Laborers International Union Of North America, Local No. 76, Afl-Cio

698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Laborers International Union Of North America, Local No. 76, AFL-CIO and Albin Carlson and Company and International Union of Operating Engineers, Local 150, AFL-CIO. Case 13-CD- 383 30 September 1987 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON The charge in this Section 10(k) proceeding was filed on 9 April 19971 by the Employer, Albin Carlson and Company, alleging that the Respond- ent, Laborers International Union of North Amer- ica, Local No. 76, AFL-CIO (Local 76), 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 em- ployees represented by International Union of Op- erating Engineers, Local 150, AFL-CIO (Local 150). The hearing was held on 5 May before Hear- ing Officer John R. Albrecht. 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. 1. JURISDICTION The Employer, an Illinois corporation, is en- gaged in the business of heavy and highway con- struction at its Melrose Park, Illinois facility and at various jobsites in the State of Illinois. During the past year, the Employer purchased and received goods valued in excess of $50,000 from points lo- cated directly outside the State of Illinois and re- ceived revenues in excess of $5 million. The parties 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 Local 76 and Local 150 are labor organizations within the mean- ing of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute The Employer is primarily engaged in the busi- ness of concrete and bridge rehabilitation work in Cook County, Illinois, which includes the city of Chicago and the surrounding collar counties. The ' All dates are in 1987 unless otherwise noted. Employer currently employs some 45 employees who are members of various trade unions, includ- ing 27 employees represented by Local 76 and 3 employees represented by Local 150. The Employ- er maintains various jobsites, including a jobsite lo- cated at the Marquette Road viaduct on the Chica- go Skyway in Chicago. The Employer is a member of the Illinois Road Builder's Association (IRBA) and through that membership is party to a collec- tive-bargaining agreement between the IRBA and the Construction and General Laborers' District Council of Chicago and Vicinity, which includes Local 76. The IRBA is a member of the Mid- America Regional Bargaining Association (MARBA) and the Employer is thereby party to the collective-bargaining agreement between MARBA and Local 150. Employees represented by Local 150 operate various types of heavy equipment for the Employ- er such as 17,000 pound front-end loaders used for moving large amounts of material, combination backhoes, and other heavy equipment used for demolition and excavation. They also perform the maintenance work on this equipment. By the terms of their collective-bargaining agreement with the Employer, Local 150-represented employees do not perform work other than operating and maintaining these types of equipment, and if they start work they are guaranteed 8 hours' pay and can be re- quired to make only one machine change per day. In contrast, employees represented by Local 76 perform virtually all types of work involved in preparation and cleanup for concrete construction not performed by other employees, including sweeping, sandblasting, loading and unloading trucks, removing debris, and breaking concrete. While performing these duties they sometimes op- erate equipment such as jackhammers and "bob- cats." Bobcats, also known as skid steer loaders, are 2500 pound tractors with multiple attachments used for loading trucks, moving material, and sweeping, grading, and breaking concrete. Employ- er President Glenn Burgeson testified that the Em- ployer has consistently assigned bobcat work to Local 76-represented employees since it began using bobcats in 1971. Burgeson also testified that the Employer uses one of its three bobcats at its Chicago Skyway jobsite and that the operation of this particular bobcat has been assigned to employ- ees represented by Local 76. Work on the Chicago Skyway jobsite began in August 1986. Burgeson stated that at some time in mid-March he received a telephone call from Local 150 Business Agent Herbert Bays indicating that the bobcat work at the Employer's Chicago Skyway jobsite should be assigned to Local 150 286 NLRB No. 63 LABORERS LOCAL 76 (CARLSON & CO.) 699 and not Local 76. When Burgeson responded that the Employer consistently assigned bobcat work to Local 76 and told Bays he should contact Local 76 concerning the disputed work, Bays stated that Local 150 would file a grievance.2 Burgeson then called Local 76's business agent, Al Naimoli and informed him that he had "another bobcat prob- lem" and that Bays might contact him on behalf of Local 150. In response, Naimoli stated that Local 76 would picket the Employer if the bobcat work was reassigned to Local 150. The record shows that the Employer thereafter received a letter from Local 76 on 10 March stat- ing that reassignment of bobcat work to Local 150 or any other union would "result in an immediate strike and picketing by the Laborers' [sic] to pre- serve the work jurisdiction." The letter was ad- dressed to all signatory employers of the joint col- lective-bargaining agreement with Local 76. By letter dated 2 April, Local 76 again reiterated its claim to the disputed work and specifically stated, "Should your company reassign the operation of the bobcat, Laborers' Local 76 will strike and picket to preserve its work jurisdiction." Also at sometime in April, Local 150 filed a charge against the Employer with the Illinois Department of Labor, alleging that the Employer violated the state prevailing wage statute by using Local 76-rep- resented employees, who are paid less wages than Local 150-represented employees, to operate the bobcat at the Chicago Skyway jobsite. B. Work in Dispute The disputed work involves the operation of the bobcat being used by the Employer at its jobsite at the Marquette Road viaduct on the Chicago Skyway in Chicago, Illinois. C. Contentions of the Parties The Employer contends that there is reasonable cause to believe that Local 76 violated Section 8(b)(4)(D) of the Act. The Employer and Local 76 argue that no voluntary method of adjustment exists that binds all the parties, and they both con- tend that the dispute is properly before the Board for a determination under Section 10(k) of the Act. On the merits, the Employer and Local 76 both contend that the work in dispute should be award- ed to employees represented by Local 76 on the basis of employer preference and past practice and economy and efficiency of operation. The Employ- 2 By letter dated 26 March, Local 150 filed a written grievance with the Employer alleging, inter alia, that the Employer was violating the ex- clusive hiring hall provision contained in its contract with Local 150 by er maintains that the factor of area practice favors awarding the work in dispute to employees repre- sented by Local 76, and Local 76 further asserts that the work should be awarded to such employ- ees on the basis of Board precedent. Finally, the Employer calls for a broad award covering all job- sites maintained by the Employer within any areas where the jurisdiction of Local 76 and Local 150 coincide, and Local 76 requests a broad award covering all employers within the area in which the jurisdiction of Local 76 and Local 150 coin- cide. Local 150 contends that there is no reasonable cause to believe that Local 76 violated Section 8(b)(4)(D) of the Act, characterizing Local 76's al- leged threats to picket and strike as ambiguous re- marks intended only as a sham to invoke the Board's authority to determine the dispute. Local 150 also maintains that the parties to the dispute are bound by an alternative method of adjustment under arguably applicable state law governing pay- ment of prevailing wages. In the alternative Local 150 asserts that, should the Board find reasonable cause to believe that Section 8(b)(4)(D) has been violated, the work in dispute should be awarded to employees it represents on the basis of collective- bargaining agreement provisions, area and industry practice, and skills, training, and safety. Finally, Local 150 argues that if the work in dispute is awarded to employees represented by Local 76, the record does not support issuance of a broad award because Local 150, against whom the award would lie, has not resorted to unlawful conduct to obtain the work in dispute; rather it is Local 76 that has engaged in prohibited conduct to maintain assign- ment of the disputed 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. As discussed above, on repeated occasions Local 76 specifically threatened the Employer with pick- eting and strike activity if the Employer reassigned the disputed bobcat work to Local 150-represented employees. A threat to strike and picket to force or require an employer to reassign disputed work con- stitutes reasonable cause to believe that Section 8(b)(4)(D) has been violated.3 Local 76's threats operating a bobcat at its Chicago Skyway jobsite with Local 76-repre- 3 Broadcast Employees NABET Local 16 (American Broadcasting), 227 sented employees instead of employees represented by Local 150 NLRB 1462, 1463-1464 (1977) 700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD specifically referred to strike activity and were made during a telephone conversation between the president of the Employer and a Local 76 business agent, followed by a letter reiterating the threats. There is no evidence that Local 76 was not serious in making the threat or had in any way colluded with the Employer in this matter. Under these cir- cumstances, we find reasonable cause to believe that Local 76 engaged in conduct prohibited by Section 8(b)(4)(D).4 Although the Employer and Local 76 stipulate that they have not agreed on a method to voluntar- ily adjust this dispute, Local 150 contends that its pending state claim against the Employer alleging a violation of the state prevailing wage statute over the disputed work constitutes an agreed-on method to resolve this dispute. At the outset, we note that the state statute in question is a mandate applicable only to the Employer. We further note that the statute provides a mechanism not for the resolution of disputes between unions over an employer's work assignment but for determining and enforcing prevailing wage standards. We therefore reject Local 150's contention that the parties have agreed on a method to voluntarily adjust this dispute. Based on the foregoing, we find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed-on 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. 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. 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 agreements5 The Employer is a party to collective-bargaining agreements with Local 76 and Local 150. Article 4 See Teamsters Local 6 (Anheuser-Busch), 270 NLRB 219, 220 ( 1984), and Cincinnati Mailers Union 17 (Rosenthal & Co.), 265 NLRB 1052, 1053 (1982) s Neither Local 76 nor Local 150 has been certified by the Board as the collective-bargaining representative of any of the employees in- volved Accordingly, this factor is not helpful in determining this dispute XII, paragraph 9(b) of the Local 76 contract en- compasses the conveyance of bertain materials by "any motorized unit . . . including bobcats . . . for concrete contractors." The provision also encom- passes "[p]reparation, construction, and mainte- nance of roadbeds and sub-grade for all paving, in- cluding excavation." Article IX, section 5, of the Local 150 contract designates wage classifications for operation of bobcats for work covered by the agreement. The agreement covers paving and all other highway construction work. As both agree- ments provide a basis for claiming the disputed work, we find that the factor of collective-bargain- ing agreements does not favor an award of the dis- puted work to employees represented by either Local 76 or Local 150. 2. Company preference and past practice The Employer prefers to use employees repre- sented by Local 76 to perform the work in dispute. In addition, Burgeson testified that the Employer has consistently assigned bobcat work to Local 76- represented employees since it began using bobcats in 1971. We find that the factor of company prefer- ence and past practice favors an award of the dis- puted work to employees represented by Local 76. 3. Area and industry practice Burgeson testified that a number of employers in the geographic jurisdiction of the two Unions in this case and in the area in which the Employer works use Local 76-represented employees to oper- ate bobcats. Local 150 Business Agent Herbert Bays testified that a number of similar employers use Local 150-represented employees to operate bobcats. Under these circumstances, we find that the factor of area practice is inconclusive and does not favor an award of the disputed work to em- ployees represented by either Union. 4. Relative skills Burgeson and Local 76 Business Agent Naimoli testified that the amount of skill necessary to oper- ate a bobcat is minimal and requires little training. Burgeson also indicated that four or five Local 76- represented employees are generally designated to operate the Employer's bobcats, and two employ- ees in particular have operated the bobcats since they were purchased. Local 150 Business Agent Bays testified that a bobcat is difficult and at times dangerous to maneuver. He also testified that Local 150 includes bobcat training in its appren- ticeship program. The evidence is inconclusive and contradictory regarding required skills but estab- lishes that both groups have the necessary skills. We therefore find that the factor of skill does not LABORERS LOCAL 76 (CARLSON & CO.) 701 favor awarding the disputed work to employees represented by either Union. 5. Economy and efficiency of operations The Employer contends that it is more economi- cal and efficient to assign bobcat work to Local 76- represented employees. Burgeson testified that the Employer frequently moves its bobcats from job- site to jobsite for maximum use. He also testified that the Employer seldom uses bobcats on a job for a full day. Under these circumstances, if the work is assigned to an employee represented by Local 76, the employee can be assigned other duties cov- ered by the Local 76 agreement, such as spreading and unloading material after the work on the bobcat is completed. If, on the other hand, the work is assigned to an employee represented by Local 150, that employee would probably have sig- nificant idle time on the job because the bobcat work is usually less than a full day and, under the Local 150 agreement, the employee may do no other work than operate and maintain machinery. Although the Local 150 agreement allows an em- ployee to operate two pieces of machinery per day, this provision would be of little use to the Employ- er in this situation because it customarily uses the other large equipment for a full day to get the most economical use from it. Use of a Local 150-repre- sented employee would therefore require adding an additional employee or delaying use of the large equipment. Based on the foregoing, we find that the factors of economy and efficiency of operations favor awarding the disputed work to Local 76. Conclusion After considering all the relevant factors, we conclude that employees represented by Local 76 are entitled to perform the work in dispute. We reach this conclusion by relying on the Employer's preference and past practice and economy and effi- ciency of operations. In making this determination, we are awarding the work to employees represent- ed by Local 76, not to that Union or its members. As noted previously, the Employer and Local 76 request the Board to issue a broad award covering all similar work performed in the geographical area where the jurisdictions of Local 76 and Local 150 coincide. The Board will issue a broad award when the dispute is likely to recur and when there is evi- dence that the union, against which the broad order will lie, will engage in further unlawful con- duct in order to obtain work similar to that in dis- pute. See Electrical Workers IBEW Local 104 (Stan- dard Sign), 248 NLRB 1144, 1147-1148 (1980). We conclude that a broad order is not warranted here. Local 150 did not engage in threats to picket or strike; rather, it was Local 76 that threatened to strike and picket to maintain assignment of the dis- puted work to employees it represents. Under these circumstances, there is no basis for extending the determination beyond the particular controversy that gave rise to the proceeding. See Laborers Local 1086 (Dentinger), 282 NLRB 633 (1987). DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. Employees of Albin Carlson and Company rep- resented by Laborers International Union of North America, Local No. 76, AFL-CIO are entitled to perform the bobcat work at the Albin Carlson and Company jobsite located at the Marquette Road vi- aduct on the Chicago Skyway in Chicago, Illinois.