United Services Of America International Labor Union

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 1164 (N.L.R.B. 1984)

1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Services of America International Labor
Union and Lincoln Contracting & Equipment
Co., Inc. and United Mine Workers of America,
District 28 and United Mine Workers of Amer-
ica, Local 6843. Case 6-CD-797
14 December 1984
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
The charge in this Section 10(k) proceeding was
filed 21 May 1984 by the Employer, Lincoln Con-
tracting & Equipment Co., Inc. (the Employer), al-
leging that the Respondent, United Services of
America International Labor Union (USA), violat-
ed Section 8(b)(4)(D) of the National Labor Rela-
tions Act by engaging in proscribed activity with
an object of forcing the Employer to assign certain
work to employees it represents rather than to em-
ployees represented by United Mine Workers of
America, Local 6843 (UMWA). The hearing was
held 7 June 1984 before Hearing Officer Kim Sie-
gert.
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
The Employer, a Pennsylvania corporation, is a
coal mine construction company with an office and
place of business in Boswell, Pennsylvania, where
it annually receives supplies and materials valued in
excess of $50,000 directly from points outside the
Commonwealth of Pennsylvania. The parties stipu-
late, and we find, that the Employer is engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act and that USA and UMWA are labor
organizations within the meaning of Section 2(5) of
the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer is engaged in the business of coal
construction and fabrication. It is currently per-
forming field construction work at the Consolidat-
ed Coal Company Robena Mine located outside
Carmichaels, Pennsylvania. The work includes ren-
ovating, repairing, and updating existing structures.
On 6 April 1984 the Employer and USA entered
into a contract that specifically covers all field con-
struction work performed for the Consolidated
Coal Company at the Robena Mine. The Employer
is also a member of the Association of Bituminous
Contractors (ABC) and is signatory to the National
Coal Mine Construction Agreement of 1981 (ABC
contract) entered into with UMWA. Article I of
the ABC contract "covers all work related to the
development, expansion or alteration of coal mines
. . . and all other such coal-related work that is
performed at or on coal lands by the members of
the association for coal mine operators which re-
quire such construction work to be performed
under the jurisdiction of the United Mine Workers
of America."
In mid-April the Employer assigned the disputed
work to employees represented by USA. Thereaf-
ter, UMWA filed a grievance claiming the Em-
ployer violated article I of the ABC contract. On
being informed of the grievance, USA responded
by advising the Employer that it would picket if
the work was assigned to employees represented
by another union. Employees represented by USA
have continued performing the disputed work.
B. Work in Dispute
The disputed work involves the renovating, re-
pairing and updating of existing structures at the
Consolidated Coal Company Robena Mine. The
work is currently being performed by 10 employ-
ees represented by USA.
C. Contentions of the Parties
The Employer and USA contend that the disput-
ed work has properly been assigned to the employ-
ees represented by USA on the basis of their con-
tract of 6 April 1984, the Employer's assignment
and past practice, area practice, and efficiency and
economy of operations. The Employer also argues
that it is not obligated to assign the disputed work
to UMWA-represented employees since Consoli-
dated did not specify that the work be given to em-
ployees represented by that organization.
UMWA contends that the ABC contract has ju-
risdiction over the disputed work and that the
work should be assigned to employees represented
by UMWA. UMWA further claims that article I of
the ABC contract does not create a contract whose
jurisdiction is based solely on the coal mine opera-
tor's specific request that work be performed by
employees represented by UMWA.
D. Applicability of the Statute
On 6 May 1984 UMWA filed a grievance against
the Employer with respect to the assignment of the
disputed work. The Employer informed USA of
the grievance and requested its position on the
273 NLRB No. 144
UNITED SERVICES UNION (LINCOLN CONTRACTING)

1165
matter. USA responded by claiming the disputed
work and threatened to picket the Employer if the
disputed work were assigned to another union.
The parties stipulated that there is no agreed-on
method for voluntary adjustment of the dispute.
We find reasonable cause to believe that a viola-
tion of Section 8(b)(4)(D) has occurred 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
the dispute is properly before the Board for. deter-
mination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an af-
firmative 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 bal-
ancing 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
determination of this dispute.
1. Certifications and collective-bargaining
agreements
There are no orders or certifications of the
Board awarding jurisdiction of the disputed work
to employees represented by USA or UMWA.
The Employer's president and vice president tes-
tified that the contract between the Employer and
USA specifically covers all field construction work
of the Employer at the Consolidated Coal Compa-
ny Robena Mine.
As described above, the Employer is signatory
to the 1981 ABC contract negotiated between
ABC and UMWA. Article I of the ABC contract
also covers the disputed work. However, it has
been the Employer's and area practice to interpret
article I to cover projects only where the coal
mine operator requires that the work be performed
under UMWA jurisdiction. In this case Consolidat-
ed did not request that the disputed work be per-
formed under UMWA jurisdiction. Thus, it appears
that the ABC contract is not applicable to the
Robena Mine 1 but the USA agreement explicitly
covers the work in dispute. 2 Accordingly, we fmd
See Mine Workers (Elk Run Coal), 251 NLRB 1267 (1980); Mine
Workers (Codell Construction), 235 NLRB 1134 (1978). See also United
Services Union (Mountaineer Ilesources), 111 NLRB 1167 (1984); and
United Services Union (Mountaineer Resources), 273 NLRB 1172 (1984),
2 We reject UMWA's contention that the Roberts and Schaeffer arbi-
tration decision is controlling on the interpretation of art. I. There the
employer, a signatory to the ABC contract, contracted with a coal mine
that the collective-bargaining agreements favor as-
signing the work to employees represented by
USA.
2. Employer assignment, company past
practice, and area practice
The Employer assigned the disputed work to
employees represented by USA.
The Employer's president and vice president tes-
tified that the Employer's consistent practice has
been to apply the ABC contract only where the
coal company requires that the work be performed
under UMWA jurisdiction. When the coal compa-
ny does not make a specific request, the Employer
is free to assign the work to employees represented
by unions other than UMWA. The record also dis-
closes that the area practice is consistent with the
Employer's assignment. Accordingly, these factors
favor an award to the employees represented by
USA.
3. Relative skills
Both groups of employees appear equally skilled
in performing the disputed work. Therefore, this
factor favors neither group.
4. Economy and efficiency of operations
According to the Employer's president and vice
president, there are several reasons continued per-
formance of the disputed work by the employees
represented by USA is more economical and effi-
cient. The USA contract permits the use of work-
ing foremen and provides for an 8-hour workday as
opposed to a 7-1/2-hour workday under the ABC
contract. The USA contract also allows for greater
flexibility in scheduling makeup work on Satur-
days, utilizing employees in needed classifications,
and hiring needed employees. Finally, employees
represented by USA provide continuity since they
have been performing the disputed work since mid-
April. Accordingly, we find that this factor favors
an award of the disputed work to employees repre-
sented by USA.
operator to perform construction work and then subcontracted the work
to a nonsignatory subcontractor. The employer argued that it was not
bound to the ABC agreement since the mine operator did not request
that jurisdiction for the work be given to the UMWA. In finding, inter
alia, that the employer has no authority under the ABC contract to sub-
contract out the work, the arbitrator relied primarily on the fact that the
employer was signatory to only one contract. He distinguished Elk Run
in which the employer was signatory to two contracts and emphasized
that there was no evidence that Roberts and Schaeffer was a multiunion
signator. Here the Employer is signatory to two contracts. Therefore, as
the facts in the instant case differ significantly from the Roberts and
Schaeffer arbitration decision, we find it is not controlling.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
After considering all the relevant factors, we
conclude that employees represented by USA are
entitled to perform the work in dispute. We reach
this conclusion relying on the collective-bargaining
agreements, Employer assignment and past prac-
tice, area practice, and economy and efficiency of
operation. In making this determination, we are
awarding the work to employees represented by
USA, not to that Union or its members. The deter-
mination is limited to the controversy that gave
rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
Employees represented by United Services of
America International Labor Union are entitled to
perform all field construction work at the Consoli-
dated Coal Company Robena Mine, Carmichaels,
Pennsylvania.