LABORERS LOCAL 100
Local Union No. 100 of the Laborers International
Union of North America, AFL-CIO and Jo Ba
Construction Co., Inc. and International Union
of Operating Engineers Local 520, AFL-CIO.
Case 14-CD-675
9 September 1983
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, as amended, follow-
ing a charge filed by Jo Ba Construction Co., Inc.,
herein called the Employer, alleging that Local
Union No. 100 of the Laborers International Union
of North America, AFL-CIO, herein called Re-
spondent, had violated Section 8(b)(4)(D) of the
Act by engaging in certain proscribed activity with
an object of forcing or requiring the Employer to
assign certain work to its members rather than to
employees represented by International Union of
Operating Engineers Local 520, AFL-CIO, herein
called the Operating Engineers.
Pursuant to notice, a hearing was held before
Hearing Officer Thomas J. Tobey on 28 April
1983.1 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.2 No party filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed. 3
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer, a Michigan corporation with its principal
place of business in Southgate, Michigan, and an
office located in Sauget, Illinois, is engaged in pro-
' All dates herein are 1983 unless otherwise indicated.
2 While the Operating Engineers had a representative present at the
hearing, the representative did not actively participate. Respondent's at-
torney, however, stated that he also represents the Operating Engineers.
s At the hearing, Respondent made a motion that the hearing be vacat-
ed and a new hearing commenced due to remarks made by the Employ-
er's attorney concerning the behavior of Respondent's attorney. The
Hearing Officer referred this motion to the Board for ruling and proceed-
ed with the conduct of the hearing. As we find that the Hearing Officer's
rulings concerning this matter are free from prejudicial error, Respond-
ent's motion to vacate the hearing due to an alleged prejudicial ruling is
hereby denied.
267 NLRB No. 192
viding nonretail services within the construction in-
dustry. During the past year, the Employer pur-
chased and received goods from outside the State
having a value in excess of $50,000. We find that
the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
it will effectuate the purposes of the Act to assert
jurisdiction herein.
11. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Interna-
tional Union of Operating Engineers Local 520,
AFL-CIO, and Local Union Number 100 of the
Laborers International Union of North America,
AFL-CIO, are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
Jo Ba Construction Co., Inc., is engaged in pro-
viding nonretail services in the construction indus-
try in Sauget, Illinois, including the excavation and
installation of a dewatering system in the construc-
tion of the American Bottoms Regional Waste
Water project. 4 In January, the Employer entered
into collective-bargaining agreements with Re-
spondent and the Operating Engineers. Members of
both Unions worked on the installation of the
dewatering system. On 1 April, the Employer noti-
fied the Operating Engineers that the system would
commence operation on 4 April and that employ-
ees represented by the Operating Engineers were
being assigned the tasks of operating and manning
the pumps pursuant to the collective-bargaining
agreement. The operation and the manning of the
pumps consist of pushing a button to activate the
pumps and then listening to assure they are operat-
ing. If a pump breaks down, it automatically shuts
down and the individual is required only to notify
a supervisor or the person working the next shift.
On 4 April, the laborers' foreman asked the Em-
ployer if arrangements had been made to have em-
ployees represented by the Laborers on the dewa-
tering system. After being informed by the Em-
ployer that operating engineers, not laborers,
would be manning the pumps, the laborers' fore-
man called the laborers together and they left the
jobsite.
When the laborers had not returned by 6 April,
the Employer called Respondent's office in an at-
tempt to settle the dispute. Respondent's business
4 A dewatering system is needed to lower the water table to allow ex-
cavation. Electric submersible pumps are lowered into the wells and at-
tached to discharge pipes which extend from the well to some point off
the construction site.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative indicated that the only way to re-
solve the dispute was to place a laborer on the
dewatering system. Due to the absence of the la-
borers, work on the project was suspended until 25
April when the Employer assigned a laborer to
man the pump along with an operating engineer.
Presently there is a member of each Union assigned
to man the dewatering system.
B. The Work in Dispute
The work in dispute involves manning submersi-
ble electric pumps at the construction site of the
American Bottoms Regional Waste Water facility
at Sauget, Illinois.
C. The Contentions of the Parties
Respondent takes the position that there is no ju-
risdictional dispute in this case as it does not claim
any particular work with respect to the operation
of submersible electric pumps. Rather, Respondent
maintains it is attempting to compel the Employer
to comply with the collective-bargaining agree-
ment entered into between Respondent and the
Employer which requires the Employer to employ
an employee represented by Respondent when
dewatering operations are in progress.
The Operating Engineers takes the position that
it has no dispute with Respondent over any work
which the Employer is performing.5
The Employer contends that a jurisdictional dis-
pute exists and the case is properly before the
Board for determination. As to the merits, it asserts
that the assignment of the work in dispute was
based upon the collective-bargaining agreement the
Employer has entered into with the Operating En-
gineers, past practice, efficiency of operation, and a
prior arbitration proceeding.
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 Section 8(b)(4)(D) has been
violated and that the parties have not agreed on a
method for the voluntary adjustment of the dis-
pute.
We find no merit in Respondent's contention that
no dispute exists because it is not claiming any par-
ticular work with respect to the operation of the
submersible electric pumps or in the Operating En-
gineers position that it has no dispute with Re-
spondent over any work the Employer is perform-
ing. These purported disclaimers, if effective,
would require payment for two groups of employ-
' This position was proffered by Respondent's attorney.
ees, while only one group performs the work. As
set forth by the Ninth Circuit:
The fact that one union has the jobs and holds
on to them in a polite, nonbelligerent manner
while the other union uses the forbidden tac-
tics in an effort to get them, or get some of
them, does not mean that what Congress re-
garded as the evils of a jurisdictional dispute
are not present. And the fact that the union
which has the job is not unwilling that the
other union should come in and do some of
the work and get paid for doing it, if the first
union will still continue to get paid for the
work, does not remove the situation from the
category of jurisdictional dispute. [Internation-
al Brotherhood of Carpenters and Joiners of
America v. C. J. Montag & Sons, Inc., 335 F.2d
216, 219-221 (1964), cert. denied 379 U.S. 999
(1965).] 6
We therefore find that the purported disclaimers
of Respondent and the Operating Engineers were
not effective to extinguish the jurisdictional dispute
between the employees of the two Unions relating
to who would man the submersible electric pumps.
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. Further,
the parties have stipulated, and there is no evidence
to the contrary, that there exists no agreed-upon
method for the voluntary adjustment of the dispute
within the meaning of Section 10(k) of the Act.
Accordingly, we find that this dispute is properly
before the Board for determination.7
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of disputed work after
giving due consideration to various factors.8 The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on com-
monsense and experience reached by balancing
those factors involved in a particular case.9
The following factors are relevant in making the
determination of the dispute before us:
s This view was endorsed by the Board in Longshoremen ILA Local
1291 (Pocahontas Steamship Co.), 152 NLRB 676, 680 (1965), affd. 368
F.2d 107 (3d Cir. 1966), cert. denied 386 U.S. 1033 (1967).
7 In light of this finding, the Employer's motion for "summary ver-
dict," made at the hearing, is hereby denied.
8 NLRB v. Electrical Workers Local 1212 (Columbia Broadcasting
System), 364 U.S. 573 (1961).
9 Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402
(1962).
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LABORERS LOCAL 100
I. Collective-bargaining agreements
The Employer has a current collective-bargain-
ing agreement with the Operating Engineers which
was entered into on 1 August 1981. This contract,
which was entered in evidence, states that the ju-
risdiction of the Operating Engineers shall include
"the control over the operation of all . . . pumps
. . .or any machine that develops power."
The Employer also has a current collective-bar-
gaining agreement with Respondent which was en-
tered into on 21 January 1983. This contract,
which was entered into evidence, states that the ju-
risdiction of Respondent shall include "The instal-
lation and maintenance of all de-watering equip-
ment."
While the provisions of Respondent's contract
could arguably cover the disputed work, it appears
that the contract between the Operating Engineers
and the Employer clearly and unambiguously
covers the "operation" of the pumps.
Accordingly, we find that, in light of the specific
language in the collective-bargaining agreement be-
tween the Employer and the Operating Engineers,
this factor weighs in favor of awarding the work to
employees represented by the Operating Engineers.
2. Employer assignment and practice
John Wyke, representing the Employer, testified
that during the almost 30 years it has been in exist-
ence it has never employed laborers to man the
electric pumps but rather has assigned operating
engineers to perform this task. The Employer is
satisfied with the results of its assignment and pre-
fers that operating engineers continue to do the
work. Thus, the factors of employer assignment
and practice clearly weigh in favor of awarding the
work to employees represented by the Operating
Engineers.
3. Area practice
Ronald Shevlin, a representative of Respondent,
testified that many different contractors performing
dewatering jobs within the territory and jurisdic-
tion of Respondent employed laborers in the oper-
ation of dewatering systems. John Wyke testified
that, in his experience, the operation of "motors,
engines, and the like" is normally assigned to oper-
ating engineers. Thus, area practice favors neither
Respondent nor the Operating Engineers in this
dispute.
4. Employee skills and efficiency of operation
The record indicates that both groups of employ-
ees possess the necessary skills to perform the man-
ning of submersible electric pumps. However, the
Employer testified that the operating engineers
commence operation of the pump, and once the
pumps are operational there is no further work to
be performed on the system. Thus, it appears that
while employee skills favor neither Respondent nor
the Operating Engineers, efficiency of operation
favors assignment of the disputed work to employ-
ees represented by the Operating Engineers.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that employees who are represented by the
Operating Engineers are entitled to perform the
work in dispute.10 We reach this conclusion rely-
ing on the collective-bargaining agreements, em-
ployer assignment and practice, and efficiency of
operation. In making this determination, we are
awarding the work in question to employees who
are represented by Operating Engineers Local 520,
but not to that Union or its members. The present
determination is limited to the particular controver-
sy which gave rise to this proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of
the foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Employees of Jo Ba Construction Co., who
are represented by International Union of Operat-
ing Engineers Local 520, AFL-CIO, are entitled to
perform the work of manning the submersible elec-
tric pumps at the construction site of the American
Bottoms Regional Waste facility in Sauget, Illinois.
2. Local Union No. 100 of the Laborers Interna-
tional Union of North America, AFL-CIO, is not
entitled by means proscribed by Section 8(b)(4)(D)
of the Act to force or require Jo Ba Construction
Co., Inc., to assign the disputed work to employees
represented by that labor organization.
i' The Employer also contends that its decision to assign the work in
dispute to employees represented by the Operating Engineers was based
on a prior arbitration decision. This arbitration decision, which was en-
tered into evidence, concerned a different employer who apparently had
entered into collective-bargaining agreements similar to the ones in the
instant case. However, contrary testimony concerning the facts surround-
ing this arbitration was offered at the hearing in the instant case. Inas-
much as the factors set forth above provide a sufficient basis for our
award of the disputed work, it is unnecessary to explore the effect of this
arbitration decision
1145
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local Union No.
100 of the Laborers International Union of North
America, AFL-CIO, shall notify the Regional Di-
rector for Region 14, in writing, whether or not it
will refrain from forcing or requiring the Employ-
er, by means proscribed by Section 8(b)(4)(D) of
the Act, to assign the disputed work in a manner
inconsistent with the above determination.
1146