Mine Workers (Stag Construction)

National Labor Relations Board - Board Decisions

Nov 24, 1993

313 N.L.R.B. 434 (N.L.R.B. 1993)

434
313 NLRB No. 56
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1993, unless otherwise noted.
2 Three of the employees on the job had not completed their con-
tractual 90-day probationary period.
United Mine Workers of America and Stag Con-
struction Company and United Steelworkers of
America, AFL–CIO, CLC
United Mine Workers of America, District 2 and
Stag Construction Company and United Steel-
workers of America, AFL–CIO, CLC
United Mine Workers of America, Local 2293 and
Stag Construction Company and United Steel-
workers of America, AFL–CIO, CLC. Cases 6–
CD–899–1, –2, –3
November 24, 1993
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed by the Employer, Stag Construction Company, al-
leging that the Respondents, United Mine Workers of
America; United Mine Workers of America, District 2;
and United Mine Workers of America, Local 2283
(collectively Mine Workers), violated Section
8(b)(4)(D) of the National Labor Relations Act by en-
gaging in proscribed activity with an object of forcing
the Employer to assign certain work to employees they
represent rather than to employees represented by
United Steelworkers of America, AFL–CIO, CLC
(Steelworkers). The hearing was held June 9, 1993, be-
fore Hearing Officer Leone P. Paradise. Thereafter, the
Employer and Mine Workers filed briefs.
The National Labor Relations Board affirms the
hearing officer’s rulings, finding them free from preju-
dicial error. On the entire record, the Board makes the
following findings.
I. JURISDICTION
The Employer, Stag Construction Company, a Penn-
sylvania corporation with a place of business in Belle
Vernon, Pennsylvania, is a contractor engaged in the
industrial and commercial construction industry which
constructs and restores gas pipelines and engages in
bathhouse construction work. During the 12-month pe-
riod ending May 31, 1993, the Employer, in the course
and conduct of its business operations, performed serv-
ices valued in excess of $50,000 in States other than
the Commonwealth of Pennsylvania and derived gross
revenues in excess of $1 million. The parties stipu-
lated, and we find, that the Employer is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act. The parties stipulated, and we find, that
Mine Workers and Steelworkers are labor organiza-
tions within the meaning of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer is a general contractor which has per-
formed pipeline construction, excavation, and site de-
velopment work since about 1973. The Employer em-
ploys 75–100 employees who have been covered by a
series of collective-bargaining agreements with Steel-
workers. The most recent agreement between the Em-
ployer and Steelworkers is effective from March 1,
1992, through February 28, 1995.
Keystone Coal Mining Corporation (Keystone), a
subsidiary of Rochester and Pittsburgh Coal Company
(R&P), awarded the Employer a contract to perform
the overall site development work for Keystone’s new
Plum Creek Mine. The Employer’s work on the project
involves the removal of about 900,000 tons of earth to
expose the coal seam, the installation of several sedi-
mentation ponds, and the construction of coal handling
and parking areas.
In late April 1993,1 the Employer began work at the
Plum Creek project using about 15 employees, at least
10 of whom are members of Steelworkers.2 Although
the Employer had not previously done a complete site
development project such as Plum Creek, the Em-
ployer has performed various construction and
earthmoving projects involving similar work, albeit on
a smaller scale, for Keystone and other companies. At
the Plum Creek site, Stag is using both its own equip-
ment and equipment leased at fair market value from
Kent Coal Mining (Kent) which, like Keystone, is a
subsidiary of R&P. The Employer’s leased equipment
includes a Hitachi X-1100 excavator and four rock
trucks.
Beginning on May 25, the Mine Workers began
what it denominated as an unfair labor practice strike
against Keystone and Keystone’s parent corporation,
R&P. The Mine Workers initially did not picket the
Plum Creek site involved in this case. On June 1, at
6:30 a.m., about 12–15 pickets led by Mine Workers’
officials, John McCullough, a District 2 board member,
and Richard Fink, president of Local 2293, appeared at
the entrance to the Plum Creek jobsite. McCullough
told the Employer that ‘‘this job was shut down due
to labor problems’’ and that ‘‘the bunch of men that
were there—to run the equipment, these were Kent
Coal employees.’’ McCullough also said that ‘‘if [the
Employer] wanted to continue working, [it] had to hire
these employees. If not, this place was on strike.’’ The
pickets carried signs stating, ‘‘Unfair Labor Practice
Strike Against R&P.’’ The Mine Workers’ picketing,
which continued on a daily basis from June 1 to 7, re-
sulted in a work stoppage at the project. Thereafter, on
435MINE WORKERS (STAG CONSTRUCTION)
the morning of June 9, about 35–40 Mine Workers
pickets appeared at the jobsite. The Employer called
the police, but the pickets disbursed before police ar-
rived. The Employer then resumed work on the project
without any further interruption.
B. Work in Dispute
The parties stipulated that the disputed work in-
volves the excavation and removal of dirt with heavy
equipment and preparation of a site portal at Keystone
Mining Company’s Plum Creek No. 1 Mine in prepa-
ration for the construction of an underground mine.
C. Contentions of the Parties
The Employer claims that there is reasonable cause
to believe that Section 8(b)(4)(D) has been violated be-
cause the Mine Workers demanded the disputed work
and then picketed the Plum Creek jobsite. The Em-
ployer argues that the disputed work should be award-
ed to Steelworkers-represented employees based on its
collective-bargaining agreement with Steelworkers, its
preference and past practice, and efficiency and econ-
omy of operations.
During the hearing, a Steelworkers’ representative
stated that ‘‘we should be working this job and that
we’re not a [sic] jurisdictional dispute with the Mine
Workers and we feel that we have rights to be there
as Steelworkers on this project.’’ He then withdrew his
appearance on Steelworkers’ behalf and left the hear-
ing room.
Mine Workers argues that there is no reasonable
cause to believe that it has violated Section 8(b)(4)(D)
of the Act. According to Mine Workers, it lawfully
picketed the jobsite in protest of the substandard wages
the Employer was paying to Steelworkers-represented
employees and in support of its ‘‘unfair labor practice
and economic strike against R&P and its subsidiaries,
including Keystone.’’ Mine Workers also claims that
Board Member McCullough exceeded his authority
and the instructions given him by International Rep-
resentative Jeffrey Duncan and Local 2 President Nich-
olas Molnar when he demanded the disputed work on
behalf of Mine Workers-represented employees. Addi-
tionally, Mine Workers contends that the Board should
quash the notice of hearing, as it did in Teamsters
Local 578 (USCP-Wesco), 280 NLRB 818 (1986), on
the ground that the real dispute here is between the
Mine Workers and Keystone and involves nothing
more than Mine Workers’ attempt to enforce the no-
subcontracting clause in their collective-bargaining
agreement. Mine Workers further asserts that there is
no existing work assignment dispute in this proceeding
because it has disclaimed the disputed work. Even as-
suming that reasonable cause exists to believe that Sec-
tion 8(b)(4) has been violated, Mine Workers contends
that the work should be awarded to employees it rep-
resents based on evidence that they possess the req-
uisite skills and have customarily performed such work
and because arbitrators have awarded similar work to
Mine Workers-represented employees.
D. Applicability of the Statute
Before the Board may proceed with a determination
of dispute pursuant to Section 10(k) of the Act, it must
be established that reasonable cause exists to believe
that Section 8(b)(4)(D) has been violated, and that the
parties have no agreed-upon method for the voluntary
adjustment of the dispute.
The evidence shows that McCullough, a District 2
board member for Mine Workers, effectively told the
Employer that Mine Workers was picketing in support
of its demand for the disputed work. Although Mine
Workers claims that McCullough exceeded his author-
ity when he made these remarks, we find it unneces-
sary to decide whether Mine Workers is legally re-
sponsible for McCullough’s conduct as the Board, in
a jurisdictional context, is not charged with finding
that a violation actually occurred, but only that there
is reasonable cause to believe that Section 8(b)(4)(D)
has been violated. Additionally, we stress that during
the hearing Molnar, whose authority Mine Workers
claims McCullough exceeded in demanding the dis-
puted work, specifically testified ‘‘that we have equip-
ment on the site that belonged to Kent Coal Company
and that our people should be running it.’’
Mine Workers also argues that the Board should ex-
amine the real nature of the instant dispute and that
such an inquiry here reveals that the dispute is really
a contractual, not a jurisdictional, dispute. We find that
Mine Workers’ reliance on USCP-Wesco, above, to
support its argument is misplaced because the present
case presents a traditional 10(k) situation in which
Mine Workers has picketed in support of its demand
that the Employer assign the disputed work to employ-
ees represented by Mine Workers rather than to the
Employer’s own Steelworkers-represented employees
who were performing the work. USCP-Wesco is also
distinguishable here because, unlike the situation in
that case, the evidence fails to establish that Mine
Workers was engaged in work preservation when
McCullough demanded the disputed work. We note
that the record does not show that employees rep-
resented by Mine Workers have performed in the past
the specific kind of work which constitutes the work
in dispute here. For these reasons, we conclude that
there are competing claims for the disputed work be-
tween rival groups of employees and that, therefore, a
traditional jurisdictional dispute exists.
Regarding the Mine Workers’ purported disclaimer
of the disputed work, we note that the Mine Workers
did not offer it until several weeks after the close of
the hearing. Thus, it appears that Mine Workers is at-
436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 See Electrical Workers IBEW Local 3 (Mike G. Electric), 279
NLRB 521, 523 (1986).
4 See Iron Workers Local 197 (Del Guidice Enterprises), 291
NLRB 1, 2 (1988).
tempting to escape the consequences of its picketing
by avoiding ‘‘an authoritative decision on the merits’’
in this case.3 Furthermore, Mine Workers’ purported
disclaimer specifically reserved the right ‘‘to engage in
protected concerted activity to protect the jobs of the
displaced Kent employees’’ and ‘‘to continue to pursue
grievances against Kent Coal and Keystone Coal for il-
legal subcontracting . . . .’’ We therefore conclude
that the language of the disclaimer is inconsistent with
Mine Workers’ claim that it no longer seeks the dis-
puted work for employees it represents.4
For the reasons stated above, we find that there is
reasonable cause to believe that Section 8(b)(4)(D) has
been violated. We additionally note that the parties
have stipulated that there is no provision for the vol-
untary resolution of the instant dispute which would
bind all three parties to the dispute. Accordingly, we
find that the dispute is properly before the Board for
determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative award of disputed work after considering various
factors. NLRB v. Electrical Workers IBEW Local 1212
(Columbia Broadcasting), 364 U.S. 573 (1961). The
Board has held that its determination in a jurisdictional
dispute is an act of judgment based on common sense
and experience, reached by balancing the factors in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of the dispute.
1. Certifications and collective-bargaining
agreements
There is no claim that either of the Unions has been
certified by the Board to represent the employees of
the Employer.
Sections 2A and B of the Employer’s existing col-
lective-bargaining agreement with Steelworkers pro-
vide, inter alia, that the contract applies to ‘‘[h]eavy
construction work [which] is defined as constructing
substantially and [in] its entirety any fixed structure
and other improvement or modification thereof, or any
addition or repair thereto, including . . . excavation
and disposal of earth and rock . . . .’’ We find that
the Employer’s contract with the Steelworkers covers
the disputed work. The Mine Workers, by contrast,
does not have a collective-bargaining agreement with
the Employer.
Thus, although the factor of Board certifications is
neutral, we find that the collective-bargaining agree-
ment between the Employer and Steelworkers favors
an award of the disputed work to Steelworkers-rep-
resented employees.
2. Employer preference and past practice
The Employer has historically assigned the disputed
work to employees represented by Steelworkers and
prefers to continue this work assignment. We therefore
conclude that both factors favor an award of the dis-
puted work to these employees.
3. Area and industry practice
The Employer does not claim that area practice fa-
vors an award to either competing group of employees.
Although the Mine Workers states ‘‘that the work is
customarily performed by UMWA members,’’ it does
not present any specific evidence to establish that ei-
ther area or industry practice favors an award to Mine
Workers-represented employees. Thus, we find that
these factors are neutral and do not support an affirma-
tive award of the disputed work.
4. Relative skills
There is no contention that either group of employ-
ees lacks the requisite skills to perform the disputed
work. Thus, this factor is also inconclusive and does
not support an affirmative award of the disputed work.
5. Efficiency and economy of operations
The Employer contends that this factor favors an
award to employees represented by Steelworkers be-
cause they work around the clock for 7 days each
week and because they are capable of performing the
multiple functions required by the Employer’s three
job classifications. Because the Employer does not
contend that the Mine Workers-represented employees
are incapable of performing the disputed work, we be-
lieve that these employees also would have the ability
to perform this work under the specific conditions that
the Employer has set for the Plum Creek jobsite. We
therefore conclude that this factor is also neutural, and
does not favor an award to either competing group of
employees.
6. Arbitration awards
Although Mine Workers relies on several arbitration
awards to support its claim that the disputed work
should be awarded to Mine Workers-represented em-
ployees, we note that the Employer was not a party to
any of these proceedings. Accordingly, we find that
this favor does not favor an award to employees rep-
resented by Mine Workers.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by United Steel-
437MINE WORKERS (STAG CONSTRUCTION)
workers of America, AFL–CIO, CLC are entitled to
perform the disputed work. We reach this conclusion
relying on the Steelworkers’ collective-bargaining
agreement with the Employer, as well as the Employ-
er’s preference and past practice.
In making this determination, we are awarding the
work in dispute to the Employer’s employees who are
represented by United Steelworkers of America, AFL–
CIO, CLC, but not to that Union or its members. The
determination is limited to the controversy that gave
rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of Stag Construction Company rep-
resented by United Steelworkers of America, AFL–
CIO, CLC are entitled to perform the work involved
in the excavation and removal of dirt with heavy
equipment and preparation of site portal at Keystone
Mining Company’s Plum Creek No. 1 Mine in prepa-
ration for the construction of an underground mine.
2. United Mine Workers of America; United Mine
Workers of America, District 2; and United Mine
Workers of America, Local 2293 are not entitled by
means proscribed by Section 8(b)(4)(D) of the Act to
force Stag Construction Company to assign the dis-
puted work to employees represented by it.
3. Within 10 days from this date, United Mine
Workers of America; United Mine Workers of Amer-
ica, District 2; and United Mine Workers of America,
Local 2293 shall notify the Regional Director for Re-
gion 6 in writing whether it will refrain from forcing
the Employer, by means proscribed by Section
8(b)(4)(D), to assign the disputed work in a manner in-
consistent with this determination.