NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Laborers’ International
Union of North America, Local 210 and
Surianello General Concrete Contractor, Inc. and International Union of Operating
Engineers, Local 17. Case 3–CD–645
September 28, 2007
DECISION
AND DETERMINATION OF DISPUTE
By Members
Schaumber, Kirsanow,
and Walsh
This
is a jurisdictional dispute proceeding under Section 10(k) of the National
Labor Relations Act (the Act).
Surianello General Concrete Contractor, Inc. (the Employer) filed a
charge on January 23, 2007,1 alleging
that the Respondent, Laborers’ International Union of North America, Local 210
(Laborers’ or Local 210), violated Section 8(b)(4)(D) of the Act by engaging in
proscribed activity with an object of forcing the Employer to assign certain
work to employees it represents rather than to employees represented by
International Union of Operating Engineers, Local 17 (Engineers or Local
17). The hearing was held on April 2 and
3 before Hearing Officer Renee Hutt.
Thereafter, the Employer, Local 210, and Local 17 filed posthearing briefs.
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, finding them free from prejudicial
error. On the entire record, the Board
makes the following findings.
i.
jurisdiction
The
Employer, a
ii.
the dispute
A. Background and Facts of Dispute
The
Employer is a highway concrete contractor.
The Employer’s work primarily involves replacing old concrete with new
concrete. For structural reasons, the
new concrete must be joined to the existing concrete using the “doweling”
process. This process consists of
drilling holes in the concrete, cleaning out the holes with an air hose,
filling the holes with epoxy, inserting dowels into the epoxy-filled holes, and
then joining the two pieces of concrete.
Until the late 1980s when the EZ Gang Drill was introduced, the drilling
part of the doweling process was performed with traditional, handheld rock or
dowel drills. The EZ Gang Drill consists
of two or more of the traditional rock or dowel drills mounted on one frame and
powered pneumatically, making the drilling work faster and easier. As a member of the Associated General
Contractors of
In
August 2006, Local 17 filed a grievance against the Employer, asserting that
the EZ Gang Drill work the Employer assigned to Laborers-represented employees
on the Blasdell,
B. Work in Dispute
The
Notice of Hearing describes the disputed work as: “[t]he operation [of] the EZ Gang Drill,
which is work currently being performed by Surianello General Concrete
Contractor at its jobsite located on Interstate 90 in Blasdell, New York.” As the parties agreed at the hearing that the
dispute involves the EZ Gang Drill work, it appears that the notice of hearing
accurately describes the work in dispute as the operation of the EZ Gang Drill
on the Employer’s
C. Contentions of the Parties
The
Employer asserts that there is reasonable cause to believe that Local 210
violated Section 8(b)(4)(D) because Local 210 and Local 17 both claim the
disputed work, Local 210 threatened economic action if the Employer assigned
the work to employees represented by Local 17, and there is no agreed-upon voluntary
method of adjustment of the dispute. On
the merits, the Employer asserts that the factors of collective-bargaining
agreements, employer preference, past practice, area practice, relative skills
and training, and economy and efficiency of operations favor awarding the
disputed work to Laborers-represented employees. Local 210 does not dispute that there is
reasonable cause to believe that it violated Section 8(b)(4)(D) and asserts
that the factors of collective-bargaining agreements, employer preference, past
practice, area practice, relative skills and training, and economy and
efficiency of operations favor awarding the disputed work to
Laborers-represented employees.
Local
17 asserts that the Board should quash the notice of hearing. According to Local 17, it has not asserted a
claim to the disputed work, but instead has requested that the Employer apply
the wage provisions of its contract with Local 17 to employees performing the
work in dispute, regardless of their union affiliation. Local 17 also asserts that Local 210’s threat
of economic action was a sham because Local 210 is subject to a no-strike
clause, has not previously taken any job actions against any employer with
which it has a contract, and did not attempt to resolve the dispute under its
agreement with the Employer. Local 17
further asserts that Local 210 is merely seeking to preserve its work
jurisdiction, which is not a proper matter for a
Section 10(k) hearing.
D. Applicability of the Statute
Before
the Board may proceed with determining a dispute pursuant to Section 10(k)
of the Act, there must be reasonable cause to believe that
Section 8(b)(4)(D) of the Act has been violated. This standard requires finding that there is
reasonable cause to believe that there are competing claims to the disputed
work among rival groups of employees and that a party has used proscribed means
to enforce its claim to the work in dispute.
See Electrical Workers Local 3
(Slattery Skanska, Inc.), 342 NLRB 173, 174 (2004). Additionally, the Board will not proceed
under Section 10(k) if there is an agreed-upon method for voluntary adjustment
of the dispute.
1. Competing claims to the work in dispute
At
all times, Local 210 has claimed the disputed work for Laborers’-represented
employees, and these employees have been performing the disputed work. Local 17 contends that it has not asserted a
claim to the disputed work because the grievance it filed against the Employer
seeks only to have the Employer apply Local 17’s contract terms to employees performing
the EZ Gang Drill work, regardless of their union affiliation. Local 17’s grievance, however, asserts that
the Employer failed to apply the terms and conditions of its
collective-bargaining agreement with Local 17 by using “a non-bargaining unit
member to perform bargaining unit work.”
The wording of the grievance thus demonstrates that Local 17 sought to
have its unit members perform the disputed work. Moreover, Local 17’s business agent
erased any ambiguity regarding the actual objective of the grievance when he
testified that Local 17’s “ambition is to represent the individual while he
does the EZ Gang Drill work.”
Accordingly, we find that competing claims to the disputed work exist.3
2. Use of proscribed means
After
learning that Engineers had filed a grievance against the Employer concerning
the EZ Gang Drill work, Laborers sent a letter to the Employer threatening to
strike or picket if the Employer assigned the EZ Gang Drill work to Engineers-represented
employees. Local 17 makes several
arguments asserting that Local 210’s threat was a sham. None has merit. Regarding the no-strike clause, the Board has
rejected the argument that a job action threat was a sham because it involved
violating a no-strike clause. See Bricklayers (Cretex Construction Services),
343 NLRB 1030, 1032 (2004). The Board
has also rejected the arguments that a threat of job action was a sham because
the threatening union had no history of picketing or striking employers with
which it had a collective-bargaining relationship and because the threatening
union did not attempt to resolve the dispute with the employer prior to
threatening job action. See,
respectively, Carpenters
Local
17 makes the additional claim that, even assuming Local 210’s threat of job
action was genuine, a 10(k) hearing is not appropriate because Local 210
is merely asserting a work preservation claim over the disputed work. The cases relied on by Local 17 involve disputes
between unions and employers where the unions sought to protect contractually
acquired work against the employers’ attempts to reallocate, reassign, or subcontract
the work at issue to another group of employees. See, e.g., Teamsters Local 107 (Reber-Friel Co.), 336 NLRB 518, 520–521
(2001). This case is distinguishable, however,
because it involves a traditional jurisdictional dispute between two unions,
each of which asserts a claim to work in dispute, and thus involves a dispute
falling within Section 8(b)(4)(D), which is properly resolved in a 10(k)
proceeding. Cf. Highway Truckdrivers & Helpers, Local 107 (Safeway Stores Inc.),
134 NLRB 1320, 1322–1323 (1961) (Sections 8(b)(4)(D) and 10(k) were designed to
resolve competing claims between rival groups of employees, and not to
arbitrate disputes between a union and an employer where no such competing
claims exist).
3. No voluntary method for adjustment of dispute
Local
210’s agreement specifically exempts jurisdictional disputes, and there is no
evidence that Local 210 is bound by any dispute resolution procedure negotiated
by Local 17 and the Employer. Moreover,
Local 210 repeatedly refused requests for tripartite arbitration between the
parties. While the record demonstrates
that the Employer and Local 17 have an arbitration hearing scheduled concerning
assignment of the disputed work, there is no indication that Local 210 is bound
to participate in that proceeding or to abide by any resolution achieved in the
arbitration. Accordingly, we find that
there is no agreed-upon method for the voluntary resolution of this dispute
that binds all of the parties. See Carpenters
Local 7 (Five Bros., Inc.), 344 NLRB 910, 912 (2005).
In
sum, we find that there is reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred and that there is no voluntary method for adjustment
of the dispute. We thus find that the
dispute is properly before the Board for determination and deny Local 17’s
motion to quash the notice of hearing.
E. Merits of the Dispute
Section
10(k) requires the Board to make an affirmative award of disputed work after
considering various factors. NLRB v. Electrical Workers IBEW Local 1212 (
We
have considered the following factors, which we find relevant, and, for the
reasons set forth more fully below, we conclude that the Employer’s employees
represented by Laborers are entitled to perform the work in dispute.
1. Collective-bargaining agreements
The
Employer is a signatory to separate collective-bargaining agreements with
Laborers and Engineers. Article 4 of
Laborers’ agreement covers “the operating and servicing of rock drilling
machines” and “the operation of the air powered dowel drill and ancillary equipment.” Article 5 of Engineers’ agreement covers
“blast or rotary drill[s] (truck or cat mounted non air tract),” “core drill[s]
(machine or truck mounted),” and “test core drill machines (machine or truck
mounted).”
Neither
agreement specifically mentions the disputed work. However, rock drills, dowel drills, and blast
or rotary drills (referenced in the Local 210 agreement) are all predecessors
to the EZ Gang Drill and Laborers’-represented employees have traditionally
used these drills in the doweling process.
The core drill (referenced in the Local 17 agreement), on the other
hand, is a different type of drill and is not used in the doweling process.4
Further, there is no evidence that the disputed drill at issue here is
machine, truck, or cat mounted. Based on
the foregoing, Local 210’s agreement more specifically encompasses the disputed
work. This factor thus favors awarding
the disputed work to Laborers’-represented employees. See Carpenters
(Prime Scaffold, Inc.), 338 NLRB 1104, 1106–1107 (2003).
2. Employer preference, current assignment,
and past practice
Consistent
with its past practice, the Employer currently assigns the disputed work to
Laborers-represented employees. In
addition, the Employer prefers to continue assigning the work to these
employees. Local 17 presented evidence
that an Engineers-represented employee once performed the disputed work when
Laborers-represented employees were occupied with other tasks. Such evidence does not, however, warrant
finding the Employer’s past practice to be inconclusive. See Elevator
Constructors Local 2 (Kone, Inc.), 349 NLRB No. 112, slip op. at 4 (2007);
and Millwrights Local 1026 (Intercounty
Construction Corp.), 266 NLRB 1049, 1052 (1983). The factors of Employer preference, current assignment,
and past practice thus favor awarding the disputed work to Laborers-represented
employees.
3. Area practice
Local
210 submitted a letter from Edbauer Construction, an area employer, stating
that it had a long practice of assigning the disputed work to
Laborers-represented employees.5 In addition, at the hearing, a witness for
Local 210 testified that Laborers-represented employees had performed the
disputed work on two additional jobsites in western
4. Relative skills and training
Local
210 presented evidence that Laborers-represented employees have received
on-the-job training on the disputed work lasting from 15 minutes to 2 hours. In addition, the record establishes that
Laborers’-represented employees have successfully performed the work in dispute
on a number of occasions, thus establishing their ability to do the work. While there is no indication in the record
that performance of the EZ Gang Drill work requires expertise, Local 17 did not
present any evidence regarding the skills and training of Engineers-represented
employees to perform the disputed work.
In these circumstances, the relative skills and training factors favor
awarding the disputed work to Laborers’-represented employees. See Bakery
Workers Local 205 (Metz Baking Co.), 339 NLRB 1095, 1098 (2003); see also Laborers Local 320 (Northwest Natural Gas),
330 NLRB 594, 597 (2000) (award of work favored to employees receiving
on-the-job training and successfully performing the work).
5. Economy and efficiency of operations
As
stated above, the disputed work is only one part of the doweling process. Currently, Laborers’-represented employees
perform all aspects of that process.
Engineers does not claim any of the work associated with the doweling
process except the operation of the EZ Gang Drill. Assignment of the disputed work to Engineers-represented
employees would thus require additional employees to perform all other aspects
of the doweling process and would disrupt an established, efficient process. Moreover, the record establishes that most
jobs require the use of traditional rock or dowel drills for areas the EZ Gang
Drill cannot reach, and Engineers-represented employees do not use these
drills. Accordingly, the factors of
economy and efficiency of operations favor awarding the disputed work to
Laborers’-represented employees.
Conclusions
After
considering all the relevant factors, we conclude that Laborers’-represented
employees are entitled to continue performing the work in dispute. We reach this conclusion relying on the
factors of collective-bargaining agreements, employer preference, current
assignment and past practice, area practice, relative skills and training, and
economy and efficiency of operations. In
making this determination, we award the work to employees represented by
Laborers’, not to that labor organization or to its members. The determination 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
of Surianello General Concrete Contractor, Inc. represented by Laborers’ International
Union of North America, Local 210 are entitled to operate the EZ Gang Drill at
the Employer’s jobsite located on Interstate 90 in
Dated,
______________________________________
Peter
C. Schaumber,
Member
______________________________________
Peter
N. Kirsanow,
Member
______________________________________
Dennis
P. Walsh,
Member
(Seal) National
Labor Relations Board
2 At the hearing, the Employer and Local 210 contended that the EZ Gang Drill was a rock or dowel drill, while Local 17 contended that it was a core drill. The difference in these drills and the relevance of that difference are discussed below.
3 Insofar as Local 17 contends
that it has not asserted a claim to the disputed work because it sought only to
have the Employer apply Local 17’s contract terms to employees performing the
EZ Gang Drill work, we reject that contention.
The Board has found that a union asserts a claim to work by declaring
that an objective of its grievance is the application of contractually
prescribed wage and benefit rates to the disputed work. See
Laborers Local 113 (Michels Pipeline Construction), 338
Member Walsh finds it unnecessary to pass on whether, as the panel majority stated in Michel’s Pipeline, supra, a union asserts a claim to disputed work by merely declaring that an objective of its grievance is the application of contractually prescribed wages and benefits to the work. In agreeing that the evidence in this case is sufficient to support a finding that Local 17 has claimed the disputed work, Member Walsh observes that, contrary to Local 17’s contention, the wording of Local 17’s grievance in this case indicates that the objective of the grievance was not solely upholding Local 17’s contractual standards and applying the contractual terms to whoever was doing the work. Rather, the grievance indicates that Local 17 considered the work to be bargaining unit work and was complaining that bargaining unit work was being assigned to “a non-bargaining unit member,” i.e., an employee who was not represented by Local 17. Thus, Local 17 was concerned with the union affiliation of the individuals who were performing the disputed work, and not just their working conditions. Accordingly, Member Walsh finds that this grievance constitutes a claim to the disputed work for employees represented by Local 17.
4 Core drills remove concrete in a core, leaving a smooth hole suitable for running wire or cable through, while drills used in the doweling process pulverize the concrete, leaving rough surfaces to which the epoxy can bond.
5 Local 210 also submitted an August 2006 letter from A&L, Inc., an area employer, stating that it had a 6-year practice of assigning the disputed work to Laborers’-represented employees. However, Local 17 presented a March 2007 settlement agreement entered into by A&L and Local 17 shortly before A&L ceased operations. In the settlement agreement, A&L acknowledged that operation of the EZ Gang Drill is governed by Local 17’s collective-bargaining agreement. We therefore find that the letter and the settlement agreement negate each other and thus neither constitutes demonstrative evidence on the issue of area practice.