Local 2, Operating Engineers

National Labor Relations Board - Board Decisions

Mar 13, 1974

209 N.L.R.B. 673 (N.L.R.B. 1974)

LOCAL 2. OPERATING ENGINEERS
Local 2 , International Union of Operating Engineers,
AFL-CIO and PVO International, Inc. and Local
545, Amalgamated Meatcutters and Butcher Work-
men of North America, AFL-00.1 Case
14-CD-471
March 13, 1974
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing the filing of charges on September 14, 1973, by
PVO International , Inc., herein called the Employer,
alleging that Local 2 , International Union of Operat-
ing Engineers , AFL-CIO, herein called the Engi-
neers, has violated Section 8(b)(4)(D) of the Act by
threatening, coercing , and restraining the Employer
with an object of forcing the Employer to assign
certain work to employees represented by the
Engineers rather than to employees represented by
Local 545 , Amalgamated Meatcutters and Butcher
Workmen of North America , AFL-CIO, herein
called Butchers.
Pursuant to notice, a hearing was held before
Hearing Officer Peter J. Salm on November 13 and
20, 1973 . All parties appeared at the hearing and
were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce
evidence bearing on the issues . Thereafter, each
party filed a brief in support of its position.
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 af-
firmed . 2 Upon the entire record in this case,
including the briefs of the parties, the Board makes
the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated that PVO International, Inc.,
a California corporation with its principal office
1 The name of the party appears as amended at the heanng
The Butchers orally moved during the hearing to stay the proceeding or
alternately to terminate the proceeding and quash the notice of heanng on
the ground that the Butchers was denied due process. In support of its
motion, its witnesses testified that although the Butchers was served with a
notice of charge filed, it was not served with a copy of the charge or a letter
which the charge stated was attached thereto. The Butchers further
contends that the Board's Regional Office refused to furnish it with a copy
of the letter. The Hearing Officer refused to stay the proceedings and
673
located at San Francisco, California, is engaged in
the refining and processing of vegetable oils and fats
at its 3400 North Wharf, St. Louis, Missouri, facility.
The Employer annually sells vegetable oils and fats
valued in excess of $50,000 which are processed at its
St. Louis facility directly to customers located
outside the State of Missouri. Accordingly, 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
The parties stipulated , and we find , that the
Engineers and the Butchers are labor organizations
within the meaning of Section 2 (5) of the Act.
Ill. THE DISPUTE
A. Background
The Employer refines vegetable oils and animal
fats into shortening, margarine, puff paste, and salad
oil. At present all waste resulting from production
runs to a large float tank where a skimmer removes
the fatty material which rises. This material is then
processed into animal feed. The Employer had
discharged the remaining wastes directly into the
Mississippi River.
In October 1972 the Employer ordered waste
treatment equipment so it could meet Federal
standards for waste disposal. The operation of the
new treatment system, which was being installed at
the time of the hearing herein, will be semiautomatic.
Automatic equipment will measure the acidity of the
water and increase its alkalinity by introducing
caustic. Polymers will be injected into the waste to
coagulate the suspended particles, which will be
skimmed off the top. The sludge will be hauled away
for disposal and the clear water discharged into
municipal sewers. Operation of the system will
include mixing and preparing the polymers, regulat-
ing the automatic equipment, monitoring various
measuring devices, and being prepared to change the
operation if there is any major change in the acidity
of the wastes. The treatment system will have an
alarm to warn of any emergency. The Employer
plans to operate the system with one employee on the
first shift during the workweek. That employee will
referred the motion to dismiss to the Board for decision.
The Butchers, although generally contending that it was demed due
process and that it was impaired in its preparation of this case , makes no
contention or showing that it was prejudiced in any manner by not having
been served copies of the charge and the letter . The Butchers did receive
notice that a charge had been filed and was certainly aware of the
underlying dispute. In addition , the record shows that the Butchers
interests were fully represented and litigated at the heanng . Accordingly,
the Butchers motion to dismiss this proceeding is hereby denied.
209 NLRB No. 109
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
perform most of the actual work , such as mixing the
chemicals involved in operating the treatment sys-
tem. However , someone will need to be present 24
hours a day , 7 days a week , to monitor and adjust the
system to meet any emergency which might arise.
The Employer regularly engages in production
around the clock Monday through Friday, and
occasionally on weekends . Employees represented by
the Butchers are present only when production takes
place and are , therefore , usually not present on
weekends and holidays . The Employer' s president
testified that licensing requires that engineers be at
the plant 7 days a week , 24 hours a day. On
weekends , the Employer uses four employees repre-
sented by the Engineers on the first shift and three on
the other two shifts.
The Employer has collective-bargaining agree-
ments with the Engineers, which represents employ-
ees in the engineroom , boilerroom , power mainte-
nance department , and hydrogen plant , and with the
Butchers , which represents production , maintenance,
and office employees . The contracts had expired by
the time of the hearing but were continued in effect
by mutual agreement . In negotiations for new
agreements , both Unions demanded assignment of
the operation and maintenance of the waste treat-
ment system.
On October 6, 1972, the Employer received a letter
from the Engineers stating that the operation of the
waste treatment equipment was within the Engineers
jurisdiction . On March 23 , 1973, the Company
received a second letter from the Engineers request-
ing assignment of the work. Subsequently the
Butchers also claimed the work for its members. The
Employer tried to get the two Unions to settle the
matter between themselves . On July 6 , 1973, because
it appeared to the Employer that the Unions could
not agree to a solution , the Employer assigned the
installation of the system to members of the Butchers
and the operation and maintenance thereof to
members of the Engineers.
Subsequent to the Employer 's assignment of the
work the Butchers demanded that the matter be
submitted to arbitration . Although the Employer
initially resisted arbitration , upon threat of court
action, the Employer consented to strike names from
an arbitration panel list and an arbitrator was
selected . The matter has, however , not been arbitrat-
ed. Upon learning of the Butchers demand, the
Engineers asserted that it should be a party to any
such arbitration . The Butchers told the Employer
that the Butchers took no position on permitting the
Engineers to participate . The Employer then told the
Engineers that it believed the Butchers would not
allow the Engineers to participate in the arbitration.
On September 14, 1973 , the attorney for the
Engineers informed the Employer's attorney by letter
that if the operation and maintenance of the waste
treatment plant were reassigned away from the
Engineers , as demanded by the Butchers, the
Engineers contemplated taking action , including
picketing and cessation of work, to enforce the July 6
assignment of the disputed work. The Engineers
stated at the hearing that it did intend and still
intended to strike and picket if the assignment were
changed by the Employer.
B. Work in Dispute
The disputed work consists of the operation and
maintenance of the new waste treatment system
being installed at the Employer's St. Louis, Missouri,
plant.
C. Contentions of the Parties
The Employer contends that the work in dispute
should be awarded to employees represented by the
Engineers on the basis of the Employer's assignment,
the economy and efficiency of assigning the work to
employees who are regularly available to perform it,
the skill and training encouraged and possessed by
the Engineers, and local custom and experience.
The Butchers argues that there is no reasonable
cause to believe Section 8(b)(4)(D) of the Act has
been violated because of the following : ( 1) the
evidence is insufficient to establish a threat of
proscribed activity in that the Engineers only
"contemplates taking action," an indefinite term; (2)
the Engineers cannot carry through on its threat
because it is prohibited from striking by its contract
with the Employer; (3) the underlying dispute should
be deferred to arbitration ; (4) the underlying dispute
involves contract terms, not work assignment, and
should be deferred to the pending contract negotia-
tions ; (5) the underlying dispute is a unit clarification
issue rather than a jurisdictional dispute ; and (6) the
matter is not ripe for resolution by the Board because
the work has not yet commenced . Alternatively, the
Butchers contends that the work in dispute should be
awarded to employees it represents because those
employees possess the necessary skills, work on
equipment adjacent to the new waste treatment
system , and have operated and maintained the
existing waste treatment facility; and the work in
dispute is production work which falls within its
production and maintenance unit.
The Engineers contends that the work in dispute
should be awarded to employees it represents
because its members are historically more susceptible
to being trained to do the work , the work is the type
performed by its members at the Employer's plant
and elsewhere in the area, employees it represents are
LOCAL 2, OPERATING ENGINEERS
continually in the plant and available to do the work,
and the Employer has assigned the work to engi-
neers.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of 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 there is no agreed-upon method for voluntary
adjustment of the dispute.
The record shows that the parties have not agreed
to any method for settling the dispute. The parties
have no contractual or other provision for submitting
the matter to arbitration. Although the Butchers has
sought to arbitrate the dispute and an arbitrator has
been selected, the Engineers, a necessary party to any
voluntary method of settlement, has not agreed to
submit the dispute to arbitration or to be bound by
an arbitration award in this matter.
The Butchers contends that the Board should defer
the dispute to settlement by the parties in their
current contract negotiations. It is clear that jurisdic-
tional disputes may be settled through collective
bargaining. However, to require the parties to
bargain to impasse on such issues would be contrary
to the intent of Sections 8(b)(4)(D) and 10(k) of the
Act.
The Butchers urges dismissal of this proceeding on
the ground that the dispute is not a jurisdictional
dispute. The record establishes that the dispute
concerns the assignment of the operation and
maintenance of the new waste treatment facilities. It
is not a dispute over the meaning of collective-
bargaining agreements, but a dispute over which
employees will perform the work. Since the Employ-
er has made a formal assignment of the work, the
fact that the work has not commenced is not
controlling.3 We also find that the dispute is not a
unit clarification question. "Work assignment dis-
putes are not proper matters for consideration and
resolution in representation proceedings." 4
We are satisfied that the evidence is sufficient to
establish reasonable cause to believe that the
Engineers threatened to engage in proscribed activi-
ty. The letter sent by the Engineers to the Employer
threatened that the Engineers contemplated striking
and picketing. At the hearing, the Engineers business
representative testified that it was then the intent of
the Engineers to strike or picket and that it still is.
The existence of a no-strike clause does not diminish
3 The Butchers reliance on Printing and Paper Trades Auxiliary Workers,
Local No 520, AFL-CIO (The Cuneo Eastern Press, Inc of Pennsylvania),
168 NLRB 531, is misplaced . In that case not only had the work not begun,
but the employer had made no assignment of the work , and no charge had
been filed with respect to such work.
675
the threat. Unions have called strikes in such
situations , and the Engineers business representative
testified that the Engineers intended to strike, even in
the face of the no-strike clause, if the work were
reassigned.
Accordingly, we find that the dispute is essentially
over the assignment of work to members of one
rather than another trade, craft, or class of employ-
ees. We also 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.
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 various relevant factors.5
1. Certification and collective-bargaining
agreements
Since the waste treatment system is a new opera-
tion, neither the 1941 Board certification of the
Unions nor the most recent collective-bargaining
agreements cover the disputed work.
2. Employer assignment
The Employer's July 6, 1973, assignment of the
disputed work to employees represented by the
Engineers is a factor which favors awarding the work
to such employees.
3. Employer and area practice
There is no employer practice at this or other
plants respecting the work in dispute. The division of
work between employees represented by either of the
Unions does not favor awarding the work to either
group. The operation of the waste treatment facility
appears from the record to be a nonproduction
function. The old waste treatment process was
primarily a product recovery or production opera-
tion. Employees represented by the Engineers engage
exclusively in service functions , but employees
represented by Butchers also engage in nonproduc-
tion functions. Both groups of employees are
engaged in work which requires mixing of chemicals,
testing for alkalinity or acidity, measuring, and
monitoring-the type of work required to operate the
waste treatment system.
Witnesses testified that the Engineers represents
employees engaged in sewage disposal and pollution
i Gas Service Company, 140 NLRB 445.447.
5 N LR.B v. Radio and Television Broadcast Engineers Union, Local
1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 U.S. 573 (1961).
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
control for municipal sewage systems and industrial
plants in and about St . Louis , Missouri . However, the
work testified to appears significantly different from
the work here in dispute . In sum , the record does not
establish a sufficiently widespread area practice
which would favor awarding the work to either group
of employees.
4. Relative skills
Employees represented by the Butchers and em-
ployees represented by the Engineers both possess
the necessary skills to safely perform the work in
dispute . Employees of either group would require
additional training.
Conclusions
Upon the entire record , and after full consideration
of all relevant factors here involved , we believe that
employees represented by the Engineers are entitled
to perform the work in dispute . This award is
supported by the Employer 's assignment of the work,
by the economy and efficiency of operation which
will result , and by the fact that such assignment is
not inconsistent with past practice , area practice, the
certification , or the collective-bargaining agreements.
In making this award , we are assigning the work to
employees represented by the Engineers rather than
to that organization itself or its members. Our
present determination is limited to the particular
controversy which gave rise to this proceeding.
5. Efficiency and economy
Efficiency and economy of operations favor
awarding the disputed work to employees represent-
ed by the Engineers . At least three engineers are
present 7 days a week , 24 hours a day, and on
weekends they will have the time to monitor the
system and take care of any emergencies . Employees
represented by the Butchers are present on weekends
and holidays only when production takes place.
Using employees from this group to perform the
disputed work would require the Employer to use
additional employees on nonproduction days.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended , and on 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 of PVO International , Inc., who are
represented by Local 2, International Union of
Operating Engineers , AFL-CIO, are entitled to
perform the disputed work of operating and main-
taining the new waste treatment facility being
installed at the Employer 's St. Louis , Missouri, plant.