumas advised his stew- ard to stop work if the locomotive and mucking machine were assigned to operating engineers. When, on 9 December, the disputed work was as- signed to an operating engineer, the laborers ceased work. They remained off the job until 11 Decem- ber, returning only after the instant charge was filed. On 12 December the project was closed down completely because of environmental con- cerns and blasting problems. Project Manager Johnson stated that at that time, about 50 days of work remained for completion of the tunnel. B. Work in Dispute The disputed work involves the operation of the locomotive and mucking machine within the tunnel connecting the intake structure and powerhouse of the lower LaChute portion of a hydroelectric power system in Ticonderoga, New York. C. Contentions of the Parties Operating Engineers contends that there is rea- sonable cause to believe that Laborers violated Section 8(b)(4)(D) of the Act by walking off the job because the disputed work had been assigned to operating engineers, rather than to laborers. Thus, Operating Engineers argues that the Board should proceed to the merits of the dispute. Fur- ther, both the Employer and Operating Engineers contend the Board should confirm the Employer's assignment of the work in question to employees represented by Operating Engineers based on appli- cation of the Board's traditional criteria, specifical- ly, the Employer's preference, economy, efficiency, skills, employer and area practice, and the provi- sions of Operating Engineers' collective-bargaining agreement. Laborers contends that the initial assignment of mucking machine and locomotive work to employ- ees represented by it was appropriate and that the reassignment to the operating engineers should be rescinded. Laborers argues that the Tunnel and Shaft Agreement gives it jurisdiction over all work done in a tunnel, including the disputed operation of the locomotive and the mucking machine, and entitles it to "the operation of all air, gas, electric, oil and other types of motor driven tools." In this regard, Laborers contends that the mucking ma- chine and locomotive are tools, not equipment. La- borers also relies on the availability of skilled em- ployees, an arbitration award, and the expressed preference of the subcontractor—Louisburg- which is directly supervising the tunnel 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)(4)(D) has been violated and that the parties have not agreed on a method for the voluntary adjustment of the dis- pute. The record shows, and Laborers official Dumas admits, that pursuant to Laborers' directions, the employees it represents ceased working at the job- site on 9 December because an operating engineer had been assigned to work in the tunnel. The la- borers did not return to work until 11 December, following the filing of the Employer's charge in this case. The work stoppage was consistent with Laborers' insistence at all material times that labor- ers were entitled to all the work in the tunnel. Ac- cordingly, we find that an object of the Laborers' work stoppage on 9 and 10 December was to force the Employer to assign the disputed work to em- ployees represented by it, rather than to employees represented by the Operating Engineers. In view of the foregoing, we find that reasonable cause exists to believe that SectioU 8(b)(4)(D) of the Act has been violated and that because there is no agreed-upon method for the v,luntary adjust- ment of the dispute to which all parties are bound, we conclude that this dispute is properly before the Board for determination under Section 10(k) of the Act. 172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD E. Merits of the Dispute Section 10(k) requires the Board to make an af- fffmative award of disputed work after considering various factors. NLRB v. Electrical Workers 1BEW 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 1 743 (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 agreements Neither Laborers nor Operating Engineers has been certified by the Board as the bargaining repre- sentative for the Employer's employees, and thus certification is not a factor favoring either group of employees. The Employer is a party to current collective- bargaining agreements with both Laborers and Op- erating Engineers. The Employer's Tunnel and Shaft Agreement with Laborers states that it covers all "Free Air Tunnel and Shaft Construc- tion," including "all work defined within the con- tract documents as being a tunnel or shaft." The contract's definition of tunnel and shaft construc- tion is extensive and includes "the operating of all air, gas, electric, oil and other type of motor driven tools." As noted above, Laborers takes the position that the locomotive and mucking machine are tools, not equipment. Operating Engineers' Heavy and Highway Agreement with the Employer provides that the agreement covers hydroelectric projects and specif- ically includes locomotive operator and mucking machine operator as covered classifications. Although Laborers' agreement provides for ju- risdiction over a broad scope of tunnel work, no- where does the agreement specify operation of a locomotive or mucking machine as covered work. Conversely, Operating Engineers' agreement spe- cifically sets forth the disputed work as covered classifications. Accordingly, we find that the factor of collective-bargaining agreements favors an award of the work to employees represented by Operating Engineers. 2. Company preference and past practice The Employer has expressed its preference that employees represented by Operating Engineers per- form the work in dispute. The Employer has not previously used tracks, locomotives, or mucking machines in a tunnel. The most analogous piece of equipment previously utilized by the Employer in a tunnel is a front-end loader, which was operated by operating engineers. The record further shows that anytime the Employer has used equipment in a tunnel on prior projects, such equipment has been operated by operating engineers. Accordingly, we conclude that the factor of company preference, while not controlling, favors awarding the disputed work to employees repre- sented by Operating Engineers. We further find that the Employer's past practice tends to favor an award of the disputed work to employees repre- sented by Operating Engineers. 3. Area and industry practice Operating Engineers' business agents from New York City, Buffalo, and Rochester, New York, as well as from the local area, testified that it is the longstanding practice at all tunnel projects with which they were familiar in New York State that operation of locomotives and mucking machines is assigned to operating engineers. Employees repre- sented by Operating Engineers operated both the locomotive and the mucking machine used in the tunnel work at the Gilboa Dam project near Potts- ville, New York, from 1969 to 1974. Louisburg's project manager Habib testified that, based on his experience, operation of a locomotive and mucking machine in a tunnel has been performed by labor- ers. His experience, however, was gained exclusive- ly in Canada. We find that the factor of area prac- tice favors awarding the disputed work to employ- ees represented by Operating Engineers and that the factor of industry practice is inconclusive. 4. Relative skills Laborers and Operating Engineers each present- ed witnesses who testified that it only takes a couple of hours to learn how to operate the loco- motive. Operating Engineers' witnesses, however, testified without contradiction that the mucking machine is a relatively complicated, dangerous ma- chine, that requires experience and training to op- erate. Operating Engineers' training coordinator Frank Lorino testified that specific training in the operation of the locomotive and mucking machine is provided as part of the Operating Engineers' ap- prentice program. In addition, business agents from several New York State locals of the Operating Engineers testified concerning the extensive experi- ence that operating engineers have in operating equipment identical to that involved here. Laborers Business Agent Dumas testified that he had qualified laborers available for assignment to the locomotive and mucking machine. He stated, however, that to his knowledge none of the mem- LABORERS LOCAL 186 (LAQUIDARA, INC.) 173 bers of Local 186 had ever operated a mucking ma- chine. We find that the factor of relative skills favors an award of the disputed work to employees repre- sented by Operating Engineers. 5. Economy and efficiency of operations Employer officials testified that operating engi- neers could perform the work at issue more effi- ciently than laborers because of operating engi- neers' greater familiarity with the mucking machine and the fact that usually the same employee oper- ates both the locomotive and the mucking machine. Thus, we find that the factors of economy and effi- ciency of operations favors employees represented by Operating Engineers. 6. Joint Board and arbitration determinations Operating Engineers placed in evidence the "Green Book," which is a compilation of decisions rendered by the AFL-CIO's Building and Con- struction Trades Council giving certain jurisdiction to certain crafts or trades. Specifically, Operating Engineers cited a resolution in the Green Book ac- cording to the Operating Engineers' predecessor jurisdiction over the "motive power of all" ma- chines "used on construction work." Operating En- gineers also placed in evidence the Building Trades Charter Application and grant to its predecessor organization of jurisdiction over all those engaged in the operation of engines and machines on build- ing and construction work, including dinky loco- motives. In addition, Operating Engineers placed hi evidence three National Joint Board decisions which awarded the operation of locomotives or mucking machines to operating engineers. Laborers placed in evidence the AFL charter of its predecessor organizations showing general juris- diction over certain subterranean work. Laborers also placed in evidence an April 1986 arbitration decision awarding to laborers rather than operating engineers the operation of a dinky locomotive at a tunnel project in Canada. We find that the factor of Joint Board and arbitration awards is not deter- minative. Conclusions After considering all the relevant factors, we conclude that employees represented by Operating Engineers are entitled to perform the work in dis- pute. We reach this conclusion relying on the fac- tors of collective-bargaining agreements, employer preference and past practice, area practice, relative skills, and economy and efficiency of operations. 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 following Determination of Dispute. 1. Employees of Laquidara, Inc., who are repre- sented by the International Union of Operating En- gineers, Local 106, AFL-CIO, are entitled to per- form the locomotive and mucking machine work at the lower LaChute portion of a tunnel connecting the intake structure and powerhouse of a hydro- electric power system in Ticonderoga, New York. 2. Laborers International Union of North Amer- ica, Local 186, AFL-CIO is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Laquidara, Inc. to assign the disputed work to employees represented by it. 3. Within 10 days from this date, Laborers Inter- national Union of North America, Local 186, AFL-CIO shall notify the Regional Director for Region 3 in writing whether it will refrain from forcing the Employer, by means proscribed by Sec- tion 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination.