Local Union No. 100 of the Laborers International Union of North America, AFL-CIO (Jo Ba Construction Co., Inc.)

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. 1143

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). 1144

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