Operating Engineers Local 150 (Diamond Coring Co.)

National Labor Relations Board - Board Decisions

Aug 25, 2000

331 N.L.R.B. 1349 (N.L.R.B. 2000)

OPERATING ENGINEERS LOCAL 150 (DIAMOND CORING, CO.) 1349
International Union of Operating Engineers Local
150, AFL–CIO and Diamond Coring Company,
Inc. and Laborers’ International Union of North
America, State of Indiana District Council and
its Local 81, AFL–CIO. Case 13–CD–582–1
August 25, 2000
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND BRAME
The charge in this Section 10(k) proceeding was filed
April 28, 2000, by Diamond Coring Company, Inc. (the
Employer). The charge alleges that International Union
of Operating Engineers Local 150, AFL–CIO (Operating
Engineers Local 150) violated Section 8(b)(4)(D) of the
National Labor Relations Act by engaging in proscribed
activity with an object of forcing the Employer to assign
certain work to employees it represents rather than to
employees represented by Laborers’ International Union
of North America, State of Indiana District Council and
its Local 81, AFL–CIO (Laborers’ Local 81). The hear-
ing was held May 18, 2000, before Hearing Officer Jason
K. Bowler. The Employer, Operating Engineers Local
150, and Laborers’ Local 81 have filed posthearing
briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire re-
cord, the Board makes the following findings.
I. JURISDICTION
The Employer, an Illinois company, is engaged in the
business of concrete cutting and sawing. During the past
calendar year, it purchased and received at Illinois loca-
tions goods and materials valued in excess of $50,000
directly from points outside the State of Illinois.
The parties stipulated, and we find, that the Employer
is engaged in commerce within the meaning of Section
2(6) and (7) of the Act and that Operating Engineers Lo-
cal 150 and Laborers’ Local 81 are labor organizations
within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
In November 1999 the Employer obtained a contract to
perform saw cutting and sealing on a project in Merrill-
ville, Indiana. At that time, the Employer and Laborers’
Local 81 were parties to a collective-bargaining agree-
ment in Indiana that covered employees classified as
concrete saw operators, power saw operators, and con-
crete saw joint control cutting. In January 20001 the Em-
ployer assigned the Merrillville saw cutting and sealing
work to its employees represented by Laborers’ Local
81.

1 All dates hereafter refer to 2000, unless otherwise specified.
The work commenced in February. In April Operating
Engineers Local 150 business representatives questioned
the Employer’s president, Anthony Cappello, about the
assignment of the saw cutting work. Cappello replied
that he had already assigned the work to employees rep-
resented by Laborers’ Local 81. Operating Engineers
Local 150 requested a meeting with Cappello.
On April 17 Cappello met with Operating Engineers
Local 150 representatives. During the meeting, the rep-
resentatives insisted that the work be assigned to operat-
ing engineers. When Cappello refused, the Operating
Engineers Local 150 representatives replied, according to
Cappello, “[I]f I didn’t do it that there would be some
kind of work stoppage or some kind of slow down.”
Cappello said they could not do that over a jurisdictional
dispute, to which the representatives responded,
“[T]here’s a lot of ways to do different things.”
On April 27 Operating Engineers Local 150 picketed
the jobsite with signs reading “on strike against Diamond
Coring for recognition as Majority Bargaining Represen-
tative of company’s Operating Engineer employees.” To
resolve the picketing, the project’s general contractor
agreed to pay an operating engineer to watch the Em-
ployer’s employees perform the disputed work.
B. Work in Dispute
The disputed work consists of saw cutting of concrete
work performed by the laborer employees of the Em-
ployer at the Walsh Construction jobsite located at ap-
proximately I-65 and 61st Avenue, Merrillville, Indiana.
C. Contentions of the Parties
The Employer and Laborers’ Local 81 contend that
there is reasonable cause to believe that Operating Engi-
neers Local 150 violated Section 8(b)(4)(D) of the Act.
They further contend that the work in dispute should be
assigned to the Employer’s present employees repre-
sented by Laborers’ Local 81.
Operating Engineers Local 150 asserts that the notice
of hearing should be quashed because the picketing in
which it engaged was recognitional only or because the
parties have agreed on a method for adjusting the dis-
pute. Additionally, Operating Engineers Local 150 ar-
gues that, should it be determined there is a jurisdictional
dispute, the Board should award the disputed work to
employees represented by Operating Engineers Local
150.
D. Applicability of the Statute
Before the Board may proceed with a determination of
a 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 adjust-
ment of the dispute.
331 NLRB No. 179
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1350
As to reasonable cause, Cappello testified that Operat-
ing Engineers Local 150 representatives threatened
“some kind of work stoppage or some kind of slow
down” when he refused to change the assignment of the
work in dispute. A threat to cause a work stoppage to
force reassignment of disputed work provides reasonable
cause to believe that Operating Engineers Local 150 has
violated Section 8(b)(4)(D) of the Act.2 In view of the
fact that there is reasonable cause to believe that such a
threat was made, it is unnecessary to pass on whether the
subsequent picketing by Operating Engineers Local 150
had as one of its objects the reassignment of the disputed
work to employees it represents. See Painters Local
1975 (L & H Paint Products), 241 NLRB 420, 422 fn. 9
(1979).
As to the second issue, it is well established that to
constitute an “agreed upon method for the voluntary ad-
justment of the dispute” within the meaning of Section
10(k) the private adjustment mechanism must be one to
which all parties to the dispute are bound. NLRB v. Plas-
terers Local 79, 404 U.S. 116, 137 (1971). Operating
Engineers Local 150 asserts that all three parties have
agreed to be bound by a voluntary method for adjusting
the dispute.
We find, however, that the parties’ contracts do not
mandate the same method of resolution. The contract
between the Employer and Laborers’ Local 81 provides
that jurisdictional disputes will be resolved by the inter-
national unions of all unions having agreements with the
Employer. Although Operating Engineers Local 150 has
an agreement with the Employer covering work per-
formed in Illinois, that contract contains a different dis-
pute resolution mechanism. Therefore, we find that there
exists no single method of voluntary adjustment binding
on all the parties. See Laborers Local 242 (Johnson
Gunite), 310 NLRB 1335, 1337 (1993).
Accordingly, we find reasonable cause to believe that a
violation of Section 8(b)(4)(D) has occurred and that
there is no agreed-upon method for the voluntary adjust-
ment of the dispute that is binding on all the parties
within the meaning of Section 10(k) of the Act. There-
fore, the dispute is properly before the Board for deter-
mination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive award of disputed work after considering various
factors. NLRB v. Electrical Workers Local 1212 (Co-
lumbia 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 ex-

2 Operating Engineers Local 150 denied making such a threat. The
Board has held, however, that “in 10(k) proceedings, a conflict in tes-
timony does not prevent the Board from finding ‘reasonable cause’ and
proceeding with a determination of the dispute.” Iron Workers Local
401 (William Watts, Inc.), 317 NLRB 671, 673 fn. 2 (1995).
perience, reached by balancing 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 de-
termination of the dispute.
1. Certifications and collective-bargaining agreements
Neither Union is the certified bargaining representative
of a unit of the Employer’s employees. The Employer
has a collective-bargaining agreement with Laborers’
Local 81 that encompasses saw cutting employee classi-
fications. The Employer has no collective-bargaining
agreement with Operating Engineers Local 150 covering
the disputed work. Accordingly, we find the factor of
collective-bargaining agreements favors an award of the
work in dispute to employees represented by Laborers’
Local 81.
2. Employer preference and past practice
The Employer prefers to assign the work in dispute to
employees represented by Laborers’ Local 81 consistent
with its longstanding practice of assigning such work to
those employees. Accordingly, we find that the factors
of employer preference and past practice favor an award
of the disputed work to employees represented by Labor-
ers’ Local 81.
3. Area and industry practice
The record contains conflicting evidence about the
practice of other employers in the area and in the indus-
try. Therefore, this factor does not favor an award of the
work in dispute to employees represented by either Un-
ion.
4. Relative skills
The record contains evidence that employees repre-
sented by both Unions possess the ability to perform the
work in dispute. Therefore, this factor does not favor an
award of the work in dispute to employees represented
by either Union.
5. Economy and efficiency of operations
The evidence establishes that assignment of the work
in dispute to the Employer’s own employees represented
by Laborers’ Local 81 is more efficient than assigning
the work to employees represented by Operating Engi-
neers Local 150 would be. Cappello testified that, under
the agreement with Laborers’ Local 81, the Employer
could utilize laborers to perform other tasks when there
was no saw cutting work to perform. Accordingly, the
factor of economy and efficiency favors an award of the
disputed work to employees represented by Laborers’
Local 81.
Conclusions
After considering all the relevant factors, we conclude
that the employees represented by Laborers’ Local 81 are
entitled to perform the work in dispute. We reach this
conclusion relying on the factors of collective-bargaining
OPERATING ENGINEERS LOCAL 150 (DIAMOND CORING, CO.) 1351
agreements, employer preference and past practice, and
economy and efficiency of operations.
In making this determination, we are awarding the
work to employees represented by Laborers’ Local 81,
not to that Union or its members.
Scope of the Award
The Employer and Laborers’ Local 81 request that we
issue a broad order applicable to all similar work per-
formed by the Employer in Indiana. Normally, 10(k)
awards are limited to the jobsite where the unlawful
8(b)(4)(D) conduct occurred or was threatened. There
are two prerequisites for a broad award: (1) there must be
evidence that the work in dispute has been a continuous
source of controversy in the relevant geographic area and
that similar disputes may recur; and (2) there must be
evidence demonstrating the offending union’s proclivity
to engage in further unlawful conduct in order to obtain
work similar to that in dispute. See Electrical Workers
Local 363 (U.S. Information Systems), 326 NLRB 1382
(1998).
The record contains some evidence that Operating En-
gineers Local 150 may have claimed similar work on
other projects and may have made threats concerning
similar projects. However, we are not persuaded that the
requisite showing has been made on this record that simi-
lar disputes are likely to arise in the future or that Operat-
ing Engineers Local 150 has a proclivity to engage in
unlawful conduct to obtain similar work. In this connec-
tion, we observe that, so far as the record shows, there
are no prior Board determinations involving disputes
between these unions.
We conclude that the issuance of a broad award is in-
appropriate in this proceeding. Accordingly, our deter-
mination is limited to the controversy that gave rise to
this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
1. Employees of Diamond Coring Company, Inc., rep-
resented by Laborers’ International Union of North
America, State of Indiana District Council and its Local
81, AFL–CIO, are entitled to perform the saw cutting of
concrete work performed by the laborer employees of the
Employer at the Walsh Construction jobsite located at
approximately I-65 and 61st Avenue, Merrillville, Indi-
ana.
2. International Union of Operating Engineers Local
150, AFL–CIO is not entitled by means proscribed by
Section 8(b)(4)(D) of the Act to force or require Dia-
mond Coring Company, Inc. to assign the disputed work
to employees represented by it.
3. Within 14 days from this date, International Union
of Operating Engineers Local 150, AFL–CIO shall notify
the Regional Director for Region 13 in writing whether it
will refrain from forcing Diamond Coring Company,
Inc., by means proscribed by Section 8(b)(4)(D), to as-
sign the disputed work in a manner inconsistent with this
determination.