Laborers, Local No 1241

National Labor Relations Board - Board Decisions

Apr 4, 1973

202 N.L.R.B. 877 (N.L.R.B. 1973)

LABORERS , LOCAL NO 1241 877
Industrial Manufacturing and Maintenance Employ-
ees' Union Local No. 1241 , Laborers' International
Union of North America , AFL-CIO and Ross
Island Sand and Gravel Co. and International
Union of Operating Engineers , Local No. 701,
AFL-CIO. Case 36-CD-96
April 4, 1973
DECISION AND DETERMINATION OF
DISPUTE
year, the Employer purchased supplies and materials
originating from outside the State of Oregon valued
in excess of $50,000. During the same period, the
Employer realized gross revenues in excess of
$500,000.
We find that the Employer is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
and that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Ross Island Sand and Gravel
Co., herein called the Employer, alleging that
Industrial Manufacturing and Maintenance Employ-
ees' Union Local No. 1241, Laborers' International
Union of North America, AFL-CIO, herein called
Laborers, has violated Section 8(b)(4)(D) of the Act.
The charge alleges, in substance, that the Laborers,
by threats of economic action, violated the Act in
that one of the purposes of such conduct was to force
the Employer to continue to assign certain work to
its members rather than to members of International
Union of Operating Engineers, Local 701, AFL -CIO,
herein called Engineers. Pursuant to notice, a
hearing was held in Portland, Oregon, before
Hearing Officer Joseph L. Davis, on November 20
and 21, 1972. All parties appeared and were afforded
full opportunity to be heard, to examine and cross-
examine witnesses, and to present- evidence bearing
on the issues. Thereafter, the Employer filed a
Motion to Reopen the Record i and a brief, and the
Engineers filed a brief. The briefs have been duly
considered by the Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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:
1. THE BUSINESS OF THE EMPLOYER
The Employer, an Oregon corporation with its
principal office and place of business in Portland,
Oregon , is engaged in the manufacture and sale of
sand , gravel , and related products . During the past
The Employer's unopposed motion is hereby granted, and the
proffered exhibit, an Order of the United States District Court for the
The parties stipulated, and we find, that Laborers
and Engineers are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer has operated a "crushing plant,"
manufacturing and selling sand, gravel , and various
sizes of crushed rock since at least 1941 . Using a
permanent complement of employees to operate this
crushing plant , the Employer maintains collective-
bargaining agreements with at least five labor
organizations , including the Laborers and the Engi-
neers. Members of the Laborers operate, maintain,
and service all crushing plant and batching equip-
ment as well as perform "quality control " and certain
accounting functions . Members of the Engineers
handle the ancillary functions of operating the
clamshell bucket and bulldozer.
The Engineers claims that, in light of the "manning
provision" in the Engineers most recent collective-
bargaining contract with the Employer , a majority of
the work performed by laborers at the crushing plant
contractually belongs to members of the Engineers.
In response to the Engineers demand, the Laborers
advised the Employer, by letter, that any attempt by
the Employer to assign the work to engineers would
result in the Laborers taking appropriate economic
action.
B. The Work in Dispute
The work in dispute involves the manufacture of
crushed rock, sand, and gravel, specifically, the
operation, maintenance, and servicing of all crushing
plant and batching equipment, at the Employer's
Willamette River plant in Portland, Oregon.
C. Contentions of the Parties
The Employer, the Charging Party herein, con-
tends that, following the Engineers demand for the
District of Oregon staying proceedings in that court pending a decision by
the Board , is hereby received into evidence
202 NLRB No. 126
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disputed work, the Laborers threatened economic
action if the Company attempted to assign such work
to members of the Engineers and that, therefore, a
violation of Section 8(b)(4)(D) has occurred. It also
asserts that laborers' performance of the disputed
work is satisfactory and that, because of its practice
of using laborers for such work since 1941, its
collective-bargaining contract with the Laborers, and
the efficiency and flexibility of operations as a result
of the use of laborers, it favors the continued
assignment of the work to its present employees who
are members of the Laborers.
The Laborers, affirming that its letter to the
Employer was intended to put the Employer on
notice that a strike would occur if the work were
reassigned to members of the Engineers, contends
that its members are entitled to the disputed work
pursuant to the terms of its collective-bargaining
agreement with the Employer and their performance
of the work in the past.
Maintaining that no reasonable grounds exist for
believing that a violation of the Act has occurred, the
Engineers argues that the Employer is bound under
the terms of the manning provision of its labor
contract to award the disputed work to its members.
D. Applicability of the Statute
The charge herein alleges a violation of Section
8(b)(4)(D) of the Act. The facts show that the
Employer assigned the disputed work to its employ-
ees who are represented by the Laborers. The
Engineers demanded that the Employer take the
work away from members of the Laborers and assign
it to its members. In response to this demand, the
Laborers informed the Employer by letter that it
would take economic action if such work were
assigned to engineers. The Employer testified that it
interpreted this letter as a bona fide threat of strike,
and at the hearing the Laborers affirmed that
"economic action" referred to a strike and reiterated
its threat of such action. Accordingly, we find that
there is reasonable cause to believe that Section
8(b)(4)(D) of the Act has been violated.
The three parties have not agreed upon a method
of settling this jurisdictional dispute. The Engineers
initiated proceedings, to which the Laborers is not a
party, in the United States District Court for the
District of Oregon to compel the Employer to submit
to arbitration the issue of whether the disputed work
falls within the Engineers jurisdiction under its
collective-bargaining contract. On October 20, 1972,
the district court ordered the Employer to submit the
dispute to arbitration. On December 8, 1972,
2 Art II, Jurisdiction
[T ]he jurisdiction of the Union shall cover the washing, screening.
however, that order was modified, staying the district
court proceeding pending a decision by the Board.
Thus, it is clear, and we find, that at the time of the
instant dispute there did not exist any agreed-upon
or approved method for the voluntary adjustment of
the dispute to which all parties to the dispute are
bound. Accordingly, the matter is properly before
the Board for determination under Section 10(k) of
the Act.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after
giving due consideration to all relevant factors
involved. The following factors are relevant in
making a determination of the dispute before us.
1. Certifications and collective-bargaining
agreements
There is no Board certification determining the
bargaining representative for the employees assigned
to perform the work in dispute. Neither of the labor
organizations involved herein has been certified by
the Board as the collective-bargaining representative
for a unit of the Employer's employees.
The record shows that the Employer is a party to
collective-bargaining agreements with both of the
Unions claiming the work herein. The language of
each of these contracts can be construed to award
the disputed work to members of the respective
Union. In view of the foregoing, we are unable to
give determinative weight to the collective-bargain-
ing agreements. However, we note that the Employ-
er's contracts with the Laborers and its predecessor
included the disputed work since 1946, whereas only
the Engineers most recent contract can be said to
include such work.
2. Employer's assignment and past practice
Pursuant to article 112 of its current labor agree-
ment with the Laborers, the Employer assigned the
work here involved to its employees represented by
the Laborers. Moreover, similar language has been
included in contracts of the Laborers and its
predecessor since 1946, and the Employer has used
laborers to perform all of the work in question since
1941.
3. Relative skills, efficiency, and economy of
operations
The Employer strongly favors an award to its
employees represented by the Laborers because of
crushing, batching, conveying, maintenance, repair and boating
operations
LABORERS , LOCAL NO 1241 879
their experience in performing the disputed work and
the resulting efficiency and economy of operations.
Laborers have performed the disputed work since
1941. Moreover, most of the 16 employees currently
performing the work have had several years experi-
ence, and 7 employees have been so employed
between 20 and 30 years.
In addition to experience in performing the
disputed work, the laborers have acquired skills and
experience in highly technical quality control and
certain accounting functions and currently perform
such duties in addition to the disputed work. These
functions are not claimed by the Engineers, whose
members evidence no experience or skills in these
areas, nor have engineers expressed a willingness to
perform such functions should they be awarded the
disputed work.
Neither of the contending Unions provides its
members with formal training in the rock-crushing
industry; rather, skills are attained through on-the-
job training. Some of the skills possessed by laborers
required several years of training and experience.
Hence, not only would the Employer be forced to lay
off experience-trained laborers in order to hire
engineers, but, if required to assign this work to
engineers, the Employer would have to bear the
burden and expense of training additional employees
to perform the work properly.
Additionally, since the disputed work does not
encompass all the functions now performed by
laborers, if the Employer were required to hire
engineers to perform the disputed work, it would still
be necessary for laborers to come in to perform
quality control and certain accounting functions.
Such a requirement would obviously result in
unwarranted inefficiency and greatly increase the
cost of operations. We are, therefore, persuaded that
the factors of experience, training, efficiency, and
economy of operations justify the award of the
disputed work to the Employer's employees who are
represented by the Laborers.
Conclusion
Upon the entire record in this proceeding and after
full consideration of all of the relevant factors, in
particular the Employer's practice, the experience of
members of the Laborers in performing the disputed
work, and the efficiency and economy of operations,
we conclude that the employees of the Employer who
are represented by the Laborers are entitled to the
work in question and we shall determine the dispute
in their favor. In making this determination, we
award the work to the employees of the Employer
who are represented by the Laborers but not to that
labor organization or its members.
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
proceeding, the National Labor Relations Board
hereby makes the following Determination of Dis-
pute:
Employees employed by Ross Island Sand and
Gravel Co., who are represented by Industrial
Manufacturing and Maintenance Employees' Union
Local No. 1241, Laborers' International Union of
North America, AFL-CIO, are entitled to perform
the work iri dispute which involves the manufacture
of crushed rock, sand, gravel, and other related
products at the Employer's Willamette River plant in
Portland, Oregon.