Dock Builders, Local 1456

National Labor Relations Board - Board Decisions

Sep 29, 1972

199 N.L.R.B. 453 (N.L.R.B. 1972)

DOCK BUILDERS , LOCAL 1456 453
Dock Builders , Shorers, House Movers, Pile Drivers
and Foundation Workers, Local Union No. 1456,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO and Vibroflotation Foundation
Company and Laborers' International Union of
North America, Local Union No. 343, AFL-CIO'
and Local Union No. 825 , International Union of
Operating Engineers, AFL-CIO.' Case 22-CD-210
the purpose of increasing the load-bearing capacity of
the soil. During the 12 months preceding the hearing,
the Company received approximately $3 million for
services performed in 12 States of the United States.
We find that the Company is engaged in commerce
within the meaning of the Act and that it will effectu-
ate the policies of the Act to assert jurisdiction herein.
II THE LABOR ORGANIZATIONS INVOLVED
September 29, 1972
DECISION AND DETERMINATION OF
DISPUTE
The Dock Builders, the Laborers, and the Oper-
ating Engineers are labor organizations within the
meaning of the Act.
III. THE DISPUTE
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended , following
a charge filed by Vibroflotation Foundation Compa-
ny, hereinafter called the Company , alleging that
Dock Builders , Shorers , House Movers, Pile Drivers
and Foundation Workers, Local Union No. 1456,
United Brotherhood of Carpenters and Joiners of
America , AFL-CIO, hereinafter called the Dock
Builders, violated Section 8(b)(4)(D) of the Act. A
hearing was held before Hearing Officer , James J.
Pirretti on June 9, 12, 14, and 15, 1972. All parties
appearing were afforded full opportunity to be heard,
to examine and to cross-examine witnesses, and to
adduce evidence bearing upon the issues . Thereafter,
the Dock Builders and the Company filed briefs. On
July 13, 1972, the Dock Builders moved to reopen the
record to receive allegedly newly discovered evidence.
On July 13, 1972, the Company filed a response to the
above motion . The motion is disposed of infra.
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.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error . They are hereby affirmed.
Upon the entire record in this case , the Board
makes the following findings:
I. THE BUSINESS OF THE COMPANY
The Company is a Pennsylvania corporation en-
gaged in the compaction of sand and granular soil for
1 Hereinafter referred to as Laborers and Operating Engineers , respective-
ly. Although notified of the hearing , neither the Laborers nor the Operating
Engineers appeared.
A. Background and Facts of the Dispute
At the time of the dispute herein the Company was
engaged as a subcontractor by E. J. Frankel Construc-
tion Company to increase the load-bearing capacity
of the soil below ground level by simultaneous vi-
bration and saturation, known as the "Vibro process"
at a construction site in Long Branch, New Jersey.
This process requires the use of a special machine,
called a vibroflot, which consists of a vibrator sus-
pended from the boom of a crane and a built-in water
jet system whereby water is pumped out of the bottom
of the machine at a rate faster than it can be absorbed
into the soil. As the heavier granular particles of sand
settle into a more dense mass, the excess water floats
the finest particles of sand to the surface and washes
them away, allowing the vibroflot to sink into the soil
until it reaches the desired depth. At that point the
vibrator is set in motion and the vibroflot is slowly
withdrawn to the surface. As the sand continues to
settle, additional sand is added from a front-end load-
er to fill the void so that when the vibroflot is com-
pletely withdrawn the compacted sand has attained
the desired load-bearing capacity. The Company was
also using two cranes, one water pump, one electric
power generator, and one front-end loader on the job.
The Company employed eight members of the
Operating Engineers in the following categories: two
crane operators, two oilers, one pump operator, one
general operator, one front-end loader operator, and
one lead-engineer foreman who supervised the above-
described operators. In addition the Company em-
ployed four laborers, two on each crane. The duties
of the laborers consisted of shoveling sand dumped
from the front-end loader into the hole to fill the void
caused by the "compaction" of granular soil beneath
the surface, moving hoses and cables to keep the rig
from damaging or running over them, and repairing
hoses if they began to leak.
The process involved herein was described by the
199 NLRB No. 53
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company as a soil improvement and treatment pro-
cess , rather than a pile-driving process. It is so de-
scribed because the technique used actually changes
the character of the soil to increase its load-bearing
capacity, whereas a pile-driving process does not in-
crease the soil's load-bearing capacity. In the latter
process, a foreign object, such as wood, steel , or con-
crete is driven or placed at a depth underground
where material with sufficient load-bearing capacity
can be found. Dockbuilders are traditionally em-
ployed in pile driving but, since the "Vibro process"
is not considered a pile-driving process, the Company
has never employed members of the Dock Builders to
perform any of the work on the numerous jobs it has
performed.
On April 19, 1972, the Company commenced op-
erations at the site and assigned the work described
above to members of the Operating Engineers and the
Laborers'? On April 25, 1972, Arthur Helt, business
agent for the Dock Builders, visited the jobsite, met
with Michael S. Hapsis, the job superintendent, and
asked the latter, "where are the dock builders?" Hap-
sis replied "we do not use dock builders, we use labor-
ers and operating engineers." Helt then stated that the
Company was engaged in a pile-driving operation,
that the work was dockbuilders work, and that the
Company would have to place dockbuilders on the
job, or it could not perform the work.
The Company refused Helt's demand to employ
members of the Dock Builders. Thereafter, on April
26, 1972, the dockbuilders began picketing the jobsite
with signs which read:
NOTICE TO PUBLIC
THE WORKING CONDITIONS AND WAG-
ES ON THIS JOB OF VIBROFLOTATION
FOUNDATION CO. ARE BELOW STAND-
ARDS OF DOCK BUILDERS LOCAL 1456.
WE ARE PICKETING TO IMPROVE THESE
CONDITIONS. THIS SIGN IS NOT MEANT
TO IMPEDE INGRESS OR EGRESS TO THE
JOB.
his equipment from the jobsite.
The job was shut down until the general contrac-
tor, Frankel, agreed to lease the Company's equip-
ment, hire members of the Laborers and Operating
Engineers who had worked for the Company, and hire
in addition 10 dockbuilders? The picket line was re-
moved and the operation resumed. The 10 dockbuild-
ers were assigned to keeping the logs and to assist the
laborers in moving the hoses.
B. The Work in Dispute
The dispute arises out of the Company's decision
to award the work involved in the "Vibro process" to
members of the Operating Engineers and the Labor-
ers rather than to members of the Dock Builders. The
work includes guiding the probe (vibroflot), the main-
tenance of the cables and hoses, the keeping of the
log, the operation of valves, and the repair work on
machinery at the Long Branch, New Jersey, jobsite.
C. Contentions of the Parties
The Dock Builders contends that: (1) Nojurisdic-
tional dispute exists because there are no rival unions
or employee groups claiming the assignment of the
work in dispute; and (2) assuming arguendo that there
has been a showing of violation of Section 8(b)(4)(D),
industry and area practice establishes that the work in
question has been performed by dockbuilders and the
Board should award the work in dispute to its mem-
bers.
The Company contends that the dispute is prop-
erly before the Board for determination under Section
10(k) and that the record establishes reasonable cause
to believe that the Dock Builders has engaged in con-
duct violative of Section 8(b)(4)(D) of the Act. The
Company also contends that the disputed work
should be awarded to members of the Operating Engi-
neers and the Laborers and that the award should be
made applicable to the States of New York and New
Jersey, or to such other geographical area as the
Board deems proper.
As a result of the picketing the job was shut down
and Helt told Frankel's officials that the pickets
would remain until dockbuilders were employed.
Members of the Operating Engineers respected the
picket line, but members of the Laborers did not,
indicating they would fight the Dock Builders if the
latter attempted to take over work of laborers. In
addition the owner of the front-end loader removed
D. Applicability of the Statute
Before the Board may proceed with the 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) of the Act has been
violated.
We find no merit to Dock Builders' contention
that there are no claims for the same work by compet-
2 The Company is a party to a national agreement with the Operating 3 The record shows that Respondent Dock Builders Local 1456 supplied
Engineers and had a verbal agreement with the Laborers to abide by the six dockbuilders and that a sister local in Philadelphia supplied the other
Laborers standard national agreement four
DOCK BUILDERS , LOCAL 1456
ing groups of employees and that therefore no juris-
dictional dispute exists 4 Contrary to the assertions in
the Dock Builders' brief, the record shows that mem-
bers of the Laborers crossed the Dock Builders' picket
line because of their desire to continue to perform the
work to which they had been assigned but no work
could be performed because members of the Operat-
ing Engineers honored the picket line. Moreover, as
stated by the Court in N.L.R.B. v. Local 1291, Interna-
tional Longshoremen's Association [Pocahontas Steam-
ship Co.], 368 F.2d 107 (C.A. 3):5
[I]f workmen, who are entitled to a job under the
terms of a labor contract, agree to forego the
obligation of working but not the concomitant
right to payment, they have not disclaimed any
significant right. When, as in this case, one group
insists that work, for which another group has
contracted and is being paid, be assigned to it,
the fact that both groups are claiming pay for the
same work suffices to create a jurisdictional dis-
pute, and it is irrelevant that either group, or
both, may manifest a willingness to take the pay
and forego the work .6
We also find no merit in the Dock Builders' con-
tention that the dispute is primary in nature because
the acts of the Company in refusing to hire dockbuild-
ers violated a collective-bargaining contract between
the Dock Builders and the Company. The record con-
tains no contract in support of such claim. To the
contrary, the testimony is that the Company did not
have a collective agreement with the Dock Builders at
the time of the dispute .7 In any event the Board has
held that, even though a labor organization seeks an
assignment of work based on a contract, this does not
detract from the jurisdictional nature of the dispute.8
We therefore find that there is reasonable cause
to believe that a violation of Section 8(b)(4)(D) has
occurred and that the dispute is properly before the
Board for determination under Section 10(k) of the
Act.
° International Brotherhood of Electrical Workers, Local Union No. 743,
AFL-CIO (Bender & Shoemaker, Inc). 185 NLRB No 106.
5 Enfg. 152 NLRB 676, cert denied 386 U.S. 1033.
6 Hoisting and Portable Engineers, Local No 450 (United Engineers & Con-
structors, Inc.), 186 NLRB No. 125, upon which Respondent relies in support
of its contention that no jurisdictional dispute exists in the present case, is
distinguishable . In that case, the dispute between the employer and the union
was essentially over whether one or two members of the respondent union
should be employed on a truck The Board found that in the circumstances
there were no competing claims to the work between rival groups of employ-
ees and therefore no jurisdictional dispute existed.
7 Respondent 's motion to reopen the record to receive allegedly newly
discovered evidence that the Company was bound by a collective-bargaining
contract between Respondent and New York Genial Contractors Associa-
tion is hereby denied because Respondent has failed to set forth facts which
would establish that such evidence was previously unavailable or could not
have been made available at the scheduled hearing by the exercise of proper
diligence . Crew Builders Supply Co, 154 NLRB 1747, 1748, In. 1.
8 International Longshoremen 's and Warehousemen 's Union and Internation-
al Longshoremen 's and Warehousemen 's Union, Local No 19 (American Mail
Line, Ltd and Mobile Crane Company), 144 NLRB 1432, 1439.
455
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 relevant factors.9
1. Certification and collective-bargaining
agreements
None of the labor organizations involved herein
has been certified by the Board nor is there evidence
indicating that a Board certification covers the disput-
ed work.
As noted, supra, the Company assigned the work
in dispute to its employees who are covered by collec-
tive-bargaining agreements with the Operating Engi-
neers and the Laborers. The Company had no
agreement with the Dock Builders at the time of the
dispute herein. Accordingly, we find that this factor
favors the Company's assignment.
2. Company and area practice
The Company has never employed dockbuilders
to perform the work in question. The Company has
performed more than 800 jobs, many of which were in
the New York-New Jersey area, and has always em-
ployed only operating engineers and laborers. Indeed
the only times that dockbuilders have ever been em-
ployed on a job where the "Vibro process" was in use
occurred on a few j obs where the Company's equipment
was leased to other employers because of threats by the
Dock Builders to shut the job down, as was the case
herein, or because a builder was apprehensive about
labor trouble with the Dock Builders. We find that com-
pany and area practices favor the Company's assign-
ment.
3. Skills and efficiency
There is nothing specially skilled about the work in
dispute that would require the Company to assign it to
dockbuilders. The work is relatively simple and routine
and can be learned by doing it for a few hours. Members
of the Laborers and Operating Engineers have per-
formed the work to the Company's satisfaction for
many years and the Company desires to continue with
these assignments. Moreover, the Dock Builders' de-
mand amounted simply to increasing the number of
men on the job. According to the testimony of company
officials, upon analyzing the logs, the employment of
dockbuilders in addition to laborers and operating en-
gineers resulted in decreased productivity while sub-
9 International Association of Machinists, Lodge No 1743, AFL-CIO (J.A
Jones Cpnstruction Company), 135 NLRB 1402, 1411
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stantially increasing the total cost of labor. Clearly the
factors of skill and efficiency favor the Company's as-
signment.
F. Conclusions as to the Merits of the Dispute
Upon consideration of all the pertinent factors in
this case , we shall affirm the Company's assignment of
the disputed work to members of the Operating Engi-
neers and the Laborers. In so doing, we give weight to
the collective-bargaining agreements with Operating
Engineers and Laborers, to the Company's practice,
and to the efficiency and economy resulting from the
Company's exclusive use of operating engineers and
laborers . We therefore conclude that the Company's
assignment should not be disturbed.
In making this determination , we are assigning
the disputed work to the employees of the Company
who are represented by the Operating Engineers and
the Laborers but not to those unions or their mem-
bers.
G. Scope of the Assignment
The Company requests that the Board 's deter-
mination apply to work which it expects to obtain in the
near future in the same general area . Because of the
history of similar controversies , and the likelihood of
the recurrence of such disputes, our determination will
cover assignment of the disputed work whenever the
Company operates in the New York or New Jersey area
and whenever the geographical jurisdictions of the
Dock Builders coincides with the jurisdiction of the La-
borers and the Operating Engineers.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended , and upon the basis of the
foregoing findings and the entire record in this pro-
ceeding, the National Labor Relations Board hereby
makes the following Determination of Dispute:
1. Employees of Vibroflotation Foundation
Company employed as laborers and operating engi-
neers who are represented by Laborers ' International
Union of North America, Local No. 343, AFL-CIO,
and Local Union No. 825, International Union of
Operating Engineers , AFL-CIO, respectively , rather
than employees represented by Dock Builders, Shor-
ers, House Movers , Pile Drivers and Foundation
Workers , Local Union No. 1456, United Brotherhood
of Carpenters and Joiners of America , AFL-CIO, are
entitled to perform the work involved in the "Vibro
process" including guiding the probe , maintaining ca-
bles and hoses , keeping the log, operating valves, and
repairing hoses and machines.
2. Dock Builders , Shorers , House Movers, Pile
Drivers and Foundation Workers, Local Union No.
1456, United Brotherhood of Carpenters and Joiners
of America , AFL-CIO, is not entitled , by means pros-
cribed by Section 8(b)(4)(D) of the Act, to force or
require Vibroflotation Foundation Company to as-
sign the above work to dockbuilders represented by it.
3. Within 10 days from the date of this Order,
Dock Builders , Shorers, House Movers, Pile Drivers
and Foundation Workers , Local Union No. 1456,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, shall notify the Regional Direc-
tor for Region 22, in writing, whether it will refrain
from forcing or requiring Vibroflotation Foundation
Company, by means proscribed by Section
8(b)(4)(D), to assign the work in dispute to employees
represented by it, rather than to employees repre-
sented by Laborers ' International Union of North
America, Local Union No. 343, AFL-CIO, and Local
Union No . 825, International Union of Operating En-
gineers , AFL-CIO.