Operating Engineers Local 649 (McDougal Hartmann Co.)

National Labor Relations Board - Board Decisions

Jan 31, 1995

316 N.L.R.B. 212 (N.L.R.B. 1995)

212
316 NLRB No. 40
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 At the hearing, the hearing officer denied the Teamsters’ motion
to quash the notice of hearing. Although the motion should have
been referred to the Board for decision, no prejudice has resulted
from the hearing officer’s ruling. Based on our independent review
of the record, we agree with the hearing officer, for the reasons set
forth below, that the Teamsters’ motion should be denied.
2 The Employer filed a motion to correct the transcript and the Op-
erating Engineers filed a response. We grant the Employer’s motion
as modified by the Operating Engineers’ response. 3 All dates are in 1994 unless otherwise specified.
International Union of Operating Engineers Local
649, AFL–CIO and McDougal Hartmann Co.
and Teamsters, Chauffeurs, Warehousemen &
Helpers, Local Union No. 627, affiliated with
the International Brotherhood of Teamsters,
AFL–CIO. Case 33–CD–373
January 31, 1995
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
The charge in this 10(k) proceeding was filed Sep-
tember 21, 1994, by the Employer (McDougal Hart-
mann Co.), alleging that the Respondent, International
Union of Operating Engineers Local 649, AFL–CIO
(Operating Engineers), violated Section 8(b)(4)(D) of
the National Labor Relations Act by engaging in pro-
scribed activity with an object of forcing the Employer
to assign certain work to employees it represents rather
than to employees represented by Teamsters, Chauf-
feurs, Warehousemen & Helpers, Local Union No.
627, affiliated with the International Brotherhood of
Teamsters, AFL–CIO (Teamsters). The hearing was
held October 20 and November 3, 1994, before Hear-
ing Officer Joy S. Kessler.
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.1 On the entire
record, the Board makes the following findings.2
I. JURISDICTION
The Employer, a Delaware corporation with a pri-
mary place of business at Mossville, Illinois, is en-
gaged in heavy and highway construction within the
state of Illinois. During the 12 months preceding the
hearing, the Employer purchased and received goods
valued in excess of $50,000 from vendors who re-
ceived those goods directly from outside the State of
Illinois. The parties stipulate, and we find, that the
Employer is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and that Teamsters
and Operating Engineers are labor organizations within
the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
In mid-August, 1994,3 Illinois Power Company
awarded the Employer a project in Havana, Illinois in-
volving cleaning out the bases of two overflow ash
ponds, covering the existing ash with soil, and
contouring the surface. The work in dispute relates to
the operation of vehicles used in moving ash and soil.
The Employer decided to use articulated dump trucks
to perform the work rather than scrapers because of the
wetness and adverse ground conditions at the site. The
Employer had never previously used articulated dump
trucks.
The Employer assigned the operation of the articu-
lated dump trucks to employees represented by the Op-
erating Engineers. On September 2, the Employer’s
president, James Volk, telephoned Operating Engineers
Business Manager Bill Agee and informed him of the
assignment. Agee agreed that Operating Engineers-rep-
resented employees would perform the work. Volk
confirmed the assignment by letter dated September 2.
Employees represented by Operating Engineers
began operating the first articulated dump truck on
September 13. A second truck was added on Septem-
ber 15 and a third was added on September 16. On
September 16, Teamsters Secretary-Treasurer Gleason
telephoned Volk and stated that operation of the articu-
lated trucks was Teamsters’ work. Gleason told Volk
that three qualified employees represented by the
Teamsters would be furnished for the project on Sep-
tember 19. Volk told Gleason that no Teamsters-rep-
resented employees were needed because the work had
been assigned to employees represented by Operating
Engineers. Volk testified that Gleason then stated that
if the Teamsters’ attorney approved, Teamsters would
picket if employees represented by Teamsters were not
assigned the work. Gleason denied threatening to pick-
et.
The Teamsters did not picket the jobsite, but on
September 16, it filed a grievance against the Em-
ployer asserting, inter alia, that the Employer had im-
properly assigned operation of the articulated dump
trucks to employees represented by Operating Engi-
neers rather than employees represented by Teamsters.
On September 20, Volk informed Agee that the
Teamsters had filed a grievance. In response, Agee
stated that the Operating Engineers would picket if the
work were reassigned. On September 21, the Employer
filed the instant charge against the Operating Engi-
neers.
213OPERATING ENGINEERS LOCAL 649 (MCDOUGAL HARTMANN CO.)
B. Work in Dispute
The disputed work involves the operation of articu-
lated dump trucks at the Illinois Power Company
project in Havana, Illinois. The project involves clean-
ing out two ash ponds, transporting the ash to a third
pond, and contouring and closing the third pond by
putting a 3-foot cover of dirt on it.
C. Contentions of the Parties
The Employer and Operating Engineers contend that
there is reasonable cause to believe that Section
8(b)(4)(D) has been violated because both Teamsters
and Operating Engineers have demanded the disputed
work and Operating Engineers has threatened to picket
if the work is reassigned to employees represented by
Teamsters. They assert that no evidence was presented
that the threat was not genuine. The Employer and Op-
erating Engineers further contend that there is no
agreed-upon method for the voluntary adjustment of
this dispute which binds all the parties. The Employer
and Operating Engineers also argue that the disputed
work should be awarded to employees represented by
Operating Engineers based on employer preference,
area practice, economy and efficiency of operations,
and loss of employment.
The Teamsters contends that no jurisdictional dis-
pute exists and that the notice of hearing should be
quashed because there is no reasonable cause to be-
lieve Section 8(b)(4)(D) has been violated and there
are agreed-upon methods for voluntary adjustment of
the dispute. The Teamsters alleges that the Operating
Engineers’ threat to picket was a sham and that the
Operating Engineers and the Employer colluded to cre-
ate the illusion of a dispute. The Teamsters further
contends that the parties are bound to an agreed-upon
method of voluntary adjustment of the dispute, because
the Unions are bound by procedures established by the
parent International Unions to resolve jurisdictional
disputes. It also claims that the Unions, as members of
the AFL–CIO, are bound under article XX of the
AFL–CIO constitution regarding the settlement of in-
ternal disputes. In addition, the Teamsters contends
that the disputed work should be awarded to employ-
ees it represents based on the awards of the Inter-
national Unions and the AFL–CIO impartial umpire,
its collective-bargaining agreement, area and industry
practice, and relative skills and safety.
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 voluntary ad-
justment of the dispute.
Initially, we find that there are competing claims to
the work in dispute. Operating Engineers claimed the
work on September 2 when Agee told Volk that Oper-
ating Engineers-represented employees would operate
the trucks. Teamsters claimed the work on September
16 when Gleason told Volk that operation of the trucks
was Teamsters’ work.
We also find that reasonable cause exists to believe
that a violation of Section 8(b)(4)(D) has occurred
based on Operating Engineers’ threat to picket if the
work were reassigned to employees represented by
Teamsters. Contrary to the Teamsters’ contention, we
cannot find that the threat was not genuine. The state-
ment on its face constitutes a threat to picket and there
is no evidence that Agee was not serious in making the
threat or had in any way colluded with the Employer
in this matter. The existence of a clause in the Operat-
ing Engineers’ collective-bargaining agreement prohib-
iting strikes prior to the exhaustion of established dis-
pute resolution mechanisms does not provide a basis
for a finding that the threat was a sham. See Teamsters
Local 6 (Anheuser-Busch), 270 NLRB 219, 220
(1984).
We also reject the Teamsters’ argument that there is
an agreed-upon method for voluntary adjustment of the
dispute. Contrary to the Teamsters’ contention, there is
nothing in the collective-bargaining agreements which
binds all three parties to the same method for resolving
jurisdictional disputes.
The Teamsters relies on the agreement of the Gen-
eral Presidents of the International Union of Operating
Engineers and the International Brotherhood of Team-
sters that under article VI, paragraph (b) of the 1990
addendum to their 1969 agreement, the operation of ar-
ticulated dump trucks is the work of the Teamsters.
Although the International Unions have established
methods of resolving disputes, the Employer is not a
party to, and has not agreed to be bound by, those pro-
cedures. Although the Employer’s contract with the
Operating Engineers states that the parties ‘‘agree to be
bound by the rules, procedures and decisions of the
Impartial Jurisdictional Disputes Board for the Build-
ing and Construction Industry or its successor,’’ there
is no evidence that the agreement between the Inter-
nationals is a product of that procedure. Thus, we find
that the Employer is not bound to that agreement. The
Teamsters asserts that by signing the Articles of Con-
struction Agreement between the Associated General
Contractors of Illinois and the Teamsters, the Em-
ployer became bound to all provisions in the Team-
sters collective-bargaining agreement, including griev-
ance and jurisdictional provisions and the interpreta-
tions given to those provisions. Teamsters argues that
because the Internationals have ‘‘given meaning’’ to
the jurisdictional provisions involved in this case the
Employer has agreed to that interpretation. We reject
214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
this argument. The record contains no evidence that
the Employer has agreed to be bound by any agree-
ment between the Unions. Because the Employer is not
a party to any agreement between the Unions, and is
not bound to the dispute resolution procedures set up
by the Unions, there is no voluntary mechanism which
would preclude the Board from determining the dis-
pute. Laborers Local 243 (A. Amorello & Sons), 314
NLRB 501, 502 (1994).
Similarly, while the Teamsters submits that proce-
dures under article XX of the AFL–CIO Constitution
are an agreed-upon method of resolving the dispute,
the Employer did not agree to be bound by an article
XX award. Absent the Employer’s voluntary assent, no
other method exists for the resolution of this dispute.
Electronic & Space Technicians Local 1553 (Hughes
Aircraft), 313 NLRB 800, 804 (1994).
For these reasons, we find reasonable cause to be-
lieve that a violation of Section 8(b)(4)(D) has oc-
curred 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 determina-
tion, and we deny Teamsters’ motion to quash the no-
tice of hearing.
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 this dispute.
1. Certification and collective-bargaining
agreements
There is no Board certification or bargaining order
determining the collective-bargaining representative of
the employees performing the work in dispute. The
Employer’s collective-bargaining agreement with Oper-
ating Engineers grants Operating Engineers jurisdiction
over ‘‘the operating and maintenance of all hoisting
and portable machines and engines used on Open and
Heavy Construction work whether operated by Steam,
Electricity, Gasoline, Diesel, Compressed Air, or Hy-
draulic Power.’’ The Employer’s collective-bargaining
agreement with the Teamsters applies to ‘‘all employ-
ees transporting materials and/or performing work in
classifications covered in Article 10 upon construction
sites.’’ Article 10 includes 2-, 3-, or 4-axle trucks haul-
ing 16 tons or more.
Neither contract specifically refers to the operation
of articulated dump trucks, and both contracts arguably
cover the disputed work. Accordingly, we find that the
factors of certification and collective-bargaining agree-
ments do not favor awarding the disputed work to ei-
ther group of employees.
2. Company preference and practice
Because the Employer has not previously used ar-
ticulated dump trucks, there is no Employer past prac-
tice. However, the Employer prefers assigning the dis-
puted work to the employees represented by the Oper-
ating Engineers and has assigned it to them. The Em-
ployer has experienced no difficulty as a result of the
assignment of the disputed work to employees rep-
resented by Operating Engineers and wishes to con-
tinue that assignment. Accordingly, we find that this
factor favors awarding the disputed work to the em-
ployees represented by the Operating Engineers.
3. Area and industry practice
The evidence regarding area and industry practice is
inconclusive. Several other employers, Lambrecht Con-
struction and Ironhustlers Excavating (also known as
Schielein Construction), and Stark have used employ-
ees represented by Operating Engineers to operate ar-
ticulated dump trucks. However, the Lambrecht assign-
ment was the subject of dispute resolution proceedings
between the two unions, leading to an agreement be-
tween the Internationals that the work belonged to the
Teamsters and resulting in a financial settlement for af-
fected Teamsters-represented employees. The Iron-
hustlers and the Stark assignments are also the subject
of pending proceedings between the Unions.
Teamsters argues that the agreement between the
Internationals in the Lambrecht case establishes that
industry practice favors awarding the disputed work to
employees represented by the Teamsters. Teamsters
also relies on Gleason’s testimony that he knew of two
contractors who had utilized Teamsters-represented
employees to operate articulated dump trucks. One of
these companies, Freesen, Inc., has employed employ-
ees represented by both Teamsters and Operating Engi-
neers in the operation of articulated dump trucks.
We disagree with the assertion of the Employer and
the Operating Engineers that the weight of the evi-
dence on this factor favors awarding the work to Oper-
ating Engineers-represented employees. Instead, we
find that this factor is inconclusive and does not favor
awarding the disputed work to either group of employ-
ees.
4. Relative skills
No specialized training is required for the operation
of an articulated dump truck and both groups of em-
ployees possess the skills necessary to perform the dis-
215OPERATING ENGINEERS LOCAL 649 (MCDOUGAL HARTMANN CO.)
4 Drywall Tapers Local 2006 (Painting and Decorating Contrac-
tors), 248 NLRB 626 (1980), relied on by Teamsters, is distinguish-
able. In that case the award by the International was entitled to much
greater weight because it involved the specific work in dispute.
Here, the award involved a different employer, different unions, and
a different jobsite. In any event, there, as here, we found that this
factor favored awarding the work to the union that had prevailed be-
fore the International. We did not, however, give this factor disposi-
tive weight. The result in the Drywall Tapers case differs from this
one, because a majority of the relevant factors (including this one)
favored the local that was awarded the work by the International.
puted work. Accordingly, we find that this factor does
not favor awarding the disputed work to either group
of employees.
5. Economy and efficiency of operations
Volk testified that it is more economical and effi-
cient to have the disputed work performed by employ-
ees represented by Operating Engineers. He asserted
that they are more familiar with the type of work done
on the site. In addition, the Employer can move Oper-
ating Engineers-represented employees to spare equip-
ment in situations in which the articulated dump trucks
become inoperative due to mechanical problems. Such
reassignment would not be feasible if Teamsters-rep-
resented employees were used because the only other
Teamsters-operated piece of equipment on the site is
the water truck which is used intermittently for dust
control. Further, by assigning the work to Operating
Engineers-represented employees, the Employer has
been able to have the work performed by employees
in its existing employee complement. If the Employer
had assigned the work to Teamsters-represented em-
ployees, it would have had to hire additional employ-
ees from the hiring hall.
Teamsters argues that its employees would not sit
idly by in the event of an equipment breakdown be-
cause they can be sent home after 4 hours. It further
contends that it is more economical to use Teamsters-
represented employees because the Teamsters wage
rate is $3-per-hour less than that of Operating Engi-
neers. However, the Board does not consider wage dif-
ferentials as a basis for awarding disputed work. Long-
shoremen ILA Local 1242 (Rail Distribution Center),
310 NLRB 1 fn. 4 (1993).
On the basis of the foregoing evidence, but without
reference to wage rate differentials, we find that this
factor favors awarding the disputed work to employees
represented by Operating Engineers.
6. Agreements of the Internationals and Impartial
Umpire’s Award
The Teamsters argues that the Board should assign
great weight to the agreement of the Internationals to
award operation of the articulated dump trucks to
Teamsters-represented employees. Teamsters relies on
a 1990 addendum to the International Unions’ 1969 ju-
risdictional agreement and its 1993 application in the
Lambrecht case involving work similar to that in-
volved in the instant case. Because the Employer was
not a party to that agreement, we cannot give disposi-
tive weight to it.
Teamsters also relies on the award of the Impartial
Umpire in article XX proceedings under the AFL–CIO
constitution in a case in which Waste Management,
Inc. assigned operation of articulated dump trucks to
employees represented by Teamsters Local 142 rather
than to employees represented by Operating Engineers
Local 150. The Impartial Umpire found that Teamsters
Local 142 was not in violation of article XX, sections
2 and 3 of the AFL–CIO constitution. That case arose
in Indiana and involved two different locals and a dif-
ferent employer than those involved in the instant case.
That case also concerned the interpretation of a dif-
ferent collective-bargaining agreement. Because the
Employer was not involved in that proceeding and did
not agree to be bound by its result, and the award con-
cerned work outside the jurisdiction of the Unions in-
volved in this case, we do not find that award to be
dispositive.
We have considered these awards and agreements
and find that they tend to favor awarding the work in
dispute to Teamsters-represented employees. However,
we do not consider them controlling, and we conclude
that this factor does not outweigh other factors favor-
ing awarding the disputed work to employees rep-
resented by Operating Engineers.4
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by Operating Engi-
neers are entitled to perform the work in dispute. We
reach this conclusion relying on employer preference
and economy and efficiency of operations. In making
this determination, we are awarding the work to em-
ployees represented by Operating Engineers, 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.
Employees represented by International Union of
Operating Engineers Local 649, AFL–CIO are entitled
to perform the operation of articulated dump trucks at
the Illinois Power Company project in Havana, Illinois.