Local Union 7813, UMW

National Labor Relations Board - Board Decisions

Dec 17, 1971

194 N.L.R.B. 619 (N.L.R.B. 1971)

LOCAL UNION 7813, UMW
Local Union No. 7813 , United Mine Workers of
America ; District 20, United Mine Workers of
America ; United Mine Workers of America and
Alabama Power Company and Local 833, Interna-
tional Brotherhood of Electrical Workers. Case
10-CD-237
December 17, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
charges filed by Alabama Power Company, hereinaft-
er called the Employer, alleging a violation of Section
8(b)(4)(D) by (1) Local Union No. 7813, (2) District
20, and (3) United Mine Workers of America,
hereinafter collectively called the Mine Workers.
Pursuant to notice, a hearing was held on June 29,
1971, at Birmingham, Alabama, before Hearing
Officer Robert C. Batson. The Employer, the Mine
Workers, and Local 833, International Brotherhood
of Electrical Workers, hereinafter called the Electrical
Workers, 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. The Employer and the Mine Workers
filed briefs with the National Labor Relations 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
authority in this proceeding to a three-member panel.
The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are hereby
affirmed.
Upon the basis of the briefs and the entire record in
this case, the Board makes the following findings:
1. THE BUSINESS OF THE COMPANY
The Employer is an Alabama corporation engaged
in generating, transmitting, and sale of electrical
power at its Gorgas, Alabama, plant. During the past
calendar year, which period is a representative period,
the Employer purchased goods valued in excess of
$50,000 directly from points located outside the State
of Alabama, and sold goods valued in excess of
$250,000 within the State of Alabama. We find,
accordingly, that the Employer is engaged in a
business affecting 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
in this proceeding.
II. THE LABOR ORGANIZATIONS
619
The parties stipulated and we find, that the Mine
Workers and the Electrical Workers are labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is an electric public utility. As part of
its business, the Employer operates a steam-electric
generating plant and a coal mine at Gorgas, Alabama.
Raw coal mined in the Gorgas mine is transported to
a coal preparation facility where the raw coal is
washed and the rocks and noncoal materials are
separated from the coal. Then the washed coal is
transported to the Gorgas steam plant where it is used
in the generating of electricity.
From 1941 to 1967, employees represented by the
Mine Workers transported raw coal from the mine to
the coal preparation facility, a distance of approxi-
mately 3 miles, by motor truck. In 1967, the Employer
installed and began operating an overland conveyor
belt to transport the raw coal from the mine to the
coal preparation facility. Employees represented by
the Mine Workers have operated and maintained this
overland conveyor belt since it was installed.
From 1941 to February 10 or 12, 1971, employees
represented by the Electrical Workers transported
washed coal from the coal preparation facility to the
steam plant, a distance of approximately 1 mile, by a
diesel-powered rail system.
In February 1971, the Employer completed installa-
tion of a new overland conveyor belt system, in three
sections, to transport the washed coal from the coal
preparation facility to the steam plant. The new belt
replaced and essentially paralleled the diesel-powered
rail system. Driven by electrical motors, the new belt
is activated by a control located inside the steam
plant. Two members of the Electrical Workers (whose
jobs are not part of the disputed work) operate the
controls. The new belt is divided into three sections by
two transfer points located between the coal prepara-
tion facility and the steam plant. These transfer points
were situated to permit changes in direction of the
new belt and also to accommodate load considera-
tions. The washed coal is weighed and sampled for use
in the steam plant at the first transfer point, located
nearest the steam plant.
The contractor who built the new belt for the
Employer-not a party to this proceeding-operated
and maintained the new belt from February until
April 1971. In April, the Employer assigned two
sections of the new belt, starting at the steam plant
and extending back to the second transfer point, to
194 NLRB No. 112
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees represented by the Electrical Workers.
Employees represented by, the Mine -Workers were
assigned the remaining section of the new belt starting
at the second transfer point and extending back to the
coal preparation facility. On May 20, 1971, the Mine
Workers began a work stoppage to protest the
Employer's assignment of the work here in dispute.
The work stoppage lasted until May 25, 1971, when
the Employer filed the charges now before the Board.
B. The Work in Dispute
The work in dispute involves patrolling, reporting
breakdowns, clearing away spilled coal, and mainte-
nance of the new overland conveyor belt used to
transport coal between the coal preparation facility
and the steam plant.
C. Contentions of the Parties
The Employer has already made an assignment of
the work here in dispute and at the hearing and in its
brief argues that the Board sustain the assignment.
The Employer contends that the work of moving the
coal from the coal preparation facility to the steam
plant has historically been the work of employees
represented by the Electrical Workers. Further, the
Employer argues that it is functionally desirable to
continue this assignment because the belt is driven
from a point inside the steam plant where the controls
are handled by employees represented by the Electri-
cal Workers. Finally, the Employer argues that
efficiency and economy of operation, and the Employ-
er's contract with the Electrical Workers support this
position. The Electrical Workers stated at the hearing
that it supports the Employer's assignment of the
work here in dispute.
The Mine Workers contends that its contract with
the Employer provides the basis for its maintaining
the entire overland conveyor belt system, including
the new belt. The Mine Workers argues that the new
belt is a continuation of the overland conveyor belt it
has operated since 1967 and is part of a contiguous
mine-related operation. It further argues that past
practice supports its position, that is, its members
presently operate and maintain the overland conveyor
belt used to transport coal from the mine to the coal
preparation facility; therefore, it should be responsi-
ble for maintaining the new belt.
D. Applicability of the Statute
The charges herein allege a violation of Section
8(b)(4)(D) of the Act. The record shows, and the Mine
1 International Association of Machinists, Local No 1743, AFL-CIO (J
A. Jones Construction Company), 135 NLRB 1402
2 The Mine Workers contract defines its jurisdiction as follows. "All
Workers concedes, that on or about May 20, 1971, the
Mine - Workers entered into, a strike, which strike
continued until approximately May 25, 1971, growing
out of the assignment of work here in dispute. On the
basis of 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 the dispute is
properly before the Board for determination under
Section 10(k) of the Act.
E. The Merits of the Dispute
As the Board stated in J. A. Jones Construction
Company,1 we shall determine the appropriate assign-
ment of disputed work in each case presented for
resolution under Section 10(k) of the Act only after
taking into account and balancing all relevant factors.
1. Contracts
Although the Mine Workers contends that the
language of its contract with the Employer requires
assignment of the disputed work to employees
represented by it, we find that neither the Mine
Workers nor the Electrical Workers contract clearly
covers the disputed work.2
2. Company practice
The evidence presented at the hearing shows that
employees represented by the Mine Workers have
transported coal from the mine to the coal prepara-
tion facility since the opening of the mine in 1941.
Similarly, employees represented by the Electrical
Workers have transported coal from the coal prepara-
tion facility to the steam plant since 1941. The
Employer's assignment alters this historical demarca-
tion point, the coal preparation facility, by assigning
employees represented by the Mine Workers a section
of the territory between the coal preparation facility
and the steam plant. The Electrical Workers did not
contest this partial assignment to employees repre-
sented by the Mine Workers. Therefore, we find that
this factor does not favor either labor organization.
3. Skills and work involved
Both parties introduced evidence which shows that
they, have experience operating and maintaining
conveyor belt systems. The employees represented by
the Electrical Workers have operated and maintained
a conveyor belt system inside the steam plant since
1954. The employees represented by the Mine.
Workers have operated and maintained a conveyor
belt system from the mine to the coal preparation
hauling of coal, overburden, mine refuse in or about the mine, including
hauling to screening, crushing, washing, or other preparation facility, or
other contiguous mine-related operation."
LOCAL UNION 7813, UMW
facility since 1967. Consequently, we find that the
operation and maintenance of a conveyor belt system
is not unique to either party and, therefore, this factor
does not favor either labor organization.
4. Employer preference
The Employer assigned the work in dispute, and
prefers an award, to employees represented by the
Electrical Workers. This factor favors an award to
employees represented by the Electrical Workers.
5. Job loss ,
The Electrical Workers was shown to have lost one
job as a result of the Employer's change from the use
of rail transportation to the overland conveyor belt. If
the award were made to the Mine Workers, one
additional part-time laborer would be affected. Also,
the workload of the Electrical Workers maintenance
crew, which currently handles the special mainte-
nance problems on the disputed sections of the
overland conveyor belt, would be proportionately
reduced. Therefore, we find that this factor favors the
Electrical Workers.
6. Economy of operation
The Mine Workers testified that if it were awarded
the work in dispute, one additional man would be
required for one shift to patrol the conveyor belt. At
present, two men who control the conveyor belt from
inside the steam plant and one part-time laborer, all
represented by the Electrical Workers, perform the
work in dispute. The parties stipulated that the
positions of the two men who control the conveyor
belt are not in dispute and that they would not be
replaced even if the Mme Workers were granted the
award. However, the one man the Mine Workers
would require would presumably replace the laborer
who works part time at the work in dispute. Thus, the
additional employee would cost the Employer more if
this work were awarded to the Mine Workers.
Conclusions
In each case where a factor favored the assignment
of the disputed work to employees represented by one
of the parties, we have found that it favored the
assignment of work to employees represented by the
Electrical Workers. Thus, on the record we find no
621
compelling reason for disturbing the Employer's
assignment of the work to employees represented by
the Electrical Workers. Accordingly, we shall deter-
mine the existing jurisdictional dispute by sustaining
the Employer's assignment of the work to employees
represented by the Electrical Workers. In making this ,
determination, we are awarding the work in question
to employees represented by the Electrical Workers,
but not to that Union or its members. Our present
determination is limited to the particular dispute
which gave rise to this proceeding.
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 dispute:
1. Employees employed by the Employer who are
represented by Local 833, International Brotherhood
of Electrical Workers, are entitled to perform the
work of maintaining two sections of the new overland
conveyor belt, said sections starting at the steam plant
and extending back to the second transfer point, in
accordance with the Employer's assignment of work.
Also in accordance with Employer's assignment of
work, employees employed by the Employer who are
represented by Local Union No. 7813, District 20,
United Mine Workers of America, are entitled to
perform the work of maintaining one section of the
new overland conveyor belt, said section starting at
the second transfer point and extending back to the
coal preparation facility.
2. Local Union No. 7813, District 20, United Mine
Workers of America, is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force or
require Alabama Power Company to assign the work
herein assigned to employees represented by the
Electrical Workers to employees represented by them.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local Union No.
7813, District 20, United Mine Workers of America,
shall notify the Regional Director for Region 10, in
writing, whether or not it will refrain from forcing or
requiring Alabama Power Company by means pros-
cribed by Section 8(b)(4)(D) of the Act to assign the
work awarded above in a manner inconsistent with
the above determination.