Seafarers District NMU (Luedtke Engineering Co.)

National Labor Relations Board - Board Decisions

Jul 14, 2010

355 N.L.R.B. 302 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 53
302
Seafarers International Union, Atlantic, Gulf, Lakes
& Inland Waters District NMU, AFL–CIO and
Luedtke Engineering Company and Interna-
tional Union of Operating Engineers, Local 150.
Case 25–CD–301
July 14, 2010
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN LIEBMAN AND MEMBERS
SCHAUMBER AND BECKER
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act (the Act).
Luedtke Engineering Company (the Employer) filed a
charge on December 21, 2009, alleging that the Seafarers
International Union, Atlantic, Gulf, Lakes & Inland Wa-
ters District/NMU, AFL–CIO (SIU) violated Section
8(b)(4)(D) of the Act by engaging in proscribed activity
with an object of forcing the Employer not to reassign
certain work from employees represented by the SIU to
employees represented by Local 150, International Union
of Operating Engineers (Local 150). The hearing was
held January 26, 2010, before Hearing Officer Derek A.
Johnson. Thereafter, the Employer, the SIU, and Local
150 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, the Board makes the following findings.
I. JURISDICTION
The Employer, a Michigan corporation, with a head-
quarters in Frankfort, Michigan, and a jobsite at Burns
Ditch in Portage, Indiana, has been engaged in maritime
construction and related services. During the fiscal year
ending December 31, 2009, the Employer performed
maritime construction services valued in excess of $1
million in states other than the State of Michigan.
The Employer and the SIU stipulated, and we find, that
the Employer is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act. The Employer and
the SIU stipulated, and we find, that the SIU and Local
150 are labor organizations within the meaning of Sec-
tion 2(5) of the Act.1
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer has been a marine dredging contractor
since 1950. It performs both hydraulic and mechanical

1 Local 150 did not appear at the hearing and therefore did not join
in the stipulations. Its posthearing brief does not dispute the jurisdic-
tional facts.
dredging. In September 2009, the Army Corps of Engi-
neers contracted with the Employer to hydraulically
dredge sediment in the Burns Ditch (waterway) in Lake
Michigan to deepen the Small Burns Boat Harbor at
Portage, Indiana. The work was performed from late
October until December 21, 2009.
Four pieces of equipment were used for the harbor
dredging. The actual dredging was performed by a hy-
draulic dredge, essentially a floating vacuum cleaner,
which sucked up the sand from the harbor bottom and
pumped it through pipes to the shoreline of the lake. The
three other pieces of equipment assisting the hydraulic
dredge were a work boat, a tugboat, and a dredge tender
(barge). The hydraulic picker at the center of this dispute
was welded to the dredge tender during the project.
The hydraulic picker is like a crane with a boom that
extends by means of a hydraulic system driven by a die-
sel engine. During 3-day mobilization and demobiliza-
tion periods at the beginning and end of operations at
Burns Ditch, the picker was used frequently during the
daylight hours to assemble/disassemble the pipeline and
to set up/break down the dredge. During the 7-week
period of continuous hydraulic dredging, the picker was
not used every day. When it was used, it would be for
only 1–2 hours per day to assist in moving the pipeline,
anchors, and dredge. The two hydraulic dredge opera-
tors, as well as the field superintendent and foreman,
operated the picker as needed, in addition to performing
their regular duties.
The Employer assigned all the work involved in the
Burns Ditch hydraulic dredging project, including the
work in dispute, to employees represented by the SIU.
The Employer has assigned all work associated with hy-
draulic dredging since 1991 to SIU-represented employ-
ees, pursuant to its collective-bargaining agreement with
the SIU.
Local 150 and the Employer are parties to the Great
Lakes Floating Agreement (GLFA).2 When the Em-
ployer performs mechanical dredging, as opposed to hy-
draulic dredging, it assigns a composite crew of me-
chanical dredge operators represented by Operating En-
gineers and tug men and deckhands represented by SIU.3
The GLFA’s scope of the work provision was ex-
panded in 1996 to cover hydraulic dredging, and hydrau-
lic dredging job classifications were included. After the
Burns Ditch project began, Local 150 filed two griev-
ances in November 2009 challenging the Employer’s

2 The GLFA is an agreement with the International Union of 10 sig-
natory local unions within their respective territorial jurisdictions.
3 In mechanical dredging, a crane with a clamshell bucket is used to
scoop material from the bottom of the lake and place it in a scow that is
transported by tugboat to wherever it is to be unloaded.
SEAFARERS DISTRICT NMU (LUEDTKE ENGINEERING CO.)

303
assignment of the disputed work to the SIU. The first
grievance claimed that the hydraulic picker was work
covered under the GLFA. The second alleged that the
Employer failed to conduct a pre-job conference.
At the Section 10(k) hearing, the Employer and the
SIU stipulated, among other things, that:

There is reasonable cause to believe that on about De-
cember 16, 2009, SIU used means proscribed under
Section 8(b)(4)(D) of the Act when its Vice President
Thomas Orzechowski, Jr., informed Luedtke’s Presi-
dent Kurt Luedtke that if the work in dispute ... was re-
assigned to Local 150, then SIU would weigh all of its
legal options, which could include shutting down the
workplace by means of a strike.

Local 150, although notified of the hearing, did not
participate. In a January 25 letter from its counsel to
Region 25, Local 150 stated it disclaimed any interest in
the disputed work.
B. Work in Dispute
The notice of hearing described the work in dispute as
“the operation of a hydraulic picker utilized on the Burns
Ditch jobsite in Portage, Indiana by Luedtke Engineering
Company.”
C. Contentions of the Parties
The Employer and the SIU contend that this Section
10(k) dispute is properly before the Board for determina-
tion and that the merits of the dispute favor awarding the
disputed work to the employees represented by the SIU.
The Employer and the SIU cite the collective-bargaining
agreements, employer preference and past practice, rela-
tive skills and training, and economy and efficiency of
operations.
Local 150 argues that the notice of hearing should be
quashed. Local 150 contends that there are not compet-
ing claims for the work in dispute because it affirma-
tively disclaimed the work and, at the hearing, the SIU
never affirmatively claimed the work. Local 150 further
contends the evidence does not establish that the SIU
made an unlawful threat against the Employer. First, the
stipulation by the Employer and the SIU does not estab-
lish as an uncontested fact that there was a “threat” be-
cause the stipulation was not signed by Local 150. Sec-
ond, the “wishy-washy” stipulation states only that the
SIU will “weigh its legal options” and does not say the
SIU will strike, but simply that it will consider a strike.
Third, the stipulation was the product of last-minute col-
lusion between the Employer and the SIU to invoke the
Board’s jurisdiction, but was carefully couched in lan-
guage to avoid subjecting the SIU to damage liability
under Section 303 of the Act. Finally, Local 150 con-
tends that any dispute over operation of the picker can be
voluntarily adjusted under article XX of the AFL–CIO
constitution, as in the article XX arbitration award in
evidence where the SIU prevailed over Local 150 in a
previous dispute about another of the Employer’s hy-
draulic dredging projects.
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, the Board
will not proceed under Section 10(k) if there is an
agreed-upon method for voluntary adjustment of the dis-
pute.4 For the reasons stated below, we find that these
requirements have been met.
1. Competing claims for work
We find that there are competing claims for the work
in dispute. The Employer and the SIU stipulated that
there were competing claims. Further, the operation of
the hydraulic picker by employees represented by the
SIU constitutes a claim to that work. Operating Engi-
neers Local 513 (Thomas Industrial Coatings), 345
NLRB 990, 992 fn. 6 (2005) (“performance of work by a
group of employees is evidence of a claim for the work
by those employees, even absent a specific claim”). The
two grievances filed by Local 150 because the Employer
failed to assign an employee represented by Local 150 to
operate the picker also constitute a claim for the work in
dispute. Plumbers District Council 16 (L & M Plumb-
ing), 301 NLRB 1203, 1204 (1991) (union’s grievance
alleging employer violated agreement by subcontracting
work to employees not represented by union was, in ef-
fect, a demand for the work).
We find that Local 150’s disclaimer of interest in the
work was ineffective. The letter from Local 150’s coun-
sel purportedly disclaiming interest in the work was re-
ceived the day before the hearing, and about 1 month
after the work was completed. “Although it is well set-
tled that an effective renunciation of work in dispute re-
solves a jurisdictional dispute, the Board will refuse to
give effect to ‘hollow disclaimers’ interposed for the
purpose of avoiding an authoritative decision on the mer-
its.” Laborers Local 81 (Kenny Construction Co.), 338
NLRB 977, 978 (2003). See also Southwest Regional

4 See, e.g., Electrical Workers Local 3 (Slattery Skanska, Inc.), 342
NLRB 173, 174 (2004).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

304
Council of Carpenters (Standard Drywall), 346 NLRB
478, 480–481 (2006) (finding purported disclaimer made
shortly before hearing and after majority of work com-
pleted was ineffective).5
2. Use of proscribed means
The Employer and the SIU stipulated that there is rea-
sonable cause to believe that the SIU threatened to use
proscribed conduct. While Local 150 did not agree to
that stipulation, the stipulation constitutes record evi-
dence that the SIU vice president told the Employer’s
president that it might strike if the work was reassigned.
Local 150 did not offer any evidence to the contrary. We
find the stipulation sufficient to establish that such a
statement was made.
We further find no merit in Local 150’s arguments that
such a statement fails to prove reasonable cause to be-
lieve that SIU threatened resort to proscribed means in
support of its claim to the work in dispute. In Lancaster
Typographical Union No. 70 (C.J.S. Lancaster), 325
NLRB 449, 450–451 (1998), the Board rejected argu-
ments similar to those advanced by Local 150 here. In
that case, the respondent union told the employer that if
the work was given to the other union, it would “take
such action as necessary including but not limited to
refusing to perform certain tasks. . . .” Id. at 449–450.
The competing union contended that the respondent’s
threat was “vague,” not “genuine,” and “was deliberately
crafted in equivocal language to invoke the Board’s ju-
risdiction while at the same time avoiding the need ‘to
actually place its entire membership [sic] jobs on the
line.’” Id. at 450. The Board found “nothing vague”
about the respondent’s threat, which, “while not using
the word “strike,” clearly constitute[ed] a threat to refuse
to perform services, conduct specifically proscribed by
Section 8(b)(4)(D).” Id. at 450–451. See also Operating
Engineers Local 2 (PVO International), 209 NLRB 673,
674–675 (1974) (finding reasonable cause based, in part,
on letter from respondent’s attorney stating respondent
“contemplated taking action, including picketing and
cessation of work”) (emphasis added).

5 Local 150 argues that the Board has given effect to even a
posthearing disclaimer, citing Teamsters Local 295 (Emery World-
wide), 332 NLRB 1140, 1142 (2000). Emery is distinguishable, how-
ever. There, mutual posthearing disclaimers from the competing un-
ions completely resolved the jurisdictional dispute. Additionally, the
union that had filed grievances claiming the work withdrew its demand
for arbitration of the matter. In contrast, there is no evidence that Local
150 has withdrawn its grievances. The pending grievances are a con-
tinuing claim to the work by Local 150 and render its disclaimer inef-
fective. See Plumbers District Council 16 (L & M Plumbing), supra at
1204 (finding continued pursuit of grievance inconsistent with asserted
disclaimer of interest in disputed work).

Teamsters Local 82 (Champion Exposition), 292
NLRB 794 (1989), Sheet Metal Workers Local 38
(Corbesco), 295 NLRB 1069 (1989), and Operating En-
gineers Local 106 (E. C. Ernst), 137 NLRB 1746 (1962),
all cited by Local 150, are distinguishable. In those
cases, the Board found that allegedly threatening lan-
guage was too vague or ambiguous to establish reason-
able cause because it did not explicitly refer to specific
unlawful conduct. Unlike those cases, the stipulation
here explicitly states that the SIU contemplated striking
if the work was reassigned.
Further, even though the stipulation mentions weigh-
ing only “legal options,” the option of striking remains a
threat to use proscribed means. Thus, the Board has
found that a union’s stated intent “to exercise any and all
legal means . . . including, if necessary, picketing, con-
certed and protected job slowdown, and striking” was a
threat to engage in unlawful conduct notwithstanding the
union’s “characterization of its threat as involving ‘legal
means.’” E.g., Laborers Local 860 (Anthony Allega Ce-
ment Contractor), 336 NLRB 358, 361 (2001).
Finally, we reject Local 150’s contention that the
stipulation was the product of collusion between the Em-
ployer and the SIU to bring the dispute before the Board.
“In the absence of affirmative evidence that a threat to
take proscribed action was a sham or the product of col-
lusion, the Board will find reasonable cause to believe
that the statute has been violated.” Operating Engineers
Local 150 (R&D Thiel), 345 NLRB 1137, 1140 (2005).
Local 150 failed to present any affirmative evidence in
support of its claims of sham and collusion.
3. No voluntary method for adjustment of dispute
The Employer and the SIU stipulated that there is no
agreed-upon method for voluntary adjustment of the dis-
pute. Local 150 contends that the current work dispute
can be resolved through AFL–CIO article XX arbitration,
as was a different dispute between Local 150 and the SIU
over work performed by the Employer in 2007. There is
no evidence, however, that the Employer is bound by the
article XX procedure. For an agreement to constitute an
agreed-upon method for voluntary adjustment, all parties
to the dispute must be bound to that agreement. We find,
therefore, that there is no agreed-upon method for volun-
tary adjustment of the dispute.
Based on the foregoing, we find that there are compet-
ing claims for the disputed work, that there is reasonable
cause to believe that Section 8(b)(4)(D) has been vio-
lated, and that there is no agreed-upon method for the
voluntary adjustment of the dispute. We thus find that the
dispute is properly before the Board for determination,
and, accordingly, we deny Local 150’s motion to quash
the notice of hearing.
SEAFARERS DISTRICT NMU (LUEDTKE ENGINEERING CO.)

305
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 IBEW Local 1212
(Columbia Broadcasting), 364 U.S. 573, 577 (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 (1962).
The following factors are relevant in making the de-
termination of this dispute.6
Certifications and collective-bargaining agreements
There is no evidence of any Board certifications con-
cerning the employees involved in this dispute. How-
ever, since 1991, the recognition clauses in the succes-
sive SIU contracts to which the Employer was bound
have covered the operation of “land equipment engaged
in assisting hydraulic dredges.”
In 1996, the GLFA added language recognizing classi-
fications performing “hydraulic dredging (including pipe
assembly and/or disassembly for marine dredging).” The
Employer contends, however, that the disputed work is
not covered by the GLFA. The Employer introduced
evidence that in 1996, after the new language was added,
the International Union agreed with the Employer to de-
lete “all clauses that have traditionally been in the SIU
agreement” and to delete the hydraulic dredging classifi-
cations. The terms of the current GLFA provide that the
hydraulic dredging classifications are covered by that
agreement only if the employees are not already repre-
sented by another union. Accordingly, we find that the
factor of collective-bargaining agreements favors award-
ing the disputed work to the SIU-represented employees.
2. Employer preference and past practice
The Employer’s president testified that the Employer
has assigned SIU-represented employees to perform the
disputed work associated with hydraulic dredging since
1991. Consistent with this past practice, the Employer
assigned the disputed work at the Burns Ditch jobsite to
SIU-represented employees and prefers to assign the
disputed work to those employees. Accordingly, we find
that the factors of employer preference and past practice
favor assigning the work to employees represented by the
SIU.
3. Relative skills and training
The Employer’s president and field superintendent tes-
tified that SIU-represented employees have the requisite

6 Local 150 presented no evidence and took no position on these
factors.
skills and training to perform the work in dispute. The
president testified that SIU-represented employees are
more skilled than the Local 150-represented employees
because they have more experience and training in oper-
ating equipment on water. Local 150 presented no evi-
dence regarding this factor. Accordingly, we find that
this factor favors an award of the work to SIU-
represented employees.
4. Economy and efficiency of operations
The disputed work is only a part of the hydraulic
dredging operation. The SIU-represented employees per-
form all aspects of the hydraulic dredging. Local 150
does not claim any of the work associated with the hy-
draulic dredging, except for the operation of the picker.
Thus, at least during the 7-week stage of continuous
dredging operations, a Local 150-represented employee
would operate the picker on the barge only intermittently
and for short periods of time. Any such Local 150-
represented employee would be idle most of the time.
The SIU-represented employees can operate the picker
for the brief periods when it is needed as well as perform
their regular duties related to the hydraulic dredging op-
eration. Local 150 presented no evidence regarding this
factor. Accordingly, we find that this factor favors
awarding the disputed work to the employees represented
by the SIU.
Conclusion
After considering all the relevant factors, we conclude
that employees represented by the Seafarers International
Union, Atlantic, Gulf, Lakes & Inland Waters District/
NMU, AFL–CIO are entitled to perform the work in dis-
pute. We reach this conclusion relying on the factors of
collective-bargaining agreements, employer preference
and past practice, relative skills and training, and econ-
omy and efficiency of operations. In making this deter-
mination, we award the work to employees represented
by the SIU, not to that labor organization or to its mem-
bers.
Scope of Award
The Employer seeks a broad award, arguing that its
work is performed on all of the Great Lakes. It expects
that operation of the hydraulic picker will continue to be
a source of controversy with the other Operating Engi-
neers” local unions that enforce the GLFA within their
respective territorial jurisdictions on the Great Lakes.
The Board has customarily declined to grant an are-
awide award in cases such as this in which the charged
party represents the employees to whom the work is
awarded and to whom the employer contemplates con-
tinuing to assign the work. E.g., Elevator Constructors,
Local 2 (Kone, Inc.), 349 NLRB at 1211–1212. Ac-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

306
cordingly, in the circumstances of this case we find no
warrant for granting a broad award. Therefore, the pre-
sent determination is limited to the particular controversy
that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of Luedtke Engineering Company repre-
sented by the Seafarers International Union Atlantic,
Gulf, Lakes & Inland Waters District/ NMU, AFL–CIO
are entitled to perform the operation of a hydraulic picker
utilized on the Burns Ditch jobsite in Portage, Indiana,
by Luedtke Engineering Company.