Operating Engineers Local 150 (Foley Construction)

National Labor Relations Board - Board Decisions

Feb 17, 1995

316 N.L.R.B. 360 (N.L.R.B. 1995)

360
316 NLRB No. 75
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All subsequent dates refer to 1994 unless otherwise specified.
2 The Teamsters except to the hearing officer’s refusal to admit
evidence showing that the two Unions had agreed to be bound by
the decisions of a jurisdictional dispute resolution committee. In af-
firming the hearing officer’s ruling that the evidence the Teamsters
attempted to introduce is irrelevant, we note that the Board does not
defer to dispute resolution forums unless all the parties, including the
employer, have agreed to be bound. We note that all three parties
stipulated that there is no agreed-on method for voluntary adjustment
of the dispute that binds all three parties to this proceeding.
International Union of Operating Engineers, Local
150, AFL–CIO and Foley Construction Com-
pany and Teamsters, Chauffeurs and Helpers,
Local Union #371. Case 33–CD–371
February 17, 1995
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
The charge in this Section 10(k) proceeding was
filed July 27, 1994,1 by the Employer, Foley Construc-
tion Company (Foley), alleging that the Respondent,
International Union of Operating Engineers, Local 150,
AFL–CIO (Operating Engineers), violated Section
8(b)(4)(D) of the National Labor Relations Act by en-
gaging in proscribed activity with an object of forcing
Foley to assign certain work to employees represented
by the Operating Engineers rather than to employees
represented by Teamsters, Chauffeurs and Helpers,
Local Union No. 371 (Teamsters). The hearing was
held August 18 and 22, 1994, before Hearing Officer
Valerie L. Ortique.
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.2 On the entire
record, the Board makes the following findings.
I. JURISDICTION
Foley, an Iowa corporation, is engaged in the busi-
ness of mass excavation and hauling of dirt, installa-
tion of underground pipe, demolition of structures, site
work, and general preparation of surfaces for paving.
Foley annually ships goods valued in excess of $1 mil-
lion from its facility in Clinton, Iowa, to customers lo-
cated outside the State of Iowa. The parties stipulate,
and we find, that Foley is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and
that Operating Engineers, Local 150, and Teamsters,
Local No. 371 are labor organizations within the
meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Foley has for many years used various articulating
construction vehicles. An articulating vehicle turns
from a central pivot point unlike other vehicles, such
as cars and trucks, that turn on a front axle. Foley has
always used employees represented by the Operating
Engineers to run its articulating vehicles.
In around May 1994, Foley purchased and began
using articulating off-road haulers. Foley was aware
that another local construction company, Valley Con-
struction, had used Teamsters-represented employees to
operate the articulating off-road haulers for 2 weeks at
a local jobsite in the fall of 1993. In addition, Foley
believed that Operating Engineers would not accept the
work for employees it represents. In May 1994, based
on a request from Teamsters Business Representative
John Thorpe, Foley assigned a 1-day job using an ar-
ticulating off-road hauler to an employee represented
by the Teamsters.
Sometime after the May project referred to above,
both the Operating Engineers and the Teamsters
claimed the articulating off-road hauler work for em-
ployees they represent. On July 14, Foley assigned em-
ployees represented by the Operating Engineers to op-
erate the articulating off-road haulers for the work it
was performing at the Dial Commercial Development
jobsite in Rock Island, Illinois. The parties stipulated
that, by letter dated July 26, Jack Schadt, business rep-
resentative for the Operating Engineers, threatened to
strike and picket Foley if Foley reassigned the work to
employees other than those it represents.
B. Work in Dispute
The disputed work involves the operation of articu-
lating off-road haulers at the Dial Commercial Devel-
opment jobsite in Rock Island, Illinois.
C. Contentions of the Parties
Foley contends that the disputed work should be as-
signed to employees represented by the Operating En-
gineers based on its collective-bargaining agreement
with the Operating Engineers, its preference and past
practice, area and industry practice, relative skills, and
economy and efficiency of operations.
The Operating Engineers essentially agrees with
Foley, and stresses the skills and training possessed by
employees it represents.
The Teamsters contends that the disputed work
should be assigned to employees it represents based on
its collective-bargaining agreement with Foley, Foley’s
past practice, and area practice.
361OPERATING ENGINEERS LOCAL 150 (FOLEY CONSTRUCTION)
3 The Teamsters contends that the Board should defer decision in
this case until the two International Unions to which the Local
Unions involved here are affiliated have exhausted the remedial ave-
nues on which they allegedly agreed. The Board does not defer to
agreed-on methods of voluntary dispute resolution unless all parties,
including employers, agree to be bound. Even assuming that the two
International Unions have agreed on a bilateral procedure for dispute
resolution to which the Local Unions are bound, there is no evidence
or assertion that Foley has agreed to be bound by that procedure.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated and that
the parties have not agreed on a method for the vol-
untary adjustment of the dispute.
It is undisputed that on July 26, Schadt, the Operat-
ing Engineers’ business agent, threatened to strike and
picket Foley if Foley did not assign the disputed work
to employees represented by Operating Engineers. We
find, therefore, that there is reasonable cause to believe
that a violation of Section 8(b)(4)(D) has occurred.
The parties stipulated that there exists no agreed-on
method for voluntary adjustment of the dispute within
the meaning of Section 10(k).3 Accordingly, we find
that the dispute is properly before the Board for deter-
mination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative award of disputed work after considering various
factors. NLRB v. Electrical Workers IBEW Local 1212
(Columbia 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 experience, reached by balancing the factors in-
volved 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
No party claims that there are certifications applica-
ble to the work in dispute.
Foley’s collective-bargaining agreements with both
the Operating Engineers and the Teamsters contain ju-
risdictional language concerning articulating vehicles
that is sufficiently broad to cover the disputed work.
Therefore, we find that this factor does not favor any
group of employees.
2. Company preference and past practice
Foley prefers that the disputed work be assigned to
employees represented by the Operating Engineers
rather than to employees represented by the Teamsters.
Foley has always used employees represented by the
Operating Engineers to operate articulating vehicles.
On one occasion, however, very shortly after Foley
purchased the articulating off-road haulers and based
on a request by Teamsters Business Agent John
Thorpe, Foley assigned a 1-day job to an employee
represented by the Teamsters.
Foley takes the position that its 1-day assignment to
an employee represented by the Teamsters was the re-
sult of a misunderstanding concerning whether or not
the Operating Engineers would accept the work. Foley
maintains that the single instance was an aberration
from its past practice and that, in the future, it intends
to abide by its otherwise consistent practice of using
employees represented by the Operating Engineers to
operate articulating off-road vehicles, including the
new off-road haulers. Further, it is uncontradicted that
the particular employee assigned that work was a
former member of the Operating Engineers whom
Foley knew had experience using articulating vehicles.
Consequently, we find that the factor of employer pref-
erence and past practice favors an award of the dis-
puted work to employees represented by the Operating
Engineers.
3. Area and industry practice
The record reveals that articulating off-road haulers
are new to the area. Consequently, evidence as to area
practice is minimal. Foley is the first contractor to pur-
chase articulating off-road haulers. Foley used them for
the first time in May 1994.
As noted earlier, articulating off-road haulers were
used in the fall of 1993 by Valley Construction. The
haulers were rented by Valley to perform a 2-week
job, and Teamsters-represented employees were as-
signed to operate the haulers. Prior to this job, Operat-
ing Engineers’ representative, Schadt, and Teamsters’
representative, Thorpe, had a conversation with Valley
Part Owner Bill Hass concerning the articulating off-
road haulers and whether the Operating Engineers
would claim the work of operating them for employees
it represents. Schadt testified that he was not familiar
with the new vehicles and asked Hass to describe
them. Schadt testified that with Thorpe present Hass
described the off-road haulers as like a ‘‘Mercedes’’ or
‘‘Volvo.’’ Schadt interpreted Hass’ description to mean
that the vehicles were basically off-road dump trucks
and stated that he believed that work would belong to
employees represented by the Teamsters.
Schadt testified that, when he saw the vehicles in
operation, he realized that he had been mistaken as to
the nature of the work and the vehicles. Because he
had given his word that he would not claim the work
at the Valley jobsites, he did not seek to change the
assignment.
362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Foley was aware of this instance at Valley Construc-
tion Company where Teamsters-represented employees
were used to perform the articulating off-road hauling
work. This was the basis for Foley’s belief that the
Operating Engineers would not accept the work for
employees it represents.
Other than the instances described above, there is no
evidence that employees represented by the Teamsters
have been assigned to operate articulating off-road
haulers or any other articulating heavy equipment in
the area. On the contrary, there was considerable testi-
mony showing that the operation of similar articulating
equipment in the area has historically been performed
by employees represented by the Operating Engineers.
Consequently, we find that this factor favors an assign-
ment of the disputed work to employees represented by
the Operating Engineers.
4. Relative skills and safety
The record reveals that employees represented by
the Operating Engineers have received extensive train-
ing in the use of articulating vehicles. The Operating
Engineers has a training facility located on 250 to 350
acres in Plainfield, Illinois. The training facility in-
cludes classrooms, welding shops, and mechanics’
shops. Apprentices are trained extensively in the use of
articulating vehicles by OSHA-certified instructors.
The training is continuing in nature.
Because employees represented by the Operating
Engineers have this extensive training in using articu-
lating vehicles, Foley is satisfied that these employees
provide the necessary concern for safety. Because such
vehicles steer by articulating rather than turning on an
axle, they turn more sharply and more quickly than
conventional vehicles. Because the vehicles bend in the
middle, the operator must be extremely cautious when
working around people or other equipment to avoid
crushing them between the two frames of the articulat-
ing vehicle. The slightest turn of the steering wheel
will begin the articulating process, which will continue
until the steering wheel is returned to the straight
ahead position. Therefore, an unskilled employee
might think that he is turning the vehicle only a little,
even though the machines will bend until they are
completely articulated.
In addition, the haulers are usually operated on un-
even ground. If the hauler is not positioned correctly
before it is turned or it is turned too fast, there is great
danger that the hauler may turn over and crush people
or other equipment.
The Operating Engineers has a procedure which al-
lows employers to report any employee who does not
use a piece of machinery in a competent manner. Sub-
sequently, the Operating Engineers has the right to
refuse to dispatch that employee until he or she has
completed a retraining course.
The record contains no significant evidence concern-
ing training of employees represented by the Teamsters
in the safe operation of articulating vehicles. Accord-
ingly, this factor favors an award of the disputed work
to employees represented by the Operating Engineers.
5. Economy and efficiency of operations
Foley asserts that it is more economical and efficient
to have the disputed work performed by employees
represented by the Operating Engineers. Because the
articulating off-road haulers are not operated continu-
ously, especially in poor weather, Foley needs to be
able to reassign operators to other machines. Switching
operators is permitted under Foley’s collective-bargain-
ing agreement with the Operating Engineers, but it is
prohibited under Foley’s agreement with the Team-
sters.
The articulating off-road hauler is used in conjunc-
tion with other heavy equipment such as backhoes,
loaders, and dozers which are used to load the articu-
lating off-road hauler. By using employees represented
by the Operating Engineers who are familiar with the
operation of the other heavy equipment to operate the
off-road hauler, the off-road hauler operator is able to
better position the hauler for more efficient loading.
Employees represented by the Operating Engineers
are trained to read grade stakes indicating the level of
grade required at particular points. Using employees
represented by the Operating Engineers eliminates the
need for a ‘‘spotter’’ to translate the grade stakes to
the operator of the hauler.
Foley’s practice is to use Operating Engineers-rep-
resented mechanics to service heavy equipment oper-
ated by employees represented by the Operating Engi-
neers and the Teamsters-represented mechanics to
service equipment operated by employees represented
by the Teamsters. The articulating off-road hauler is
used during periods when vehicles operated by em-
ployees represented by the Teamsters would not be
necessary. If Foley assigned an employee represented
by the Teamsters to operate the off-road hauler, it
would be necessary to assign a Teamsters-represented
mechanic to service this one piece of equipment.
Based on the foregoing evidence, we find that the
factor of economy and efficiency of operations favors
an award of the disputed work to employees rep-
resented by the Operating Engineers.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by the International
Union of Operating Engineers, Local 150, AFL–CIO
are entitled to perform the disputed work. We reach
this conclusion relying on the factors of employer pref-
erence and past practice, area and industry practice,
relative skills and safety, and economy and efficiency
363OPERATING ENGINEERS LOCAL 150 (FOLEY CONSTRUCTION)
of operations. In making this determination we are
awarding the disputed work to employees represented
by the Operating Engineers, not to that Union or its
members.
Foley requests that the Board issue a broad award
covering all of Foley’s future articulating off-road
hauling work in the geographical area covering the two
Local Unions’ jurisdiction. Foley claims that such an
award is necessary to avoid the recurrence of similar
disputes between the Operating Engineers and the
Teamsters.
We conclude that the issuance of a broad award in
this case would be inappropriate and we shall limit our
determination to the particular controversy that gave
rise to this proceeding. In order for a broad award to
be granted the Board requires (1) that there be evi-
dence that the disputed work has been a continuous
source of controversy in the relevant geographic area
and that similar disputes may recur, and (2) that the
charged party has a proclivity to engage in unlawful
conduct in order to obtain work similar to the work in
dispute. Bricklayers (Sesco, Inc.), 303 NLRB 401
(1991); Iron Workers Local 433 (Crescent Corp.), 277
NLRB 670 (1985). Because no showing has been
made in this case concerning either of the above two
prerequisites, we find that the evidence provides insuf-
ficient grounds to issue a broad award.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of Foley Construction Company rep-
resented by International Union of Operating Engi-
neers, Local 150, AFL–CIO are entitled to perform the
operation of articulating off-road haulers at the Dial
Commercial Development jobsite in Rock Island, Illi-
nois.