United Services Of America International Labor Union

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 1172 (N.L.R.B. 1984)

1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Services of America International Labor
Union 1 and Mountaineer Resources, Inc. 2 and
United Mine Workers of America. 3 Case 6-
CD-800
14 December 1984
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, following a charge
filed by Mountaineer alleging the USA had violat-
ed Section 8(b)(4)(D) of the Act by engaging in
proscribed activity with an object of forcing or re-
quiring Mountaineer to assign certain work to its
members rather than to employees represented by
UMWA.
Pursuant to notice, a hearing was held before
Hearing Officer Sandra Beck Levine on 6 July
1984. All parties appeared and were afforded full
opportunity to be heard, to examine and cross-ex-
amine witnesses, and to adduce evidence bearing
on the issues. Thereafter, Mountaineer and UMWA
filed briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board affirms the hearing officer's rulings,
finding them free from prejudicial error. On the
entire record, the Board makes the following find-
ings.
I. JURISDICTION
Mountaineer, a Pennsylvania corporation whose
principal place of business is in West Virginia, is
engaged in the construction of material handling
and processing facilities for coal mine operators
and companies in other industries. During the 12-
month period preceding the hearing, it had gross
revenues in excess of $500,000. During the same
period, Mountaineer purchased and received goods
and materials valued in excess of $50,000 directly
from points outside the State of West Virginia for
use at its West Virginia and Virginia jobsites. We
find that Mountaineer is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act and that USA and UMWA are labor organiza-
tions within the meaning of Section 2(5) of the
Act.
1 USA
2 Mountaineer
3 UMWA
II. THE DISPUTE
A. Background and Facts of Dispute
Mountaineer, which has been in business since
1978, is a wholly owned subsidiary of Salem Cor-
poration as are Industrial Contracting of Fairmont,
Inc. (Industrial) and Salem Construction Company,
Inc. (Salem Construction), which also perform con-
struction work at coal mine sites. Industrial is a
member of the Association of Bituminous Contrac-
tors (ABC) and as such is also a signatory of the
National Coal Mine Construction Agreement be-
tween ABC and UMWA. 4 Mountaineer and Salem
Construction are not ABC members and have not
been signatories to the ABC contract or any other
agreement with the UMWA. When a coal compa-
ny invokes article I of the ABC contract to require
that the work at its mine be done "under UMWA
jurisdiction," it has been the practice to have only
Industrial make bids for that work. 5 However,
when a coal company does not require the use of
UMWA-represented employees, Mountaineer then
makes the bid. Thus, when Consolidated Coal
Company (Consolidation) invited Mountaineer to
make bids for certain construction work at its
Humphrey and Loveridge, West Virginia mines in
the most "economical" way and stated that it
would award the contracts therefor "on basis of
price, delivery, and quality," it did not object to
Mountaineer's plan to use USA-represented em-
ployees. Accordingly, on Consolidation's accept-
ance of its bids, Mountaineer on 14 May 1984 en-
tered into 3-year contracts with USA to have the
employees represented by that organization per-
form installation work for a coal preparation plant
at each location. On 7 June 1984 about 3 weeks
after Mountaineer began construction work at the
Loveridge preparation plant with USA-represented
employees, UMWA filed a class grievance against
Industrial stating that it violated the ABC contract
by contracting out work to Mountaineer, "a non-
[UMWA] company to circumvent [the ABC con-
tract]." Mountaineer and Industrial thereupon noti-
fied USA President Charles R. Rush of the griev-
ance and the latter promptly replied that any at-
tempt to defeat USA jurisdiction will "no doubt"
result in the establishment of a picket line by USA.
On 13 June 1984 a little more than a week after
Mountaineer began construction work at the Hum-
4 Art I, which is entitled "Enabling Clause," provides in pertinent part
that the contract "covers all work related to the development, expansion
or alteration of coal mines that is performed at or on coal lands by
the members of the Association for coal mine operators which require
such construction work to be performed under the junsdiction of the
[UMWA] "
5 Salem Construction restncts itself to bids for construction work
which is to be performed by AFL-CIO-represented employees
273 NLRB No. 146
UNITED SERVICES UNION (MOUNTAINEER RESOURCES) 1173
phrey preparation plant with the USA-represented
employees, UMWA filed a similar class action
against Industrial, and USA President Rush again
responded by stating it would "no doubt" picket to
"retain its jurisdiction."
B. Work in Dispute
The work in dispute involves the installation of
new coal preparation and material handling equip-
ment at Consolidation's preparation plants in
Loveridge and Humphrey, West Virginia.
C. The Contentions of the Parties
Mountaineer reiterates the following contentions
which it made in a companion case involving that
Company.6
It has already assigned the work in question to
employees represented by USA and prefers to con-
tinue to do so. It is not and never has been a signa-
tory to the ABC contract or any other collective-
bargaining agreement with the UMWA and hence
there is no basis for attributing the ABC contract
to Mountaineer merely because Industrial, its sister
company, is a signatory to that contract. Another
reason for not applying that contract is that its em-
ployees and those of Industrial constitute separate
bargaining units. 7 In any event, the ABC contract
does not apply to the work at the Loveridge and
Humphrey coal preparation plants because Consoli-
dation has not required that it be done with USA-
represented employees.
Mountaineer also relies on its collective-bargain-
ing agreements with USA, its practice, area prac-
tice, relative skills, and economy and efficiency of
operation as factors favoring the assignment to
USA-represented employees.
The UMWA also repeats the argument it made
in the companion case. The UMWA asserts that
Mountaineer and Industrial are sister companies
which have the same officers and engage in the
same type of construction work performed by em-
ployees who enjoy the same health and insurance
benefits and that consequently the former is bound
by the ABC contract to which the latter is a party.
UMWA also asserts that, when Industrial per-
forms work under the ABC contract, the panel of
UMWA-represented employees is drawn from
workers who have already performed coal lands
construction for Industrial and, if an employee at-
tempts to perform work for which he does not
have the requisite ability, the construction compa-
ny has the right to return him to his former job or
• 273 NLRB 1167 (1984).
7 Neither the bargaining unit employees at the Loveridge project nor
the bargaining unit employees at the Humphrey project have worked for
Industrial.
to the panel. The UMWA contrasts that situation
with Mountaineer's contract with USA under
which the latter initially determines the skills of the
individual it sends to the jobsite. However, the
UMWA concedes that Mountaineer has authority
to return the employee to USA if it determines that
he is "incompetent" to perform the work.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the dispute pursuant to Section 10(k) of the
Act, it must be satisfied that there is reasonable
cause to believe that (1) Section 8(b)(4)(D) has
been violated and (2) that the parties have not
agreed on a method for the voluntary adjustment
of the dispute.
As to (1), it is clear that USA categorically
stated that any attempt to "defeat" USA jurisdic-
tion by assigning the work to UMWA-represented
employees would result in USA's establishment of
a picket line. As to (2), the parties stipulated that
there is no agreed-on method for voluntary adjust-
ment of this dispute.
On .the basis of the entire record, we conclude
that there is reasonable cause to believe that a vio-
lation of Section 8(b)(4)(D) has occurred 6 and that
there exists no agreed-on method for voluntary ad-
justment of the dispute within the meaning of Sec-
tion 10(k) of the Act. Accordingly, we find that
this dispute is properly before the Board for deter-
mination.
E. Merits of the Dispute
Section 1000 of the Act requires the Board to
make an affirmative 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 involved in a par-
ticular case. Machinists Lodge 1743 (J. A. Jones
Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the
determination of the dispute.
1. Certification and collective-bargaining
agreements
Neither of the Unions included herein have been
certified by the Board as the collective-bargaining
8 Although Mountaineer's president testified that the work at the
Loveridge project would be completed within a few days of the hearing,
the dispute as to that work is not moot absent evidence that it will not
arise again if Mountaineer later performs similar work. See Batton Build.
leg Trades Council (Methuen Construction), 269 NLRB 479 (1984).
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative for a unit of Mountaineer's employ-
ees. Certification is not a factor in this case.
Mountaineer contends, and we agree, that as a
nonmember of ABC and a nonsignatory of the
ABC contract it is free to perform construction
work at coal mine sites with non-UMWA repre-
sented employees. We also agree with its conten-
tion that as an entity separate from Industrial the
latter's membership in ABC does not oblige Moun-
taineer to be governed by the ABC contract. How-
ever, assuming, as the UMWA contends, that
Mountaineer and Industrial constitute one employ-
er, in the companion cases issued today 9 we refuse
to find that article I of the ABC contract obligated
signatory employers to use UMWA-represented
employees in the absence of a requirement by the
coal companies that such employees be used. As
Consolidation interposed no objection to Mountain-
eer's plan to utilize USA-represented employees
and made it clear that it awarded contracts for the
Loveridge and Humphrey projects on the basis of
"price, delivery and quality," we find that Consoli-
dation did not require that the work be performed
"under UMWA jurisdiction" and that Mountaineer
was therefore free to utilize employees represented
by USA.
2. Employer assignment, past practice, and
area practice
As indicated above, it has been and continues to
be Mountaineer's preference and practice to restrict
itself to construction work for only those coal
companies which do not require the use of
UMWA-represented employees. This practice is
also followed by Mountaineer's competitors.
In view of the foregoing, we find that area prac-
tice and Mountaineer's preference for the use of
USA-represented employees clearly weigh in favor
of Mountaineer continuing to assign the disputed
work to those employees.
3. Relative skills
Mountaineer's president Don Hoylman testified
that the USA-represented employees at the
Loveridge and Humphrey projects have demon-
strated the skills necessary to perform the work
and that they have done an outstanding job, as a
result of which he anticipated that the work would
be done ahead of schedule and "under budget."
Hoylman also stated that if the UMWA-represent-
ed employees were not subject to the terms of the
ABC agreement they were competent to perform
the work in question.
9 United Services Union (Mountaineer Resources), 273 NLRB 1167
(1984), United Services Union (Lincoln Contracting), 273 NLRB 1164
(1984)
As it appears that the employees represented by
each labor organization possess the requisite skills
to perform the work in question, we find this
factor to be inconclusive.
4. Economy and efficiency of operation
As indicated above, Mountaineer's president tes-
tified that the USA-represented employees were
doing an outstanding job as a consequence of
which the work would be completed ahead of
schedule and under budget. He also testified as fol-
lows. The USA contracts provide Mountaineer
with greater leeway than the ABC contract with
respect to moving employees from one classifica-
tion to another. In contrast to the ABC contract
which limits employees to a panel of UMWA-rep-
resented employees, Mountaineer is free under the
terms of the USA contracts to select from those re-
ferred by USA only those individuals who are
deemed by Mountaineer to be best qualified. The
USA contracts promote efficiency because they,
unlike the ABC contract, permit foremen (who are
classified as pushers) to perform bargaining unit
work and help employees. The USA contracts are
economically beneficial in that they provide for an
8-hour workday at straight time while the ABC
contract provides for a 7-1/2-hour workday and a
half hour paid lunch period. In sum, application of
the terms of the ABC contract would make Moun-
taineer noncompetitive.
In view of the foregoing, we find that the factors
of economy and efficiency favor the continuation
of the assignment at the Loveridge and Humphrey
projects to the USA-represented employees.
Conclusion
On the record as a whole, and after full consid-
eration of all relevant factors involved, we con-
clude that employees who are represented by USA
are entitled to perform the work in dispute. We
reach this conclusion relying on the non-ABC
membership of Mountaineer, the fact that it is not a
signatory of the ABC contract, the absence of any
requirement by Consolidation that it utilize
UMWA-represented employees, Mountaineer's col-
lective-bargaining contracts with USA, economy
and efficiency of operating with USA-represented
employees, its preference for such employees, and
area practice in that regard. In making this deter-
mination, we are awarding the disputed work to
employees who are represented by USA, but not to
that Union or its members.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute:

UNITED SERVICES UNION (MOUNTAINEER RESOURCES) 1175

Employees of Mountaineer Resources, Inc. who and material handling equipment at Consolidated

are currently represented by United Services of Coal Company's preparation plants in Loveridge

America, International Labor Union are entitled to and Humphrey, West Virginia.
perform the installation of new coal preparation