International Union of Operating Engineers

National Labor Relations Board - Board Decisions

Mar 21, 1975

217 N.L.R.B. 19 (N.L.R.B. 1975)

INTERNATIONAL UNION OF OPERATING ENGINEERS
International Union of Operating Engineers , Hoisting
and Portable Local 16 and 16B andHicks Construc-
tion Company , Inc. Case 17-CD-185 '
March 21, 1975
DECISION AND ORDER QUASHING NOTICE
OF HEARING
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
This is a proceeding brought under Section 10(k) of
the National -Labor Relations Act, as amended, follow-
ing a charge filed on October 29, 1974, by Hicks Con-
struction Company, Inc., herein called the Employer,
alleging that International Union of Operating Engi-
neers, Hoisting and Portable Local 16 and 16B, herein
called the Engineers, had violated Section 8(b)(4)(D) of
the Act by engaging in certain proscribed activity with
an object of forcing or requiring the employer to assign
certain work to members of the Engineers, rather than
to its nonunion employees.
A hearing was held before Hearing Officer William
Bevan, III, on November 25 and 26, 1974. All parties
appeared at the hearing and were afforded full oppor-
tunity to be heard, to examine and cross-examine wit-
nesses, and to adduce evidence bearing upon the issues.
Briefs have been filed by the Employer and the Engi-
neers.
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 rul-
ings 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 EMPLOYER
Hicks Construction Company, Inc., is a Missouri
corporation engaged in the Springfield, Missouri, area
in the construction industry as a concrete contractor,
specializing in curb and guttering work. In 1974 Hicks
purchased approximately $85,000 to $90,000 of ready-
mixed concrete from Concrete Company of Springfield
which in turn purchased in excess of $500,000 of sand
and cement, the principal ingredients in ready-mixed
concrete, directly from sources outside the State of
Missouri.
We find that the Employer is engaged in commerce
within the meaning of the Act and that it will effectuate
the policies of the Act to assert jurisdiction.
II THE LABOR ORGANIZATION INVOLVED
19
The parties stipulated, and we find, that the Engi-
neers is a labor organization within the meaning of
Section 2(5) of the Act.
III THE DISPUTE
A. The Facts
During October 1974' the Employer was acting as
the prime contractor for the street construction work
at the Huff Industrial Park Building project, a privately
developed industrial park. The Employer was also per-
forming all the curb and guttering work on the project.
On October 21 or 22, Engineers business manager,
Bob Page, telephoned the Employer's president, Dave
Hicks, to discuss -his Union's position regarding the
Huff project. Hicks agreed to meet with Page at a later
date. According to Hicks, the purpose of the proposed
meeting was to discuss who should be assigned the
operation of a CMI SF- 100 Slip Form Paver, a member
of the Engineers or the Employer's current employee
who had no union affiliation.
Hicks testified that the initial meeting, attended by
Hicks, Page, and Tom Pirtle, Engineers business agent,
took place on October 24. According to Hicks, the
conversation consisted of Page stating that he wanted
Hicks to sign a contract with the Union and that a
union member should replace the current operator of
the CMI machine. Hicks testified that Page admitted
that his union did not have personnel qualified to oper-
ate the machine in question. After explaining the eco-
nomic disadvantages of Page's proposal, Hicks claimed
that he offered to put a union member on the job, pay
him the going union rate, but have him perform some
other work. Failing to reach an agreement as to who
should operate the machine in question, Page, accord-
ing to Hicks, stated that he would have to put a "ban-
ner" on the Huff project.
Page testified that he and Hicks had met prior to the
aforementioned meeting and discussed why Hicks had
not contacted Page to obtain an operator for the CMI.
Hicks replied that he had spoken to a few members of
the Engineers, and that they had refused to work for
the Employer. Hicks at that time remained steadfast in
his position not to sign a contract with the Engineers.
Contrary to Hicks' testimony, Page testified that at the
October 24 meeting he did not concede that his Union
lacked personnel knowledgeable in the operation of the
CMI machine; he only asked Hicks to sign a collective-
bargaining contract; and he did not threaten to set up
a banner at the Huff project.
On October 25, Hicks contacted the Employer's at-
torney, Donald Jones, and informed him of the conver-
I All dates referred to hereinafter occurred in 1974.
217 NLRB No. 2
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sation that had taken place with Page. Jones then tele-
phoned Page to say that it was his understanding that
there would be a picket on the Huff project and to
inquire what the problem was. Page replied, according
to Jones, that he wanted one of his union members to
operate the CMI machine, and the Employer to sign a
collective-bargaining contract. When Jones asked
about language on the picket sign, Page replied, as
testified by Jones, that it would be organizational. Ac-
cording to Page, there was no mention of picketing in
the telephone conversation with Jones; the latter only
requested a meeting to work out the problem with
Hicks.
On October 26, Hicks, Jones, and Page met to find
a solution to their problem. Jones testified that Page
requested the Employer to sign a collective-bargaining
contract with the Engineers,2 and to replace the cur-
rent CMI operator with a union member if he did not
join the Engineers. Jones and, Hicks also inquired if an
agreement were signed whether Page would incorpo-
rate therein a provision permitting the CMI operator to
do labor work. Page would not agree to such a
proposal. Hicks and Jones both asked Page if he could
not leave the "problem" to be resolved at another job-
site. Page refused, but said that a remedy might be at
hand since Pirtle was presently trying to "sign up" the
CMI operator. According to Jones, Page then said that
the Engineers would picket the job until Hicks agreed
to put a member of the Engineers on the CMI machine.
In his testimony as to this meeting, Page denied that
he had ever requested the removal of the CMI operator.
He admitted that if the standard collective-bargaining
contract, which contains a 7-day union-security clause,
were signed, it would be enforced against any operator,
including the current operator, who failed to join the
Engineers within the required 7-day period. He further
testified that he did mention the possibility of picketing,
but only if Hicks failed to sign a collective-bargaining
contract. While admitting that several attempts have
been made to "sign up" the current CMI operator,
Page _denied saying that, if successful, this would re-
solve the dispute between the parties.
As of the date of the hearing, there has been no
picketing by the Engineers at the Huff project or at any
of the Employer's other construction sites.
reasonable cause to-believe that the Engineers sought to
compel it to assign the operation.of the CMI machine
being used on the Huff project to one of its members
in place of the nonunion operator and, in furtherance
of that object, threatened to picket the project.
The Engineers contends that there is no jurisdic-
tional dispute because it was not seeking to displace the
incumbent employee, but only to negotiate a collective-
bargaining contract with the Employer.
C. Applicability of the Statute
Before making a jurisdictional dispute determina-
tion, the Board must be satisfied that there is reason-
able cause to believe that Section 8(b)(4)(D) has been
violated. We are unable to make such a determination
in this case. The Employer's own testimony adduced in
support of its position casts doubt on its contention that
the Engineers was seeking to replace the nonunion op-
erator of the CMI machine rather than to negotiate a
collective-bargaining contract with a 7-day union-
security clause which would have required the operator
to join the Engineers within the statutorily permitted
7-day period, as testified by the Engineers representa-
tive. Thus, attorney Jones for the Employer testified
that, at the meeting of October 26, Page for the Engi-
neers requested the Employer to sign a collective-bar-
gaining contract, and to replace the incumbent opera-
tor if he did not join the Engineers. This is
corroborative of Page's testimony as to his objective
vis-a-vis the Employer, as is Jones' further testimony
that Page said his Union was attempting to "sign up"
the current CMI operator. The present dispute there-
fore appears to be one over recognition and the terms
of a collective-bargaining agreement, matters that do
not fall within the contemplation of Section 10(k),
which deals only with disputes involving competing
claims for specific work. Accordingly, we find that the
facts here do not present a jurisdictional dispute within
the purview of Section 8(b)(4)(D) and 10(k) of the
Act.3 We shall therefore quash the notice of hearing.
ORDER
It is hereby ordered that the notice of hearing issued
in this proceeding be, and it hereby is, quashed.
B. Contentions of the Parties
The Employer asserts that the evidence establishes
2 The Employer had three employees who worked as machine operators,
including the operator of the CMI machine
3 See Laborers ' International Union of North Amenca, AFL- CIO, and its
Local245 (Apex Contracting Inc ), 206 NLRB 896 (1973), Danville Printing
Pressmen & Assistants Union No. 257, International Printing Pressmen &
Assistants Union of North America, AFL-CIO (Recording & Statistical Com-
pany, Division of Sperry Rand Corporation), 147 NLRB 1619 (1964)