International Union of Operating Engineers, Local 150, AFL-CIO (Beverly Environmental, LLC)

National Labor Relations Board - Board Decisions

Sep 21, 2012

358 N.L.R.B. 1346 (N.L.R.B. 2012)

1346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

358 NLRB No. 143
International Union of Operating Engineers, Local
150, AFL–CIO and International Brotherhood
of Teamsters, Local 703, AFL–CIO and Beverly
Environmental, LLC and Laborers’ Interna-
tional Union of North America, Local No. 751.
Cases 25–CD–080014 and 25–CD–080015
September 25, 2012
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN PEARCE AND MEMBERS HAYES
AND BLOCK
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act. Beverly
Environmental, LLC (the Employer) filed charges on
May 1, 2012, alleging that International Union of Operat-
ing Engineers, Local 150, AFL–CIO (the Operators) and
International Brotherhood of Teamsters, Local 703,
AFL–CIO (the Teamsters) violated Section 8(b)(4)(D) of
the Act by threatening to engage in proscribed activity
with an object of forcing the Employer to assign certain
work to employees they represent rather than to employ-
ees represented by Laborers’ International Union of
North America, Local 751 (the Laborers). A hearing was
held May 24, 2012, before Hearing Officer Nathaniel E.
Strickler. Thereafter, the Employer and the Operators
filed posthearing briefs.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.2
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire record,
the Board makes the following findings.
I. JURISDICTION
The Employer is an Illinois limited liability company
with its principal place of business in Markham, Illinois.
During the 12-month period preceding the hearing, a
representative period, the Employer purchased and re-
ceived goods valued in excess of $50,000 directly from
points located outside the State of Illinois. We find that
the Employer is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act. Based on the un-
contested evidence presented at the hearing, the record
establishes that the Operators, the Teamsters, and the
Laborers are labor organizations within the meaning of
Section 2(5) of the Act.

1 The Laborers was served with the Order Consolidating Cases and
Notice of Hearing, but it did not appear at the hearing and did not file a
posthearing brief.
2 Member Griffin is recused and did not participate in the considera-
tion of this case.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer is a landscape construction contractor
that works throughout the Chicago metropolitan area and
has collective-bargaining agreements with the Operators
and the Teamsters covering its plantsmen, installers,
landscape helpers, and equipment operators. The
plantsmen are represented by the Operators, the installers
and helpers by the Teamsters, both in one contract. The
equipment operators are covered by a separate collective-
bargaining agreement with the Operators. At no time has
the Employer been signatory to a collective-bargaining
agreement with the Laborers.
The Employer is currently working on a pipeline pro-
ject for Shell Oil in Limestone, Illinois. R&R Sewer and
Water, the general contractor on the project, awarded a
subcontract to the Employer to install silt fencing before
other contractors install the pipeline, and to remove the
silt fencing and restore the ground by spreading soil,
sodding, and seeding after the pipeline is installed.
The Employer typically operates three-man crews with
an equipment operator, a plantsman, and an installer.
The operator plows the ground and rolls out the fence
with a small tractor. The plantsman and the installer
follow the tractor, line up the wood stakes, hammer the
wood stakes into the ground, and staple the silt fence to
the stakes. After the pipeline is installed, the Employer
will remove the silt fence, spread black dirt using a skid
steer or a small tractor, rake the dirt, and apply sod or
seed.
The Employer assigned its work on this project, and
has historically assigned all of its landscape construction
work, to a composite crew of employees represented by
the Operators and the Teamsters. On April 6, 2012,3 the
Laborers’ business agent went to the worksite and told
the Employer’s project manager that the Operators’
equipment operator could operate his tractor but that the
plantsmen and the Teamsters-represented employees
were not allowed on the jobsite because the people work-
ing behind the silt fence had to be “his Laborers.” The
Laborers’ business agent then called the Employer’s
president and repeated that the plantsmen and the Team-
sters-represented employees would not be allowed on the
project because “we don’t do it that way down here in
this area, and we don’t use those guys, we use laborers.”
The Laborers’ business agent returned to the worksite
on April 11 and took pictures of the Employer’s employ-
ees, and again stated that the work in dispute needed to
be done by Laborers-represented employees. Through-
out April and May, the Laborers also filed several griev-

3 All dates are 2012, unless otherwise noted.
OPERATING ENGINEERS LOCAL 150 (BEVERLY ENVIRONMENTAL, LLC)

1347
ances against the general contractor for having subcon-
tracted the work in dispute to the Employer. The griev-
ances sought pay in lieu of work.
On April 11, the Operators and the Teamsters sent the
Employer a letter acknowledging that the Laborers had
made a claim for the landscape construction work at the
Shell pipeline project and confirming that they too
claimed the disputed work and would engage in “any and
all means, including picketing, to enforce and preserve
their historical and traditional work assignment.”
B. Work in Dispute
We find, based on the record, that the work in dispute
is:

All landscape construction work being performed by
employees of Beverly Environmental, LLC at the Shell
Waterline Pipeline project in Limestone, IL, except for
the operation of the silt fence installation machine.

The specific tasks involve the installation and removal of
the silt fencing and the eventual restoration of the ground by
raking soil and seeding and sodding. The operation of
equipment such as skid steers and small tractors is not at
issue.
C. Contentions of the Parties
In their briefs, the Employer and the Operators contend
that there is reasonable cause to believe that Section
8(b)(4)(D) has been violated because of the Operators
and the Teamsters’ April 11 letter threatening picketing.
They further contend that there are competing claims to
the disputed work, and that there is no agreed-upon
method for the voluntary adjustment of the dispute. On
the merits, they collectively or individually assert that the
work in dispute should be awarded to employees repre-
sented by the Operators and the Teamsters based on the
factors of collective-bargaining agreements, employer
preference and current assignment and past practice, area
practice, relative skills, and economy, and efficiency of
operations.
As noted, the Laborers did not appear at the hearing or
file a brief. From the record, it appears that the Laborers
claims that, at the least, in the Limestone, Illinois area,
employees represented by it exclusively perform the type
of work that it seeks at the Shell pipeline project.
D. Applicability of the Statute
The Board may proceed with a determination of a dis-
pute under Section 10(k) of the Act only if there is rea-
sonable cause to believe that Section 8(b)(4)(D) has been
violated. This standard requires finding that there is rea-
sonable cause to believe that there are competing claims
to the disputed work among rival groups of employees,
and that a party has used proscribed means to enforce its
claim to the work in dispute. Additionally, there must be
a finding that the parties have not agreed on a method for
the voluntary adjustment of the dispute. See, e.g., Oper-
ating Engineers Local 150 (R&D Thiel), 345 NLRB
1137, 1139 (2005). On this record, we find that these
requirements have been met.
1. Competing claims for work
By their own admission, the Operators and the Team-
sters have claimed the work in dispute for the employees
they represent, and those employees have been perform-
ing the work. The Laborers has claimed the work as
well. There was evidence presented at the hearing that
the Laborers’ business agent stated that the Operators
and the Teamsters-represented employees were not al-
lowed on the project and couldn’t do the work in dispute,
and that the only way to resolve the issue was to have
Laborers-represented employees perform the work. The
Laborers also filed several pay-in-lieu grievances with
the general contractor. In the circumstances of this case,
both these actions constitute claims for the work. Labor-
ers Local 113 (Super Excavators), 327 NLRB 113, 114
(1998).
2. Use of proscribed means
We also find that there is reasonable cause to believe
that the Operators and the Teamsters used means pro-
scribed under Section 8(b)(4)(D) to enforce their claim.
On April 11, they sent a letter to the Employer threaten-
ing to engage in “any and all means, including picketing”
to preserve assignments to those employees they repre-
sent. This constituted a threat of economic action if the
work was reassigned, establishing reasonable cause to
believe a violation of Section 8(b)(4)(D) occurred.
3. No voluntary method for adjustment of dispute
We further find that there is no method for the volun-
tary adjustment of the dispute to which all parties are
bound. Nothing in the relevant agreement between the
Operators and the Teamsters and the Employer provides
for a resolution to this dispute, and there is no showing
that the Laborers would be bound in any event to any
such resolution.
Based on the foregoing, we find that there is reasona-
ble cause to believe that there are competing claims to
the work in dispute, that Section 8(b)(4)(D) has been
violated, and that there is no agreed-upon method for the
voluntary adjustment of the dispute. We accordingly find
that the dispute is properly before the Board for determi-
nation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1348
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, 577 (1961). The
Board’s determination in a jurisdictional 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 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Collective-bargaining agreements
The Operators and the Teamsters have binding con-
tracts with the Employer. Language in the relevant con-
tract specifically covers plantsmen, installers, and land-
scape helpers who install sod, silt fencing, trees, and
spread soil, i.e., the work in dispute. The Employer has
no contract with the Laborers and has never employed
employees represented by the Laborers. No evidence of
any other collective-bargaining agreements was present-
ed at the hearing. Therefore, the factor of collective-
bargaining agreements favors an award to employees
represented by the Operators and the Teamsters.
2. Employer preference, current assignment,
and past practice
The Employer assigned the disputed work to employ-
ees represented by the Operators and the Teamsters and
prefers that they continue to perform the work. The Em-
ployer has a past practice of assigning similar work to
employees represented by these unions. Therefore, we
find that the factors of employer preference, current as-
signment, and past practice favor awarding the disputed
work to employees represented by the Operators and the
Teamsters.
3. Area practice
Evidence was presented at the hearing that the Illinois
Landscape Contractors Bargaining Association’s bar-
gaining agreement, to which the Operators and the
Teamsters are parties, has about 760 signatory contrac-
tors throughout the entire jurisdiction and covers work
like that in dispute here. No evidence was presented,
however, as to what percentage of the contractor popula-
tion these signatories represent, and there was no evi-
dence regarding the historical practice of any other con-
tractor except the Employer. Although the Laborers did
not participate in the hearing, there was undisputed tes-
timony that the Laborers’ business agent claimed that
Laborers-represented employees traditionally performed
the work in dispute in the area. Accordingly, we find the
evidence insufficient to conclude that this factor favors
any of the Unions.
4. Relative skills
The Operators and the Teamsters presented evidence
that employees they represent have the skills necessary to
perform the disputed work. The Employer has employed
employees represented by these unions in the past; these
employees are familiar with the Employer’s require-
ments; and the Employer’s president testified they have
the skills to perform the work in dispute. The Employer
has no experience with the Laborers, and no evidence
was presented regarding the Laborers’ employees’ skills.
Given these considerations, and on this record, we find
that the relative skills factor favors an award of the dis-
puted work to employees represented by the Operators
and the Teamsters.
5. Economy and efficiency of operations
The Employer testified that it is currently using em-
ployees represented by the Operators and the Teamsters,
it would need to train any employees represented by the
Laborers because it has never worked with the Laborers,
and that this would be inefficient. There was no record
evidence contradicting this testimony. We find that the
factor of economy and efficiency of operations favors
awarding the disputed work to employees represented by
the Operators and the Teamsters.
Conclusions
After considering all of the relevant factors, we con-
clude that employees represented by the Operators and
the Teamsters are entitled to continue performing the
work in dispute. We reach this conclusion relying on the
factors of collective-bargaining agreements, employer
preference and current assignment and past practice,
skills, and economy and efficiency of operations. In
making this determination, we award the work to em-
ployees represented by these unions, not to the unions or
to their members.
Scope of the Award
In their briefs, the Employer and the Operators request
that our award of the work encompass the entire area of
the Laborers’ jurisdiction because they contend, inter
alia, that the Laborers’ claim for this work was broad and
OPERATING ENGINEERS LOCAL 150 (BEVERLY ENVIRONMENTAL, LLC)

1349
not limited to the Shell pipeline project. The Board cus-
tomarily declines to grant an areawide award in cases in
which the charged party represents the employees to
whom the work is awarded and to whom the employer
contemplates continuing to assign the work. See Labor-
ers District Council of Ohio Local 265 (AMS Construc-
tion, 356 NLRB 306, 311 (2010). Accordingly, we shall
limit the present determination to the particular contro-
versy that gives rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of Beverly Environmental, LLC, repre-
sented by International Union of Operating Engineers
Local 150, AFL–CIO, and International Brotherhood of
Teamsters, Local 703, AFL–CIO, are entitled to perform
all landscape construction work being performed by em-
ployees of Beverly Environmental, LLC at the Shell Wa-
terline Pipeline project in Limestone, Illinois, except for
the operation of the silt fence installation machine.