Carpenters Northeast Ohio Council Local 1929 (Luedtke Engineering)

National Labor Relations Board - Board Decisions

Jul 17, 1992

307 N.L.R.B. 1323 (N.L.R.B. 1992)

1323
307 NLRB No. 200
CARPENTERS NORTHEAST OHIO COUNCIL LOCAL 1929 (LUEDTKE ENGINEERING)
1 Ice cones, which are ice shields, are placed in steel cylinders
called ‘‘cells’’ that are pounded into the lake bottom. Pile-driving
work includes construction of the ice cones.
Northeast Ohio District Council of Carpenters and
Pile Drivers, Local Union No. 1929 of said Dis-
trict Council, AFL–CIO and Luedtke Engineer-
ing Company and Seafarers International
Union of North America, AFL–CIO, Atlantic,
Gulf, Lakes and Inland Water District, AFL–
CIO. Case 8–CD–445
July 17, 1992
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed on April 17, 1991, by the Employer, Luedtke En-
gineering Company (Luedtke), alleging that the Re-
spondent, Northeast Ohio District Council of Car-
penters and Pile Drivers, Local Union No. 1929 of said
District Council, AFL–CIO (Carpenters), violated Sec-
tion 8(b)(4)(D) of the National Labor Relations Act by
engaging in proscribed activity with an object of forc-
ing or requiring the Employer to assign certain work
to employees it represents rather than to employees
represented by Seafarers International Union of North
America, AFL–CIO, Atlantic, Gulf, Lakes and Inland
Water District, AFL–CIO (Seafarers). The hearing was
held on May 14, 15 and 16, 1991, before Hearing Of-
ficer Richard F. Mack. The Seafarers did not attend the
10(k) hearing. Luedtke, the Carpenters, and the Sea-
farers filed posthearing briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.
I. JURISDICTION
Luedtke Engineering Company, a Michigan corpora-
tion, is a marine construction company operating
throughout the Great Lakes and Upper Mississippi area
with its principal office in Frankfort, Michigan.
Luedtke is currently engaged in constructing a fishing
pier for the Ohio Department of Natural Resources at
its Edgewater Park facility in Cleveland. The approxi-
mate value of the construction project is $770,000.
Luedtke has received goods in excess of $50,000 at the
Edgewater construction site directly from suppliers lo-
cated outside the State of Ohio. We find that Luedtke
is engaged in commerce within the meaning of Section
2(6) and (7) of the Act and that the Carpenters and the
Seafarers are labor organizations within the meaning of
Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Luedtke commenced work on the Edgewater Park
fishing pier project about April 8, 1991. Luedtke used
crews of five consisting of two operating engineers and
three seafarers. On April 15, 1991, William Lamb of
the Carpenters learned from Luedtke Superintendent
Vito Mellili that pile-driving work was scheduled 2
days later. On April 16, David Quinby, the Carpenters
chief executive officer, telephoned Luedtke at its
Michigan headquarters and asked that Luedtke sign a
contract with the Carpenters and use carpenters to do
the pile-driving work at the Edgewater site. Luedtke
refused.
At approximately 6:50 a.m. on April 17, 1991, the
Carpenters posted seven or eight pickets at the en-
trance to the jobsite. Their signs, directed to the public,
stated that Luedtke’s pile-driving work on the project
was unfair to carpenters. When Luedtke Superintendent
Mellili approached the picket line, Carpenters Rep-
resentative Lamb told Mellili that the Carpenters
would be forwarding a piledriver contract to Luedtke’s
home office. At approximately 7:55 a.m. the same day,
the operating engineers left the jobsite pursuant to the
instructions of their business agent, and those crew-
members who reported at the 3 p.m. shift change also
declined to cross the picket line, which had increased
in number to approximately 14. By 4:30 p.m., the
pickets numbered 25 to 30. No work was performed
on April 17. On April 18, 1991, 10 pickets were at the
jobsite at approximately 6:40 a.m. and the crew de-
clined to cross the picket line. When the picket line
disbanded at approximately 10:40 a.m., the crew re-
turned to work. At the time of the hearing, ‘‘ice
cones’’1 remained to be set at the worksite.
B. Work in Dispute
The disputed work involves marine pile-driving
work associated with the installation of two circular
cells, main and remote abutment structures to facilitate
access ramps, and protective ice cones in the construc-
tion of a fishing pier for the Ohio Department of Nat-
ural Resources at its Edgewater Park facility in Cleve-
land.
C. Contentions of the Parties
Both Luedtke and the Seafarers contend that the dis-
puted work should be awarded to employees rep-
resented by the Seafarers based on Luedtke’s pref-
erence, its collective-bargaining agreement with the
Seafarers, skills, economy, and efficiency. The Car-
penters contends that its long-term, exclusive perform-
1324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Luedtke’s secretary, Chris E. Luedtke, testified without dispute
that no other avenue was available for resolution of the dispute.
3 Chairman Stephens notes that the determination that this case
presents a jurisdictional dispute does not run afoul of his dissenting
opinion in Laborers Local 731 (Slattery Associates), 298 NLRB 787
(1990), because, among other things, the Carpenters picketed in sup-
port of its claim to the work.
4 Art. XIX, Duration and Modification
This agreement shall be in effect as of May 1, 1987, and shall
remain in force and effect to and including April 30, 1988, and
shall be automatically renewed thereafter from year to year (or
by Agreement for any longer period) at the wages and condi-
tions existing on April 30, 1988, unless at least 60 days before
the expiration date of any renewal period thereafter, written no-
tice of termination is given by certified mail by either party to
the other at his known business address. In case of such notice,
a meeting of the parties shall be held at a mutually agreeable
time and place.
ance of marine pile-driving work in the geographical
area entitles it to the work. The Carpenters also relies
on its collective-bargaining agreement with Luedtke.
D. Applicability of the Statute
Before the Board may proceed with a determination
of the dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated and that
the parties have not agreed on a method for voluntary
adjustment of the dispute.
To obtain the disputed work, the carpenters picketed
the worksite on April 17 and 18, 1991, thereby stop-
ping all work on the fishing pier at that time. The Car-
penters has not disclaimed interest in the disputed
work. The Seafarers claimed, and performed, the dis-
puted work. We find reasonable cause to believe that
a violation of Section 8(b)(4)(D) has occurred and that
there exists no agreed method for voluntary adjustment
of the dispute within the meaning of Section 10(k).2
Unlike our colleague, we view these facts as evincing
a traditional jurisdictional dispute between two unions
claiming the same work. The Employer assigned the
disputed work to employees represented by the Sea-
farers. The Carpenters protested this work assignment
with picketing which caused a delay in the work.
While the Seafarers acknowledged to the Board that it
‘‘accepted the work on the premise that the Car-
penters’ marine agreement had expired,’’ this does not
make the dispute contractual rather than jurisdictional.
At no time during the work’s performance did the Sea-
farers state that it did not wish to do the work or dis-
cipline its members for doing it. At all times the work
continued to be performed by employees represented
by the Seafarers. The failure of the Seafarers to dis-
claim the disputed work assigned to the employees it
represented indicates that it continues to claim the
work. See Teamsters Local 50 (Schnable Foundation),
295 NLRB 68, 70 (1989), and cases cited there; Iron
Workers Local 197 (Del Guidice Enterprises), 291
NLRB 1, 3 (1988).
As for the Carpenters, we note that it has not sought
either to quash the notice of hearing or seek to offer
further evidence to establish the existence of a jurisdic-
tional dispute; it simply contends that this is a jurisdic-
tional dispute in which the factors weigh in favor of
an award to Carpenters-represented employees. Neither
does it rely on Teamsters Local 578 (USCP-Wesco),
280 NLRB 818 (1986), affd. 827 F.2d 581 (9th Cir.
1987), cited by our colleague. In our view, that case—
a nonconstruction industry case which involved the
subcontracting of unit work formerly done by the em-
ployer’s own unionized employees to a subcontractor
with employees represented by a different union—is
distinguishable from a case like this, in which one
union claims that the Employer should continue, in
keeping with past contracts, to assign work on new
construction projects to employees it represents rather
than to employees represented by another union. See
Iron Workers Local 197 (Del Guidice), supra; Labor-
ers (White Contracting), 290 NLRB 300, 301 (1988).
Accordingly, on a record which we regard as en-
tirely adequate for these purposes, we find that the dis-
pute is properly before the Board for determination.3
We therefore believe our task under Section 10(k) of
the Act is to resolve this dispute on the facts before
us in order to avoid workplace strife with increased
costs and attendant delays detrimental to employer and
employee alike.
E. The Collective-Bargaining Agreements
The Board has certified neither the Seafarers nor the
Carpenters as the collective-bargaining representative
of any of Luedtke’s employees. Since at least the
1950s, Luedtke has maintained successive collective-
bargaining agreements with the Seafarers. Luedtke’s
current agreement with Seafarers covers the disputed
work, but includes a clause limiting its application to
those work situations that are not covered by a pre-
existing agreement with another labor union.
Luedtke also has maintained a collective-bargaining
relationship with the Carpenters for more than 25
years. The last formal agreement between Luedtke and
the Carpenters was effective for the period May 28,
1987, through April 30, 1988. This agreement, too,
covered the disputed work. The agreement provided
that it would automatically renew in the absence of a
60-day notice of intent to terminate.4 Neither Luedtke
nor the Carpenters gave the requisite notice in either
1988 or 1989. However, in a February 26, 1990 letter,
David Quinby, the Carpenters chief executive officer,
notified Luedtke that the April 30, 1990 date for termi-
nation of their marine pile-driving agreement was ap-
proaching and that it was the Carpenters’ desire ‘‘to
negotiate, modify and amend’’ the agreement. The let-
ter also noted the concurrent ‘‘attempt to negotiate a
1325CARPENTERS NORTHEAST OHIO COUNCIL LOCAL 1929 (LUEDTKE ENGINEERING)
5 See, e.g., Paterson Paper Co. v. Paper Makers, 191 F.2d 252 (3d
Cir. 1951); Oakland Press Co., 229 NLRB 476, 478 (1977), enfd.
in relevant part 606 F.2d 689 (6th Cir. 1979); Speedrack, Inc., 293
NLRB 1054 (1989).
Great Lakes Basin Agreement’’ and the Carpenters’
‘‘desire to be part of it’’ if it became a reality. The
letter, however, concluded with the notice that the Car-
penters would be in contact with Luedtke ‘‘to establish
a time and place for local area negotiations.’’
Luedtke contends that this letter terminated its col-
lective-bargaining relationship with the Carpenters and
that it therefore was free to assign the marine pile-driv-
ing work on the Edgewater project to employees rep-
resented by the Seafarers pursuant to its contract with
that Union. The Carpenters claims that the February 26
letter was intended as a letter of renegotiation and was
limited to the negotiation of a pay raise. It also con-
tends that renegotiation was deferred because of the
concurrent attempt to negotiate a Great Lakes Basin
Agreement which would have applied to the disputed
work. Both Luedtke and the Carpenters, however,
agree that there was no agreement to delay negotia-
tions between the two parties because of the Great
Lakes Basin Agreement negotiations, which terminated
without an agreement among the participating parties.
The Seafarers in its brief to the Board, alleges that it
‘‘accepted the work on the premise that the Carpenters
marine agreement had expired.’’
Based on the evidence presented in this proceeding,
we find contrary to our dissenting colleague, that
Luedtke’s collective-bargaining agreement with the
Carpenters expired on April 30, 1990. The Carpenters
February 26 letter acted as a notice of termination pur-
suant to the agreement’s own terms. The agreement
made provision for neither continuation pending con-
summation of a new contract nor reopening limited to
wages.5 Further, there was no agreement between
Luedtke and the Carpenters to delay negotiations on a
new marine pile driving agreement because of the con-
current Great Lakes Basin Agreement negotiations.
Whatever bargaining obligation between Luedtke and
the Carpenters might have remained following the ter-
mination of the agreement, and the evidence before us
is insufficient to determine if there was any obligation,
there was no Carpenters-Luedtke agreement in exist-
ence in April 1991. There was, therefore, no restriction
on Luedtke’s assigning the disputed work to employ-
ees represented by Seafarers pursuant to its current
contract with that Union.
In sum, we look to the state of the Employer’s con-
tractual obligations at the time it made the assignment
of work. Because we construe the Carpenters February
26, 1990 letter as a termination letter, we are simply
weighing the evidence of the Carpenters expired agree-
ment (and predecessor agreements) against the evi-
dence of the Seafarers’ agreement, which was in force
at the time of the assignment in the absence of ‘‘a
valid labor agreement with another recognized AFL–
CIO union’’ covering the work. In this context, it is
meaningless to speak of an expired agreement as a
‘‘valid’’ agreement, since after expiration it is no
agreement at all. Accordingly, the factor of collective-
bargaining agreements favors awarding the disputed
work to employees represented by the Seafarers. See,
e.g., Stage Employees IATSE Local 41 (Greyhound
Exhibitgroup), 270 NLRB 369, 370 (1984); Long-
shoremen ILWU Local 54 (Hugo Neu Sales), 248
NLRB 775, 777 (1980).
F. Employer Preference
Chris Luedtke, Luedtke’s secretary, testified that it
was Luedtke’s preference that the disputed work be as-
signed to employees represented by the Seafarers.
G. Past Practice and Area Practice
In the past 25 years, Luedtke usually hired employ-
ees represented by the Carpenters to perform marine
pile-driving work in a five-county area of northeastern
Ohio. The 1986 Wildwood Park project was the last
time Luedtke used employees represented by Car-
penters. The 1991 Edgewater Park project in dispute
here is the first time that Luedtke has assigned the
work to employees represented by the Seafarers.
Chris Luedtke testified that there was no industry
practice controlling marine pile-driving work in the
area. Of the limited number of companies performing
this work, many are small, family-owned businesses.
Currently, the majority operate nonunion, although at
least one uses only operating engineers, and some
companies use crews split between operating engineers
and teamsters. At least two other companies besides
Luedtke have used crews split between operating engi-
neers and seafarers.
We find that past practice and area practice are in-
conclusive as to the assignment of the disputed work.
H. Relative Skills
Chris Luedtke testified that employees represented
by Seafarers have the marine skills required for the
marine pile-driving work. These employees are able to
maneuver on the barges which often operate in rough
weather, creating an unstable environment for the pre-
cision work. The Seafarers-represented employees are
familiar with safety operations on the barges which
precludes delays and accidents. Their cohesiveness as
crews provides for expeditious performance of the
work. Many are certified welders who have worked on
tugs and barges all their lives. The Edgewater Park
project involves dangerous work setting sheets, catch-
ing sheets, and placing interlock from a moving vessel,
here a derrick boat 12. The employees represented by
Seafarers have used this vessel annually and are famil-
1326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Luedtke’s 1986 experience with employees represented by the
Carpenters had not been favorable in this respect. Two of those em-
ployees had worksite accidents and at subsequent disability hearings
were revealed to have previously adjudicated disabilities that jeop-
ardized their work ability and may have contributed to their acci-
dents on Luedtke’s derrick boat.
iar with its operation and safety features. The Seafarers
seniority list reflects skill and leadership, and a cooper-
ative safety program undertaken with Luedtke enables
Luedtke to rely on that Union’s certification of referred
employees as physically fit.6
The Carpenters business representative, William
Lamb, testified that employees represented by that
Union had done ice cone work more recently than em-
ployees represented by the Seafarers. The Carpenters
chief executive officer, David Quinby, testified that
many of Carpenters-represented employees were also
certified welders. However, he conceded that some em-
ployees represented by the Carpenters were less experi-
enced than that and that a few had trouble doing the
climbing necessary for marine pile-driving work.
We find that the factor of relative skills favors
awarding the disputed work to employees represented
by the Seafarers.
I. Economy and Efficiency of Operations
Chris Luedtke testified that employees represented
by the Seafarers had interchangeable job skills whereas
employees represented by the Carpenters did not pos-
sess this flexibility. He also testified that the Car-
penters required larger crews than the Seafarers. Had
Luedtke used the Carpenters crew size of eight rather
than the Seafarers crew size of five (two operating en-
gineers and three seafarers) it would have been unsuc-
cessful in its bid for the Edgewater Park job. Car-
penters Chief Executive Officer David Quinby testified
that the Carpenters would have been willing to modify
their crew size, but that negotiations would have been
required.
We find that this factor favors awarding the work to
employees represented by Seafarers.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by Seafarers are enti-
tled to perform the disputed work. We reach this con-
clusion relying on the factors of collective-bargaining
agreements, relative skills, economy and efficiency of
operation, and employer preference. In making this de-
termination, we are awarding the work to employees
represented by the Seafarers and not to that Union or
its members. The determination is limited to the con-
troversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees represented by Seafarers International
Union of North America, AFL–CIO, Atlantic, Gulf,
Lakes and Inland Water District, AFL–CIO are entitled
to perform marine pile-driving work associated with
the installation of two circular cells, main and remote
abutment structures to facilitate access ramps, and pro-
tective ice cones in the construction of a fishing pier
for the Ohio Department of Natural Resources at its
Edgewater Park facility in Cleveland.
2. Northeast Ohio District Council of Carpenters and
Pile Drivers, Local Union No. 1929 of said District
Council, AFL–CIO is not entitled by means proscribed
by Section 8(b)(4)(D) of the Act to force Luedtke En-
gineering Company to assign the disputed work to em-
ployees represented by it.
3. Within 10 days from this date, Carpenters Local
Union No. 1929 shall notify the Regional Director for
Region 8 in writing whether it will refrain from forc-
ing the Employer, by means proscribed by Section
8(b)(4)(D) to assign the disputed work in a manner in-
consistent with this determination.