Local No. 374, Longshoremen

National Labor Relations Board - Board Decisions

Sep 7, 1972

198 N.L.R.B. 1236 (N.L.R.B. 1972)

1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local No. 374-8, L.T.P.P.A., International Longshore-
men's Association , AFL-CIO and Janke Industrial
Marine , Inc. and International Union of Operating
Engineers, Local No. 139, AFL-CIO. Case
30-CD-48
September 7, 1972
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Janke Industrial Marine, Inc.,
hereinafter called Employer, alleging that Local No.
374-8, L.T.P.P.A., International Longshoremen's
Association, AFL-CIO, hereinafter called Licensed
Tugmen, 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 Licensed Tugmen
rather than to employees represented by Internation-
al Union of Operating Engineers, Local No. 139,
AFL-CIO, hereinafter called Operating Engineers.
Pursuant to notice, a hearing was held before
Hearing Officer James H. Warmoth on May 24,
1972. 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, the Employer and
Licensed Tugmen filed briefs.
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 rulings of the Hearing
Officer 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:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated that the Employer, Janke
Industrial Marine, Inc., is a Wisconsin corporation
with principal offices located at Athens, Wisconsin,
and is engaged in the marine construction industry.
During the past year, a representative period, the
Employer purchased and received goods and materi-
als valued in excess of $50,000 from locations outside
the State of Wisconsin. The parties further stipulated,
and we find, that the Employer is engaged in
commerce within the meaning of Section 2(6) and (7)
198 NLRB No. 188
of the Act, and that it will effectuate the policies of
the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties did not contest, and we find, that
Licensed Tugmen and Operating Engineers are labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
In April 1972, the Employer was engaged in two
marine construction projects in Milwaukee County,
Wisconsin. One consisted of laying an air condition-
ing unit intake and discharge pipeline in Lake
Michigan for the University of Wisconsin. The other
consisted of laying a water intake pipeline in Lake
Michigan for the city of Cudahy.
The work in dispute consists of the operation of
harbor mules, which are working barges propelled by
outboard motors. Harbor mules are used to transport
employees and equipment to and from jobsites. They
are equipped with a hydraulic backhoe which is used
to dig the trench for the pipe and a crane with a
boom which is used to lay the pipe on the bottom of
the lake.
The Employer's operating practice has been to
employ on board the harbor mule two operators
represented by Operating Engineers and a diver
represented by Piledrivers, an affiliate of the Carpen-
ters Union. One operator operates the mule from the
shore location, which is about 3 miles from both
projects, to the jobsite on the lake. He also operates
the power spuds on the barge which are raised and
lowered into the lake by air winches to anchor the
barge. The other operator runs the backhow or the
crane, whichever is in use. Both employees can
operate any of the equipment on the barge. They also
operate a small work boat, called a dinghy, which is
carried along with the barge and used in emergencies
to reach shore, and a recently purchased larger boat
used to transport company officials and civil engi-
neers to and from the jobsite. The diver checks the
trench in the lake bottom and connects the pipe
together. He is not involved in the work dispute
herein.
The record shows that since its inception in 1968,
the Employer has assigned the disputed work to
employees represented by the Operating Engineers.
The parties stipulated at the hearing that the
picketing of Employer's Milwaukee County premises
by Licensed Tugmen in April 1972 was designed to
secure the assignment of the operation of harbor
mules and all other marine propulsion equipment for
LOCAL NO. 374, LONGSHOREMEN
members of Licensed Tugmen pursuant to the
agreement which Licensed Tugmen claims to have
with the Employer.'
B. The Work in Dispute
As stated above, the work in dispute consists of the
operation of harbor mules which are working barges
propelled by outboard motors, and two smaller
boats, all used to transport employees and equipment
to and from the jobsites in question.
C. Contentions of the Parties
The Employer and Operating Engineers contend
that all work,done on the harbor mules and the two
smaller boats has been properly assigned to employ-
ees represented by Operating Engineers pursuant to
their recently expired collective-bargaining agree-
ment.
Licensed Tugmen asserts that operation of the
marine vehicles in question should be performed by
its members. Licensed Tugmen further contends that
the Employer is bound by the Licensed Tugmen
agreement which Janke Construction Co., Inc.,
signed on July 11, 1968.
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 the
voluntary adjustment of the dispute.
The charge alleges a violation of Section 8(b)(4)(D)
of the Act. The parties stipulated that the picketing
of Employer's Milwaukee County premises by
Licensed Tugmen in April 1972 was designed to
secure the assignment of the operation of all marine
propulsion equipment for members of Licensed
Tugmen. There is no evidence that the parties have
agreed to any voluntary method of settlement of the
dispute.
Based on the foregoing and the entire record, we
find that reasonable cause exists to believe that
Licensed Tugmen violated Section 8(b)(4)(D) of the
Act and that the dispute 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 disputed work after giving
The Hearing Officer permitted testimony to be taken concerning
operation of other marine vehicles even though the notice of hearing
specifically limited the hearing to operation of propelled barges, or harbor
mules The Hearing Officer reserved for the Board, however, the decision of
whether or not to consider this expanded issue In view of the parties'
1237
due consideration to various relevant factors. The
following factors are relevant in making a determina-
tion of the dispute before us.
1. Certification and collective-bargaining
agreements
Neither of the labor organizations involved herein
has been' certified by the Board as the collective-
bargaining representative for a unit of the Employ-
er's employees.
The Employer has recognized Operating Engineers
and is signatory to collective-bargaining agreements
negotiated by Allied Construction Employers Associ-
ation, Inc., and Operating Engineers, including the
Floating Agreement-Great Lakes, which covers all
floating equipment and appears to contemplate that
employees represented by Operating Engineers are to
perform the work in dispute. This agreement, which
expired on April 30, 1972, was in effect during the
period of Licensed Tugmen's picketing of the
Employer's premises in April 1972. The Employer's
general superintendent testified that the Employer
intended to enter into the new marine agreement
with Operating Engineers when it was presented for
execution.
Licensed Tugmen entered into an agreement with
Janke Construction Co., Inc., on July 11, 1968, which
it contends covers the work in dispute. This agree-
ment, by its terms, applies to captains, engineers, and
operators employed on tugboats, launches, or other
self-propelled boats owned, operated, or chartered by
the Employer. The Employer asserts that it owns
only barges, a fishing dinghy, and a speed boat.
Employer's general superintendent testified that
Janke Construction Co. is a separate entity, has
different ownership, is engaged in a different type of
work, and has performed no work on either of the
projects involved herein. He further testified that
Licensed Tugmen presented a copy of its new 1972
agreement to him and that the Employer declined to
enter into any agreement with that Union.
2. Company and industry practices
The Employer has been engaged in marine con-
struction in the Wisconsin-Lake Michigan area since
1968. The record indicates that the Employer has
consistently assigned all work on the harbor mules
and other marine vehicles to its employees in the unit
represented by Operating Engineers. As for the area
or industry practices, apart from the Employer's own
stipulation that the dispute involves all the Employer 's present marine
vehicles, in making our determination herein we have considered in
addition to the harbor mules , the operation of the two smaller boats
concededly also involved in the dispute
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practice, Employer's general superintendent testified
that he knew of no other employer in the area that
uses harbor mules. There is no other evidence of area
or industry practice.
In the absence of evidence of any relevant area or
industry practice favoring Licensed Tugmen, the
Employer's established practice in assigning operat-
ing engineers to perform the work favors assignment
of the disputed work to employees represented by
Operating Engineers.
3. Skills, efficiency, and economy
In the years that the Employer has operated the
harbor mules, operating engineers have demonstrat-
ed to the Employer's satisfaction that they possess
the knowledge and skill necessary to operate the
harbor mules, as well as all of the equipment on
board these barges. While Licensed Tugmen mem-
bers may also possess the necessary skills to perform
these duties, there is no showing that they have ever
been assigned the work in dispute or have ever
operated any of the equipment on the barges.
Furthermore, there is nothing in the record to
indicate that Licensed Tugmen operators could
perform the work in dispute with greater skill than
operating engineers, or to the greater satisfaction of
the Employer.
Employer's general superintendent testified that if
licensed tugmen operated the harobr mule, operating
engineers employed by the Employer would also be
on board to operate the equipment on the barge and
that the Licensed Tugmen operator would be idle
except for the approximately 1 hour a day he would
operate the boats. We find these factors favor the
assignment of the work in dispute to employees
represented by the Operating Engineers.
Conclusions
Upon the record as a whole, and after full
consideration of all relevant factors involved, we
conclude that the Employer's employees who are
represented by Operating Engineers are entitled to
perform the work in dispute. We reach this conclu-
sion upon the Employer's assignment of the work in
dispute to its employees who are represented by
Operating Engineers; the fact that this assignment is
consistent with its own past practice; the further fact
that operating engineers employed by the Employer
have the requisite skill and are familiar with, and
perform, all facets of the work; and the attendant
efficiency and economy of the established opera-
tions. We shall therefore determine the dispute
before us by awarding the work in dispute at the
Employer's University of Wisconsin and city of
Cudahy projects located in Milwaukee County,
Wisconsin, to those employees represented by
Operating Engineers, but not to that Union or its
members.
Accordingly, we find that Licensed Tugmen is not
entitled by means proscribed by Section 8(b)(4)(D)
of the Act to force or require the Employer to assign
the work in dispute to employees represented by it.
The Employer requests that the Board's award be
extended to cover all projects performed by the
Employer in any geographical area where both the
Licensed Tugmen and any local of the Operating
Engineers which is covered by the Floating Agree-
ment claim geographical jurisdiction. The Employer
argues that it does work on other projects which
might be affected by the same claim. Although the
Board need not restrict its award to a single job if
there is evidence that similar disputes will occur in
the future,2 we conclude that a broad award is not
justified by the evidence herein. Thus, the record
does not indicate that there had been any dispute
cognizable under Sections 8(b)(4)(D) and 10(k) of the
Act between Licensed Tugmen and Operating
Engineers involving the work in question prior to the
present dispute; that any such dispute existed during
the period in question at any other jobsite; or that
similar disputes will occur in the future. Therefore,
we cannot conclude that there is a sufficient
likelihood of a recurrence of the dispute to extend
our determination beyond the projects presently
under consideration.
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:
1. Employees of the Employer, Janke Industrial
Marine , Inc., who are represented by International
Union of Operating Engineers , Local No. 139,
AFL-CIO , are entitled to perform the work of
operating harbor mules and two smaller boats used
by the Employer to transport employees and equip-
ment to and from the Employer 's University of
Wisconsin and city of Cudahy projects located in
Milwaukee County, Wisconsin.
2. Local No. 374-8, L.T.P.P.A., International
Longshoremen 's Association , AFL-CIO, is not
entitled , by means proscribed by Section 8(b)(4)(D)
of the Act, to force or require Janke Industrial
2 Loral 294, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Bethlehem Steel Corporation), 174 NLRB
30,33
LOCAL NO . 374, LONGSHOREMEN 1239
Marine , Inc., to assign the above work to employees
represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute , Local No . 374-8,
L.T.P.P.A., International Longshoremen 's Associa-
tion , AFL-CIO, shall notify the Regional Director
for Region 30, in writing, whether or not it will
refrain from forcing or requiring Janke Industrial
Marine, Inc., by means proscribed by Section
8(b)(4)(D) of the Act, to assign the work in dispute to
employees represented by Licensed Tugmen , rather
than to employees represented by Operating Engi-
neers.