Operating Enginneers Local 542

National Labor Relations Board - Board Decisions

Mar 29, 1979

241 N.L.R.B. 562 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers, Local
542, AFL-CIO and C. J. Langenfelder and Son,
Inc. and General Teamsters, Chauffeurs and Help-
ers Union Local 470, a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case 4-CD-446
March 29, 1979
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following a
charge filed by C. J. Langenfelder and Son, Inc.,
herein called the Employer, alleging that Interna-
tional Union of Operating Engineers, Local 542,
AFL-CIO, herein called Local 542, had violated Sec-
tion 8(b)(4)(D) of the Act by engaging in certain pro-
scribed activity with an object of forcing or requiring
the Employer to assign certain work to its members
rather than to employees represented by General
Teamsters, Chauffeurs and Helpers Union Local 470,
a/w International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, herein
called the Teamsters.
Pursuant to notice, a hearing was held before Hear-
ing Officer John D. Breese on April 5 and 6, May 2,
and August 29, 1978. All parties appeared at the
hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and
to adduce evidence bearing on the issues. Thereafter,
the Employer and the Teamsters filed briefs.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer, a Maryland corporation, is engaged in con-
struction and material handling operations, including
a material handling operation for United States Steel'
at its Morrisville, Pennsylvania, facility. During the
i Local 542 did not file a brief However. it notified the Board that it joins
in the brief filed by the Employer.
2 Hereinafter U.S. Steel.
past 12-month period, the Employer has provided
services to customers located outside the State of
Maryland valued in excess of $50,000 and has pro-
vided services valued in excess of $50,000 to U.S.
Steel at its Morrisville facility. The parties have fur-
ther stipulated, and we find, that the Employer is en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act and it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Local 542
and the Teamsters are labor organizations within the
meaning of Section 2(5) of the Act.
Ill. THE DISPUTE
A. Background and Facts
The Employer for a number of years has had a
materials handling contract with U.S. Steel at the
Morrisville site. The current 5-year agreement effec-
tive April 15, 1976, provides that the Employer shall
haul and stockpile iron ore and "other types or raw
materials ... (such as pellets, sinter, coke breeze, im-
ported coal, coke, ferromanganese, etc.) on an inter-
mittent or emergency basis when required and desig-
nated by U.S. Steel . . ."' The record reveals that
normally iron ore constitutes about 95 percent of the
materials hauled by the Employer for U.S. Steel, the
remaining 5 percent representing the aggregate of the
other materials hauled.4 The evidence also reveals
that, on any given day, the Employer may be directed
by U.S. Steel to haul and stockpile iron ore and var-
ious other materials according to its particular needs.
Prior to 1974 the hauling and stockpiling of iron ore
by the Employer had been accomplished with the use
of vehicles known as "scrapers." operated by employ-
ees represented by Local 542. During that period,
rear-dump and bottom-dump trucks called "Euclids"
were used by the Employer to haul materials other
than iron ore and were operated by teamsters.
In late 1974, the Employer decided to discontinue
using scrapers to haul iron ore and, instead, to per-
form this work with the rear-dump Euclids. Initially,
the Employer assigned this work to the employees
represented by the Teamsters. However, after Local
542 complained that this work should be performed
by operating engineers, the Employer reassigned the
work to employees represented by Local 542. After
Sec. 2(a) and (b).
4During the latter part of 1977, the percentage of noniron ore materials
hauled by the Employer increased temporarily to approximately 70 percent
due to the influx of imported foreign coal as hereinafter discussed.
241 NLRB No. 69
562
OPERATING ENGINEERS. LOCAL 542
the work was reassigned. the Teamsters, pursuant to
their collective-bargaining agreement with the Em-
ployer, filed a grievance with the Joint Committee of
the Contractors Association of Eastern Pennsylva-
nia.5 The Committee found that the Employer had
violated the provision of the contract which requires
that, in the event of a jurisdictional dispute, "the craft
performing the work at the time the dispute arises will
continue in such capacity until settlement is reached."
The Committee did not reach the merits of the dis-
pute and representatives of Local 542 and Teamsters
subsequently agreed to meet and resolve the dispute.
The substance of the subsequent discussions was
the source of conflicting testimony at the hearing. The
Teamsters presented evidence that Local 542 claimed
only the work of hauling iron ore which had previ-
ously been performed by employees represented by
Local 542 using scrapers and that the hauling of all
other materials would continue to be within the juris-
diction of the Teamsters. In contrast, William Con-
nell, a member of Local 542 and a master mechanic
at the Employer's facility, testified that the Teamsters
recognized Local 542's jurisdiction over the Employ-
er's entire material handling operation and requested
merely that the pickup truck and water truck, when
in use, be operated by employees represented by
Teamsters. He further testified that both Local 542
and the Teamsters have exclusive "wall-to-wall"
agreements at other employers irrespective of the type
of equipment being operated. He stated that, in ex-
change for an agreement by Local 542 that it would
refrain from contesting Teamsters jurisdiction at
other jobsites over equipment normally operated by
employees represented by Local 542, the Teamsters
agreed not to contest Local 542's jurisdiction over the
operation of Euclids when hauling all types of mate-
rial at the Morrisville site.
In any event, on March 31, 1975, the parties ex-
ecuted the following memorandum of understanding:
RE: Ore Stocking Operation U.S. Steel Corporation
Morrisville, Pennsylvania
We have examined the Agreement between
Operating Engineers Local Union No. 542 and
the C. J. Langenfelder and Son, Inc. and recog-
nize this as an agreement covering the entire ore
stocking operation at the above-mentioned facil-
ity, with the following exceptions: Pick-Up
Trucks which haul on the Highway, Water
Trucks, and Trucking Sub-Contractors.
Should any question arise in the future con-
cerning problems of this kind, both Local Unions
will meet in an effort to resolve such matters.
5 This committee is composed of Teamsters representatives and represen-
tatives of employers under contract with Teamsters locals.
From the date of the above agreement until some-
time in December 1977, the Euclids used by the Em-
ployer were operated exclusively by employees repre-
sented by Local 542. As was the case prior to 1975,
when teamsters operated these vehicles, other materi-
als in addition to iron ore were hauled by the Em-
ployer in Euclids at U.S. Steel's direction. However,
the Teamsters claims no knowledge that any materi-
als other than iron ore were hauled during this period.
In November 1977, U.S. Steel began importing for-
eign coal due to a coal strike. Unlike shipments of
domestic coal, which arrived by railroad, the im-
ported coal was transported by ship, and U.S. Steel
directed the Employer to unload this coal over its
conveyor system and to haul and stockpile it using
the Euclids.6 Shortly thereafter, the Teamsters filed a
grievance with the Joint Committee of the Contrac-
tors Association, claiming that the Teamsters had ju-
risdiction over the operation of Euclids carrying ma-
terials other than iron ore. Local 542 was not a party
to this proceeding and, after a hearing at which Local
542 was not present, the Committee ruled in favor of
the Teamsters.7
On or about February 8, 1977, Local 542's pres-
ident and business manager, Joe O'Donohue, told the
Employer's labor relations specialist, John Murray,
that if the Employer assigned operation of the Euclids
to the employees represented by Teamsters, Local 542
would "shut the rest of you down." It is this state-
ment by Local 542's official that gives rise to the Em-
ployer's charge in the instant proceeding.
B. The Work in Dispute
The work in dispute, which was stipulated to by the
parties, involves "[t]he hauling of materials, other
than iron ore, by use of a Euclid type vehicle at the
United States Steel facility in Morrisville, Pennsylva-
nia."
C. Contentions of the Parties
The Employer contends, with Local 542 in agree-
ment, that the Employer's assignment of the work in
dispute to employees represented by Local 542 is con-
sistent with the Employer's preference and practice
since April 1975. The Employer further asserts that
the efficiency and economy of its operation require
that operating engineers operate the Euclids when
hauling other materials as well as iron ore.8
I The record reveals that the number of Euclids used by the Employer
during this period increased from 2 or 3 to I -13.
The Teamsters award was denied enforcement by the U.S. District Court
for the Eastern District of Pennsylvania. It then brought an amended griev-
ance and again prevailed, obtaining a second award. This award has never
been enforced.
'The Employer additionally argues that the other criteria customarily
considered by the Board favors neither the Teamsters nor Local 542.
563
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Teamsters argues that the statement made by
Local 542's president and business manager, Joe
O'Donohue, does not constitute reasonable cause to
believe that Local 542 has violated Section 8(b)(4)(D)
of the Act and, even if it does constitute a threat to
strike, said threat is merely a pretext to confer juris-
diction upon the Board. The Teamsters further con-
tends that the construction site jurisdictional agree-
ment between the Teamsters and the Operating
Engineers constitutes an agreed-upon method for set-
tling the instant dispute.
With respect to the merits of the dispute, the Team-
sters contends that its collective-bargaining agree-
ment with the Employer clearly confers jurisdiction
over the disputed work upon employees represented
by it. Although the Teamsters concedes that the 1976
agreement between Local 542 and the Employer also
covers the work in dispute, it argues that this agree-
ment was a unilateral attempt by the signatories
thereto to unlawfully extend jurisdiction over the Eu-
clids to the employees represented by Local 542. In
addition, the Teamsters contends that the practice of
the Employer at its other facilities and the industry
practice indicate that Euclids are customarily oper-
ated by teamsters.
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 be-
lieve that Section 8(b)(4)(D) has been violated, and
that there is no agreed-upon method for the voluntary
settlement of the dispute.
As set forth above, Respondent's president and
business manager, Joe O'Donohue, informed John
Murray, the Employer's labor relations official, that if
the Employer assigned the disputed work to the em-
ployees represented by the Teamsters, Local 542
would "shut the rest of you down." The Teamsters
contends that this statement does not constitute a
threat to strike, and, even if it does, it is a mere pre-
text on the part of Local 542 in order to bestow juris-
diction upon the Board. We do not agree. The state-
ment on its face constitutes a threat to strike.
Accordingly, we are satisfied that there is reasonable
cause to believe that a violation of Section 8(b)(4)(D)
has occurred.9
The contract between the Teamsters and the Em-
ployer provides that, in the event of a jurisdictional
dispute, the Employer "agrees to accept and comply
with the decision or settlement of the Unions or
I We also note it is irrelevant that the party making the threat is the one
presently doing the disputed work. Hod Carriers' Union Local No. 116, La-
borers' International Union of North America, AFL-CIO (E. a S. Masonry,
Inc.), 187 NLRB 482, 483 (1970).
Union tribunals which have the authority to deter-
mine such dispute."' ° The agreement further provides
that "[e]xisting international jurisdictional agree-
ments shall be respected by both parties."" The only
jurisdictional agreement introduced into evidence at
the hearing was a construction site jurisdictional
agreement between the Teamsters International and
Local 542's International, by which the Unions agree
to "settle jurisdictional disputes between the two or-
ganizations on construction sites." The Teamsters
contends that the Employer's facility is a "construc-
tion site" within the meaning of that agreement and,
therefore, that said agreement constitutes an agreed-
upon method for voluntary adjustment of the dispute
within the meaning of Section 10(k). In support of
this contention, the only evidence introduced by the
Teamsters was testimony that this agreement had
been found applicable in a recent dispute between it
and Local 542 involving American Bridge Division,
another contractor at the Morrisville site.
Although the Employer, by virtue of its agreement
with the Teamsters, has bound itself to comply with
existing jurisdictional agreements, we find the con-
struction site jurisdictional agreement inapplicable to
the Employer's Morrisville operation. The agreement
by its very terms applies only to "construction sites."
The Employer's contract with U.S. Steel specifies its
obligation as "handling, hauling, stocking and de-
stocking" of iron ore and "various other types of raw
materials."' There is no reference in that agreement
to any obligation to perform construction work.
Moreover, the record discloses that, unlike American
Bridge Division, which is in fact engaged in construc-
tion as part of its building and equipment mainte-
nance function at Morrisville, the Employer is not
engaged in any activity that may be construed as con-
struction work. The Teamsters vice president and
business agent, Ronald Egan, admitted that, to his
knowledge, the Employer has done no construction
work at the Morrisville site since March 31, 1975.
Therefore, its material handling operation at Morris-
ville cannot be considered construction work at a
"construction site" within the meaning of the con-
struction site jurisdictional agreement and that agree-
ment is not applicable to instant dispute.
In view of the above, we find that there exists no
jurisdictional agreement to which all parties are
bound. Therefore, no agreed-upon method for volun-
tary adjustment of the dispute exists within the mean-
ing of Section 10(k) of the Act. Accordingly, we find
that the dispute is properly before the Board for de-
termination.
' Art. XXV, sec. 25.1.
" Art. XXV, seC. 25.2.
2 Sec. 2(a) and (b).
564
OPERATING ENGINEERS. LOCAL 542
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after giving
due consideration to various relevant factors.'3 The
Board has held that its determination in a jurisdic-
tional dispute is a judgment based upon common
sense and experience reached by balancing those fac-
tors involved in a particular case.'4
I. Collective-bargaining agreements
Both the Teamsters and Local 542 have collective-
bargaining agreements with the Employer. The agree-
ment with the Teamsters is a "pattern agreement"
negotiated by them with an area multiemployer
group and subsequently signed by the Employer. The
contract, which covers "the employees within the ju-
risdiction of the UNION who are employed by the
EMPLOYER," specifically refers to the "Euclid
Type, Off-Highway Equipment" as a classification
covered by the agreement."
Local 542's 1974 agreement with the Employer rec-
ognized Local 542 as "the collective-bargaining agent
for all persons performing work at the Company's
Morrisville. Pennsylvania, ore stocking operation."'6
The wage section of the agreement did not include
back-dump or rear-dump Euclid truck operator as a
job classification. However, the 2-year agreement ef-
fective January 1, 1976, which was in effect at the
genesis of the instant dispute, provided that Local 542
was the exclusive bargaining agent for "all persons
performing work at the Company's Morrisville, Penn-
sylvania ... materials handling operations."'7 In ad-
dition, the wage provision of this agreement contains
the classification of "Rear Dump Operator."'l
It is clear that both the Teamsters "pattern agree-
ment" with the Employer and Local 542's 1976 agree-
ment with the Employer, on their face, cover the
work in dispute.'9 Since the agreements between thee
parties give both Local 542 and the Teamsters a
colorable claim to the work in dispute, we find that
these agreements favors neither party to the dispute.20
II N.L.R.B. v. Radio & Television Broadcast Engineers Union. Local 1212,
International Brotherhood of Electrical Workers, A FL-CIO (Columbia Broad-
casting System), 364 U.S. 573 (1961).
14 International Association of Machinists, Lodge No. 1743 AFLCIO (J. ..
Jones Construction Company), 135 NLRB 1402 (1962).
" Art. XIV, sec. 14.1.
'6 Art. 1. sec. 1.
7 Art. I, sec. 1.
' Art. 111. sec. I.
1s We also note that the terms of the 1975 memorandum of understanding
between the Teamsters and Local 542 is subject to varying interpretations
and could reasonably be construed to grant jurisdiction over the disputed
work to either party.
0 The Teamsters contention that this factor favors them is without merit
since the collective-bargaining agreement in effect between Local 542 and
the Employer at the time the dispute arose also covers the disputed work.
2. Industry practice
The Teamsters contends that the industry practice,
including the practice of the Employer at its other
facilities, indicates that Teamsters customarily oper-
ate Euclids in connection with ore handling opera-
tions. In support of its claim, the Teamsters intro-
duced evidence that the Employer's operations for
U.S. Steel at Gary, Indiana, and at the Bethlehem
facility at Sparrows Point, Maryland, utilize team-
sters to operate the Euclids. In addition, evidence was
presented which indicates that the Euclids used by
the Warner Company, another contractor at the Mor-
risville facility, are operated exclusively by teamsters.
However, the record also reveals that the operating
engineers are the exclusive operators of Euclids for
the General Crushed Stone Company at its Glen
Mills, Pennsylvania, operation and for Heckett, Divi-
sion of Harsco Corporation, which is also a contrac-
tor for U.S. Steel at the Morrisville site.
In view of the fact that both the Teamsters and
Local 542 have exclusive operating agreements at the
Morrisville site and elsewhere, we find that the indus-
try practice favors neither party.
3. Employer's assignment and preference
As stated above, the Employer assigned the task of
transporting iron ore and other materials on the U.S.
Steel premises by Euclid rear-dump trucks to employ-
ees represented by Local 542. This assignment has
been consistently followed since the resolution of the
original dispute in 1975. Moreover, the Employer
prefers that this work continue to be performed by
these employees. Accordingly, these factors favor an
award of the disputed work to the employees repre-
sented by Local 542.
4. Relative skills
Employees represented by the Teamsters and by
Local 542 possess the necessary skills to operate the
Euclid dump truck and the procedure for hauling
non-ore materials is identical to that for handling iron
ore. It does not appear that either group of employees
is more skilled in performing the disputed work than
the other. Therefore, this factor favors neither group
of employees.
5. Economy and efficiency of operation
The Employer's contract includes the responsibility
of unloading ships docking at the facility. Since it is
difficult to predict the arrival time of these ships, the
Employer often receives little advance notice from
U.S. Steel and must make hasty arrangements for its
565
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unloading operation. Moreover, the evidence indi-
cates that the number of Euclids in operation at a
particular time varies depending upon the assignment
the Employer receives from U.S. Steel and, on any
given day, the Euclids in operation may alternately
carry iorn ore and other materials pursuant to U.S.
Steel's directions.
At present, employees represented by Local 542
operate all of the Employer's equipment at the Mor-
risville site, with the exception of the pickup truck
and the water truck, when in use. There was testi-
mony that operating engineers are shifted from one
job to another as needed. The Employer argues that,
due to the various materials that are hauled during
the course of the day, it would be inefficient and un-
economical if it were required to bring in teamsters to
operate the Euclids whenever it is required by U.S.
Steel to haul even one load of material other than
iron ore.
We agree with this contention and find that the
factors of economy and efficiency of operation favor
awarding the disputed work to employees represented
by Local 542.
Conclusion
Upon the record as a whole, and after full consider-
ation of all relevant factors involved, we conclude
that the Employer's employees represented by Local
542 are entitled to perform the work in dispute. We
reach this conclusion relying on the Employer's pref-
erence and assignment and the economy and effi-
ciency of operation, all of which favor awarding the
disputed work to the employees represented by Local
542. In making this determination, we are assigning
the work to employees represented by Local 542, and
not to that Union or its members. The present deter-
mination is limited to the particular controversy
which gave rise to this proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this pro-
ceeding, the National Labor Relations Board makes
the following Determination of Dispute:
Employees who are represented by the Interna-
tional Union of Operating Engineers, Local 542, are
entitled to perform the work of operating Euclid
dump trucks for C. J. Langenfelder and Son, Inc., at
the United States Steel facility at Morrisville, Penn-
sylvania.
566