Operating Engineers Local 137 (Eastern Concrete Materials)

National Labor Relations Board - Board Decisions

Jul 30, 2010

355 N.L.R.B. 330 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 57
330
International Union of Operating Engineers, Local
137 and Riverside Materials, LLC d/b/a Eastern
Concrete Materials and Local 731, Laborers In-
ternational Union of North America

Teamsters Local 456 International Brotherhood of
Teamsters and Riverside Materials, LLC d/b/a
Eastern Concrete Materials and Local 731, La-
borers International Union of North America.
Cases 2–CD–ll54 and 2–CD–ll55
July 30, 2010
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND PEARCE
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act (the Act).
Riverside Materials, LLC d/b/a Eastern Concrete Materi-
als (Eastern) filed charges on November 12, 2009, alleg-
ing respectively that International Union of Operating
Engineers Local 137 (the Operating Engineers) and
Teamsters Local 456, International Brotherhood of
Teamsters (the Teamsters) violated Section 8(b)(4)(D) of
the Act by engaging in proscribed activity with the object
of forcing Eastern to assign certain work to employees
represented by them rather than to employees represented
by Local 731, Laborers International Union of North
America (the Laborers). The Laborers intervened.
A hearing was held on January 7, 2010, before Hearing
Officer Colleen P. Breslin. Thereafter, Eastern, the Op-
erating Engineers, and the Teamsters each filed a
posthearing brief. The Laborers did not file a posthear-
ing brief.
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
Eastern is a major supplier of ready-mix concrete and
building materials in New Jersey and New York. The
parties stipulated, and we find, that Eastern is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act, and that the Operating Engineers, the Teamsters,
and the Laborers are labor organizations within the
meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
The ready-mix concrete facility at issue, located in Mt.
Vernon, Westchester County, New York, was purchased
by Constantine Quadrozzi in or around October 2006.
Quadrozzi operated the facility as Riverside Concrete
Corp. (Riverside Concrete) until August 2008, when he
sold the assets of the company to Eastern.
Even before Quadrozzi acquired the facility in 2006,
the plant’s mechanics and loader-operators were repre-
sented by the Operating Engineers, and its batchmen and
yardmen were represented by the Teamsters. Each of
those unions was headquartered in Westchester County,
their jurisdiction covered Westchester County, and they
represented the same respective classifications at other
ready-mix plants in Westchester County. Quadrozzi
signed collective-bargaining agreements with the Operat-
ing Engineers and the Teamsters and recognized them as
the employees’ respective representatives in the employ-
ees’ respective job classifications.
At the time he opened the Mt. Vernon plant as River-
side Concrete, Quadrozzi was also the co-owner of an-
other ready-mix plant in New York City. At that facility,
the four work classifications at issue were represented by
the Laborers, which is headquartered in Queens, New
York, and whose work jurisdiction is confined almost
entirely to the five boroughs of New York City.1 When
he took over the Mount Vernon operation as Riverside
Concrete in 2006, Quadrozzi hired several additional
employees from his New York City plant, including
Chris Paradiso, who was classified as a batchman.2
Quadrozzi initially continued to recognize the Laborers
as those employees’ representative. He also signed a
collective-bargaining agreement with the Laborers cover-
ing Riverside Concrete.
In November 2007, 9 months before Eastern purchased
Riverside Concrete’s assets, Paradiso’s union member-
ship was changed from the Laborers to the Teamsters.3
However, there was no open dispute between the Unions
over representation at the plant before Eastern acquired it
in August 2008.
When Eastern took over the facility, it hired the four
employees who were working there in the four disputed
work classifications and signed contracts with the Oper-
ating Engineers and the Teamsters as those employees’

1 The Laborers’ witness at the hearing acknowledged that the Oper-
ating Engineers’ and the Teamsters’ geographic jurisdictions covered
Westchester County, while the Laborers’ was restricted almost entirely
to New York City and did not include any ready-mix plants in West-
chester County.
2 The employees other than Paradiso whom Quadrozzi transferred
from New York did not perform any of the work in dispute.
3 Although Paradiso was classified as a batchman at Riverside Ce-
ment, the record does not establish that he performed batchman work
before he became a Teamster. In addition, Paradiso left employment at
Riverside Cement in December 2007, 8 months prior to the plant’s
acquisition by Eastern.
OPERATING ENGINEERS LOCAL 137 (EASTERN CONCRETE MATERIALS) 331
respective representatives. Eastern operated the plant for
the next 6 months without incident.
In March 2009, however, the Laborers demanded that
Eastern recognize it as the bargaining representative for
the four work classifications at issue, based on an as-
serted “past practice” of representing the mechanic,
loader operator, batchman, and yardman positions at the
Mt. Vernon facility. When Eastern refused, the Laborers
took the issue to arbitration under the terms of the con-
tract it had signed with Quadrozzi. Neither the Operating
Engineers nor the Teamsters was informed of, or partici-
pated in, that arbitration proceeding. In a written deci-
sion on August 9, 2009,4 the arbitrator awarded the work
at issue to the Laborers based on the Laborers’ contract
with Quadrozzi. The Laborers again demanded recogni-
tion from Eastern pursuant to the arbitrator’s decision.
On September 2, Eastern informed the Operating En-
gineers and the Teamsters that it intended to comply with
the Laborers’ demand. The Operating Engineers quickly
informed Eastern by telephone that a job action would be
taken if the work performed by its members was reas-
signed. The Teamsters informed Eastern by letter that it
was requesting a “Joint Committee meeting” under the
grievance procedure of its contract with Eastern to ad-
dress the dispute. At Eastern’s request, the Teamsters
postponed that meeting. Eastern then informed the La-
borers that it would not comply with the arbitration deci-
sion.
On October 9, Eastern received a notice from the arbi-
trator who had issued the August 9 decision that a hear-
ing was scheduled for October 28 to address the “dam-
ages” portion of the arbitration. That hearing has been
adjourned pending the outcome of this proceeding. On
October 26, Eastern was informed in writing by the
Teamsters that the Joint Committee meeting scheduled
earlier had been rescheduled for October 29. On No-
vember 10, Eastern received a letter from the Teamsters
advising that if the work assigned to its members were
reassigned to the Laborers, the Teamsters would “picket
and engage in a job action.”
B. Work in Dispute
The parties stipulated that the work in dispute is the
work assigned to “batchmen, yardmen, mechanics,
loader operators by Eastern Concrete Materials at its
work site at One Edison Avenue in Mt. Vernon, New
York.”
C. Contentions of the Parties
The Laborers appears to contend that Eastern is a suc-
cessor to Riverside Concrete under the terms of the con-

4 All subsequent dates are in 2009.
tract Quadrozzi signed with the Laborers on behalf of
Riverside Concrete in 2006, before Eastern acquired the
facility.5 On that basis, the Laborers apparently asserts
that Eastern is bound by that contract and is required to
recognize the Laborers’ claim to all the work in dispute.
Eastern, the Operating Engineers, and the Teamsters
all contend that Eastern is not bound by Quadrozzi’s
predecessor contract with the Laborers, which Eastern
never signed or agreed to assume. They argue that the
only applicable contracts are the ones Eastern signed, and
that the work in dispute has always been performed by
the Operating Engineers’ and the Teamsters’ respective
members—not only at Eastern but also previously at
Riverside Concrete. They also emphasize that the La-
borers failed to object earlier to the Operating Engineers
and the Teamsters representing the employees who per-
formed the work in dispute at Riverside Concrete, and
that the Laborers also failed to assert its jurisdictional
claim until 6 months after Eastern had begun to operate
the facility and recognized the Operating Engineers and
the Teamsters. They argue further that Quadrozzi’s
transfer of an additional Laborers-represented employee
classified as a batchman from his New York plant to
Riverside Cement in 2006, 2 years before Eastern ac-
quired the facility, has no bearing on the work jurisdic-
tion at issue.
D. Applicability of the Statute
Before the Board may proceed with determining a
10(k) dispute, it must be established that (1) there are
competing claims for the work; (2) there is reasonable
cause to believe that Section 8(b)(4)(D) of the Act has
been violated; and (3) the parties have not agreed on a
method for the voluntary adjustment of the dispute.
Carpenters Local 623 (E.P. Donnelly, Inc.), 351 NLRB
1417, 1419 (2007). For the reasons set forth below, we
find that this dispute is properly before the Board for
determination.
There is no dispute, and the record shows, that the Op-
erating Engineers and the Teamsters on the one side, and
the Laborers on the other, assert competing claims to the
work in dispute and that the three unions have no agreed-
upon method for voluntary adjustment of the dispute.
Further, the record shows, and we find, that there is rea-

5 The Laborers did not submit a posthearing brief, and none of the
parties made an opening or closing argument to the hearing officer.
However, the testimony of the Laborers’ only witness and the arbitra-
tor’s decision indicate that the Laborers’ claim to the work in dispute is
based on the successorship clause in its contract with Riverside Con-
crete. With the exception of Paradiso, who Quadrozzi transferred from
New York, the record negates the Laborers’ initial representation to
Eastern that it had a “past practice” of representing the work classifica-
tions at issue.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 332
sonable cause to believe that the Operating Engineers
and the Teamsters used proscribed means to enforce their
respective claims to the work in dispute when they
threatened to picket and engage in job actions if Eastern
reassigned the disputed work to employees represented
by the Laborers. It is well established that threats of
picketing and work stoppages constitute proscribed
means. Laborers Local 731 (Tully Construction Co.),
352 NLRB 107, 109 (2008); Bricklayers (Cretex Con-
struction Services), 343 NLRB 1030, 1032 (2004).
Based on the foregoing, we find that there are compet-
ing claims to the disputed work, that there is reasonable
cause to believe that a violation of Section 8(b)(4)(D) has
occurred, and that no voluntary method exists for the
adjustment of the dispute. Accordingly, we find that this
dispute is properly before the Board for determination.
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 (1961). The Board
has held that its determination in a jurisdictional dispute
is an act of judgment based on common sense and ex-
perience, 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. Certifications and collective-bargaining agreements
There is no contention that Eastern is failing to con-
form to an order or Board certification determining the
bargaining representative for the employees performing
the disputed work. All three unions, however, assert that
their collective-bargaining agreements entitle them to
some or all of the disputed work.
As indicated above, Eastern entered into contracts with
the Operating Engineers and the Teamsters upon assum-
ing control of the Mt. Vernon facility. These agreements
contain jurisdictional clauses that cover, respectively,
mechanics and loader-operators for the Operating Engi-
neers, and batchmen and yardmen for the Teamsters.
While the contract Quadrozzi signed with the Laborers
on behalf of Riverside Concrete in 2006 also contains a
jurisdictional provision that covers the four work classi-
fications at issue, Eastern never signed that or any other
contract with the Laborers for the Mt. Vernon facility.
Furthermore, although the Laborers’ contract for River-
side Concrete addressed successorship, the Laborers has
failed to establish a basis for finding that Eastern is
bound under the contract as a successor based on the
terms of the contract,6 or on any other basis.7
Considering all the circumstances, we find that the fac-
tor of collective-bargaining agreements favors awarding
the mechanics’ and loader-operators’ work in dispute to
the Eastern employees represented by the Operating En-
gineers, and the batchman’s and yardman’s work in dis-
pute to the employees represented by the Teamsters.
2. Employer preference, current assignment,
and past practice
Eastern currently assigns the work in dispute to em-
ployees represented by the Operating Engineers and the
Teamsters, respectively, has done so since it took over
the Mt. Vernon facility, and prefers to continue this as-
signment. It is well established that the factor of em-
ployer preference is entitled to “substantial weight.”
E.g., Chicago Regional Council of Carpenters, 354
NLRB 522, 528 (2009); Longshoremen Local 50 (Brady-
Hamilton Stevedore Co.), 244 NLRB 275, 276 (1979).
As stated above, the record shows that Eastern has never
recognized the Laborers as the bargaining representative
for the four work classifications at issue, and never as-
sumed any obligation to do so. The factors of current
assignment and employer preference therefore favor an
award of the mechanics’ and loader-operators’ work in
dispute to the Eastern employees represented by the Op-
erating Engineers, and the batchman’s and yardman’s
work in dispute to the employees represented by the
Teamsters.
3. Area and industry practice
There is no dispute that the Operating Engineers has a
long history of representing mechanics and loader-
operators, and that the Teamsters has a long history of
representing batchmen and yardmen, at ready-mix facili-
ties in Westchester County like the one at Mt. Vernon.
The Laborers, by contrast, has a history of representing
such employees only at ready-mix facilities located in
New York City rather than in the surrounding counties,
and represents no such employees in any facility in

6 Although the Laborers obtained a ruling from an arbitrator holding
that it is entitled to the work, the Operating Engineers and the Team-
sters were not parties to that proceeding, and their respective contracts
with Eastern were not presented to the arbitrator. The Board has given
little or no weight to arbitration awards when one (or more) of the
parties to the jurisdictional dispute was not bound thereby. Teamsters
Local 179 (USF Holland, Inc.), 334 NLRB 362, 364–365 (2001);
Teamsters Local 952 (Rockwell International), 275 NLRB 611, 614
(1985).
7 The Laborers has not contended that Eastern is a successor to Riv-
erside Contract under the law emanating from NLRB v. Burns Security
Services, 406 U.S. 272 (1972), and is obligated to recognize the Labor-
ers on that basis.
OPERATING ENGINEERS LOCAL 137 (EASTERN CONCRETE MATERIALS) 333
Westchester County. A brief continuation of member-
ship in the Laborers by one employee who transferred
from a New York City ready-mix facility to Riverside
Concrete for a period that ended prior to Eastern’s acqui-
sition of the Mt. Vernon facility is clearly insufficient to
establish an area practice or an industrywide practice of
representation.
Accordingly, we find that this factor also favors an
award of the mechanics’ and loader-operators’ work in
dispute to the Eastern employees represented by the Op-
erating Engineers, and the batchman’s and yardman’s
work in dispute to the employees represented by the
Teamsters.
4. Relative skills and training
The four employees represented by the Operating En-
gineers and the Teamsters have all respectively per-
formed the work in dispute at the Mt. Vernon facility for
a significant period of time and are clearly qualified to
continue to do so. While employees represented by the
Laborers at similar facilities in New York City might
have knowledge and experience that might be transfer-
rable, no evidence was submitted establishing their skills
or training. This factor therefore favors an award of the
mechanics’ and loader-operators’ work in dispute to the
Eastern employees represented by the Operating Engi-
neers, and the batchman’s and yardman’s work in dispute
to the employees represented by the Teamsters.
5. Economy and efficiency of operations
The witnesses for Eastern, the Operating Engineers,
and the Teamsters all testified that it would be more effi-
cient and economical for the employees represented by
those unions to continue to perform the work in dispute.
The single witness for the Laborers was admittedly un-
familiar with the Mt. Vernon operation and therefore
could not testify to the contrary. Accordingly, the factor
of economy and efficiency of operations favors an award
of the mechanics’ and loader-operators’ work in dispute
to the Eastern employees represented by the Operating
Engineers, and the batchman’s and yardman’s work in
dispute to the employees represented by the Teamsters.
Conclusion
After considering all of the relevant factors, we con-
clude that the Eastern employees represented by the Op-
erating Engineers are entitled to perform the mechanics’
and loader-operators’ work in dispute, and that the East-
ern employees represented by the Teamsters are entitled
to perform the batchman’s and yardman’s work in dis-
pute. In making this determination, we are awarding the
disputed work to employees represented by the Operat-
ing Engineers and the Teamsters, not to those labor or-
ganizations or their members.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of Eastern Concrete Materials represented
by International Union of Operating Engineers Local 137
are entitled to perform all work performed by mechanics
and loader-operators at Eastern Concrete’s ready-mix
facility in Mt. Vernon, New York; and employees of
Eastern Concrete Materials represented by Teamsters
Local 456, International Brotherhood of Teamsters are
entitled to perform all work performed by batchmen and
yardmen at that facility.