Laborers Local 829 (Mississippi Lime Co.)

National Labor Relations Board - Board Decisions

Sep 27, 2001

335 N.L.R.B. 1358 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1358
Quarry Workers Local 829, affiliated with the Labor-
ers International Union of North America,
AFL–CIO and Mississippi Lime Company and
United Steelworkers of America, Local 169,
AFL–CIO, CLC. Case 14–CD–976
September 27, 2001
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND WALSH
The charge in this Section 10(k) proceeding was filed
November 19, 1998, by Mississippi Lime Company (the
Employer) alleging that the Respondent, Quarry Workers
Local 829, affiliated with the Laborers International Un-
ion of North America, AFL–CIO (Laborers), violated
Section 8(b)(4)(D) of the National Labor Relations Act
by engaging in proscribed activity with an object of forc-
ing the Employer to assign certain work to employees it
represents rather than to employees represented by the
United Steelworkers of America, Local 169, AFL–CIO,
CLC (Steelworkers). The hearing was held December
17–18, 1998, before Hearing Officer Lynette K. Zuch.
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 Missouri corporation, with an office
and place of business in St. Genevieve, Missouri, is en-
gaged in the mining and production of lime. During the
last 12 months, which period is representative of its op-
erations, the Employer sold and shipped from its St.
Genevieve, Missouri facility goods valued in excess of
$50,000 directly to points located outside the State of
Missouri. The parties further stipulated, and we find,
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that the
Laborers and Steelworkers are labor organizations within
the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer mines limestone and produces lime and
related products at its St. Genevieve, Missouri facility.
The Employer’s current operations stem from its acquisi-
tion of the St. Genevieve Lime & Quarry Company and
the Peerless White Lime Company, sometime around
1947 or 1948. Immediately after this acquisition, the
Employer operated three divisions—the Mississippi Di-
vision (the original Company), St. Genevieve, and Peer-
less. In 1960, the Employer folded the St. Genevieve
Division into the Peerless Division, leaving Peerless and
Mississippi as the Employer’s two remaining divisions.
The Laborers have represented the employees of Peer-
less White Lime Company and the St. Genevieve Lime
& Quarry Company (until the consolidation of St. Gene-
vieve with Peerless), since 1937.1 See Peerless White
Lime Co., 10 NLRB 933, 938 (1939); Mississippi Lime
Co., 124 NLRB 884, 885 fn. 3 (1959) (citing Case 14–
RD–17). The Steelworkers have represented employees
at the Mississippi Division since 1954.2 See Mississippi
Lime Co., 124 NLRB at 885 fn. 3 (citing Case 14–RC–
2593); and Case 14–RC–4841 (1964).
The Employer mines limestone at both its Peerless and
Mississippi mines. The limestone is transported to other
onsite facilities for processing into lime and other end
products. Onsite facilities include a stone-crushing plant,
storage areas for the crushed stone, and kilns.
Kilns are furnaces which heat limestone and change
the stone to lime. The Employer’s kilns are classified
generally as either “vertical” or “rotary” (rotary kilns are
also referred to as “horizontal”). Vertical kilns are
loaded with limestone at the top and the finished product
is discharged at the bottom. Rotary kilns are loaded with
limestone at one end of a horizontal tube and the finished
product is discharged at the opposite end. The Employer
uses vertical kilns to generate specialized lime products
that command higher margins. Rotary kilns are used to
produce commodity products.
At the Mississippi plant there are 6 rotary kilns and 20
vertical kilns, 13 of which are currently being operated.
There are six rotary kilns at the Peerless facility. Al-
though vertical kilns had operated at the Peerless facility,
the Employer shut down the vertical kilns at Peerless in
1954 and at the St. Genevieve Division a few years
later.3
During the 1990s, the Employer embarked on a series
of modernization projects to improve its competitive
position. For instance, it has automated its stone and
coal handling systems at its Peerless rotary plant as well
as its kiln control room at the Mississippi rotary plant.
Most significantly, and central to this jurisdictional dis-
pute, the Employer announced in April 1997, that it
would construct a new “Maerz vertical kiln,” which is

1 During this period, Laborers Local 829 was referred to as the Inter-
national Hod Carriers, Building & Common Laborers Union of Amer-
ica, Local No. 829.
2 During this period, Steelworkers Local 169 was known as St.
Genevieve Local 169, affiliated with United Glass and Ceramic Work-
ers of North America, AFL–CIO.
3 The Employer’s director of lime and limestone production, Steven
Phagan, testified at the hearing that this closure took place in approxi-
mately 1958 or 1959.
335 NLRB No. 102
LABORERS LOCAL 829 (MISSISSIPPI LIME CO.) 1359
more automated, more efficient, and has higher produc-
tive capacity, than its existing vertical kilns.
Both Unions sought to have the operation and mainte-
nance of the Maerz vertical kiln assigned to the employ-
ees they represent. Following an informal hearing con-
ducted by the Employer, the Employer announced on
May 21, 1998, that it was awarding the Maerz kiln work
to the employees represented by the Laborers.
On May 29, 1998, the Steelworkers filed a grievance
claiming that the assignment of the Maerz vertical kiln
work to the Laborers violated the collective-bargaining
agreement between the Steelworkers and the Employer
and that the assignment deviated from past practice. The
Employer denied the grievance on June 10, 1998, and on
September 28, 1998, the Steelworkers moved for arbitra-
tion. In response, the Laborers sent a letter to the Em-
ployer dated October 8, 1998, stating:

[The Laborers] regard[] this dispute as extremely seri-
ous. Therefore, this is to advise you that if the com-
pany proceeds to arbitration with the Steelworkers or
takes any other action to reassign work on the Maerz
Kiln from employees represented by Laborers’ 829 to
employees to employees [sic] represented by the
Steelworkers, Laborers’ 829 will have no choice but to
picket and/or strike in protest.

The Employer filed an 8(b)(4)(D) charge against the
Laborers on November 19, 1998.
B. Work in Dispute
The disputed work involves the operation and mainte-
nance of the Maerz vertical kiln at the Employer’s St.
Genevieve, Missouri facility.
C. Contentions of the Parties
The Parties stipulated that the Steelworkers and Labor-
ers both claim the work in dispute. The Employer con-
tends that there is reasonable cause to believe that Sec-
tion 8(b)(4)(D) has been violated on the basis that the
Laborers’ letter of October 8, 1998, contained a threat to
disrupt the Employer’s production if the disputed work
was reassigned. The Employer further contends that the
disputed work should be awarded to employees repre-
sented by the Laborers based on the following: (1) em-
ployer preference, (2) economy and efficiency of opera-
tions, (3) the Laborers’ loss of jobs over the past 25 years
and past allocation of capital improvements, and (4) the
company practice in making work assignments.
The Laborers agree with the Employer’s reasons for
awarding the work to employees they represent, but also
rely on their certification and collective-bargaining
agreement.
The Steelworkers assert that the Board should award
the disputed work to employees they represent based on:
(1) the Steelworkers’ certification, (2) the history of the
employees it represents in performing vertical kiln work,
(3) geographical considerations showing the location of
the disputed work at a site historically maintained and
served by Steelworkers-represented employees, and (4)
the long-term trend showing the Employer’s business
changes over time resulting in the assignment of vertical
kiln work to the Steelworkers unit.
D. Applicability of the Statute
Before the Board may proceed with a determination of
the dispute pursuant to Section 10(k) of the Act, it must
be satisfied that there is reasonable cause to believe that
Section 8(b)(4)(D) has been violated. This requires a
finding that there is reasonable cause to believe that a
party has used proscribed means to enforce its claim, and
that there are competing claims to disputed work be-
tween rival groups of employees.
As described above, after the Employer awarded the
operation and maintenance of the Maerz vertical kiln to
employees represented by the Laborers, the Steelworkers
filed a grievance protesting the assignment. Subse-
quently, as a result of that grievance, the Laborers sent a
letter to the Employer stating that the Laborers will
picket and/or strike if the Employer took action to reas-
sign the work on the Maerz kiln from the Laborers to the
Steelworkers. Based on this evidence, we conclude that
there are active competing claims to the disputed work
between rival groups of employees, and that there is rea-
sonable cause to believe that the Laborers have used pro-
scribed means to enforce their claim.4
Finally, the parties stipulate that there exists no agreed-
on method for voluntary adjustment of the dispute within
the meaning of Section 10(k) of the Act. Accordingly,
we conclude that the 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-

4 At the hearing, the Steelworkers contended that the Laborers’
threat to picket and/or strike was not a genuine threat because the La-
borers’ contract contains a no-strike clause. However, the Steelworkers
have not repeated this contention in their brief. In any event, the exis-
tence of a no-strike clause in a union’s collective-bargaining agreement
is not a basis for finding that the union’s threat is a sham. See, e.g.,
Lancaster Typographical Union 70, 325 NLRB 449, 451 (1998).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1360
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 deciding this dis-
pute.
1. Certification and collective-bargaining agreements
The Laborers were certified as the exclusive bargain-
ing agent for hourly paid production and maintenance
employees of the Peerless and St. Genevieve Divisions,
and the River Boat Dock and Loading Facility, of the
Mississippi Lime Company. See Case 14–RD–17 (Aug.
18, 1949); Mississippi Lime Co., 124 NLRB 884, 885
(1959) (Cases 14–RM–192 and 14–RM–193); and Case
14–RC–6075 (Dec. 6, 1968). The Steelworkers were
certified as the exclusive collective-bargaining agent for
all hourly paid production and maintenance employees at
the Rotary and Maintenance Shop, at the Vertical Plant,
and at the Mississippi Mine operated at the Mississippi
Division of the Mississippi Lime Company. See Case
14–RC–2593 (Dec. 23, 1954); Case 14–RC–3597 (June
29, 1959); Mississippi Lime Co., supra, Cases 14–RM–
192 and 14–RM–193); and Case 14–RC–4841 (July 13,
1964). The collective-bargaining agreements adopt the
language of the certifications.
Neither the certifications nor the collective-bargaining
agreements of the Steelworkers and the Laborers men-
tion the Maerz vertical kiln. Contrary to the Steelwork-
ers’ contention, the term “Vertical Plant” in the Steel-
workers’ certification and contract does not favor award-
ing the work to the employees it represents. The evi-
dence fails to show that the Maerz vertical kiln is located
in the Vertical Plant, and employees represented by the
Laborers have performed vertical kiln work in the past.
Accordingly, we find that this factor does not favor an
award of the disputed work to employees represented by
either Union.
2. Employer preference
The Employer prefers that the disputed work be as-
signed to employees represented by the Laborers. Ac-
cordingly, we find that this factor favors an award of the
disputed work to employees represented by the Labor-
ers.5

5 The Board does not generally examine the reasons for an em-
ployer’s preference unless there is evidence that the employer was
coerced into its preference. While the Steelworkers have questioned the
reasons offered by the Employer for its preference, there is no claim, or
evidence, that the Employer’s preference was not reflective of a free
and unencumbered choice. See, e.g., Longshoremen ILWU Local 50
(Brady-Hamilton Stevedore Co.), 223 NLRB 1034, 1037 (1976), re-
versed on other grounds 244 NLRB 275 (1979).
3. Area and industry practice
Neither Union has asserted any area or industry prac-
tice that would be relevant to determining an award of
the disputed work. Accordingly, we find that this factor
does not favor an award of the disputed work to employ-
ees represented by either Union.
4. Relative skills and training
The Steelworkers assert that this factor favors the em-
ployees they represent because those employees have
been exposed to computer technology since the introduc-
tion in 1997 of a computerized control room for the Mis-
sissippi rotary kilns. The Steelworkers assert that while
there was also some automation of the Peerless rotary
plant, there was no comparable computerization of the
Peerless rotary kilns staffed by Laborers-represented
employees.
However, the evidence shows that the skills of both
groups of the Employer’s employees are substantially
similar, and that the Maerz vertical kilns employ a new
technology that would require 6 weeks of training for
any employee to operate. Accordingly, we find that this
factor does not favor an award of the disputed work to
employees represented by either Union.
5. Economy and efficiency of operations
The Employer’s director of lime and limestone produc-
tion in the Ste, Genevieve, Missouri plant, Steven G.
Phagan, testified that economy and efficiency of opera-
tions would be promoted by integrating the Maerz verti-
cal kiln into the Peerless Division. In support, he cited
the fact that the stone for the Maerz kiln comes from the
Peerless mine and that the conveyors, storage facilities,
and electrical substation that service the Maerz kiln are
within the Peerless Division.6 Phagan testified that, by
keeping the work within this one division, the Employer
can streamline communications and maintain only one
maintenance crew and one set of supervisors for the inte-
grated Peerless Division operation.
The Steelworkers contend that the Maerz vertical kiln
is not fully integrated and that its product may be di-
rected for further processing to Steelworkers-represented
employees.
We find, on balance, that the factor of economy and
efficiency of operations favors an award of the disputed
work to the employees represented by the Laborers, as
currently assigned.
6. Employer past practice
The Employer contends that its past practice is to
award work on “capital” projects to the employees of the
6 A central storeroom, staffed by employees represented by the
Steelworkers, serves both divisions.
LABORERS LOCAL 829 (MISSISSIPPI LIME CO.) 1361
division in which the project is most integrated. The
Laborers contend that the Employer’s past practice is to
make assignments that correspond with the legal bounda-
ries of the divisions. The Steelworkers contend that the
Employer’s practice is to award vertical kiln work to
employees it represents. Each party introduced testi-
mony to support its respective contention.
On the record here, we are unable to discern a uniform
past practice that would provide a basis for finding that
this factor favors an award to one group of employees
over the other group.
7. Loss of jobs
The Employer argues that the Laborers have borne the
disproportionate brunt of job cuts over the past 30 years
and that during the 1990s it made 81 percent of its capital
improvements to plants in the Mississippi Division,
whose employees are represented by the Steelworkers.
The Employer contends that awarding the disputed work
to Laborers-represented employees will redress this im-
balance.
The Steelworkers argue that this factor does not favor
an award to either group of employees. The Steelwork-
ers assert that its unit would lose employees in the short
run if the award were to the Laborers, and also in the
long run if, as an Employer representative testified, the
future is in Maerz kilns rather than in Mississippi Divi-
sion vertical kilns. However, the Steelworkers contend
that it cannot be established at this time what the net ef-
fect of the assignment would be on the size of either unit.
We find that it is not clear, based on the record evi-
dence, that an award to one group of employees would
bring about a significant loss of employment for the
other group. Accordingly, we find that this factor does
not favor an award of the disputed work to employees
represented by either union.
Conclusions
After considering all the relevant factors, we conclude
that the employees represented by Quarry Workers Local
829, affiliated with the Laborers International Union of
North America, AFL–CIO are entitled to perform the
work in dispute. We reach this conclusion relying on
employer preference, and economy and efficiency of
operations.
In making this award, we are awarding the work to
employees represented by Quarry Workers Local 829,
affiliated with the Laborers International Union of North
America, AFL–CIO not to that Union 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.
Employees of the Mississippi Lime Company repre-
sented by the Quarry Workers Local 829, affiliated with
the Laborers International Union of North America,
AFL–CIO are entitled to operate and maintain the Maerz
vertical kiln at the Employer’s St. Genevieve, Missouri
facility.