International Union Of Operating Engineers, Local No 139, Afl-Cio

604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Local No 139, AFL-CIO ' and Allied Construction Employers' Association, Inc and International Association of Bridge, Structural & Ornamental Iron Workers, Local No 8, AFL-CIO Case 30-CD-123 March 31, 1989 DECISION AND ORDER QUASHING NOTICE OF HEARING BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND DEVANEY The charge in this Section 10(k) proceeding was filed December 8, 1987, by the Allied Construction Employers' Association, Inc (ACEA) alleging that the Respondent, International Union of Operating Engineers, Local No 139, AFL-CIO (Operating Engineers) violated Section 8(b)(4)(D) of the Na- tional Labor Relations Act by engaging in pro- scribed activity with an object of forcing ACEA employers to assign certain work to employees it represents rather than to employees represented by various labor organizations, including International Association of Bridge, Structural & Ornamental Iron Workers, Local No 8, AFL-CIO (Iron Workers) The hearing was held on May 9 and 10, 1988, before Hearing Officer Irving E Gottschalk 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 parties stipulated that the ACEA is a corpo- ration consisting of an association of construction industry employers that, among other things, nego tiates and administers various labor agreements with construction industry labor organizations from its facilities located in Brookfield, Wisconsin During the calendar year preceding the hearing, a representative period, employer members of the ACEA purchased and received goods valued in excess of $50,000 directly from points located out side the State of Wisconsin and, during the same period of time, sold and shipped goods valued in excess of $50,000 directly to points located outside the State of Wisconsin The parties also stipulated, and we find, that the ACEA is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act and that the 1 The name appears as amended at the hearing Operating Engineers, the Iron Workers, Laborers Local No 113 (Laborers), and five locals affiliated with the Milwaukee and Southeast Wisconsin Dis- trict Council of Carpenters (Carpenters),2 are labor organizations within the meaning of Section 2(5) of the Act II THE DISPUTE A Background and Facts of Dispute The ACEA and the Operating Engineers are parties to a collective-bargaining agreement effec- tive June 1, 1987, to May 31, 1990 During negotia tions for the current contract, the Operating Engi neers proposed the inclusion of a work jurisdiction clause reserving the performance of certain forklift work exclusively to employees represented by it The ACEA opposed the inclusion of such a clause in the contract In response to the ACEA's opposi tion, the Operating Engineers engaged in a strike, which began on June 14, 1987, and continued through July 2, 1987, on which date the ACEA signed a contract containing, inter alia, a clause as- signing the forklift work exclusively to employees represented by the Operating Engineers 3 Thereafter, the ACEA and the Iron Workers signed a collective-bargaining agreement, effective June 1, 1987, through May 31, 1990, which con- tained language assigning the performance of fork- lift work generally to employees represented by the Iron Workers In response to the inclusion of this language in the Iron Workers' contract, the Oper ating Engineers filed an 8(a)(5) charge with the Board alleging that the ACEA had engaged in bad- faith bargaining in connection with contract negoti- ations with the Operating Engineers On December 8, 1987, the ACEA filed a charge with the Board, which was amended on March 31, 1988, alleging that the Operating Engineers had violated Section 8(b)(4)(D) by attempting to force the assignment of forklift work to employees represented by it The Regional Director subsequently dismissed the Op- 2 The five locals affiliated with the Carpenters are Carpenters and Floor Coverers Local 344 Carpenters and Lathers Local 264 Carpenters Local 2283 Millwnghts Local 161 and Millwrights and Pile Drivers Local 2337 3 Art VII sec 7 4 of the Operating Engineers contract states in perti nent part The operation of forklifts being utilized on machinery moving and/or steel erection including power house and factory renovation the operation of forklifts is exclusively the craft work of the Operat ing Engineers and assignment of said operation shall be made to an Operating Engineer dispatched and covered by the terms and condi tion of this Agreement On jobs or project where the use of forklift truck is not a sufficient quantity to warrant the employment of an operator the Contractor or Contractor representative will con tact the Union District Business Representative of the Operating En gineers and if mutually agreed then and only then may the Contrac tor use another employee to perform said work 293 NLRB No 69 OPERATING ENGINEERS LOCAL 139 (ALLIED CONSTRUCTION) 605 erating Engineers' 8(a)(5) charge and issued a notice of 10(k) hearing based on the ACEA's charge The hearing was scheduled for March 9, 1988, but was postponed until May 9, 1988, to permit other parties potentially affected by the out come of the hearing to appear On May 5, 1988, the Operating Engineers filed with the Board a motion to quash notice of hearing and a supporting memorandum The motion seeks to have the instant proceeding quashed on the basis that the "Plan for the Settlement of Jurisdictional Disputes in the Construction Industry" (Plan) con- stitutes a method for the voluntary adjustment of the dispute, agreed on by all parties to the proceed- ing 4 At the May 9 hearing, the Laborers and the five Carpenters Unions stated a claim to the work in dispute and were accorded party status All the parties stipulated to bifurcate the hearing to consid- er separately the Operating Engineers' motion to quash B The Work in Dispute The work in dispute consists of the operation of forklift trucks in connection with steel erection and machinery movement C Contentions of the Parties The Operating Engineers contends that its motion to quash should be granted because all par- ties to the proceeding are bound to the above-men- tioned Plan for the resolution of jurisdictional dis- putes It first points out that the Plan and its proce dures are binding on all National and International Unions affiliated with the AFL-CIO's Building and Construction Trades Department and their local constituent bodies It thus argues that as the Unions that are party to this proceeding are local bodies of National and International unions, which are mem- bers of the Building and Construction Trades De- partment, all the Unions involved here are bound to the Plan It further argues that the ACEA is bound to the Plan through its current collective bargaining agreement with the Iron Workers, which expressly provides that jurisdictional dis putes shall be referred to the Plan The ACEA contends that the motion to quash should be denied It notes that each Union's collec- tive-bargaining agreement with the ACEA pro- vides for different jurisdictional disputes resolution procedures It thus contends that there is no single dispute resolution procedure that is binding on all parties to the instant dispute The ACEA further argues that there is nothing in the contract between ° At that time the ACEA the Operating Engineers and the Iron Workers were the only parties to the proceeding the Operating Engineers and the ACEA which re- quires these parties to submit their jurisdictional disputes to the Plan and , further, that the Iron Workers' contract was negotiated by the ACEA solely on behalf of the Eastern Wisconsin Erectors' Association and therefore does not bind the ACEA itself to the Plan The ACEA also contends that the motion to quash should be denied because the Operating Engineers' past failures to invoke or abide by prior procedures for disputes resolution are evidence that the Operating Engineers has re- pudiated the Plan In this regard, the ACEA fur- ther notes the Operating Engineers ' failure to invoke the Plan to resolve the instant dispute prior to the time of the 10(k) hearing The remaining party Unions-the Iron Workers, the Laborers , and the Carpenters unions-also con- tend there is no voluntarily agreed on method for settling the instant dispute They also argue that the contract between the ACEA and the Operating Engineers does not bind the ACEA to the Plan and that the Iron Workers' contract binds only the Eastern Wisconsin Erectors' Association Finally, these Unions contend that the Operating Engineers' motion should be denied in light of the Operating Engineers' failure to invoke the Plan in the instant proceeding and by its past conduct with respect to prior disputes resolution procedures D Applicability of the Statute Before the Board may proceed with a determina- tion of 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 In this case, we agree with the Operating En- gineers that the Plan constitutes an agreed-on method for the voluntary adjustment of the instant dispute 5 As set forth in the Plan's preamble , the Plan pro vides for the handling of disputes over work as signments without resort to strikes or unlawful work stoppages Pursuant to its procedures, the Plan is applicable to all International and National unions affiliated with the Building and Construc- tion Trades Department and their local constituent bodies We note that it is undisputed that all party Unions here are local constituent bodies of member 5In light of the parties agreement to bifurcate the heanng we have not been presented with the issue of whether there is reasonable cause to believe that Sec 8(b)(4)(D) has been violated In any event we find it unnecessary to make this determination in view of our decision to grant the Operating Engineers motion to quash In so doing we note that no party contends that the Board lacks jurisdiction on the basis that there is no actual work in dispute 606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD unions of the Building and Construction Trades Department and that the member unions are signa- tory to the agreement creating the Plan Thus, as local constituent bodies, the party Unions are like- wise required to abide by the Plan's procedures for the settlement of jurisdictional disputes See Plumb- ers Local 441 (Capitol Air Conditioning), 224 NLRB 985, 986-987 (1976), Painters Local 203 (E 0 Brunner Plastering Co), 234 NLRB 235 (1978) Further, the ACEA is signatory to the 1987- 1990 collective-bargaining agreement with the Iron Workers which provides, inter alia, that "all juns- dictional disputes which may develop shall be set- tled in accordance with [the Plan] " We thus find that the ACEA is bound to recognize the Plan as a means of resolving the instant dispute 6 According ly, because all parties are bound to submit jurisdic- tional disputes to the Plan, we shall quash the notice of hearing ' ORDER The notice of hearing issued in this proceeding is quashed 6 We find no merit to the ACEA s contention that the Iron Workers contract was negotiated only on behalf of the Eastern Wisconsin Erec tors Association the ACEA is named as a party and is signatory to the Iron Workers contract r We do not find the proferred evidence of the Operating Engineers past conduct with respect to the Plan or its predecessors sufficient to es tabhsh that the Operating Engineers has repudiated the Plan We also find that the Operating Engineers initial failure to invoke the Plan as a means of settling the instant dispute does not preclude it from now seek ing a resolution of this dispute under the Plan s procedures