Operating Engineers Local Union No. 3 (Central Concrete Supply, Inc.)

National Labor Relations Board - Board Decisions

Sep 29, 2010

355 N.L.R.B. 1233 (N.L.R.B. 2010)

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).