Local 825, Operating Engineers

National Labor Relations Board - Board Decisions

Mar 25, 1981

255 N.L.R.B. 255 (N.L.R.B. 1981)

LOCAL 825, OPERATING ENGINEERS 255
Local 825, International Union of Operating Engi-
neers, AFL-CIO and Patock Construction Co.
and Local 343, Laborers International Union of
North America, AFL-CIO. Case 22-CD-361
March 25, 1981
DECISION AND DETERMINATION OF
DISPUTE
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Patock Construction Co.,
herein called the Employer, alleging that Local
825, International Union of Operating Engineers,
AFL-CIO, herein called Operating Engineers, 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 it represents rather than to em-
ployees represented by Local 343, Laborers Inter-
national Union of North America, AFL-CIO,
herein called Laborers.
Pursuant to notice, a hearing was held before
Hearing Officer Gregory M. Burke on December
12, 1980. Neither the Operating Engineers nor the
Laborers appeared at the hearing. The Employer
appeared and was afforded full opportunity to be
heard, to examine and cross-examine witnesses, and
to adduce evidence bearing on the issues. Thereaf-
ter, the Employer filed a brief.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free of prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board make the following findings:
I. THE BUSINESS OF THE EMPLOYER
Undisputed evidence was presented at the hear-
ing and we find that the Employer, Patock Con-
struction Co., a New Jersey corporation with of-
fices in Tinteen Falls, New Jersey, is a general
building contractor specializing in commercial and
industrial construction throughout central New
Jersey. During the past calendar and fiscal years,
representative periods, the Employer purchased
and received goods valued in excess of $50,000 di-
rectly from outside the State of New Jersey. On
the basis of the foregoing and the entire record, 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 purposes of the
Act to assert jurisdiction herein.
255 NLRB No. 35
II. THE LABOR ORGANIZATIONS INVOLVED
We find that the Operating Engineers' and the
Laborers2 are labor organizations within the mean-
ing of Section 2(5) of the Act.
111. THE DISPUTE
A. Background and Facts of the Dispute
In 1970, the Employer purchased a backhoe ma-
chine which it has since used for excavation, mason
tending, cleanup, moving construction materials,
and other tasks. Since the purchase of the backhoe,
it has been operated exclusively by James Long, an
employee represented by the Laborers. Long
spends approximately 50 percent of his time operat-
ing the backhoe and the remaining time doing gen-
eral laborer's work such as tending masons, hauling
material, and cleaning up trash.
In 1978, the Operating Engineers picketed the
Employer and caused it to stop performing back-
hoe work. The Employer filed charges alleging
that the Operating Engineers had violated Section
8(b)(4)(D) of the Act. Subsequently, the Employer
and the Operating Engineers entered into a settle-
ment which provided, inter alia, that the Operating
Engineers would not picket the Employer where
an object thereof was to force or require the Em-
ployer to assign the operation of the backhoe, bull-
dozer, or other excavation equipment to employees
who are members of the Operating Engineers
rather than to employees who are not members.
In 1980, the Employer acquired contracts with
the Board of Education of the Freehold Regional
High School District to construct additions to four
high schools in Monmouth County. On October 16,
1980,3 the Employer began to use the backhoe at
the Freehold High School construction site. The
backhoe was used until October 21, when the Op-
erating Engineers began picketing the site.
On October 20, the Employer's superintendent of
construction, John Coleman, had a conversation
with the Operating Engineers business agent, Keith
Allen Jones, at the Freehold High School. Cole-
man first overheard Jones state during a telephone
call that, "We will move the pickets to Freehold."
After Jones finished his call, Coleman asked what
the problem was. Jones said that Coleman knew
what the problems was, that they had been through
this before. Coleman said that he thought the prob-
' Local 823-A. B. C, and D. International Union of Operating Engineers
(lacono Construction Company. Inc.), 227 NLRB 110 (1976).
2 We find the Laborers is a labor organization within the meaning of
the Act on the basis of the collective-bargaining agreement between the
Laborers and Building Contractors Association of New Jersey, admitted
into evidence at the hearing, and the terms and provisions of that agree-
ment.
:' All dates herein refer to 1980 unless otherwise specified.
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lems were settled, and Jones responded, "Nope,
your boss still wants to play games. If he doesn't
mind the harassment, I have the time." Coleman
said that he did not think there would be problems
on the job because "Bil Jim is doing the entire
job." Jones disputed Coleman's claim, asserting
that "Muccio" would also be there. (Bil Jim Exca-
vating Company has employees who are represent-
ed by the Operating Engineers. Muccio is an exca-
vator whose employees are not represented by the
Operating Engineers.) Coleman replied that
Muccio would not be there, that, "We definitely
have this all wrapped up with Bil Jim." Jones then
said, "That is beside the point. You have an opera-
tor, a man in the back operating your machine who
is not an operator. I was just out there, and while I
was there he got off the machine, grabbed the
shovel, jumped down into the hole, and started
shoveling dirt. What kind of operator is that?"
Coleman asked if there was going to be trouble,
and Jones replied, "Just as soon as I can get the
wording on the signs. Your boss has twelve million
dollars worth of work and you don't have a single
one of my men on yet, and I will follow him wher-
ever he goes."
From October 21, until approximately October
29, members of the Operating Engineers picketed
the construction site with signs stating, "Patock
Construction Company does not have a contract
with Local 825, A, B, C, D, or our International
Union of Operating Engineers."
B. The Work in Dispute
The work in dispute involves the operation of
the backhoe owned by the Employer.
C. The Contentions of the Parties
The Employer contends that the work in dispute
should be assigned to the employee represented by
the Laborers, that the dispute is properly before
the Board, and that such an assignment is consist-
ent with the collective-bargaining agreement, the
Employer's preference, customary practice, and ef-
ficiency of operations. The Employer also contends
that, in view of the likelihood that the same or sim-
ilar dispute will arise in the future, the award of
the backhoe work requires a broad order awarding
the assignment of the work to employees represent-
ed by the Laborers at all of the Employer's con-
struction sites in Monmouth and Ocean Counties,
New Jersey. Neither the Laborers nor the Operat-
ing Engineers has taken any position on any issue.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion 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 the voluntary adjustment of the dis-
pute.
In order to find reasonable cause to believe that
Section 8(b)(4)(D) has been violated, the Board
must determine, in this case, whether or not the
Operating Engineers threatened, coerced, or re-
strained the Employer, by picketing or otherwise,
with an object of forcing or requiring the Employ-
er to assign the backhoe work to employees repre-
sented by the Operating Engineers rather than to
the employee who had been assigned by the Em-
ployer to operate the backhoe. Although the picket
signs stated merely that the Employer did not have
a contract with the Operating Engineers, the con-
versation between Operating Engineers Business
Agent Jones and the Employer's superintendent of
construction, Coleman, immediately before the
picketing began, reveals the Operating Engineers'
true purpose in picketing. During this conversation,
Jones dismissed as "beside the point" the previous
discussion regarding whether or not the Employer
was utilizing contractors whose employees were
not represented by the Operating Engineers. Jones
explained that the problem was that the Employer
was currently utilizing a machine operator who not
only operated the machine, but also "jumped down
into the hole" and started shoveling dirt. This de-
scription of the "operator" matches the description
of the employee who had been assigned by the
Employer to operate the backhoe since that em-
ployee not only operated the backhoe, but also en-
gaged in cleanup and other tasks not involving the
backhoe. Jones continued his conversation with
Coleman by threatening to picket, explaining fur-
ther that "your boss has twelve million dollars
worth of work and you don't have a single one of
my men on yet, and I will follow him wherever he
goes." The reasonable inference, particularly in the
absence of evidence to the contrary, is that Jones
sought to have the backhoe work assigned an em-
ployee represented by the Operating Engineers,
and that Jones would picket the construction sites
until the Employer complied with Jones' wishes.
On the basis of the foregoing and the entire
record, we conclude that there is reasonable cause
to believe that a violation of Section 8(b)(4)(D) has
occurred and that there exists no agreed-upon
method for the voluntary adjustment of the dispute
within the meaning of Section 10(k) of the Act.
Accordingly, we find that this dispute is properly
before the Board for determination.
LOCAL 825, OPERATING ENGINEERS 257
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. 4 The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on com-
monsense and experience reached by balancing
those factors involved in a particular case.5
The following factors are relevant in making the
determination of the dispute before us:
1. Collective-bargaining agreement
The Employer has a collective-bargaining agree-
ment with the Laborers covering the work in dis-
pute. The Employer is not party to any collective-
bargaining agreement with the Operating Engi-
neers. This factor favors an award of the disputed
work to employees represented by the Laborers.
2. Employer's assignment and practice
It is undisputed that since 1971 the Employer has
assigned the work of the operation of the backhoe
to an employee who is represented by the Labor-
ers. The Employer's preference and past practice
favor an award of the disputed work to employees
represented by the Laborers.
3. Area practice
Employer Representative John Coleman testified
without contradiction that the practice of contrac-
tors in the area is to assign the operation of back-
hoes to general laborers. The area practice favors
the award of the work to employees represented
by the Laborers.
4. Economy and efficiency of operation
Employer representatives testified that the Em-
ployer's operation does not require the use of a
backhoe on a steady basis. James Long, the em-
ployee currently assigned to operate the backhoe,
performs other general laborer tasks as well. How-
ever, if Long did not operate the backhoe, there
would not be sufficient work for him to perform
on a full-time basis. Since the Operating Engineers
are guaranteed a 40-hour workweek whenever the
machine is used, the Employer would be economi-
cally disadvantaged if the work were assigned to
employees represented by the Operating Engineers.
Therefore, economy and efficiency of operation
favor the assignment of the disputed work to em-
ployees represented by the Laborers.
4 N.L.R.B. v. Radio & Television Broadcast Engineers Union Local
1212, International Brotherhood of Electrical Workers. AFL-CIO [Colum-
bia Broadcasting System] 364 U.S. 573 (1961).
5 International Association of Machinists Lodge No. 1743, AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402 (1962).
5. Relative skills
The evidence is uncontradicted that the oper-
ation of the backhoe requires no sophisticated
training or skills. There are no licensing require-
ments for the operation of the backhoe. There is in-
sufficient evidence to indicate that the assignment
of the work to either group would result in greater
safety or that the work would be performed in
anything less than a satisfactory manner. Thus, this
factor favors neither group.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that employees who are represented by the
Laborers are entitled to perform the work in dis-
pute. We reach this conclusion relying on the col-
lective-bargaining agreement, the Employer's as-
signment and practice, area practice, and economy
and efficiency of operation. In making this determi-
nation, we are awarding the work in question to
employees who are represented by Laborers, but
not to that Union or its members.
The Board has previously held that it will re-
strict the scope of its determination to a specific
jobsite unless there is evidence that similar disputes
may occur in the future.6 The Employer herein
submits that there is strong probability that similar
disputes involving the Operating Engineers may
occur in the future.
The Employer is engaged in construction oper-
ations utilizing the backhoe in Monmouth and
Ocean Counties, New Jersey. Current construction
work is projected to continue into late 1981. In ad-
dition, the Employer contends that since it has
been involved in construction work in these two
counties since 1946 it is reasonable to assume that it
will acquire additional work requiring the use of
the backhoe in Ocean and Monmouth Counties. On
the basis of the foregoing and Operating Engineers
Business Agent Jones' statement, prior to establish-
ment of the picket line, that the Operating Engi-
neers would follow the Employer "wherever he
goes," we find that there is a reasonable likelihood
that this dispute will recur. Therefore, our determi-
nation in this case applies to similar disputes in-
volving the Employer's use of the backhoe in its
operations in Monmouth and Ocean Counties, New
Jersey.
6 See, e.g., International Longshoremens Association. Local 1576. AFL-
CIO and International Longshoremen S Association. Local 329. A4FL-CIO
(Texas Contracting Company), 162 NLRB 878. 884 (1967).
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 who are represented by Local 343,
Laborers International Union of North America,
AFL-CIO, are entitled to perform the work of the
operation of the backhoe owned by Patock Con-
struction Co. at all of Patock Construction Co.'s
construction sites in Monmouth and Ocean Coun-
ties, New Jersey.
2. Local 825, International Union of Operating
Engineers, AFL-CIO, is not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force
or require Patock Construction Co. 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 825, Interna-
tional Union of Operating Engineers, AFL-CIO,
shall notify the Regional Director for Region 22, in
writing, whether or not it will refrain from forcing
or requiring the Employer, by means proscribed by
Section 8(b)(4)(D) of the Act, to assign the disput-
ed work in a manner inconsistent with the above
determination.