Operating Engineers Local Union No. 3 (Central Concrete Supply, Inc.)Download PDFNational Labor Relations Board - Board DecisionsSep 29, 2010355 N.L.R.B. 1233 (N.L.R.B. 2010) Copy Citation OPERATING ENGINEERS LOCAL 3 (CENTRAL CONCRETE SUPPLY) 355 NLRB No. 200 1233 Operating Engineers Local Union No. 3 and Central Concrete Supply, Inc. and Teamsters Local 853. Case 32–CD–172 September 29, 2010 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS BECKER, PEARCE, AND HAYES This is a jurisdictional dispute proceeding under Sec- tion 10(k) of the National Labor Relations Act. Central Concrete Supply, Inc. (the Employer) filed a charge on September 23, 2009,1 alleging that the Respondent, Op- erating Engineers Local Union No. 3 (Operating Engi- neers) violated Section 8(b)(4)(D) of the Act by threaten- ing to engage in proscribed activity with an object of forcing the Employer to assign certain work to employ- ees represented by Operating Engineers rather than to employees represented by Teamsters Local 853 (Team- sters). The hearing was held on October 23, 27, and 28 before Hearing Officer Catherine Ventola. Thereafter, Teamsters, Operating Engineers, and the Employer 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, we make the following findings. I. JURISDICTION The parties stipulated that the Employer is a California corporation engaged in the business of supplying ready- mix concrete and building materials, and that the Em- ployer annually provides in excess of $50,000 worth of services within the State of California to users meeting the Board’s jurisdictional standards for retail enterprises and the direct inflow and outflow standard for nonretail enterprises. Accordingly, the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The parties further stipulated, and we find, that Teamsters and Operating Engineers are labor organiza- tions within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of the Dispute The Employer has been engaged in the manufacture (batching)2 and delivery of ready-mix concrete in the San Francisco Bay Area since 1948, and has voluntarily rec- ognized Teamsters and Operating Engineers to represent its employees in various capacities and locations since that time. The Employer currently operates two concrete 1 All dates refer to 2009 unless otherwise indicated. 2 Batching consists of mixing sand, gravel, cement, and water to form concrete. batching facilities in Oakland, California. One is located at 2400 Peralta Street (Peralta) and the other at 401 Em- barcadero Road (Embarcadero). Teamsters-represented employees have exclusively performed the batching work at Peralta for various em- ployers since at least 1970. Upon acquiring the facility’s lease in 1999, the Employer assumed its predecessor’s collective-bargaining relationship with Teamsters. The Employer leases Peralta from Cemex. Bay Area Teamsters (comprising Local 853 and other locals) represented Embarcadero employees from the mid-1960s to the mid-1980s working for one of the Em- ployer’s predecessors at that facility. In 1984 or 1985, Operating Engineers began representing Embarcadero batching employees and did so until the Employer leased the facility from Hanson Aggregates (Hanson) in May 2009. Following the commencement of the lease, Han- son moved its employees and equipment from Embarca- dero to its other batching facility and it laid off six Oper- ating Engineers-represented employees. The Employer then relocated its primary operations from Peralta to Em- barcadero, moving all of its employees, ready-mix trucks, and most of its equipment. The Employer intends to use Peralta as a “standby” or “satellite” plant, and dis- patches its Embarcadero-based employees and trucks to Peralta as necessary.3 The Employer has hired no additional employees to perform the disputed batching work. Instead, the Em- ployer uses its six Oakland batching employees to per- form work at Peralta and Embarcadero concurrently. These Teamsters-represented employees can both batch concrete and drive ready-mix trucks. When both plants are open, four employees batch while two drive trucks, whereas when only one plant is open, two employees batch while four drive trucks. Through the Aggregates and Concrete Association of Northern California (ACA), a multiemployer bargaining association, the Employer is party to separate collective- bargaining agreements with Teamsters and Operating Engineers. The ACA-Bay Area Teamsters contract cov- ers all the Employer’s truckdrivers, plus the concrete batching workers at Peralta and one other plant. When the contract was signed, Embarcadero was not one of the Employer’s facilities. Based on its relocation to Embar- cadero, the Employer has applied the Teamsters contract at that location as well. The ACA-Operating Engineers contract covers all the Employer’s batching facilities where Operating Engineers were performing the batching 3 The Employer must continue to operate Peralta at a minimum level to comply with its Cemex lease, and as needed to fill orders requiring Cemex raw materials and mixing formulas. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1234 work when that contract was signed. Both ACA con- tracts contain broad jurisdictional clauses. After the Employer moved its operations, Operating Engineers filed a grievance under the ACA-Operating Engineers contract claiming that the Employer had vio- lated the contract’s job placement regulations by assign- ing the disputed work to “non-dispatched employees.” As a remedy, Operating Engineers sought $1,594 in con- tributions to its Pensioned Health and Welfare Trust Fund and assurances that all “covered work” would be assigned to “dispatched employees” from its “Job Placement Center.” The Employer and the ACA refused to arbitrate or otherwise participate in the grievance pro- ceedings, prompting Operating Engineers to send a letter dated August 12 advising the Employer that Operating Engineers was going forward with arbitration and stating as follows: “it is our intention to consider alternative contractual means of enforcing the fringe benefit contri- bution obligation owed by your client, such as the one provided in section 13.00.00 to withdraw our members from the performance of any work for Central Concrete Supply, Inc.” The letter asserted that doing so would not be a strike under the contract. Operating Engineers sent an additional letter dated August 20 threatening a Federal lawsuit in district court to compel arbitration. In addi- tion, Operating Engineers sought “picket sanction” from other Operating Engineers local unions representing em- ployees of the Employer in surrounding California coun- ties. On September 8, Operating Engineers filed a suit to compel arbitration. The Employer filed a 8(b)(4)(D) charge with the Board on September 23. B. Work in Dispute The work in dispute consists of concrete batching per- formed by the Employer at its facility located at 401 Em- barcadero Road in Oakland, California. Specifically, the disputed work is defined by stipulation as: the batching of aggregates, cement, water, admixtures, color, other than when manually added; maintenance of machinery; and the operation of conveyor belts and any other me- chanical equipment, including the front end loader, used in the operation of the plant as well as the maintenance of said equipment. The disputed work is performed by six employees in the following two job classifications: (1) the batch plant operator or batchman, who operates an electronic console controlling the mixture of raw ma- terials in a drum, and (2) the plant engineer or beltman/loader, who operates and maintains the con- veyor belts used to move raw materials. Teamsters does not claim the heavy maintenance work performed by Operating Engineers at the Employer’s concrete-batching facilities. C. Contentions of the Parties The parties stipulated that there are competing claims for the work in dispute. Teamsters and the Employer contend that there is reasonable cause to believe that Op- erating Engineers violated Section 8(b)(4)(D) by the pro- scribed means of threatening to picket, and that no all- party, agreed-upon voluntary method of resolving the dispute exists. Teamsters further contends that the dis- puted work should be awarded to employees represented by Teamsters based on the factors of certifications and collective-bargaining agreements, employer preference and past practice, and economy and efficiency of opera- tions. The Employer contends that assigning the dis- puted work to its Teamsters-represented employees is proper based on the factors of employer preference and past practice, and economy and efficiency of operations. Operating Engineers contends that because the Em- ployer assigned the disputed work to employees repre- sented by Teamsters based on the Employer’s perceived obligations under the ACA-Bay Area Teamsters contract, the Employer effectively expressed no preference for Teamsters. Moreover, Operating Engineers argues that because the Employer has not relocated all of its Peralta operations to Embarcadero, Embarcadero is a new facil- ity subject to Operating Engineers’ jurisdiction. Finally, Operating Engineers contends that the Board should award the work in dispute to employees that Operating Engineers represents based on the factors of certifications and collective-bargaining agreements, employer prefer- ence and past practice, area and industry practice, rela- tive skills, economy and efficiency of operations, and prior arbitration awards.4 D. Applicability of the Statute Before the Board may proceed with determining a dis- pute pursuant to Section 10(k) of the Act, it must be es- tablished that reasonable cause exists to believe that Sec- tion 8(b)(4)(D) has been violated. This requires a finding that there is reasonable cause to believe that there are competing claims to disputed work between rival groups of employees and that a party has used proscribed means to enforce its claim.5 In addition, the Board must find that the parties have no agreed-upon method for volun- tary adjustment of the dispute.6 For the reasons stated 4 At the hearing, Operating Engineers contended that there was no reasonable cause to believe Sec. 8(b)(4)(D) had been violated and that there was an agreed-upon voluntary method of adjusting the dispute. However, Operating Engineers did not raise these arguments on brief to the Board. 5 Carpenters Local 624 (T. Equipment Corp.), 322 NLRB 428, 429 (1996). 6 Bricklayers (Cretex Construction Services), 343 NLRB 1030, 1031 fn. 2 (2004). OPERATING ENGINEERS LOCAL 3 (CENTRAL CONCRETE SUPPLY) 1235 below, we find that this dispute is properly before the Board for determination on the merits under Section 10(k). First, we find that there is reasonable cause to believe that there are competing claims to the disputed work be- cause all parties joined in stipulating to the existence of competing claims. In any event, where, as here, two un- ions have contracts and each union claims its contract covers the same work, we have found competing claims for disputed work. See Carpenters Los Angeles Council (Swinerton & Walberg), 298 NLRB 412, 414 (1990). Second, we find that there is reasonable cause to be- lieve that Operating Engineers used means proscribed under Section 8(b)(4)(D) to enforce its claim. Its August 12 letter to the Employer, threatening to withdraw its members from work at all the Employer’s facilities unless the Employer assigned the disputed work to Oper- ating Engineers through its Job Placement Center, consti- tutes a threat to take proscribed coercive action in fur- therance of a claim to the work in dispute, despite Oper- ating Engineers’ contrary statement in the letter. See Iron Workers Local 1 (Goebel Forming, Inc.), 340 NLRB 1158, 1160 (2003) (finding union threat to pull members off a jobsite a proscribed means of enforcing a claim). Moreover, the Employer and Teamsters learned that Operating Engineers had requested picket sanction from its neighboring local unions in surrounding coun- ties. Threats to picket are a proscribed means of enforc- ing a claim to disputed work. See Teamsters Local 158 (Holt Cargo), 278 NLRB 360, 361 (1986). Finally, we find that there is no method for voluntary adjustment of the dispute to which all parties have agreed.7 At the hearing, Operating Engineers introduced two agreements purporting to embody agreed-upon methods of voluntarily adjusting the dispute. Neither of these agreements binds the Employer. Operating Engi- neers also introduced multiple arbitration decisions is- sued under these and other agreements to which it is party. None of these decisions covers the disputed work or the same parties as in this dispute. Accordingly, we proceed to the merits of the dispute. E. Merits of the Dispute Section 10(k) requires the Board to make an affirma- tive award of the disputed work after considering various factors in light of the Board’s “[e]xperience and common 7 It is settled that the Board will not hear a dispute when all the par- ties are bound to an alternative method of adjustment. Operating Engi- neers Local 150 (R&D Thiel), 345 NLRB 1137, 1140 (2005); see also Operating Engineers Local 150 (Nickelson Industrial Service), 342 NLRB 954, 955 (2004) (holding that “in order for an agreement to constitute an agreed-upon method for voluntary adjustment, all parties to the dispute must be bound to that agreement.”). sense.” NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U.S. 573, 583 (1961). The Board has held that its determination in a jurisdic- tional dispute is an act of judgment based on common sense and experience, reached by balancing the factors involved in a particular case. Machinists Lodge 1743 (J.A. Jones Construction), 135 NLRB 1402, 1410–1411 (1962). Based on the following factors, which we find are relevant to determining this dispute, we conclude that the Employer’s employees represented by Teamsters are entitled to perform the work in dispute. 1. Certifications and collective-bargaining agreements The Employer has recognized both unions voluntarily and there is no Board certification covering the disputed work.8 Moreover, both Teamsters’ and Operating Engi- neers’ contracts with the ACA and the Employer are broad enough to cover the disputed work. Accordingly, we find that this factor does not favor an award of the disputed work to either group of employees. 2. Employer preference and past practice The Employer has assigned all the disputed work to its employees represented by Teamsters and prefers that they continue to perform this work. Although the ACA- Bay Area Teamsters contract was stated by the Em- ployer’s Human Resources Manager at the hearing to be the reason for the Employer’s preference, the Board does not generally examine the reasons for an employer’s preference unless there is evidence that the employer was coerced. See, e.g., Laborers Local 829 (Mississippi Lime Co.), 335 NLRB 1358, 1360 fn. 5 (2001). There is no evidence of coercion here, and thus the Employer’s pref- erence is a valid factor. The past practice at Peralta has been to assign the dis- puted work to Teamsters-represented employees. Be- cause of the Employer’s relocation to Embarcadero, this past practice applies with equal force to that location. Operating Engineers’ position disputing the legitimacy of the Employer’s move from Peralta to Embarcadero is meritless. Whether the Employer completely moved its operations is irrelevant to whether assigning the disputed work to Teamsters-represented employees is proper. Cf. Newspaper & Mail Deliverers (New York News), 291 NLRB 680, 680–681 (1988) (rejecting a preservation of work argument where the employer moved the “physical location” of its delivery operations without changing the underlying work). Accordingly, we find that the factor of employer preference and past practice favors an award 8 Operating Engineers submitted a certification document at the hearing purportedly certifying Operating Engineers as the exclusive representative of all the Employer’s employees. This certification was erroneous, and the Regional Director accordingly revoked it. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1236 of the work in dispute to employees represented by Teamsters. 3. Area and industry practice Both Teamsters and Operating Engineers presented evidence of their members performing concrete batching work in the Bay Area for more than 40 years. Addition- ally, both unions currently represent employees perform- ing batching work for multiple Bay Area employers, and specifically represent employees performing batching work at several of the Employer’s facilities. Accord- ingly, we find that this factor does not favor an award of the disputed work to either group of employees. 4. Relative skills Both Teamsters and Operating Engineers presented evidence showing that their employee-members receive on-the-job training and have experience performing con- crete batching work. Operating Engineers overstates the relevance of its apprenticeship program, as only about 25 to 30 of 300 total Operating Engineers-represented Bay Area batch workers actually completed this program. Operating Engineers also relies on testimony that a manager for the Employer repeatedly contacted a laid-off Operating Engineer with questions about the Embarca- dero plant, apparently to demonstrate that Teamsters- represented employees have had more difficulty adjust- ing to the Embarcadero equipment than would Operating Engineers-represented employees. However, Operating Engineers’ witness admitted that while all batch plants function similarly, each one has idiosyncrasies and that Embarcadero has “extreme idiosyncrasies.” This witness further admitted that he learned the idiosyncrasies through training he received from another employee with experience at that plant. The record therefore reflects that the contacts between the Employer and the laid-off Operating Engineer do not reflect a relative lack of skill by the Teamsters. This factor, therefore, does not favor an award of the disputed work to either group of employ- ees. 5. Economy and efficiency of operations Record evidence shows that using Teamsters- represented employees instead of Operating Engineers- represented employees will create efficiencies and pre- vent idle time because Teamsters-represented employees can both batch concrete and drive ready-mix trucks at Peralta and Embarcadero when the two facilities are op- erating on the same day. By contract, Operating Engi- neers-represented employees perform no work at Peralta. We therefore find that the factor of economy and effi- ciency of operations favors an award of the disputed work to employees represented by Teamsters. 6. Arbitration awards Operating Engineers introduced several arbitration awards but they pertain to different work, employers, and/or unions than are before the Board in this dispute. In any event, arbitrators’ jurisdictional dispute decisions do not bind the Board. A contrary Section 10(k) Board award of work will supersede an arbitrator’s decision.9 Thus, we find that this factor does not favor an award of the disputed work to either group of employees. 7. Loss of employment The Employer’s assignment of the disputed work to its Teamsters-represented employees rather than to unem- ployed workers from Operating Engineers’ Job Place- ment Center will not cause a loss of Operating Engineers jobs. Contrary to Operating Engineers’ contention, the loss of six of its members’ jobs at Embarcadero was due to their layoff by Hanson, not the Employer. The Em- ployer has no Operating Engineers-represented employ- ees at either Embarcadero or Peralta. Accordingly, we find that this factor does not favor an award of the dis- puted work to either group of employees. Conclusion After considering all the relevant factors, we conclude that employees represented by Teamsters are entitled to perform the work in dispute. We reach this conclusion by relying on the factors of employer preference and past practice, and economy and efficiency of operations. In making this determination, we are awarding the work to employees represented by Teamsters, and not to that un- ion 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 follow- ing Determination of Dispute. 1. Employees of Central Concrete Supply, Inc., repre- sented by Teamsters Local 853, are entitled to perform all the work in dispute at the concrete batch plant located at 401 Embarcadero Road in Oakland, California. 2. Operating Engineers Local Union No. 3 is not enti- tled by means proscribed by Section 8(b)(4)(D) of the Act to force Central Concrete Supply, Inc. to assign the disputed work to employees represented by it. 3. Within 14 days from this date, Operating Engineers Local Union No. 3 shall notify the Regional Director for Region 32 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. 9 Carey v. Westinghouse Electric Corp., 375 U.S. 261, 272 (1964). Copy with citationCopy as parenthetical citation