Laborers Local 931 (Carl Bolander)

National Labor Relations Board - Board Decisions

Oct 23, 1991

305 N.L.R.B. 490 (N.L.R.B. 1991)

490
305 NLRB No. 49
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Laborers’ International Union of North America,
Local 931, AFL–CIO and Carl Bolander &
Sons Co. and International Union of Operating
Engineers, Local 139, AFL–CIO. Case 30–CD–
136
October 23, 1991
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed February 21, 1991, by the Employer, Carl
Bolander & Sons Co., alleging that the Respondent,
Laborers’ International Union of North America, Local
931 (Laborers) violated Section 8(b)(4)(D) of the Na-
tional Labor Relations Act by engaging in proscribed
activity with an object of forcing the Employer to as-
sign certain work to employees it represents rather than
to employees represented by International Union of
Operating Engineers, Local 139, AFL–CIO (Operating
Engineers). The hearing was held April 18, 1991, be-
fore Hearing Officer Suzanne M. Clement.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The National Labor Relations Board affirms the
hearing officer’s rulings, finding them free from preju-
dicial error. On the entire record, the Board makes the
following
FINDINGS OF FACT
I. JURISDICTION
The Company, a Minnesota corporation, is engaged
in the business of construction at its facility in Apple-
ton, Wisconsin, where it annually purchases and re-
ceives goods, materials, and services valued in excess
of $50,000 from suppliers located outside the State of
Wisconsin. The parties stipulate, and we find, that the
Employer is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and that Laborers’
International Union of North America, Local 931,
AFL–CIO and International Union of Operating Engi-
neers, Local 139, AFL–CIO are labor organizations
within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
In June 1990, Carl Bolander & Sons Co. com-
menced work at the construction site of the Waste-
water Treatment Plant for the city of Appleton, Wis-
consin, where it is engaged in excavation, demolition,
and pile-driving work. At the wastewater plant site, the
Employer uses two ‘‘rotary drills,’’ which are also re-
ferred to as ‘‘wagon drills’’ or ‘‘mechanized jack-
hammers.’’ These drills are used to drill holes to insert
explosives in the ground for the blasting and exca-
vation of rock. The Employer, a signatory to collec-
tive-bargaining agreements with both Unions, has had
a collective-bargaining relationship with the Operating
Engineers since 1983, and the Laborers since 1990.
The Employer assigned work on the rotary drills to
employees represented by the Laborers. On February
7, 1991, the Operating Engineers filed a grievance with
the Employer contending that the Employer failed to
assign that work to bargaining unit employees under
the jurisdiction of the Operating Engineers’ Local. In
its grievance, the Operating Engineers demanded that
it be paid the applicable wage and fringe benefit rates
for all hours that the machines were in operation.
On February 7, 1991, the Laborers sent a letter to
the Employer stating that the assignment of the work
in question to employees represented by the Laborers
was proper, and that the assignment should not be
changed. Also, on that same day, the Wisconsin Labor-
ers’ District Council, in a letter to the Employer, stated
that the assignment was proper and that it had no in-
tention of relinquishing the rights to the operation of
the rotary drills.
In a letter to the Employer dated February 20, 1991,
the Wisconsin Laborers’ District Council stated that a
jurisdictional dispute had developed from the Oper-
ating Engineers’ attempt to claim the drilling work at
the wastewater plant site. In that letter, the Laborers
advised the Employer that any attempt to change the
assignment of work would cause ‘‘an immediate labor
dispute,’’ and that the Employer’s support in pre-
venting a ‘‘work stopage [sic]’’ would be appreciated.
Calin Johnson, the Employer’s project manager and
superintendent, testified that he interpreted the Labor-
ers’ February 20, 1991 letter to mean that an assign-
ment of the wagon drills to employees represented by
the Operating Engineers would result in a strike or a
work stoppage by the Laborers. Darrel Lee, the Labor-
ers’ president and business manager, testified that the
threat of a work stoppage was valid, and a probable re-
sponse by the Laborers in the event of an assignment
of the work in question to employees represented by
the Operating Engineers.
B. Work in Dispute
The disputed work involves the operation of rotary
drills for the purpose of drilling holes in the ground for
the blasting and excavation of rock at the construction
site of the Wastewater Treatment Plant located in the
city of Appleton, Wisconsin.
C. Contentions of the Parties
The Employer contends that the disputed work
should be awarded to the employees represented by the
491LABORERS LOCAL 931 (CARL BOLANDER)
Laborers on the basis, inter alia, of its collective-bar-
gaining agreement with the Laborers, company pref-
erence and past practice, economy and efficiency of
operations, area and industry practice, and relative
skills.
The Laborers contends that the employees it rep-
resents should be awarded the disputed work on the
basis of its collective-bargaining agreement, prior joint
board determinations, and area practice.
Although there is no evidence that the Operating En-
gineers officially disclaimed its interest in the disputed
work, it now contends in its brief to the Board that the
Board should decline to proceed to a determination in
this case because it never requested an assignment of
the disputed work. The Operating Engineers contends
that there are no competing claims because its griev-
ance, which requested the Employer’s compliance with
its contract, does not constitute a claim for the work.
In the alternative, the Operating Engineers contends
that, if a Board determination is warranted, employees
represented by it should be awarded the disputed work
on the basis of its collective-bargaining agreement,
area practice, and prevailing wage rate determinations
provided by the city of Appleton.
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 no agreed-upon method for the vol-
untary adjustment of the dispute.
As noted above, in response to the Operating Engi-
neers’ grievance alleging that the Employer’s failure to
assign the disputed work to employees represented by
the Operating Engineers was a violation of its collec-
tive-bargaining agreement, the Laborers threatened an
immediate labor dispute or work stoppage if the work
was removed from its jurisdiction. There is no evi-
dence to support the Operating Engineers’ claim of
collusion between the Employer and the Laborers. Ac-
cordingly, if there are competing claims to disputed
work between rival employee groups, there is reason-
able cause to believe that a violation of Section
8(b)(4)(D) has occurred.
The Operating Engineers contends that there are no
competing claims because its grievance requests com-
pliance with its collective-bargaining agreement, not
the reassignment of the disputed work. We find no
merit to this contention. This case presents a traditional
10(k) situation in which two unions have collective-
bargaining agreements with the Employer and each
union claims its contract covers the same work. See
Iron Workers Local 433 (Crescent Corp.), 277 NLRB
670, 673 (1985). In these circumstances, a claim to the
work in dispute based on an asserted contractual right
to the work does not remove the case from being a
10(k) dispute. Rather, the contractual claim constitutes
a claim to the work and is one of the relevant factors
for the Board’s consideration in awarding that work.
Otherwise, a union could consistently avoid the reach
of Section 10(k) and Section 8(b)(4)(D) of the Act by
couching its claim in terms of a contract claim for
damages. Consequently, we conclude that there exists
active competing claims to disputed work between
rival groups of employees.
Based on our findings above, we find reasonable
cause to believe that a violation of Section 8(b)(4)(D)
has occurred and that, as stipulated by the parties,
there exists no agreed-upon method for voluntary ad-
justment of the dispute within the meaning of Section
10(k) of the Act. Accordingly, we find that the dispute
is properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative award of disputed work after considering various
factors. NLRB v. Electrical Workers IBEW Local 1212
(Columbia Broadcasting), 364 U.S. 573 (1961). The
Board has held that its determination in a jurisdictional
dispute is an act of judgment based on common sense
and experience, reached by balancing the factors in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of the dispute.
1. Certifications and collective-bargaining
agreements
There is no evidence that either the Laborers or the
Operating Engineers has been certified as the exclusive
collective-bargaining representative of any of the Em-
ployer’s employees. The Employer, however, is signa-
tory to collective-bargaining agreements with both par-
ties.
The Laborers’ most recent collective-bargaining
agreement provides in Exhibit ‘‘A’’ that the Laborers’
jurisdiction covers, among other things, drilling and
blasting. This category includes:
all work of drilling, jackhammering and blasting.
Operation of all rock and concrete drills, includ-
ing handling, carrying, laying out of hoses, steel
handling, installation of all temporary lines and
handling and laying of all blasting mats. All work
in connection with blasting, handling and storage
of explosives, carrying to point of blasting, load-
ing holes, setting fuses, making primers and ex-
ploding charges. All securing of surfaces with
wire mesh and any other material and setting of
necessary bolts and rods to anchor same. All high
scaling and other rock breaking and removal after
492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Laborers presented evidence of a joint board determination
dated July 22, 1988, which held that the laborers were properly as-
signed work on the operation of an ‘‘Ingersoll Rand L.M. 500 Hy-
draulic Drill’’ in Modoc County, California. The evidence shows
that the Ingersoll drill, although the same type of drill as the rotary
drills involved in this case, is larger and has a cab attachment.
blast. Handling and laying of nets and other safety
devices and signaling, flagging, road guarding.
Article IX of the current Operating Engineers’ col-
lective-bargaining agreement lists ‘‘rotary drill operator
and blaster’’ as a classification.
Since both the Laborers’ and Operating Engineers’
collective-bargaining agreements arguably cover the
disputed work, we find that this factor favors neither
group of employees.
2. Company preference and past practice
The Employer prefers that the disputed work be
awarded to employees represented by the Laborers.
The Employer’s vice president, James Timmons, testi-
fied that the Employer has historically used employees
represented by the Laborers to operate the rotary drills,
and that the Employer has never assigned the work to
employees represented by the Operating Engineers.
Accordingly, these factors favor an award of the dis-
puted work to employees represented by the Laborers.
3. Area and industry practice
The Employer and the Laborers presented evidence
that it was the area practice for rotary drilling work to
be performed by employees represented by the Labor-
ers. The Operating Engineers, however, also presented
evidence that the work in the area has been performed
by employees represented by the Operating Engineers.
Under these circumstances, we find that the factor of
area practice is inconclusive and does not favor an
award of the disputed work to employees represented
by either Union. The record does not establish any in-
dustry practice.1
4. Relative skills
The record indicates that employees represented by
both the Laborers and the Operating Engineers possess
the necessary skills to perform the disputed work. We,
therefore, find that this factor does not favor an award
of the disputed work to employees represented by ei-
ther the Laborers or the Operating Engineers.
5. Economy and efficiency of operations
The Employer contends that it is more economical
and efficient to assign the disputed work to employees
represented by the Laborers. The Employer’s project
manager and superintendent, Calin Johnson, testified
that the rotary drills are only in operation about 6
hours a day and that the disputed work involves more
than just running the machine. He testified that the op-
eration of the drills involves work such as adding the
steel drills, loading the holes with blasting material,
and setting the ‘‘mats.’’ Johnson testified further that
while the laborers perform all of these tasks involved
with the operation of the rotary drills, the operating en-
gineers would not. Therefore, the Employer asserts that
assigning the work to the operating engineers would be
less economical and efficient because it would require
the additional employment of a laborer to perform the
other work involved with the operation of the rotary
drills.
Employer Vice President Timmons also testified that
assigning the disputed work to the laborers would be
more economical and efficient because the laborers
perform the excavation and shoveling work associated
with operating the drills, and the operating engineers
do not.
Accordingly, we find that the factor of economy and
efficiency of operations favors an award of the dis-
puted work to employees represented by the Laborers.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by Laborers are enti-
tled to perform the work in dispute. We reach this con-
clusion relying on the factors of employer preference
and past practice, and economy and efficiency of oper-
ations. In making this determination, we are awarding
the work to employees represented by Laborers, not to
that Union or its members. The determination is lim-
ited to the controversy that gave rise to this pro-
ceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of Carl Bolander & Sons Co. represented
by Laborers’ International Union of North America,
Local 931, AFL–CIO are entitled to perform the work
of operating the rotary drills used for the excavation of
land at the Wastewater Treatment Plant for the city of
Appleton, Wisconsin.