Cruz Contractors, Inc.

National Labor Relations Board - Board Decisions

Nov 28, 1978

239 N.L.R.B. 490 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 825, International Union of Operating Engi-
neers, AFL-CIO and Cruz Contractors, Inc. and
Local 15024, United Steelworkers of America,
AFL-CIO. Case 22-CD-308
November 28, 1978
ORDER GRANTING MOTION AND
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND MURPHY
On January 18, 1978, the National Labor Rela-
tions Board issued its Decision and Order Quashing
Notice of Hearing in the above-captioned proceed-
ing,' finding that a jurisdictional dispute no longer
existed within the meaning of the National Labor
Relations Act, as amended, because Local 825, Inter-
national Union of Operating Engineers, AFL-CIO
(hereinafter called Operating Engineers), had dis-
claimed any interest in the work in dispute. Thereaf-
ter, by letter dated January 25, 1978, Operating Engi-
neers notified the Board and the parties that it was
not its intention to disclaim interest in work at any
jobsite of Cruz Contractors, Inc. (hereinafter the Em-
ployer), in Middlesex County, New Jersey, "if, in
fact, that job was not operational at the time of the
[10(k)] hearing." Operating Engineers further alleged
that it knew of no such jobs at the time of the hear-
ing. On February 2, 1978, the Employer filed a mo-
tion for rescission of the Board's Order Quashing
Notice of Hearing and requested that the Board
make an affirmative determination of the work in
dispute, contending that the Operating Engineers
January 25 letter constituted a rescission of its previ-
ous disclaimer of the work in dispute.2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
In accepting Operating Engineers disclaimer in the
original 10(k) proceeding, we found that that dis-
claimer covered work of the Employer in Middlesex
County, New Jersey, as well as in the Borough of
234 NLRB 292 (1978).
2 The Decision and Order Quashing Notice of Hearing in this proceeding
covered charges filed against Operating Engineers by three separate em-
ployers in three separate cases which were consolidated by the Regional
Director for Region 22 pursuant to Sec. 102.33 of the Board's Rules and
Regulations. Series 8, as amended. Inasmuch as the parties in Cases 22-
CD-307 and 22-CD-309, with which the instant case was consolidated.
have not filed any motion for rescission or reconsideration of the Board's
Decision and Order Quashing Notice of Hearing as to their cases, we make
no rulings as to those cases herein.
Lincoln Park, New Jersey. Operating Engineers
claims error by the Board's inclusion of the Employ-
er's Middlesex County work as part of the work in
dispute covered by its decision. Specifically, Operat-
ing Engineers asserts that by its disclaimer it only
intended to disclaim the construction jobsites which
were currently operational and that, since it knew of
no construction jobsite of the Employer in Middlesex
County, New Jersey, at the time of the hearing, there
was no basis for disclaiming interest in any such
work. The Employer, conversely, contends that its
work for the Middlesex County Sewerage Authority
was in fact work in dispute in the 10(k) proceeding;
that Operating Engineers had knowledge of that
work; that Operating Engineers demanded the work;
that Operating Engineers threatened to picket said
jobsites: and that said work was commenced at the
time the charge was filed.
We find no merit in Operating Engineers conten-
tion that the Board should accept its disclaimer as
limited only to the work at the Employer's Lincoln
Park jobsites, as a review of the record herein disclos-
es nothing to cause us to change our conclusion that
Operating Engineers disclaimer encompassed job-
sites of the Employer in Middlesex County as well.
Thus, the Employer's charge, filed on July 5, 1977,
and served on Respondent on July 7, 1977, alleged
that Operating Engineers had engaged in and was
engaging in unfair labor practices in violation of Sec-
tion 8(b)(4)(D) of the Act at various public streets,
Borough of Lincoln Park, and various locations,
County of Middlesex, New Jersey. The work in dis-
pute, as described in the 10(k) notice of hearing is-
sued on July 13, 1977, included work at Lincoln Park
jobsites at which Operating Engineers had picketed,
"and at all other of the Employer's construction job-
sites." Further, Operating Engineers, in advising the
Board by letter received in the Regional Office on
July 29, 1977, that it disclaimed any interest in the
work assignments involved in the 10(k) proceeding,
made no differentiation between Lincoln Park job-
sites and any other jobsites in that disclaimer. Nor
did the attorney for Operating Engineers so differen-
tiate in orally reaffirming Operating Engineers dis-
claimer to the Hearing Officer on August 16, 1977,
prior to commencement of the hearing. Finally, the
evidence as adduced at the hearing clearly indicated
that Operating Engineers wanted the work the Em-
ployer was going to do in Middlesex County, re-
quested that the Employer sign a contract by which it
would be obligated to hire all employees in the future
through the Operating Engineers hiring hall and re-
place its present employees represented by Steel-
workers with employees represented by Operating
Engineers, and warned the Employer at the time of
490
LOCAL 825, OPERATING ENGINEERS, AFL-CIO
its Lincoln Park picketing that it should resolve the
situation with Operating Engineers because this was
just the start of its activities against Cruz and that
Operating Engineers would also be up in Middlesex
County as soon as operations began there.
That Operating Engineers was in fact concerned
with the Middlesex County work is further evidenced
by the testimony of the Employer's vice president,
Edward Cruz, who stated that, at a meeting with Op-
erating Engineers representatives occurring in May
1977, Operating Engineers Business Manager Pat
Campbell indicated that the Middlesex County work
in particular was very much of interest to Operating
Engineers, "because it represented a large contracts
[sic], a lot of work, and that they had to have their
men put on those projects in addition to the Lincoln
Park project." Cruz testified at that time that the Em-
ployer was in the process of mobilizing on one of its
two Middlesex County Sewerage Authority contracts
and, when queried as to what that meant, replied,
"'That means we are in the process of setting up field
offices in the yard for conducting the work."
We find, based on the above, that Respondent had
adequate notice that the work in dispute precipitat-
ing the filing of charges and the conduct of a 10(k)
hearing in the instant case included sewer construc-
tion work in Middlesex County, New Jersey. We fur-
ther find that Respondent was afforded full opportu-
nity to appear, to be heard, to examine and
cross-examine witnesses, and to adduce evidence
bearing on issues relevant to that charge in the 10(k)
proceeding, but declined to participate. Respondent
chose instead to rely on its statement that it dis-
claimed any interest in the work in dispute. However,
because we find Respondent's January 25, 1978, let-
ter stating that it did not intend to disclaim the Mid-
dlesex County work inconsistent with its previous
disclaimer, accepted by us, we have decided to de-
termine the dispute on its merits.
ORDER
In view of the foregoing, we hereby grant the Em-
ployer's motion for rescission of our Decision and
Order Quashing Notice of Hearing to the extent that
it applies to this Employer's operations, and shall de-
termine the dispute in Case 22-CD-308 on its merits.
THE DISPUTE
A. The Work in Dispute
The work in dispute, as described in our previous
decision, is as follows:
The maintenance and operation of all Cruz'
heavy equipment including backhoes, front-end
loaders, bulldozers, cranes, water pumps, rollers,
and paving machines at Cruz' construction job-
sites located on Comly Road at Tuland Place,
Anthony Boulevard at Arthur Road, Ryerson
Road at William Street, and Ryerson Road at
Hazel Street, all in the Borough of Lincoln Park,
New Jersey, and at all other of the Employer's
construction jobsites.
B. Background and Facts of the Dispute
The background and relevant facts surrounding
this dispute are set forth in our prior Decision and
Order as follows:
Cruz, a construction company involved pri-
marily in the utility construction field, was en-
gaged in the installation of a sewer line in Lin-
coln Park, New Jersey, in early May [19773 ].
Cruz also had contracts for the construction of
two other sewer projects, both in Middlesex
County, New Jersey, on which work had not yet
begun. The maintenance and operation of the
heavy equipment on all of these sewer projects
had been awarded by Cruz to its employees who
are represented by Steelworkers Local 15024.
Cruz and the Steelworkers have had a collective-
bargaining agreement in effect at all times rele-
vant to this proceeding which covers the em-
ployees performing the work in dispute.
Cruz was contacted by the Operating Engi-
neers early in May through Cruz' attorney, Ron
Tobia, and a meeting was set up to discuss the
proposed use of Operating Engineers on Cruz
construction projects. Edward Cruz, vice presi-
dent of the Company, testified that at a meeting
on May 10 in East Orange, New Jersey, repre-
sentatives of Operating Engineers requested that
Cruz employ operating engineers to operate the
heavy equipment at its Lincoln Park and Mid-
dlesex County jobsites. Operating Engineers also
requested that Cruz sign a contract with it.
On requirement of the contract proposed by
the Operating Engineers was that Operating En-
gineers Local 825 would have hiring hall rights,
and that all men working on Cruz projects
would have to go through the Operating Engi-
neers hiring hall procedure. Thus, present Cruz
employees operating the heavy equipment who
are represented by Steelworkers would have had
to be replaced by workers hired through the Op-
erating Engineers hiring hall under the proposed
agreement. Cruz testified that they discussed hir-
Unless otherwise indicated. all dates are 1977.
491
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing some operating engineers in addition to the
Steelworkers-represented employees currently
operating the heavy equipment, but that that
proposal was rejected by the Operating Engi-
neers business manager who stated that Operat-
ing Engineers would have to have the hiring hall
rights. Cruz refused to sign the Operating Engi-
neers contract.
Thereafter, on June 23, Operating Engineers
Local 825 picketers, with signs saying that Cruz
was not paying area wages and benefits, ap-
peared at four locations at Cruz' Lincoln Park
jobsite. Edward Cruz testified, however, that
Cruz was in compliance with its contracts both
with the Borough of Lincoln Park under which
it was required to pay the prevailing Federal area
wage rates, and with Steelworkers Local 15024.
Cruz further testified that Peter Strannemar, a
business agent of the Operating Engineers, in-
formed him that Cruz should resolve the situation
with Operating Engineers because this wasjust the
start of their activities against Cruz, and that Oper-
ating Engineers would also be up in Middlesex
County as soon as operations began there. On July
27, the district court granted a temporary injunc-
tion and the picketing ceased and has not since
resumed.
C. Contentions of the Parties
The Employer contends that its assignment of the
disputed work is consistent with all the factors on
which the Board normally relies in resolving work
assignment disputes. Thus, Cruz maintains that the
work is properly assigned to its employees, pursuant
to its collective-bargaining agreement with the Steel-
workers covering the work, and that the work has
traditionally been assigned to those employees. It
also asserts that the Operating Engineers has no valid
basis for claiming the work. The Steelworkers neither
appeared at the hearing nor made any statement of
position. Operating Engineers also did not appear at
the hearing and has made no explicit claims concern-
ing any basis for awarding the disputed work to em-
ployees it represents. Its sole statement of position
prior to the 10(k) hearing was that it disclaimed any
interest in the work in dispute, that the picket lines
had been removed and would not be replaced, and
that it would not engage in any action inconsistent
with that stated position.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of a 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 upon a method for
the voluntary adjustment of the dispute.
Based on the foregoing evidence that Operating
Engineers established and maintained picket lines at
Cruz jobsites in Lincoln Park, New Jersey, and
threatened also to picket the Employer's Middlesex
County, New Jersey, jobsites, following Cruz' refusal
to sign a contract with Operating Engineers and em-
ploy its members rather than Cruz' own employees,
we conclude that there is reasonable cause to believe
that a violation of Section 8(b)(4)(D) has occurred.
The record does not indicate that any agreed-upon
method for the voluntary adjustment of the dispute
exists within the meaning of Section 10(k) of the Act.
Further, as stated above, we find Respondent's Janu-
ary 25, 1978, letter stating that it did not intend to
disclaim the Middlesex County work inconsistent
with its previous general disclaimer of the work in
dispute. Accordingly, we find that this dispute is
properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of disputed work after
giving due consideration to various factors.4 The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on com-
monsense and experience reached by balancing those
factors involved in each particular case.5
The following factors are relevant in determining
the dispute before us:
I. Certification and collective-bargaining
agreements
Neither of the labor organizations herein has been
certified as the collective-bargaining representative
for a unit of the Employer's employees. The Em-
ployer, however, has had a continuing bargaining re-
lationship with Steelworkers, dating from June 1972.6
The Employer's most recent contract with that union
is effective from January 31, 1976, to December 31,
1978, and relates to all phases of its construction
4 N.L.R.B. v. Radio & Television Broadcast Engineers Lnion. Local 1212.
International Brotherhood of Electrio al Workers. A Ft ('10 (Columbia Broad-
asting Svstern. 364 U.S 573 (1961).
5International Associarion of Machinists, Lodge No 1743. AFL-(0IO(J A
Jones Construction Company). 135 NLRB 1402 (1962).
6 Although the parties have had successive collective-bargaining agree-
ments from that date, both have existed as predecessor organizations during
that time period. Thus. Athens Construction Company as the predecessor of
Cruz Contractors, Inc.. and District 50. Allied and Technical Workers of the
United States and Canada. which merged with the Steelworkers, preceded
Steelworkers in this collective-bargaining relationship.
492
LOCAL 825, OPERATING ENGINEERS, AFL-CIO
work and allied fields. Employer's vice president,
Cruz, testified that its heavy equipment operators,
truckdrivers, and other construction job classifica-
tions are covered under this contract. There is no
evidence that the Employer is a party to any collec-
tive-bargaining agreement with Operating Engineers.
We conclude, therefore, that considerations of collec-
tive-bargaining history and agreements favor assign-
ment of the work to the Employer's employees repre-
sented by Steelworkers.
2. Employer, industry, and area practice
The Employer has assigned the maintenance and
operation of the heavy equipment on all of its sewer
construction projects to its employees who are repre-
sented by Steelworkers. Vice President Edward Cruz,
who stated that he is a past president of the Utility
Contractors Association of New Jersey and is currently
president of the National Utility Contractors Associa-
tion, testified that it is his opinion that the majority of
employees operating heavy equipment in the construc-
tion utility field in New Jersey are nonunion but, of
those equipment operators who are represented by
unions, more are represented by Steelworkers than by
Operating Engineers. Accordingly, we find that the
Employer's own practice and the industry and area
practice favor awarding the work to the Employer's
employees who are represented by Steelworkers.
3. Skills and training of employees
The Employer's employees are proficient in the
operation of its heavy equipment, primarily due to
their time and experience in utility construction
work. The Employer's backhoe operators, for exam-
ple, dig trenches to within an inch or less of grade
without the aid of calibration instruments in the cab
of the machines; the crane operators are especially
skilled in lifting a load, such as pipe, traveling with it,
and then placing it in an excavation where the opera-
tor does not have visual contact with the object being
put in the ground, and certain of the Employer's em-
ployees have been specially trained in the operation
of specialized equipment, such as the Koerhing 1266
hydraulic excavator, which is a type of construction
equipment operating engineers may not generally be
qualified to operate without specialized training.
Further, the Employer's operators have performed
their work in a safe manner, and have satisfactorily
completed portions of the work required under the
Lincoln Park contract. It is clear, therefore, that the
Employer's employees are qualified to perform the
work. We are reluctant, however, to find that the
skills and special training of the Employer's employ-
ees renders them more skilled or better qualified to
perform this work than employees represented by
Operating Engineers would be, as it is well recog-
nized that Operating Engineers represents employees
who are skilled in the operation of heavy equipment.
Thus, we do not rely on these factors in determining
which group of employees should be awarded the
disputed work.
4. Efficiency and economy of operations
The record indicates that the Employer's employ-
ees may, in addition to operating its heavy equip-
ment, perform other construction work-such as ir-
onwork or carpentry work-at times when no
operator of heavy equipment is required. Operating
Engineers-represelted workers, on the other hand,
do not, insofar as the record indicates, do work that
is not categorized as operating engineer work. There-
fore, the use of its own employees would appear to
result in the faster and more economical completion
of the Employer's construction projects than if the
disputed work were assigned to employees repre-
sented by Operating Engineers. Accordingly, we find
that efficiency and economy of operations tend to
support assignment of the work to the Employer's
employees represented by Steelworkers.
Conclusion
Upon the record as a whole, and after full consid-
eration of all relevant factors involved, we conclude
that the Employer's employees represented by Steel-
workers are entitled to perform the work in dispute.
We reach this conclusion on the basis of the Employ-
er's assignment and preference, the Employer's col-
lective-bargaining agreement with Steelworkers, the
industry and area practice with which such an assign-
ment is consistent, and the fact that the Employer's
assignment will tend to result in greater efficiency
and economy of operations. In making this determi-
nation, we are awarding the work in question to em-
ployees represented by Steelworkers, but not to that
Union or its members.
The present determination is limited to the work in
dispute which gave rise to this proceeding. Thus, it
includes work at the Employer's Lincoln Park, New
Jersey, jobsites, where Operating Engineers picketing
occurred, and also includes work pursuant to the
Employer's two contracts with the Middlesex County
Sewerage Authority, which sites Operating Engineers
threatened to picket.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
493
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foregoing findings and the entire record in this pro-
ceeding, the National Labor Relations Board makes
the following Determination of Dispute:
1. Employees of Cruz Contractors, Inc., who are
represented by Local 15024, United Steelworkers of
America, AFL-CIO, are entitled to perform the fol-
lowing work:
The maintenance and operation of all Cruz'
heavy equipment including backhoes, front-end
loaders, bulldozers, cranes, water pumps, rollers,
and paving machines at Cruz' construction job-
sites located on Comly Road at Tulane Place,
Anthony Boulevard at Arthur Road, Ryerson
Road at William Street, and Ryerson Road at
Hazel Street, all in the Borough of Lincoln Park,
New Jersey, and at all other of the Employer's
construction jobsites established pursuant to its
two contracts with the Middlesex County Sewer-
age Authority, Middlesex County, New Jersey.
2. Local 825, 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 or
require Cruz Contractors, Inc., to assign the disputed
work to employees represented by that labor organi-
zation.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local 825, Interna-
tional Union of Operating Engineers, AFL-CIO,
shall notify the Regional Director for Region 22, in
writing, whether or not it will refrain from forcing or
requiring the Employer, by means proscribed by Sec-
tion 8(b)(4)(D) of the Act, to assign the disputed
work in a manner inconsistent with the above deter-
mination.
494