Niagara Hooker Employees Union

National Labor Relations Board - Board Decisions

Mar 28, 1990

297 N.L.R.B. 1073 (N.L.R.B. 1990)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1073
Niagara Hooker Employees Union and Occidental
Chemical Corporation and Local Union No. 91,
Laborers' International Union of North Amer-
ica, AFL-CIO, Party in Interest and Local 463,
Operating Engineers International Uinon, AFL-
CIO, Party in Interest. Case 3-CD-593
March 28, 1990
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
The charge and amended charge in this Section
10(k) proceeding were filed on August 22, 1989,
and August 28, 1989,' respectively, by Occidental
Chemical Corporation (Occidental) alleging that
the Respondent, Niagara Hooker Employees Union
(NHEU), violated Section 8(b)(4)(D) of the Na-
tional Labor Relations Act by engaging ih pro-
scribed activity with an object of forcing Occiden-
tal to assign certain work to employees it repre-
sents rather than to employees represented by La-
borers Local 91 and Operating Engineers Local
463 The hearing was held on October 5 and 6
before Hearing Officer Louis J Kurek Jr Thereaf-
ter, Occidental and NHEU filed postheanng briefs
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board affirms the hearing officer's rulings,
finding them free from prejudicial error On the
entire record, the Board makes the following find-
ings
I JURISDICTION
Occidental Chemical Corporation, a New York
corporation, is engaged in the manufacture of vari-
ous chemical products at its facility in Niagara
Falls, New York, where it annually ships goods
and materials valued in excess of $50,000 directly
to points located outside the State of New York
The parties stipulate, and we find, that Occidental
is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that NHEU,
Laborers Local 91, and Operating Engineers Local
463 are labor organizations within the meaning of
Section 2(5) of the Act
II THE DISPUTE
A Background and Facts of Dispute
NHEU represents certain production and mainte-
nance employees at Occidental's Niagara Falls fa-
cility Pursuant to a partial consent decree with
'All dates are an 1989 unless otherwise indicated
both the Federal and state governments, Occidental
is participating in a project to remove chemically
contaminated soil from creek beds at the Love
Canal, a toxic waste site in New York A contrac-
tor hired by the State of New York excavates the
sludge from the creeks and transports it to process-
ing facilities at Love Canal, after which Occidental
has responsibility for the contaminated material
Occidental contracted its work on the' Love Canal
project to Tncil Environmental Response, Inc ,
which in turn subcontracted portions of the work
to other firms
The entire cleanup project and the decontamina-
tion processes involved are experimental in nature
At the Love Canal facility the soil is screened to
remove large material, dried, and placed in "super-
sacks" which are specially designed to hold toxic
waste Each supersack is about 4 feet by 4 feet by 5
feet in dimension and weighs about 4500 pounds
Beginning August 7, the supersacks were transport-
ed to two warehouses on Occidental's premises
that were specifically built to store the Love Canal
material until an incineration facility is built on the
premises Tricil hired S L C Consultants to unload
the supersacks from the trucks by crane, store them
in the warehouses, and number and record the con-
tents and locations of the supersacks S L C as-
signed the work of unloading and storing the su-
persacks to employees who are represented by La-
borers Local 91 and Operating Engineers Local
463 Employees represented by these unions are
also involved in the excavation work at the
creekbeds and in the processing of the soil
On July 27, representatives of Occidental and
NHEU met to discuss the staffing of Occidental's
two new warehouses which were to be used exclu-
sively to store the supersacks NHEU representa-
tives requested that Occidental's employees per-
form at least the work involving the transportation
of the supersacks from Love Canal to Occidental's
warehouses and the handling of the supersacks at
the warehouses Representatives of the parties met
again on August 3 after Richard Karcher, Occiden-
tal's manager of human resources, had obtained
more information about the nature of the Love
Canal project At the conclusion of this second
meeting, NHEU did not pursue its claim for the
transporting of the supersacks, but indicated that it
had licensed crane operators in its bargaining unit
and requested for them the work of unloading and
storing the supersacks In a subsequent telephone
conversation between Occidental's supervisor of
labor relations, Felix Vicino, and NHEU's presi-
dent, Michael Rizzo, Rizzo stated that the NHEU
would engage in informational picketing if Occi-
dental hired contractors to unload and do the
297 NLRB No 173
1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
work On August 8, Karcher by letter to Rizzo
stated that Occidental intended 'to proceed with
our plans to retain Tncil and their affiliated
sub contractors to handle the unloading of super
sacks for storage" The letter further stated that
Occidental had determined that the work involving
the unloading of supersacks was outside NHEU's
jurisdiction
On August 9, NHEU distributed to its members
handbills that were attached to copies of Occiden-
tal's August 8 letter and which stated
We tried to secure our work (1 - crane op 1
millwright & 1 laborer) in area - 3 and this
was Oxy's bullshit answer [emphasis in ongi-
nal]
On August 11, NHEU filed a grievance contending
that the "supersack unloading project" was within
its jurisdiction and demandmg on behalf of its
members both the assignment of the work and
compensation 2 On August 14, NHEU distributed
throughout the plant copies of a handbill that
stated
HELP SAVE YOUR JOBS
INFORMATIONAL - PICKETS ONLY
TIME Tuesday, 4 00 p m - 8 00 p m , August
15, 1989
PLACE Iroquois and Buffalo Avenue (Near
the Credit Union)
JOIN TOGETHER IN OUR FIGHT
AGAINST OXY'S USE OF OUTSIDE
CONTRACTORS DOING OUR WORK
REMEMBER OUR BATTLE IS WITH
OXY, NOT THE OUTSIDE UNIONS
STRENGTH IS IN NUMBERS SO
SHOW UP DON T MISS IT"
Rizzo also called Vicmo on August 14 to notify
Occidental that NHEU planned to picket the fol-
lowing day Rizzo further stated that news cover-
age of the picketing had been scheduled and, ac-
cording to Vicino, repeated the request that em-
ployees represented by NHEU be assigned the su-
persack unloading work
On August 15 from 4 pm until about 5 30 pm,
members of NHEU picketed the area adjacent to
the warehouses where the supersacks were being
stored Some of the pickets carried signs that
stated, "Workers on this Job Site are not Repre-
sented by NHEU " Karcher testified that during
2 The grievance was denied by Occidental on the grounds that the du
ration of the supersack unloading project would be approximately 2 to 3
months the work was unpredictable and even if the work were within
NHEU s jurisdiction it would be work that normally would be con
tracted
the picketing Occidental stopped the delivery of
supersacics to the warehouses In late August or
early September, Rizzo informed Vicmo that
NHEU had discussed the possibility of further
picketing because the work of unloading the super-
sacks was ongoing and had not been assigned to
employees represented by NHEU
At the hearing, Jay Cull, Occidental's technical
manager of special environmental programs, esti
mated that the work of unloading and storing the
supersacks would be completed by November 15
B Work in Dispute
The disputed work involves the unloading and
storage of supersacks at Occidental's Niagara Falls,
New York facility
C Contentions of the Parties
Occidental contends that there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated because at least one of the purposes of
NHEU's picketing was to force the assignment of
the disputed work to its employees represented by
NHEU Occidental further contends that NHEU's
reliance on its collective-bargaining agreement does
not excuse its unlawful conduct or detract from the
jurisdictional nature of the dispute Occidental also
maintains that the disputed work should be award
ed to employees represented by Laborers Local 91
and Operating Engineers Local 463 based particu-
larly on the factors of relative skills, safety, econo
my, and efficiency of operations, as well as on the
relevant collective-bargaining agreements, Occiden-
tal's preference and past practice, industry practice,
and the history of the project
NHEU contends that there is no reasonable
cause to believe that Section 8(b)(4)(D) has been
violated because its picketing was purely informs
tional, did not have as a goal the reassignment of
the disputed work, and was directed at future in-
cmeration work involving the supersacics NHEU,
therefore, requests that the Board quash the notice
of heanng in this case In the event the Board finds
that a jurisdictional dispute exists, NHEU contends
that the disputed work should be awarded to em
ployees it represents based on its collective bar-
gaining agreement with Occidental and the fact
that the employees it represents possess the neces-
sary skills to perform the work and have per-
formed similar work in the past
Laborers Local 91 and Operating Engineers
Local 463 stated at the hearing that the disputed
work is covered by their respective collective-bar-
gaining agreements with S L C They further stated
that employees they represent are involved in all
phases of the Love Canal project Representatives
NIAGARA HOOKER EMPLOYEES UNION (OCCIDENTAL CHEMICAL) 1075
of the two Unions also expressed their members'
desire to retain the disputed work 3
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 the parties. have not agreed on a
method for the voluntary adjustment of the dis-
pute ,Here, NHEU threatened to picket at Occi-
dental following its demands that the disputed
work be assigned to its members After Karcher
confirmed Occidental's intent to have the work
performed by outside contractors, ,NHEU distribut-
ed to its members a handbill that stated, inter alia,
"We tried to secure our work [emphasis in origi-
nal]," and took further action to secure the work
by filing a gnevance 4 According to Vicmo's un-
controverted testimony, Rizzo on August 14 noti-
fied him of the planned picketing for which televi-
sion news coverage had been scheduled, and in the
same conversation repeated the request that em-
ployees represented by NHEU be assigned the dis-
puted work
On August 15, soon after the unloading and stor-
age work began, NHEU picketed the area adjacent
to the warehouses where the supersacks were being
stored Although NHEU expressed to its members
and to Occidental its intent to engage in purely in-
formational picketing to protest the use of outside
contractors, we find that in the context of NHEU's
repeated demands that the work be assigned to em-
ployees it represents, at least one of the purposes of
the picketing was to force the reassignment of the
work to employees represented by NHEU This
finding is further supported by NHEU's efforts to
inform Occidental that any picketing would be
covered by the media and by Rizzo's statement
that there might be further picketing because the
unloading of supersacks had not been awarded to
employees represented by NHEU
In any event, it is of no consequence if another
object of the picketing was to provide information
to the public regarding the assignment of the work
One proscribed object, as is present here, is suffi-
cient to bring a union's conduct within the scope of
Section 8(b)(4)(D) See Plasterers Local 594 (Tecton-
ics Engineering), 286 NLRB 259 (1987) (citing Car-
penters Local 953 (T & P Iron Works), 266 NLRB
3 S L C was served with a nonce of hearing but did not appear or
submit a brief We note that Tncll was served with a copy of the charge
4 Filing of the grievance is relevant to our finding that two competing
groups of employees claim the work However, we do not rely on the
filing of an arguably meritorious pre-10(k) grievance as evidence of coer-
cion within the meaning of Sec 8(b)(4)(11)(D) See Longshoremen's Locd
7 (Georgia Pacific), 291 NLRB 61 (1988)
617, 618 (1983), Electrical Workers IBEW Local 701
(Argonne National Laboratory), 255 NLRB 1157,
1161 (1981))
The parties stipulated at the hearing that there is
no agreed-upon method for the voluntary adjust-
ment of this dispute
Based on the foregoing, we find reasonable cause
to believe that a violation of Section 8(b)(4)(D) has
occurred and that there exists no agreed-upon
method for voluntary adjustment of the dispute
within the meaning of Section 10(k) of the Act
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 af-
firmative 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 junsdictional dispute is an act of judgment based
on common sense and experience, reached by bal-
ancing the factors involved in a particular case
Machinists Lodge 1743 (J A Jones Construction),
135 NLRB 1402 (1962)
The following factors are relevant in making the
determination of this dispute
1 Certifications and collective-bargaining
agreements -
NHEU is certified as the bargaining representa-
tive of Occidental's production and maintenance
employees in areas 1, 2, and 3 of the Niagara Falls
plant and has a collective-bargaining agreement
with Occidental encompassing that certification
The record does not establish, however, whether
the disputed work falls within NHEU's jurisdic-
tion
Laborers Local 91 and Operating Engineers
Local 463 contend that they each have collective-
bargaining agreements with S L C that cover the
disputed work Copies of these alleged agreements
are not in evidence and, therefore, we are not able
to determine whether the disputed work falls
within the jurisdiction of either union
Based on the above, we find that this factor is,m-
conclusive
2 Company assignment, preference, and
past practice
Cull testified that Occidental chose to hire the
best available contractor to perform the work by
assembling a team with the necessary skills and ex-
pertise Although S L C did' not appear at the
hearing and thus did not state a preference regard-
ing the assignment of the disputed work, we note
1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that S L C assigned the work to employees repre
sented by Laborers Local 91 and Operating Engi
neers Local 463 Karcher and Cull both testified
that they were satisfied with the unloading and
storage work that had been done by S L C Occi-
dental also contends that it frequently hires con-
tractors to perform special work at and around the
plant
NHEU contends that the employees it represents
perform similar work for Occidental regarding the
removal of runoff water from a landfill site at
Hyde Park and the movement and storage of waste
materials that come to the plant from Occidental s
"Energy from Waste" facility NHEU further con
tends that Occidental's employees move and store
hazardous waste materials generated within the
plant facility When questioned at the hearing,
however, Rizzo was unable to demonstrate that the
waste involved in these operations contains the
same sort of toxic chemical compounds as the
waste from the Love Canal
On the other hand, Karcher testified that the
plant-generated waste and the "Energy from
Waste" operation involve traditional production
and maintenance work, and that Occidental pre-
ferred to hire its own workers for the Hyde Park
work because that project, unlike the unloading
and storage of supersacks, is ongoing
Based on the above, we find that the factors of
company assignment and preference but not past
practice tend to favor an award to employees who
are represented by Laborers Local 91 and Operat-
ing Engineers Local 463
3 Area and industry practice
Karcher testified that the Love Canal project in-
volved a totally new and experimental process
Similarly, Cull testified that the work is novel"
and that, to his knowledge, no one else had ever
engaged in the same decontamination processes
Based on the above, we find that the Love Canal
project cannot be compared with area and industry
practice Accordingly, we find that this factor is in
conclusive
4 Relative skills and safety
Cull testified that Occidental contracted its por-
tion of the Love Canal project because, due to the
unique nature of the work, it wanted "the best"
people on the job In this regard, Occidental con
tends that the employees represented by Laborers
Local 91 and Operating Engineers Local 463, who
were hired by S L C to unload and store the su-
persacks, have worked on all phases of the Love
Canal project since its inception and, therefore,
have special expertise in handling the supersacks
Occidental also contends that employees repre
sented by Laborers Local 91 and Operating Engi
neers Local 463 are particularly qualified to per
form the disputed work because, unlike its own
employees represented by NHEU, they have satis
fled the certification requirements for handling haz
ardous wastes imposed by the Occupational Safety
and Health Administration (OSHA) pursuant to 29
CFR § 1910 Eugene McCarthy, business manager
of Operating Engineers Local 463, testified that
pursuant to OSHA regulations, employees repre-
sented by Operating Engineers participated in a 40-
hour training course designed to cover all the sys
tems and problems that the average operating engi
neer would encounter in a job involving hazardous
waste According to McCarthy, the course includ-
ed instruction by Red Cross personnel McCarthy
further testified that yearly refresher courses are
required for recertification Regarding the applica
tion of the safety procedures, Cull testified that on
one occasion a supersack fell off the pile where it
was being stored and broke, but that the employees
performing the storage work went into "an emer-
gency response type of activity" and the problem
was handled correctly
Rizzo testified that he talked with various OSHA
officials who mdicated that Occidental's employees
might be in compliance with OSHA's requirements
and entitled to some sort of exemption from the
training program because of their experience in
handling waste materials at Occidental's plant
There is, however, no indication that Rizzo pur-
sued the matter with OSHA, and he admitted at
the hearing that NHEU was unable to provide
proof of compliance with the certification require-
ments
Based on the above, we find that this factor
favors an award of the disputed work to employees
represented by Laborers Local 91 and Operating
Engineers Local 463
5 Economy and efficiency of operations
Occidental contends that in staffing the Love
Canal project its contractors had as an objective to
hire the best employees Occidental further main
tains that it would be disruptive to the organization
of the project to take a small portion of the work
on Love Canal from the contractors and assign it
to its own employees More specifically, Karcher
and Cull testified that the employees who unload
and store the supersacks must be willing to work
irregular hours because the ability to proceed with
the work depends on the progress at the Love
Canal site, public opinion, and the weather Ac
cording to Occidental, the Laborers and the Oper
atmg Engineers were willing to be flexible regard-
NIAGARA HOOKER EMPLOYEES UNION (OCCIDENTAL CHEMICAL) 1077
ing the hours worked by the employees they repre-
sented Additionally, Karcher testified that Occi-
dental did not have a sufficient number of employ-
ees to perform the work in-house and felt that it
would be inefficient to hire and train new employ-
ees for a project of such short duration
NHEU contends that Occidental's employees
were willing to be flexible in scheduling to accom-
modate these outside factors Rizzo testified that on
July 27 he had a conversation with Karcher re-
garding the scheduling of hours for the disputed
work According to Rizzo, when Karcher men-
tioned possible scheduling difficulties, Rizzo re-
sponded by stating that management has the right
to schedule as it sees fit, but that if there is a prob-
lem, employees have the right to grieve Rizzo fur-
ther testified that the tone of his statement indicat-
ed to Occidental "that we were able to work
around this" On the other hand, Vicino, who was
present at the meeting, testified that he interpreted
Rizzo's statement to mean "that any scheduling or
any flexibility that we would have needed to do
the work with the NHEU could be hard to
obtain" Regarding availability, Rizzo responded in
the affirmative when asked on cross-examination
whether Occidental employed "enough" laborers
and crane operators to perform the work
Relying particularly on the willingness of the
Laborers and the Operating Engineers to be flexi-
ble regarding scheduling, we find that this factor
favors an award of the work to employees repre-
sented by Laborers Local 91 and Operating Engi-
neers Local 463
Conclusions
After considering all the relevant factors, we
conclude that employees represented by Laborers
Local 91 and Operating Engineers Local 463 are
entitled to perform the work in dispute We reach
this conclusion relying on the factors of company
assignment and preference, relative skills and
/safety, and economy and efficiency of operations
il In making this determination, we are awarding the
work to employees represented by Laborers Local
91 and Operating Engineers Local 463, not to
those Unions or their members The determination
is limited to the controversy that gave rise to this
proceeding
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute
1 Employees repiesented by Local Union No
91, Laborers' International Union of North Amer-
ica, AFL-CIO and Local 463, Operating Engineers
International Union, AFL-CIO are entitled to per-
form the work of unloading and storage of super-
sacks at Occidental Chemical Corporation's Niaga-
ra Falls, New York facility
2 Niagara Hooker Employees Union is not enti-
tled by means proscribed by Section 8(b)(4)(D) of
the Act to force Occidental Chemical Corporation
to assign the disputed work to employees repre-
sented by it
3 Within 10 days from this date, Niagara
Hooker Employees Union shall notify the Regional
Director for Region 3 in writing whether it will re-
frain from forcing Occidental Chemical Corpora-
tion, by means proscribed by Section 8(b)(4)(D), to
assign the disputed work in a manner inconsistent
with this determination