Local 542, Operating Engineers

National Labor Relations Board - Board Decisions

Feb 14, 1980

247 N.L.R.B. 1113 (N.L.R.B. 1980)

LOCAL 542, OPERATING ENGINEERS
Local Union No. 542, International Union of Operat-
ing Engineers, AFL-CIO and James Julian, Inc.
and United Steelworkers of America, Local 15253.
Case 4-CD-480
February 14, 1980
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by James Julian, Inc., herein called the
Employer, alleging that Local Union No. 542, Inter-
national Union of Operating Engineers, AFL-CIO,
herein called the Operating Engineers or Respondent,
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
employees represented by the Operating Engineers
rather than to employees represented by the United
Steelworkers of America, Local 15253, herein called
the Steelworkers.
Pursuant to notice, a hearing was held before the
Hearing Officer Allen K. Neyhard on September 14,
1979. All parties appeared and were afforded full
opportunity to be heard, to examine and cross-exam-
ine witnesses, and to adduce evidence bearing on the
issues.
Pursuant to 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 proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the
Employer, a Delaware corporation with its principal
place of business in Wilmington, Delaware, is engaged
in the construction business. Daring the past year, the
Employer has sold goods and performed services
valued in excess of $50,000 directly to customers
located outside the State of Delaware. We also find
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will
effectuate the purposes of the Act to assert jurisdiction
herein.
247 NLRB No. 159
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the
Operating Engineers and the Steelworkers are labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
At some time prior to November 1978, Raytheon
Service Company (Raytheon) was awarded a contract
by the State of Delaware to design, construct, and
operate a waste recovery plant at the Pigeon Point
Landfill in New Castle County, Delaware.
Raytheon retained James Julian, Inc., herein called
the Employer, as general contractor to do the con-
struction work. The Employer, in turn, has a series of
subcontracts with four other companies. The Employ-
er's employees are represented by the Steelworkers
and will perform about 15 percent of the work. The
Employer's subcontractors, whose employees are rep-
resented by the building trades unions, will perform
the remaining 85 percent of the work.
On or about November 1978, Raytheon, through
the Employer, started pile load tests at the worksite.
Subsequently, the Operating Engineers informed Ray-
theon's service manager, David Spencer, that it would
picket the site unless the work being done by the
Steelworkers was assigned to members of the Operat-
ing Engineers. On November 8, 1978, a meeting was
held between the representatives of all companies and
unions involved in the project. At this meeting, Al
Spanich, business agent for the Operating Engineers,
said that its members would picket if they did not get
the work and the other unions indicated that their
members would not cross such a picket line. It was
noted that the Employer had already stopped work at
the site due to this problem and the meeting ended
with the parties agreeing that there would be no
pickets as the project was only at the testing point.
On November 29, 1978, a meeting was held at the
request of Theodore W. Ryan, president of the
Building Trades Council. Also present at the meeting
.were John J. Mahon, director of labor relations for
Raytheon; Richard H. Osborn, labor relations consul-
tant for Raytheon; Thomas R. Sliney, wage adminis-
trator of Raytheon; James H. Thomas, international
representative of the Operating Engineers; and Al
Spanich. The purpose of the meeting was to settle the
dispute between Raytheon and the Operating Engi-
neers regarding the Employer. During the meeting,
Osborn indicated that there was more than a 95-
percent chance that the Employer would be the
general contractor for the job. In response, Spanich
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said that as far as he was concerned the Employer was
the same as a nonunion contractor; that if Raytheon
used the Employer they would be looking for "100%
trouble," that his people were out of work; that they
wanted this work; and that they "will fight for it."
Ryan affirmed the assertion that there could be "real
trouble." Thomas, at various times during the meet-
ing, recited instances of picket lines he had run which
were successful in changing a contractor's mind to use
"building trades people." At one point Ryan asked
whether members of the Operating Engineers would
work for the Employer, but Thomas quickly interced-
ed and stated that his Union was not interested in
representing the Employer's employees, it wanted the
work for its own members. At the close of the meeting
Osborn asked for directions to the site, which were
given by Ryan. Spanich then noted that there was only
one road and one gate at the site and that "he sure
loved that situation."
The Employer resumed work at the site sometime
during the week of June 18, 1979.' On the morning of
June 26 there were between 30 to 100 pickets at the
site.2 The pickets were carrying stones and clubs with
which they threatened the incoming workers. At least
one worker was physically attacked; two pickup
trucks and three cars had windows broken out, bodies
dented, and tires slashed; and approximately $200,000
of damage was done to four pieces of heavy equip-
ment. Al Spanich was one of the those present at the
site.
On June 28, the Employer filed the instant charge
against the Operating Engineers. On July 16, the
Acting Regional Director for Region 4 filed an action
in the Federal district court seeking a 10(1) injunction.
An immediate hearing was held and as a result a
stipulation was executed by the Acting Regional
Director and the Operating Engineers, whereby Re-
spondent agreed to refrain from:
a. Continuing its picketing at the New Castle
County Landfill located in New Castle County,
Delaware, pending an NLRB §10(k) determina-
tion and in addition jurisdictional picketing
through compliance.
The stipulation also provided that upon violation of
its terms the Regional Office, after notice to the
Respondent's attorney, should report the breach of the
stipulation to the court and that the court would then
enter an injunctive order.3
A 10(k) hearing was scheduled for August 8 and
later was rescheduled for September 14. On August 8,
a letter which purported to disclaim the work in
question was hand-delivered to the Regional Office by
i All further dates shall refer to 1979, unless otherwise noted.
' This variance is due to the differing testimony of the witnesses.
' As discussed, infra, the picketing did resume. Pursuant to the terms of the
the Operating Engineers attorneys. This letter made it
clear that Respondent was claiming the right to future
work of this nature for its members and the right to
see that area standards were maintained.
On August 17, the Operating Engineers asked the
Employer for a list of information concerning the
wage rates paid its employees in various job classifica-
tions. The Employer supplied the requested informa-
tion.
On August 22, the Operating Engineers set up a
picket line at the site. There were at least 15 pickets.
The pickets lines purported to be informational in
nature; however, the pickets had parked their cars
bumper to bumper in front of the only entrance to the
site. Consequently, the Employer's employees could
not drive into the site as usual, but rather would have
to park their cars outside and then walk through the
line. The Employer's employees declined to cross the
line. James Au, general superintendent for the Em-
ployer, and Francis Hogate, president of the Steel-
workers, met with Al Spanich and asked whether the
pickets were attempting to prevent the men from
going to work. Spanich indicated that the was not
going to prevent them from going to work, but he did
not know what the pickets might do and that "it
would not be a good idea" for the Employer's
employees to attempt to go to work at the project site.
Hogate then advised the employees represented by his
Union not to risk injury by attempting to cross the
picket line and recommended that the Employer
attempt to resolve the matter in court. Spanich, when
asked how and when the picket might be lifted, stated
that he had no authority to lift it and that the
Employer would have to talk to O'Donohue, president
of the Operating Engineers. Au then asked if the
pickets would be withdrawn if the Employer followed
all the provisions of the Operating Engineers contract.
Spanich replied that he did not know if that would be
helpful and added that it would not be his decision.
On August 24, the Regional Office, pursuant to the
July 16 stipulation, applied for and received a court
order enjoining the picketing.
B. The Work in Dispute
The work in dispute involves the clearing of the site,
grading for roadways, placing storm drainage, doing
sediment and erosion control work, building an
excavation for the place of driving the pilings, and
placing stone for site stabilization in the areas which
were excavated. The work requires the use of mecha-
nized equipment. There are 10-15 employees daily on
the job.
stipulation, the Regional Office reported this fact to the court and an
injunctive order was issued.
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LOCAL 542, OPERATING ENGINEERS
C. The Contentions of the Parties'
The Employer apparently contends that the Operat-
ing Engineers purported disclaimer is insufficient to
prevent this matter from being considered on its
merits and that the work should be awarded to its
employees.
Respondent apparently contends that it has dis-
claimed the work in question and that the notice of
hearing should be quashed for this reason.
The Steelworkers did not participate in the hearing.
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
believe that Section 8(b)(4)(D) has been violated and
that the parties have not agreed upon a method for
voluntary adjustment of the dispute.
The parties stipulated, and we find, that there exists
no agreed-upon method for voluntary adjustment of
the dispute within the meaning of Section 10(k) of the
Act.
With respect to the disclaimer, it has long been
established that a dispute over a work assignment no
longer exists once one of the competing unions or
parties effectively renounces its claim to the work in
question.' Here, the Operating Engineers, through its
attorneys, disclaimed the work in question on two
occasions: by letter dated August 8, the date on which
the hearing was first scheduled, and on the record of
September 14, at the rescheduled hearing. Ordinarily
such disclaimers would be determinative; however, in
this case, the record as a whole shows that Respondent
still seeks the work in question and that it has engaged
in conduct which is inconsistent with its disclaimer.
It is undisputed that the Operating Engineers
established a picket line at the disputed worksite on
August 22. It is argued that this picket line was merely
informational in character, protesting the Employer's
failure to comply with area standards. However, the
evidence shows that there were at least 15 pickets in
front of the one and only entrance to the worksite, that
the pickets parked their cars (at the direction of their
union business agent) in such a manner as to prevent
' None of the parties submitted briefs to the Board.
' N.LR.B. v. Plasterers' Local Union No. 79, Operative Plasterers' and
Cement Masons' International Assn., AFL-CIO [Texas State Tile d Terrazzo
Co.]. 404 U.S. 116, 134-135 (1971); Laborers' International Union of North
America, Local 935, AFL-CIO (CdS Construction Co.. Inc.), 206 NLRB 807
(1973); Sheet Metal Workers Local Union No. 465 (Thorpe Insulation
Company), 198 NLRB 1245 (1972).
' Maywood Plant of Grede Plastics. A Division of Grede Foundries. Inc.. 235
NLRB 363 (1978); Oil, Chemical and Atomic Workers International Union.
Local 1-591, AFL-CIO (Snelson. Incorporated), 208 NLRB 296 (1974); Metal
Polishers, Buffers, Platers and Helpers International Union Local No. 67 (Alco-
Cad Nickel Plating Corporation), 200 NLRB 335 (1972) Williamsport
vehicles from entering the site, and that the union
business agent told the Employer's superintendent and
the president of the Steelworkers that "it would not be
a good idea" for the Employer's employees to attempt
to cross the line. This type of picketing is without
question improper 6 and, of course, totally at odds with
a true informational objective. Likewise inconsistent
with informational objectives are Spanich's comments
indicating that employees crossing the picket line may
be subjected to bodily injury. Under such circum-
stances, it must be inferred that Respondent's objec-
tives extend beyond mere informational purposes, and,
in fact, demonstrate a continuing jurisdictional claim
to the disputed work. In such a context, we are
constrained to conclude that Respondent's disclaimer
should not be honored because Respondent's own
inconsistent conduct demonstrates its unworthiness.
Consequently, we find that there is reasonable cause to
believe that Section 8(b)(4)(D) has been violated and
that this 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 disputed work after giving due
consideration to various factors.7 The Board has held
that its determination in a jurisdictional dispute is an
act of judgment based on commonsense and experi-
ence reached by balancing those factors involved in a
particular case.'
The following factors are relevant in making a
determination of the dispute before us:
1. Collective-bargaining agreement
The Employer and the Steelworkers entered into a
collective-bargaining agreement on December 31,
1978, which states: "This Agreement applies only to
heavy and highway construction which shall be
deemed to include all types of utility work performed
within the State of Maryland and/or Delaware "(art.
I, sec. 6). The disputed work appears to be covered by
this agreement. The Employer does not have a
collective-bargaining agreement with the Operating
Engineers.
Building and Construction Trades Council AFL-CIO (Sardec. Inc). 192
NLRB 6 (1971); Local 761, International Union of Electrical. Radio and
Machine Workers AFL-CIO (General Electric Company), 126 NLRB 123
(1960); International Woodworkers of America. AFL-CIO. Local S-426. and
International Woodworkers ofAmerica, AFL-CIO. Local S-429 (W T Smith
Lumber Company). 116 NLRB 507 (1956).
' N.LR.B. v. Radio and Television Broadcast Engineers Union, Local 1212,
International Brotherhood ofElectrical Workers AFL-CIO[Columbia Broad-
casting System], 364 U.S. 573 (1961).
' International Association of Machinists. Lodge No. 1743. AFL-CIO (J. A.
Jones Construction Company). 135 NLRB 1402 (1962).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Company past practice
The parties stipulated that the waste recovery plant
being built was of an entirely new design such that no
one could have a past practice of building plants of
this particular type. The disputed work, however,
involves procedures well known in the construction
industry (see subsection B above). The Employer has
performed this type of work many times over the past
15 years and has always used employees represented
by the Steelworkers or its predecessor union.
3. Interunion agreement
On January 14, 1977, the United Steelworkers of
America (USWA) and the Building and Construction
Trades Department entered into an agreement by
which the USWA agreed, among other things, to
restrict itself "to the type of construction work . . .
which was performed by the contractor before the
merger of USWA and District 50(UMW)." As noted
above, the Employer had performed this type of work
before the merger and thus the Steelworkers does not
appear to be violating the January 14, 1977, agreement
in this respect.
4. Relative skills
The parties stipulated that the members of either
Union are equally capable of handling the equipment
except that operating engineers do not drive dump
trucks nor do they perform pipe work as well as
steelworkers.
6. Economy and efficiency of operation
As noted above, operating engineers do not drive
dump trucks; thus, if they were to be assigned the
work, the Employer would have to hire someone else
(presumably Teamsters) to drive the dump trucks.
Conclusion
Upon the record as a whole, and after full consider-
ation of all relevant factors involved, we conclude that
employees who are represented by the Steelworkers
are entitled to perform the work in dispute. We reach
this conclusion relying on the contract between the
Employer and the Steelworkers, company past prac-
tice, and the economy and efficiency of operation. In
making this determination, we are awarding the work
in question to the employees who are represented by
the Steelworkers, but not to that Union or its
members. The present determination is limited to the
particular controversy which gave rise to this proceed-
ing.
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
makes the following Determination of Dispute:
1. Employees of James Julian, Inc., who are
represented by the United Steelworkers of America,
Local 15253, are entitled to perform the work involv-
ing the clearing of the site, grading for roadways,
placing storm drainage, sediment and erosion control,
building an excavation for the place of driving the
pilings, and placing stone for site stabilization in the
areas which were excavated at the Pigeon Point
Landfill in New Castle County, Delaware.
2. Local Union No. 542, International Union of
Operating Engineers, AFL-CIO, is not entitled by
means proscribed by Section 8(b)(4)(D) of the Act to
force or require James Julian, Inc., to assign the
disputed work to employees represented by that labor
organization.
3. Within 10 days from the date of this Decision and
Determination of Dispute, Local Union No. 542,
International Union of Operating Engineers, AFL-
CIO, shall notify the Regional Director for Region 4,
in writing, whether it will refrain from forcing or
requiring the Employer, by means proscribed by
Section 8(b)(4)(D) of the Act, to assign the disputed
work in a manner inconsistent with the above determi-
nation.
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