Laborers Local 1006 (Central Blacktop)

LABORERS LOCAL 1006 (CENTRAL BLACKTOP) Construction and General Laborers District Council of Chicago and Vicinity and Laborers Interna- tional Union of North America, Local 1006 and Central Blacktop Co, Inc International Union of Operating Engineers, Local 150, AFL-CIO and Central Blacktop Co, Inc Cases 13-CD-385 and 13-CD-386 December 27, 1988 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFr The charges in this Section 10(k) proceeding were filed May 4, 1987, by the Employer In Cases 13-CD-385 and 13-CD-386 the Employer alleges that the Respondent, Construction and General La borers District Council of Chicago and Vicinity and Laborers International Union of North Amer ica, Local 1006 (Local 1006 or the Laborers), and the Respondent, International Union of Operating Engineers, Local 150, AFL-CIO (Local 150 or the Operating Engineers), respectively each 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 they represent The hearing was held May 28 and 29 , 1987, before Hearing Of ficer Gloria DiLorenzo 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 Employer, an Illinois corporation, is en gaged in the business of constructing and repairing roads with its principal place of business in Hodg- kins, Illinois During the past calendar year, the Employer purchased and received goods and serv ices 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 en gaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Local 1006 and Local 150 are labor organizations within the mean mg of Section 2(5) of the Act II THE DISPUTE 57 A Background and Facts of Dispute The Employer is engaged in constructing and re pairing roads and in the manufacture and sale of paving materials in Cook County, Illinois, which includes the city of Chicago, and the surrounding counties The Employer maintains various jobsites, including a jobsite located near 101st Street and Murphy Road in unincorporated DuPage County The Employer is a member of the Illinois Road Builders' Association (IRBA) and through that membership is party to a collective bargaining agreement between the IRBA and General Labor ers District Council of Chicago and Vicinity, which includes Local 1006, that is effective through May 31, 1989 Through the IRBA the Em ployer is also party to a collective bargaining agreement with Operating Engineers Local 150, which was effective through May 31, 1987 Employees represented by Local 150 operate various types of heavy equipment for the Employ er By the terms of their collective-bargaining agreement with the Employer, employees repre sented by Local 150 do not perform work other than operating and maintaining equipment, and once they start work they are guaranteed 8 hours' pay for the day and can be required to make only one machine change per day In contrast, employ ees represented by Local 1006 perform virtually all types of work involved in preparation and cleanup for concrete construction not performed by other employees While performing these duties they sometimes operate equipment such as jackhammers and bobcats, ' also known as skid steer loaders Construction on the Murphy Road project began in April 1987 According to evidence presented by the Employer the following occurred when a bobcat was brought to the jobsite for the first time on April 29, 1987 An operating engineer represent- ed by Local 150 operating a Cat 225 backhoe ceased working when a laborer represented by Local 1006 began operating a bobcat The operat ing engineer called Local 150's business agent to the jobsite, and began working only after the Em ployer agreed to remove the member of the Labor ers from the bobcat Local 150's business agent claimed the operation of a bobcat was within the jurisdiction of the Operating Engineers, informed the Employer that the Operating Engineers' member was ill, and subsequently stated that he would not be shutting down jobs over the bobcat issue but that the Employer might have a lot of sick operators if he continued to use Laborers to operate bobcats Local 150 disputes the Employer s rendition of the facts 292 NLRB No 12 58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The following day the Employer received a letter from the Laborers stating that bobcat work was traditional Laborers work specifically men tioned in [Central Blacktop 's] contract" and that the Laborers Union would `strike and picket to retain this work " The Employer presented evidence showing that the dispute between the Laborers Union and Oper ating Engineers Union was ongoing Prior to the incident at issue the Employer received letters from both the Laborers and the Operating Engi- neers stating their respective positions , claiming the right to the bobcat work One letter from the La borers dated March 10, 1987, stated "Any reas- signment to any other Union is a breach of the La- borers contract and will result in an immediate strike and picketing by the Laborers to preserve the work jurisdiction " Following the incident, Op- erating Engineers members were informed of the "Jurisdictional War" between the Operating Engi neers and the Laborers District Council through letters and publications B Work in Dispute The disputed work involves the operation of skid steer loaders (commonly referred to as bobcats) being used by the Employer at its jobsite at the construction of a new road near 101st Street and Murphy Road in unincorporated DuPage County C Contentions of the Parties The Employer contends that there is reasonable cause to believe that Local 150 and Local 1006 violated Section 8(b)(4)(D ) of the Act Further, the Employer and Local 1006 argue that no voluntary method of adjustment exists that binds all the par ties, and that the dispute is properly before the Board for a determination under Section 10(k) of the Act The Employer and Local 1006 contend that the work in dispute should be awarded to Local 1006 on the basis of employer preference and past practice, and economy and efficiency of operation The Employer maintains that area prac- tice favors awarding the work in dispute to Local 1006, and Local 1006 further asserts that it should be awarded the work on the basis of Board prece dent Additionally , the Employer requests an award that applies to all its projects in the concur rent jurisdictions of Locals 150 and 1006 Local 1006 requests an award that covers any employer with whom a bobcat dispute arises Local 150 contends that there is no reasonable cause to believe that Local 150 or Local 1006 vio- lated Section 8(b)(4)(D) of the Act In support of this contention Local 150 argues that at no time did Local 150 threaten to strike or picket the Em ployer nor did it demand that an operator be as signed to run the Company's bobcat Local 150 maintains that there is no substance in the Employ er's charge that the Laborers violated Section 8(b)(4)(D), because the only threat by the Laborers to strike or picket occurred the day before the hearing Local 150 contends that the work stop page" incident of April 29 occurred because the la- borer who was operating a bobcat at the site nearly caused an accident Local 150 also maintains that the parties to the dispute are bound by an alterna tive method of adjustment under applicable state law governing payment 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 it on the basis of col lective bargaining provisions, area and industry practice, and skills, training, and safety Finally, Local 150 argues that if the work in dispute is awarded to Local 1006, the record does not sup port the issuance of a broad award because Local 150 has not resorted to unlawful conduct to obtain the work, whereas Local 1006 has engaged in pro hibited conduct 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 the parties have not agreed on a method for the voluntary adjustment of the dis pute According to testimony presented by Employer witnesses, on several occasions Local 1006 specifi- cally threatened the Employer with picketing and strike activity if the Employer reassigned the dis- puted work to Local 150 represented employees We find reasonable cause to believe Local 1006 en gaged in conduct prohibited by Section 8(b)(4)(D) In addition, the Employer presented testimony that a Local 150 represented employee ceased work when he saw a laborer operating a bobcat and immediately called the business agent The business agent came to the jobsite and told the Em ployer that bobcat work was within Local 150's ju- risdiction and that the Employer might have a lot of sick operators if it used laborers on bobcats Further, the Employer submitted evidence that the Operating Engineers are engaged in an areawide effort against the Laborers to obtain bobcat work for Operating Engineers employees LABORERS LOCAL 1006 (CENTRAL BLACKTOP) 59 This evidence is disputed by testimony presented by the Operating Engineers i In a 10(k) proceeding the Board is not charged with finding that a viola- tion did, in fact, occur but only that reasonable cause exists for finding such a violation Thus, a conflict in the testimony need not be resolved in order for the Board to proceed to a determination of the dispute Laborers Local 334 (C H Heist Corp), 175 NLRB 608, 609 (1969) Under these cir cumstances, we find the business agent's statement that the Employer might have a lot of sick opera- tors if he used laborers on bobcats constitutes a threat to engage in prohibited conduct under Sec- tion 8(b)(4)(D) See Teamsters Local 6 (Anheuser- Busch), 270 NLRB 219, 220 (1984), and Cincinnati Mailers Union No 17 (Rosenthal & Co), 265 NLRB 1052, 1053 (1982) The Employer and Local 1006 stipulated that they have not agreed on a method to adjust this dispute voluntarily However, Local 150 contends that a State of Illinois statute relating to the wages of employees in public works, which provides a dispute resolution procedure, is applicable to this dispute We note that the state statute is a mandate only to the Employer The statute provides a mechanism not for the resolution of disputes betweeen unions over an employer's work assign- ment but for determining and enforcing prevailing wage standards See Hayen v County of Ogle, 101 Ill 2d 413, 463 NE 2d 124 (1984) We therefore reject Local 150's contention that the parties have agreed on a method to adjust this dispute voluntari ly 2 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 3 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 ' Operating Engineers claims that it did not threaten to engage in pro hibited conduct or even make a demand for the work 2 The hearing officer rejected evidence Local 150 sought to introduce pertaining to the local townships attempts to implement the state statute In view of our finding that the state statute does not provide a mecha nism for resolving the dispute under the Act the evidence the hearing officer rejected could not advance Local 150 s contention that there is a dispute resolution method to which all parties are bound Thus we need not pass on the hearing officers rejection of documents offered in sup port of this contention 3 Accordingly we also find that the representation petition filed by the Operating Engineers is irrelevant (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 Certifications and collective bargaining agreements Neither Local 150 nor Local 1006 has been certi feed by the Board as the collective-bargaining rep resentative of any of the employees involved in this dispute The Employer is a party to collective bar gaining agreements with Local 150 and Local 1006 Both the Operating Engineers' and the Laborers' agreement contain provisions providing that oper ation of bobcats are within their domain There- fore, we find that evidence regarding this factor does not favor an award of the disputed work to employees represented by either Local 150 or Local 1006 2 Company preference and past practice The Employer prefers to use employees repre sented by Local 1006 to perform the work in dis pute The Employer testified that it has consistent- ly assigned bobcat work to Local 1006-represented employees except on two occasions We find that the factor of company preference and past practice favors an award of the disputed work to employees represented by Local 1006 3 Area and industry practice The Employer's controller and corporate secre tary testified that he knows 15 to 20 members of the IRBA The Employer named four or five mem bers that the Employer knows use laborers to oper- ate bobcats The Operating Engineers' business agent testified that he knew of nine jobs in the area where operating engineers were operating bobcats He also testified that there were approximately 100 jobs in the area Under these circumstances, we find that the evidence offered in support of the area and industry practice is inconclusive and does not favor an award of the disputed work to em ployees represented by either Union 4 Relative skills The Employer's vice president of operations tes- tified that the amount of skill necessary to operate a bobcat is minimal and requires little training Local 150's business agent testified that the Union has an apprenticeship program that includes bobcat 60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD training Evidence with regard to the skills of Local 150 represented employees as compared with the skills of Local 1006 represented employees is inconclusive and does not favor awarding the dis puted work to employees represented by either Union 5 Economy and efficiency of operations The Employer contends it is more economical and efficient to assign work to Local 1006 repre- sented employees The vice president of operations testified that the bobcats are frequently moved from jobsite 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 1006, the employee can be assigned other duties covered by the Local 1006 agreement, after the work on the bobcat is completed In contrast, the Operating Engineers agreement restricts the number of times operators can make an equipment change during the workday Further, the agreement requires that the Employer pay the operating engineer for the entire day once the bobcat is started regardless of the amount of time the bobcat is in use Also, the collective-bargaining agreement limits the duties the operating engineers may perform Under these circumstances, we find that the factor of economy and efficiency of oper ation favors an award of the disputed work to em ployees represented by Local 1006 company preference and past practice, and the economy and efficiency of operations In making this determination, we are awarding the work to employees represented by Local 1006, not to that Union or its members 4 The determination is limit- ed to the controversy that gave rise to this pro- ceeding DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute 1 Employees of Central Blacktop Co, Inc rep- resented by Laborers Local 1006, affiliated with Construction and General Laborers District Court cil of Chicago and Vicinity, are entitled to perform the work of operating small rubber tire tractors ("bobcats") at the Murphy Road jobsite near 101st Street and Murphy Road in unincorporated DuPage County 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 Central Blacktop Co, Inc 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 Central Blacktop Co, Inc , by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination Conclusions After considering all the relevant factors, we conclude that employees represented by Local 1006 are entitled to perform the work in dispute We reach this conclusion relying on the factors of " We find that the issuance of the broad order sought here by the Em ployer and Local 1006 is not warranted and we limit our present determi nation to the particular controversy that gave rise to this proceeding See generally Laborers Local 151 (Otis Elevator) 272 NLRB 1102 (1984) Woodworkers Local 3 90 (Crown Zellerbacb) 261 NLRB 615 (1982) We also find that the claim made by the Employer for attorneys fees is un warranted