Local 150, International Union Of Operating Engineers, Afl-Cio

858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Local 150, International Union of Operating Engi- neers, AFL-CIO and Martin Cement Company and Laborers Local 25, affiliated with Construc- tion and General Laborers District Council of Chicago and Vicinity. Case 13-CD-380 30 June 1987 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON The charge in this Section 10(k) proceeding was filed 6 February 1987 by Martin Cement Company (the Employer) alleging that the Respondent, Local 150, violated Section 8(b)(4)(D) of the Na- tional Labor Relations Act by engaging in pro- scribed activity with an object of forcing the Em- ployer to assign certain work to employees it rep- resents rather than to employees represented by Local 25. The hearing was held 6 March 1987 before Hearing Officer Barbara Sapin. 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.1 I. JURISDICTION The Company, an Illinois corporation, is en- gaged in the business of concrete construction with its principal place of business in Burr Ridge, Illi- nois. During the past calendar year, the Employer purchased and received goods and services valued in excess of $50,000 from points located directly outside the State of Illinois. The parties stipulate, and we find, that the Employer is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and that Local 150 and Local 25 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 business of the construction of concrete foundations and floors. The Employer also does exterior site work such as the installation of curbs and sidewalks. It employs a permanent crew of laborers who are represented for collective-bargaining purposes by Local 25. 1 The Employer has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. The Employer and Local 25 have a collective-bar- gaining agreement. The Employer does not employ operating engineers. At numerous jobsites, the Employer has used small rubber tire tractors called uniloaders, skid- loaders or "Bob Cats," and larger rubber tire trac- tors called front-end loaders (in this case a Ford tractor) to carry materials used to fine grade the last 1-1/2 inches of fill before the cement is poured. The Employer has also used this type of equipment in the cleanup of sites. The Employer's president, Dennis Martin, testified that the "Bob Cat" and the Ford tractor are used interchangeably in cleanup and fine grading of aggregate material. Martin also testified that prior to beginning use of this equip- ment in 1961, the employees used wheelbarrows to perform the same work. The Employer is a subcontractor at two jobsites where work is in dispute: the Chicago Health Club facility in Countryside, Illinois, and Morraine Valley College in Palos Hills, Illinois. Martin testi- fied that the type of work done at the Chicago Health Club site included the construction of foot- ings and foundations. The Employer completed this work about 2 weeks before the date of the hearing. Martin further testified that the Employer planned to resume work within the next 6 weeks to install curbs, sidewalks, and to perform other exte- rior concrete work. Martin also testified that "Bob Cats" will be required for this work. At the Mor- raine Valley College site the Employer has a con- tract to install footings, structural grade beams, structural concrete, curbs, and sidewalks. Martin testified that, based on the contract, "Bob Cats" or Ford tractors would be used to clean the site and for the grading of fill. Work was scheduled to begin within days after the hearing. Steve Adamsheck, a foreman for the Company, testified that he was working at another jobsite in the spring of 1986 when a person who identified himself as a Local 150 business agent initiated a conversation. The agent told Adamsheck that he could not operate a uniloader on that jobsite. Ac- cording to the agent, only an operating engineer could operate such equipment. On 8 December 1986 Business Agent Monty Horne of Local 150 and Business Agent Walter Sa- talic of Iron Workers Local 1 visited Martin at the Employer's office. Martin and Horne both testified that Horne and Satalic had just come from the Morraine Valley College jobsite. Martin testified that Horne wanted to talk about using operating engineers for the job. Martin replied that the work was assigned to laborers, that he did not have a contract with the Operating Engineers, and that the equipment was used infrequently. According to 284 NLRB No. 94 OPERATING ENGINEERS LOCAL 150 (MARTIN CEMENT) 859 Martin, Home said that Martin would use operat- ing engineers and sign an agreement or Home would use the Employer as an example and shut the job down. Martin also testified that Horne told him that the Operating Engineers could accept la- borers as operating engineer apprentices, which would be less expensive for the Employer. In his testimony, Home denied he demanded job assignments or threatened to shut down the Mor- raine Valley College job. Satalic testified that he was present throughout the conversation and did not hear Home threaten Martin. Satalic also admit- ted to not hearing all the conversation. Robert M. French, project manager for the gen- eral contractor at the Chicago Health Club site, testified that, on 2 February 1987, 2 Home told him there was a potential problem because the tractor was not being run by a Local 150 operator. French called Company Superintendent Randall Starck to tell him about the problem and then gave the tele- phone to Horne. French testified that Home told Starck that if a tractor was going to be maintained on the site, it would require a Local 150 operator. According to Starck, French told him that a business agent said there was a problem with the man operating the tractor. Home came to the phone and identified himself. Starck testified that Horne told him they would have to get together about the job. Starck told Horne he would have to talk to Dennis Martin. Horne said he would turn his back and walk away for that day but, if that machine was there the next day, then he would do what he had to do. After his discussion with Horne, Starck pulled the tractor off the job in order to avoid a confrontation. According to Home, when he arrived at the Chicago Health Club site to investigate a job com- plaint, he saw a Company foreman operating a front-end loader at the site. He told French there might be a possible problem because a foreman was operating the machine. Home testified that when he spoke to Starck, he made no threats or requests for job assignments or a contract. Martin spoke to Home on 4 February about Home's conversation with Starck. Martin testified that Home said that the Employer could get a better deal in a contract with the Operating Engi- neers and if Martin agreed to sit down to talk, Home would leave him alone. B. Work in Dispute The disputed work involves the operation of the rubber tire tractor (sometimes referred to as the "Bob Cat") being used by Martin Cement Compa- 2 All dates are in 1987, unless otherwise indicated. fly at the following jobsites: on LaGrange Road, north of Joliet Road in Countryside, Illinois, and at Morraine Valley College, 10900 S. 88th Avenue in Palos Hills, Illinois. C. Contentions of the Parties The Employer and Local 25 contend that there is reasonable cause to believe that Local 150 violat- ed Section 8(b)(4)(D) of the Act and that the Board must therefore determine the merits of the dispute. They further contend that the work in dis- pute should be awarded to employees represented by Local 25 on the basis of preference and past practice, Local 25's collective-bargaining agree- ment, relative skills, and economy and efficiency of operation. Local 150 would not stipulate at the hearing that there was any work dispute on the grounds that it had no knowledge of "Bob Cat" type tractors being used at the Chicago Health Club site and, in any event, the work there had been completed and no work was yet being performed by the Employer at the Morriane Valley College site at the time of the hearing in this case. 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. As discussed above, on 8 December 1986 Local 150 Business Agent Home arrived at the Employ- er's office with Business Representative Satalic. According to Martin, Home said he had just come from the Morraine Valley College jobsite and wanted to talk with Martin about using operating engineers on the job. When Martin refused, Horne said he would use the Morraine Valley College job as an example and would shut the job down unless Martin would sign an agreement with the Operat- ing Engineers. Martin agreed to talk with Home at a later time. Randall Starck and Robert French both testified that on 2 February Home told them there was a problem with the man operating the tractor at the Chicago Health Club site because he was not a Local 150 operator. Starck further testified that Home told him he would do what he would have to do if the machine were there the next day. Finally Martin testified about a 4 February con- versation with Home. The business agent indicated that he would leave Martin alone if he agreed to 860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD talk about a contract with the Operating Engi- neers.3 We find reasonable cause to believe that a viola- tion of Section 8(b)(4)(D) has occurred. The parties have stipulated that there was no agreed method for voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dispute is properly before the Board for determination.4 III. 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. Electrical 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. Collective-bargaining agreements Martin Cement Company and Laborers Local 25 are bound to a collective-bargaining agreement. Article XV(4)(B) of that contract encompasses the conveyance of materials by using Bob Cats and un- iloaders for cement masons and contractors. The Company has no contract with Local 150. We find that the factor of the collective-bargaining agree- ment favors an award of work in dispute to em- ployees represented by Local 25. s Because the Board must only find reasonable cause, a conflict in tes- timony does not preclude the Board from determining a 10(k) dispute. Laborers Local 334 (C. H Heist Corp.), 175 NLRB 608 (1969). 4 We deny Local 150's motion to quash the notice of hearing. We reject Local 150's argument that no jurisdictional dispute exists because the work at the Chicago Health Club site had been completed and work at the Morraine Valley site had not yet commenced at the time of the hearing The Employer's witnesses testified that some work involving "Bob Cats," albeit of limited and uncertain extent, was yet to be per- formed at the Health Club site and such work was to commence in the near future at the Morraine Valley site. In any event, the mere fact that disputed work has been completed does not render a jurisdictional dis- pute moot where nothing indicates that similar disputes are unlikely to recur See, e g., Plumbers Local 201 (Shaker, Travis), 271 NLRB 650, 652 (1985). Similarly, the fact that disputed work has not yet commenced does not preclude a finding that a jurisdictional dispute exists. See, e.g., Boston Building Trades Council (Methuen Construction), 269 NLRB 479, 480 (1984). We further find that Home's statement, made at the time of the hearing, that he was not interested in the work at the Health Club site, does not constitute an effective disclaimer. See, e g., Electrical Work- ers Local 3 IBEW (Mike G. Electric Corp.), 279 NLRB 521 (1986). Final- ly, although Local 150 asserts it has not claimed the work at the Mor- rame Valley site, we note the testimony of the Employer's witnesses is to the contrary. 2. Company preference and past practice The Company prefers to use employees repre- sented by Local 25 to perform the work in dispute. In addition, Martin testified that laborers have op- erated the "Bob Cat" equipment for the Employer since 1961. We find the factor of company prefer- ence and past practice favors an award to employ- ees represented by Local 25. 3. Area and industry practice Martin testified that he had no specific knowl- edge of how other concrete contractors assigned work. Witnesses for Local 150 testified that it was not typical to have laborers operating the small rubber tire tractors. However, Horne testified that if the equipment is used for grading and only for a short time during the day, Local 150 would not bother with it. Home further testified that he has observed both operating engineers and laborers op- erating the equipment. Under these circumstances, we find that the factor of area practice is inconclu- sive and does not favor an award of the disputed work to employees represented by either union. 4. Relative skills Martin testified that training consisted of only a few hours on the job and reading the owner's manual, and that the skills involved were similar to driving a standard transmission car. We find that both groups of employees are capable of perform- ing the disputed work. We therefore fmd that this factor does not favor an award of the disputed work to employees represented by either Local 25 or Local 150. 5. Economy and efficiency of operations The Employer contends that it is more economi- cal and efficient to assign the work to a laborer, who will do it as part of the general preparation and cleanup tasks involved in concrete construc- tion. According to witnesses for the Employer, only one small rubber tire tractor is used on a site and only for 2 to 3 hours of the work day. Under these circumstances, we find that the factor of economy and efficiency of operation favors an award of the disputed work to employees repre- sented by Local 25. Conclusions After considering all the relevant factors, we conclude that employees represented by Local 25 are entitled to perform the work in dispute. We reach this conclusion relying on the factors of the collective-bargaining agreement, company prefer- ence and past practice, and the economy and effi- OPERATING ENGINEERS LOCAL 150, (MARTIN CEMENT) 861 ciency of operations. In making this determination, we are awarding the work to employees represent- ed by Local 25, not to that Union or its members.5 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 Martin Cement Company, rep- resented by Laborers Local 25, affiliated with Con- struction and General Laborers District Council of Chicago and Vicinity, are entitled to perform the 'We find that the issuance of the broad order sought here by the Em- ployer is not warranted and we limit our present determination to the particular controversy which gave rise to this proceeding. See generally Laborers Local 151 (Otis Elevator), 272 NLRB 1102 (1984), Woodworkers Local 3-90 (Crown Zellerbach), 261 NLRB 615 (1982). work of operating small rubber tire tractors (some- times referred to as "Bob Cats") at the Chicago Health Club jobsite on LaGrange Road, north of Joliet Road in Countryside, Illinois, and at the Morraine Valley College, 10900 S. 88th Avenue, Palos Alto, Illinois jobsite. 2. Local 150, International Union of Operating Engineers, AFL-CIO, is not entitled by means pro- scribed by Section 8(b)(4)(D) of the Act to force Martin Cement Company to assign the disputed work to employees represented by it. 3. Within 10 days from this date, Local 150, International Union of Operating Engineers, AFL- CIO shall notify the Regional Director for Region 13 in writing whether it will refrain from forcing Martin Cement Company, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination.