Woodworkers Local 3-12 (Weyerhaeuser Co.)

National Labor Relations Board - Board Decisions

Dec 22, 1977

233 N.L.R.B. 1390 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 3-12, International Woodworkers of America,
AFL-CIO and Weyerhaeuser Company, Eastern
Oregon Region and International Association of
Machinists and Aerospace Workers, Lodge No.
1943, AFL-CIO. Case 36-CD-1 51
December 22, 1977
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, PENELLO, AND MURPHY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Weyerhaeuser Company,
Eastern Oregon Region, herein called the Employer,
alleging that Local 3-12, International Woodworkers
of America, AFL-CIO, herein called the Respon-
dent, had violated Section 8(b)(4)(D) of the Act by
engaging in certain proscribed activity with an object
of forcing or requiring the Employer to assign certain
work to its members rather than to employees
represented by International Association of Machin-
ists and Aerospace Workers, Lodge No. 1943, AFL-
CIO, herein called the IAM.
Pursuant to notice, a hearing was held before
Hearing Officer Richard V. Stratton on September 7
and 8, 1977. All parties appeared and were afforded
full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing
on the issues.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings 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:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the
Employer is engaged in the manufacture of lumber
and plywood and related wood products. During the
past year, the Employer shipped lumber and related
wood products valued in excess of $100,000 from its
plant in Oregon to other States. The parties also
stipulated, and we find, that the Employer is engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act and it will effectuate the purposes of
the Act to assertjurisdiction herein.
233 NLRB No. 194
II1. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the
Respondent and the IAM are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts
The situs of the dispute which is the subject of the
instant case is the Employer's lumber mill at Klam-
ath Falls, Oregon. The mill is situated on the banks
of the Klamath River and consists of a manufactur-
ing complex and a log storage area. Logs cut in the
surrounding forest are transported to the mill's
storage area by truck or rail. As needed, logs are
taken from the storage area to the dump where they
are placed, either bundled or singly, into the log
pond, a section of the river enclosed by booms, and
moved downstream by boat to the mill for process-
ing. In order to maintain a clear channel, it is
necessary to dredge the pond occasionally to remove
silt and other debris and to retrieve and return to
production logs which sink during transit.
The employees involved in the instant dispute are
represented by the IAM and the woods unit of the
Respondent. The work of the employees represented
by the Respondent principally involves lumbering
and transporting logs, including the operation of the
pond boats which move logs downstream from the
dump site to the mill. Employees represented by the
IAM are responsible for the construction and main-
tenance of the mill's physical plant and equipment,
including structures on the river such as fixed booms,
gangplanks, and piling and the dredging required to
keep the pond open. The bargelike hydraulic dredge
currently employed uses a suction device to pump
suspended silt from the river bottom to a settling
pond through a flexible slurry pipeline connecting
the dredge to shore. The dredge is not self-propelled
and hence must be positioned by boat.
Log retrieval work, referred to as sinker picking,
cannot be done with the dredge, and the Employer
experimented with several recovery methods prior to
May 1977. From the middle 1940's to the early
1950's, the dredge was equipped with a boom and
hand crab for sinker picking. An IAM-represented
employee operated the boom and recovered sinkers
were transported to the mill by a boat available to
the dredge crew and run by an IAM-represented
employee. Beginning about 1953, the pond boats,
operated by the Respondent-represented employees,
were equipped with electric winches and grappling
devices and the sinker picking work was done by the
boatcrews as time permitted, principally on a week-
end or overtime basis. The boat formerly available to
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WOODWORKERS, LOCAL 3-12
the dredge was in the meantime reassigned to the
pond boat fleet. In connection with servicing the
dredge, the IAM-represented employees on the
dredge occasionally assisted the Respondent-repre-
sented boatcrews in picking sinkers that had impeded
the dredge's progress. Divers from both the IAM-
represented maintenance staff and from independent
contractors were also used in sinker recovery opera-
tions. In the last 2 or 3 years, an independent salvage
company has been employed to do all the sinker
picking on the pond, as well as some of the dredging
work. In May 1977, the Employer commenced sinker
picking operations with a 65-ton barge-mounted
Lima crane. The crane and its barge, along with two
other barges and two boats, were acquired in 1977
from one of the contractors who had previously
maintained the pond. The Lima crane usually works
in conjunction with the dredge, the Lima operator
assisting the dredge operator as needed. The two
boats acquired from the contractor have been as-
signed to the crane and dredge barges. Operation of
both the boats and the crane used for sinker picking
has been assigned to the maintenance crew repre-
sented by the IAM.
The work in dispute in the instant case involves
three or four employees per shift. Employees of the
contractor previously performing the pond mainte-
nance service were not represented by either of the
Unions contesting for the disputed work.
B. The Work in Dispute
The work in dispute involves the manning and
operation of (I) the barge-mounted Lima crane used
to pick sinkers, and (2) the two boats used to
transport workmen to and from the crane barge and
dredge and to position the barges.
C. Contentions of the Parties
The Employer contends that the Board should
assign the disputed work to Weyerhaeuser employees
represented by the IAM for reasons of efficiency and
economy and the special skills of the IAM-represent-
ed employees.
The IAM asserts that the Employer's assignment of
work in dispute was proper and wholly within the
IAM's maintenance unit certification.
The Respondent's position is that its conduct is not
prohibited by Section 8(b)(4)(D) of the Act because
the work in dispute belongs to employees represented
by it pursuant to its Board unit certification and a
series of collective-bargaining contracts. The Re-
spondent further argues that employees represented
I N. LR.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).
by it have superior skills which allow its members to
perform the disputed work more safely and economi-
cally.
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(bX4)(D) has been violated and
that there is no agreed-upon method for the volun-
tary settlement of the dispute.
No party to this proceeding takes the position that
a jurisdictional dispute does not exist, or that there is
an agreed-upon method for the voluntary settlement
of the dispute. The record shows, and the parties
have stipulated, that officers and agents of the
Respondent threatened on June 2 and again on June
16, 1977, to strike the Weyerhaeuser Company unless
it assigned the disputed work to Weyerhaeuser
employees represented by it. The record also reveals,
and the Respondent admits, that the Respondent
engaged in a temporary strike in order to prevent the
Employer's assignment of the disputed work to
employees represented by the IAM.
On the basis of the stipulation and the entire
record, we conclude that there is reasonable cause to
believe that a violation of Section 8(b)(4)(D) has
occurred and that there exists no agreed-upon
method for the voluntary adjustment of the dispute
within the meaning of Section 10(k) of the Act.
Accordingly, we find that this dispute is properly
before the Board for determination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work after giving
due consideration to various factors.' The Board has
held that its determination in a jurisdictional dispute
is an act of judgment based on commonsense and
experience reached by balancing those factors in-
volved in a particular case. 2
The following factors are relevant in making the
determination of the dispute before us:
1. Collective-bargaining agreements and
Board certifications
The Respondent contends that, in assigning the
work in dispute to employees represented by the
IAM, the Employer has failed to conform to the
Board's unit certification of the Respondent. The
Respondent argues that the Board certified it as the
2 International Association of Machinists, Lodge No. 1743, AFL-CIO (J.
A. Jones Construction Company). 135 NLRB 1402 (1962).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining representative for "all production and
maintenance employees," but particularized the spe-
cific work classifications that constituted the IAM-
represented unit. It is significant, states the Respon-
dent, that the IAM unit description omits any
reference to boat operators or sinker pickers. We,
however, have reviewed the Board language certify-
ing the bargaining representatives involved in the
instant dispute and find it of no assistance in making
a jurisdictional determination. That language con-
tains only a general description of the workers
included within each unit, and makes no assignment
of the specific work to be performed by unit
members.
The Respondent similarly maintains that a series of
collective-bargaining agreements, including the cur-
rent contract, has consistently assigned the work in
dispute to employees it represents. This is true, the
Respondent argues, because, from the time of its
certification as bargaining representative, it has
continuously represented the pond department em-
ployees, whose members include employees working
as boat operators and sinker pickers.
The record, however, reveals that, while all boat
operations involving production work, such as move-
ment of logs on the river, were done by the
Respondent-represented employees, the IAM-repre-
sented employees had a pond boat available to them
prior to the mid-1950's. The IAM-represented em-
ployees operated the boat and utilized it for trans-
porting men and equipment on the river. Testimony
reveals that the IAM-represented employees lost the
use of this boat around 1953, due to the need of the
Respondent-represented pond department for water-
craft. After that date, the IAM-represented employ-
ees had to rely on the Respondent-represented pond
boatcrews for water transport.
The record also reveals that sinker picking was not
done exclusively by the Respondent-represented
employees. Record testimony reveals that, at various
times, log recovery was done by the IAM-represent-
ed employees both in the riptrack crew and on the
dredge, as well as by independent contractors whose
employees were not represented by either of the
Unions involved in the instant dispute. The fact that
the Respondent-represented pond employees oper-
ated all the boats on the river would appear to be due
more to the exigencies of production than any
conscious contractual allocation of the boats to
members of a particular bargaining unit. The Re-
spondent's assertion also seems undermined by the
Employer's use, with the Respondent's acquiescence,
of outside contractors who performed all the sinker
picking operations on the pond in the last 2 or 3
years. Further, the record is barren of any testimony
regarding negotiations over sinker picking or boat
operations other than that related directly to log
production which all the parties agree is work
belonging to employees represented by the Respon-
dent.
We thus conclude that neither the collective-bar-
gaining agreement between the Employer and the
Respondent nor that between the Employer and the
IAM provides any assistance in settling the instant
dispute.
2. Employer practice
As aforementioned, the Employer has experiment-
ed with several different methods for log recovery,
including the use of independent contractors. Prior
to the early 1950's, the Employer had assigned sinker
picking work to employees represented by the IAM.
Thereafter, the method of log recovery was changed
and the work reassigned to employees represented by
the Respondent. The Employer has also utilized the
services of independent contractors to do the log
recovery work.
Boat operation has been the exclusive work of the
Respondent-represented employees since the early
1950's when the need for pond boats for log
movement dictated that all available craft be trans-
ferred to the Respondent-represented pond depart-
ment. The independent contractor most recently
responsible for sinker picking, however, operated its
own boat for moving and positioning its barges and
equipment.
No testimony was elicited regarding area or indus-
try practice as to either sinker picking or pond boat
operation.
Because the Employer's past practice varied so
widely, consideration of this factor provides the
Board with no assistance in making a jurisdictional
determination.
3. Relative skills
It is clear that prior to May 1977, when the
Employer assigned its IAM-represented employees
to man the Lima shovel and the new pond boats, the
Respondent-represented employees possessed the
necessary skills for operating the equipment in
question. The Respondent-represented employees
had been the only Weyerhaeuser employees to
operate watercraft on the mill pond since the early
1950's and had utilized a Lima shovel in the mill's
sorting yard.
The record reveals, however, that only about 3
weeks of training are required to enable a person to
become a competent operator of either the boats or
the Lima shovel. The IAM-represented employees
received this training and have operated both the
boats and the Lima shovel to the satisfaction of the
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WOODWORKERS, LOCAL 3-12
Employer since May 1977. Accordingly, we conclude
that employees belonging to either union possess
sufficient skills to satisfactorily perform the work in
question. Thus, this factor does not favor the
assignment of the work to employees represented by
one union over the other.
4. Employer assignment, economy, and
efficiency of operation
The Employer stresses that the factors of economy
and efficiency of operation support its assignment of
the disputed work to employees represented by the
IAM. The record reveals that the dredge and Lima
shovel usually operate in tandem; the Lima operator
ceasing his work to assist the dredge operator as
required. Testimony demonstrates that, in assigning
the disputed work to the IAM-represented employ-
ees, it was the Employer's design to have a two-man
crew capable of operating the Lima, the dredge, and
the pond boats used to position and transport this
equipment, as well as maintaining and adjusting the
dredge's slurry pipeline. Assignment of the disputed
work to employees represented by the Respondent
would result in duplication of manpower and leave
the Respondent-represented employee with work
only when the Lima's services were required or the
dredge or Lima barge needed to be moved. Accord-
ingly, we find that the factors of economy and
efficiency of operation favor the Employer's assign-
ment.
Conclusions
Upon the record as a whole, and after full
consideration of all relevant factors involved, we
conclude that employees who are represented by the
International Association of Machinists are entitled
to perform the work in dispute. We reach this
conclusion relying on the Employer's assignment of
the work to employees represented by the IAM and
the relative efficiency and the concurrent economies
resulting from such an assignment. In making this
determination, we are awarding the work in question
to employees who are represented by the Internation-
al Association of Machinists and Aerospace Work-
ers, Lodge No. 1943, AFL-CIO, but not to that
Union or its members. The present determination 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
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Employees of Weyerhaeuser Company, East-
ern Oregon Region, who are represented by the
IAM, are entitled to perform sinker picking with the
barge-mounted Lima shovel and to operate the two
newly acquired boats used to move and position the
barge and the dredge at the Employer's plant at
Klamath Falls, Oregon.
2. Local 3-12, International Woodworkers of
America, AFL-CIO, is not entitled by means pro-
scribed by Section 8(bX4XD) of the Act to force or
require Weyerhaeuser Company, Eastern Oregon
Region, to assign the disputed work to employees
represented by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local 3-12, Interna-
tional Woodworkers of America, AFL-CIO, shall
notify the Regional Director for Region 19, in
writing, whether or not it will refrain from forcing or
requiring the Employer, by means proscribed by
Section 8(b)4XD) of the Act, to assign the disputed
work in a manner inconsistent with the above
determination.
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