Local 25, Marine Division, Operating Engineers

National Labor Relations Board - Board Decisions

Aug 29, 1969

178 N.L.R.B. 292 (N.L.R.B. 1969)

292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 25 , Marine Division , International Union of
Operating Engineers, AFL-CIO and Local 333,
National Maritime Union , AFL-CIO and Great
Lakes Dredge & Dock Co. Case 5-C D-12 7
Maritime Union , AFL-CIO, are labor organizations
within the meaning of the Act.
III. THE DISPUTE
August 29, 1969
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended,
following a charge filed by the Great Lakes Dredge
& Dock Co , on November 5, 1968, alleging that
Local 25, Marine Division, International Union of
Operating Engineers, AFL-CIO, had violated
Section 8(b)(4) (D) of the Act. Pursuant to notice, a
hearing was held at Baltimore, Maryland, on
December 6, 1968, and January 22 and 30, 1969,
before Leslie Aronin, and on March 6, 1969, before
Walter H. Mahoney, Jr., Hearing Officers. The
named parties appeared at the hearing and were
afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to adduce evidence
bearing upon the issues The rulings of the Hearing
Officers made at the hearing are free from
prejudicial error and are hereby affirmed. Local 25
and Local 333 filed briefs with 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
powers in connection with this case to a
three-member panel
Upon the entire record of this case, the Board
makes the following findings
1. THE BUSINESS OF THE COMPANY
The parties stipulated to the following facts
Great Lakes Dredge & Dock Company is a New
Jersey corporation which maintains its principal
office in Chicago, Illinois. It is engaged in dredging
and related operations throughout the United States.
During the preceding 12 months it performed
services valued in excess of $50,000 within the State
of Maryland and during the same period the
Company purchased and received materials from
outside the State of Maryland valued in excess of
$50,000 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 Local 25,
Marine Division, International Union of Operating
Engineers , AFL-CIO, and Local 333, National
A. Statement of Facts
The Employer is engaged in certain dredging
operations for Bethlehem Steel Company off
Sparrows Point, Maryland. Such work requires the
use of a dredge and various tugs and barges. The
Garden State, a launch owned by the Employer, was
towed from the New York Harbor area to the
Sparrows Point operation for the purpose of
carrying employees from dockside to the dredge and
back at shift changes Normally the launch is
manned by a crew of two-a captain or mate and a
deckhand. When the Employer placed the Garden
State in service around November 6, 1968, it
employed a member of Local 333 as captain and
requested Local 25 to supply one of its members as
deckhand. Local 25 refused to do so on the ground
that its members were entitled to the captain's
position as well. It also refused to let its members
who operated the dredge use the launch at shift
change, thereby requiring the Employer to divert
one of its tugs to carry personnel at such times.
Also, around this time, one of Local 25's
representatives told a company officer that both
men on the launch had to be members of his union
or else the "mustard would hit the fan."
B Contentions of the Parties
Local 333 contends essentially that general East
coast past practice providing for a split crew-Local
333 captain and Local 25 deckhand - is controlling
here and emphasizes that in the past the Garden
State has, in its New York Port area operations,
carried such a crew. Local 333 also introduced
certain contracts in support of its position As for
Local 25, it takes the position, basically, that local
Baltimore-Sparrows Point practice is alone relevant,
and argues that such practice supports awarding the
disputed position to employees it represents. It also
presented in support of its position its contract
running from October 1968 to September 1971
covering, inter alia, the Baltimore area, which
contract sets forth a unit including captains of
"launches" used in connection with dredging
operations. The Company, though assigning the
captain's position to Local 333 members, take no
position as to which union's members are entitled to
the job.
C. Applicability of the Statute
The Board must be satisfied that there is
reasonable cause to believe that Section 8(b)(4)(D)
of the Act has been violated before it may proceed
with a determination of dispute pursuant to Section
178 NLRB No. 48
LOCAL 25, MARINE DIVISION, OPERATING ENGINEERS
10(k) of the Act. The record, as indicated, shows
that Local 25 refused to supply a deckhand for the
Garden State, ordered its members not to use that
vessel in traveling to and from the dredge, and
threatened unspecified disruptive action if the
captain of the Garden State was not an employee it
represented In these circumstances, we find that
there is reasonable cause to believe that Section
8(b)(4)(D) has been violated, and that the dispute is
properly before the Board for determination under
Section 10(k) of the Act '
D. Merits of the Dispute
The operation here involved is, as indicated
above, one limited to the shore to dredge and back
transportation of operating personnel at Sparrows
Point, Maryland. Consequently, it is not related to
and did not grow out of any activities or job in the
New York Port or other areas outside that of the
Baltimore Harbor and its vicinity. Thus, crewing
practices beyond the Baltimore-Sparrows Point
location are clearly not controlling here and are, in
the circumstance, of relatively little consequence.
This conclusion is supported by the facts that the
Garden State was towed on a barge and without any
crew from New York and that when it was placed in
service at Sparrows Point it was necessary to obtain
a new crew. As for the local practice, it appears that
Local 25 has provided for many years the full crew
for launches such as the Garden State in Baltimore
Harbor and vicinity. Furthermore, its contract with
the Company covers that area and specifically
applies to the crews --- captains and deckhandsi- of
launches used in connection with dredging
operations. As for the contracts placed in evidence
by Local 333, they do not by their terms apply to
'Local 333 contends, inter atia , that the case does not present a
jurisdictional dispute within the meaning of Sec 10(k) because the
"captains" in dispute are statutory supervisors and not employees The fact
that the "captains" are in charge of a vessel with a crew of one is not
enough, taken alone, to support a finding they are statutory supervisors
See Seaboard Packing Company, 91 NLRB 361 Additionally, though the
evidence in the record before us shows that the captain directs, to some
extent the activities of the deckhand, it is meagre at best and wholly
insufficient to support a finding that the "captains" exercise or possess
supervisory authority as defined in Sec 2(11) of the Act
293
the area here under consideration. In fact, there is
some evidence that Local 333 has not in the past,
with perhaps some rare exceptions, represented any
employees working in Baltimore Harbor and
vicinity Finally, it can be noted that both Unions
seem capable of furnishing employees competent to
occupy the disputed captain's position
E Conclusions as to the Merits of the Dispute
In the circumstances here, we believe that the
employees represented by Local 25 are entitled to
perform the work in dispute. Both past practice in
the Baltimore Harbor area and Local 25's contract
with the employer support such a result. Other
factors frequently considered by the Board in
resolving disputes under Section 10(k) of the Act do
not favor either union with respect to an award.' We
wish, however, to emphasize that in making the
award, we are assigning the work to employees
represented by Local 25 and not to that labor
organization itself 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
period, the National Labor Relations Board hereby
makes the following Determination of Dispute.
Employees of Great Lakes Dredge & Dock Co.
represented by Local 25, Marine Division,
International Union of Operating Engineers,
AFL-CIO, are entitled to perform the job or fill the
position of captain or mate on the launch Garden
State, while operating in connection with dredging
operations in the Baltimore-Sparrows Point harbor
area
'An employer's assignment of work is, of course, a relevant
consideration and here the Company, as pointed out, assigned the captain's
position to employees represented by Local 333 However, such an
assignment was not to the Company's own employees, did not reflect any
area past practice, and was not insofar as any one claims motivated by
considerations of efficiency, economy or other business advantage It seems
to have been based mainly on a continuation of New York harbor
manning practices for the Garden State From Local 25's point of view, it
represented a breach of contract, from ours, it seems in the particular
circumstances to be of no controlling consequence with respect to resolving
the dispute before us