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,
International Longshore and Warehouse Union, Local
10, AFL–CIO and Cemex Construction Materials,
L.P. and International
February 22, 2008
DECISION AND DETERMINATION OF DISPUTE
By Members Liebman and Schaumber
This is a jurisdictional dispute proceeding under Section 10(k) of the National Labor Relations Act (the Act). CEMEX Construction Materials, L.P. (the Employer) filed a charge on October 11, 2007,[1] alleging that the Respondent, International Longshore and Warehouse Union, Local 10, AFL–CIO (ILWU or Local 10), 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 the International Union of Operating Engineers, Local 3, AFL–CIO (Operating Engineers or Local 3). The hearing was held on November 2 and 5 before Hearing Officer Paula R. Katz. Thereafter, the Employer and Local 10 filed posthearing briefs.
The National Labor Relations Board affirms the hearing officer’s rulings, finding them free from prejudicial error. On the entire record, the Board makes the following findings.[2]
i. jurisdiction
During the 12 months
ending October 31, the Employer derived gross revenue in excess of $500,000 and
purchased and received at its facilities in California goods valued in excess
of $50,000 directly from points outside the State of California. The parties stipulated, and we find, that the
Employer is engaged in commerce within the meaning of Section 2(6) and (7) of
the Act and that the ILWU and the Operating Engineers are labor organizations
within the meaning of Section 2(5) of the Act.
ii. the dispute
A. Background and Facts of Dispute
The Employer produces ready-mix concrete using sand, aggregate
rock, and cement delivered to its batch plant adjacent to Pier 92 in the Port
of San Francisco, California.[3] In 2005, the Employer acquired RMC Pacific
Corporation, including RMC Pacific’s ready-mix concrete operation on
In 2006, the Employer began operating the new batch plant
on land leased from the
The barge is unloaded by an employee operating a front-end loader, also called a bucket loader, to scoop the bulk material from the deck of the barge and put it into a hopper located on the barge. The hopper deposits the material onto a conveyer belt, which transports the material into the batch plant for storage or to be directly added to concrete being mixed.
The Employer assigned the operation of this front-end loader to its employees represented by Local 3, who perform all the production work at the Pier 92 batch plant. As a member of the Aggregates and Concrete Association, the Employer is bound by a collective-bargaining agreement between the Bay Area Building Materials Dealers and Local 3, commonly known as the Bay Area Batch Plant Agreement, which covers the employees working at the Pier 92 batch plant.[6] The Employer does not employ any employees represented by Local 10 and does not have a collective-bargaining agreement with Local 10.
The president of Local 10 told the Employer that if any work was to be performed by the Employer on its barge at Pier 92, that work belonged to Local 10. On September 21, Local 10 picketed the Employer at Pier 92. The picket signs read: “CEMEX AND LOCAL #3 OPERATING ENGINEERS ARE INFRINGING ON ILWU LOCAL #10 JURISDICTION AT PIER 92.”
The Employer filed an 8(b)(4)(D) charge against Local 10 on October 11. On October 16, Local 10 notified Region 20 that it would not engage in picketing or similar conduct at Pier 92 pending a resolution of the underlying jurisdictional dispute between the two unions. The Employer started unloading the barge on October 22, using its employees represented by the Operating Engineers.
B. Work in Dispute
The parties stipulate that the disputed work is “the
movement of bulk aggregate rock and/or sand by bucket loader from a barge
located at Pier 92 in
C. Contentions of the Parties
The Employer stipulates that this 10(k) dispute is properly before the Board for determination. On the merits of the dispute, 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 its employees represented by the Operating Engineers.
Local 10 also stipulates that this jurisdictional dispute is properly before the Board for determination. On the merits of the dispute, Local 10 contends that the work in dispute should be awarded to ILWU-represented employees based on the factors of employer past practice and area and industry practice.[7]
D. Applicability of the Statute
The Board may proceed with a determination of a dispute under Section 10(k) of the Act only if there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. This standard requires finding that there is reasonable cause to believe that there are competing claims to the disputed work, and that a party has used proscribed means to enforce its claim to the work in dispute. Additionally, there must be a finding that the parties have not agreed on a method for the voluntary adjustment of the dispute. See, e.g., Operating Engineers Local 150 (R&D Thiel), 345 NLRB 1137, 1139 (2005).
We find that these requirements have been met. The parties stipulated that Local 3 and Local 10 both claim the work in dispute. In addition, as stated above, on September 21, the day the barge arrived, Local 10 picketed the Employer at Pier 92 with signs reading: “CEMEX AND LOCAL #3 OPERATING ENGINEERS ARE INFRINGING ON ILWU LOCAL #10 JURISDICTION AT PIER 92.” The parties stipulate and we find that there is reasonable cause to believe that Local 10 used proscribed means to enforce its claim to the disputed work. See, e.g., Operating Engineers Local 150 (Royal Components), 348 NLRB No. 97, slip op. at 2 (2006). Finally, the parties stipulated that there is no agreed-upon method of resolving the dispute.
We therefore find that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed-upon method for voluntary adjustment of the dispute within the meaning of Section 10(k). Accordingly, we find that the dispute is properly before the Board for determination.
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 the Operating Engineers are entitled to perform the work in dispute.
1. Certifications and collective-bargaining agreements
There is no evidence of any Board certifications concerning the employees involved in this dispute. The parties stipulated that the Employer is not failing to comply with a Board order or certification determining the bargaining representative for the employees performing the work in dispute. Accordingly, we find that the factor of certification does not favor awarding the work in dispute to employees represented by either union.
The Employer does not have a collective-bargaining agreement with the ILWU.[8] It does have a collective-bargaining agreement with the Operating Engineers. That agreement covers all of its employees engaged in producing concrete at the Employer’s Pier 92 batch plant. The agreement does not expressly and specifically refer to the work in dispute. It does, however, refer to that work in more general terms. The agreement requires the Employer to recognize Local 3 “as the sole collective bargaining representative of all Employees of the Employer performing work within the recognized jurisdiction of [the Operating Engineers].” It has long been acknowledged that the operation of heavy equipment is within the recognized jurisdiction of the Operating Engineers, see Operating Engineers Local 825, (Cruz Contractors), 239 NLRB 490, 493 (1978), and it is equally well established that front-end loaders are heavy equipment, see, e.g., Desert Aggregates, 340 NLRB 289, 298 (2003); Laborers Local 76 (Carlson & Co.), 286 NLRB 698, 698 (1987). In addition, the Employer’s collective-bargaining agreement with Local 3 includes the classification “mechanical loader”; Local 3’s district representative testified that, although employees working in any of the classifications set forth in the agreement are capable of performing the disputed work, operation of the bucket loader falls within the duties of the agreement’s “mechanical loader” classification. Pursuant to the agreement, the Employer has assigned the operation of a bucket loader to move materials at the plant to employees represented by the Operating Engineers. Based on the foregoing, the factor of collective-bargaining agreements favors awarding the work in dispute to employees represented by the Operating Engineers. See Longshoremen ILA Local 3000 (Coastal Cargo), 289 NLRB 542, 544 fn. 9 (1988) (finding collective-bargaining agreement factor favored awarding disputed work to employees represented by the Teamsters, where employer’s agreement with the Teamsters listed covered job classifications but did not describe the work performed by those classifications, and the employer had no agreement with the rival ILA); Longshoremen ILA Local 1242 (Dependable Distribution), 316 NLRB 1, 2 (1995) (finding collective-bargaining agreement factor favored awarding disputed work of unloading and warehousing cocoa beans to employees represented by union that had agreement with employer covering all warehouse employees, over workers represented by competing union that had no agreement with employer).
2. Employer preference and past practice
The Employer does not employ ILWU-represented employees
and has never assigned any work to ILWU-represented employees. The Employer has always used employees represented
by the Operating Engineers to perform work related to the production of
concrete, including operating a bucket loader to move materials at the plant. Nevertheless, the operation of a bucket
loader to unload a barge was performed for the first time after the barge delivery
arrived at Pier 92 in September. Thus,
the Employer has no past practice of assigning the work in dispute, and we find
that the factor of past practice does not favor an award of the disputed work
to employees represented by either
The Employer currently assigns the disputed work to its own employees represented by the Operating Engineers because it considers itself obligated by the collective-bargaining agreement to do so and because it believes that it is more efficient to assign the disputed work to employees familiar with the overall operation. The Employer prefers that the work in dispute continue to be performed by employees represented by the Operating Engineers. Thus, we find that the factor of employer preference favors assigning the work to employees represented by Local 3.[9]
3. Industry and area practice
The Employer, the Operating Engineers, and the ILWU each
introduced evidence concerning the loading and unloading of various bulk materials
from vessels in the
Local 3 introduced evidence
that employees represented by the Operating Engineers have loaded and unloaded bulk
materials—aggregate rock, sand, and dredge spoils—from barges for other Bay area
employers. The Operating Engineers’
district representative testified that workers represented by Local 3 have
unloaded asphalt aggregate from barges onto conveyor belts that carry the material
into asphalt production facilities.
Specifically, the district representative testified that workers
represented by the Operating Engineers at a facility located in
The ILWU contends that
the sand and aggregate delivered by barge to the Employer at Pier 92 is “revenue
cargo,” i.e., “cargo that
someone has paid for and put on a vessel to be shipped and received elsewhere.” Local 10 introduced testimony that the unloading of “revenue
cargo” at a commercial dock, such as Pier 92, is work
traditionally performed by members of Local 10.
Local 10 contends that employees represented by the Operating Engineers
do not unload “revenue cargo” at commercial docks, but only “construction
materials” at private company docks
or at construction sites. Local 10 presented
evidence that ILWU-represented employees working for stevedoring companies in
the San Francisco Bay area have unloaded bulk cargo from vessels, including by
operating a self-unloading vessel’s conveyor system to discharge sand and rock
from the vessel’s holds, and by unloading cement from the holds of oceangoing
vessels by means of a procedure that involves, at one stage, the operation of
bucket loaders.
We find that the foregoing evidence does not establish a
clear or consistent area or industry practice with regard to the specific work
in dispute. At best, the record shows
that employees represented by both unions have on occasion performed work
generally similar to the disputed work.
Accordingly, we find that the factor of area and industry practice does
not favor an award of the work in dispute to employees represented by either
4. Relative skills
There is no dispute
that employees represented by Local 3 are qualified to operate the bucket
loader. Local 3 does not dispute that workers
represented by Local 10 have the skills to operate the bucket loaders. The Employer does not dispute that some workers
represented by Local 10 have the requisite skills to operate the bucket
loader. We find that this factor does
not favor awarding the disputed
work to employees represented by either
5. Economy and efficiency of operations
The record shows that the Employer’s employees represented by the Operating Engineers interchangeably perform all the functions necessary to carry out the Employer’s ready-mix concrete production operations at the Pier 92 batch plant. These functions include operating bucket loaders to deliver raw materials to the conveyor belt, controlling the conveyor belt system to coordinate the movement and delivery of the proper materials in the proper proportions to produce concrete to specification, and performing routine maintenance on plant equipment. The record further shows that the Employer has trained its employees on the various jobs so they are familiar with the entire operation. It regularly moves employees, including the operator of the bucket loader, from one function to another during the workday as needed. The Employer also has moved the Local 3-represented employees to its other plants depending on production needs. The record further indicates that the duration of the barge unloading assignment varies daily from one to several hours.
It is undisputed that
ILWU-represented workers would perform only the work of operating the bucket
loader on the barge and are not qualified to perform other work for the Employer
at the batch plant. Thus, when there was
no unloading to perform, the Employer could not assign other work to
ILWU-represented workers, who would then be idle. Accordingly, we find that this factor
strongly favors awarding the disputed work to the Employer's employees
represented by the Operating Engineers.11
Conclusion
After considering all the relevant factors, we conclude that employees represented by International Union of Operating Engineers, Local 3, AFL–CIO are entitled to continue performing the work in dispute. We reach this conclusion relying on the factors of collective-bargaining agreements, employer preference, and economy and efficiency of operations. In making this determination, we award the work to employees represented by the Operating Engineers, 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.
1. Employees of CEMEX Construction Materials, L.P.
represented by the International Union of Operating Engineers, Local 3, AFL–CIO
are entitled to perform the movement of bulk aggregate rock and/or sand by
bucket loader from a barge located at Pier 92 in
2. International Longshore and Warehouse Union, Local 10, AFL–CIO is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force CEMEX Construction Materials, L.P. to assign the disputed work to workers represented by it.
3. Within 14 days from this date, International Longshore and Warehouse Union, Local 10, AFL–CIO shall notify the Regional Director for Region 20 in writing whether it will refrain from forcing the Employer, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination.
Dated,
______________________________________
Wilma B. Liebman, Member
______________________________________
Peter C. Schaumber, Member
(Seal) National
Labor Relations Board
[1] Unless otherwise indicated, all dates refer
to 2007.
[2]
Effective
[3] Concrete is a mixture of cement, water, aggregate rock, and sand. Ready-mix concrete is a type of concrete produced in “batches” at a batch plant by mixing different proportions of the materials to meet particular specifications. The mixture is loaded into a transit mixer mounted on a truck or barge for delivery to a jobsite, where it is poured.
[4]
The
[5] At the time of the hearing, the Employer had received only one barge delivery. Because of limited storage capacity at the Pier 92 batch plant, the Employer was using the barge as additional storage space.
[6] The Employer also employs truck drivers, represented by the Teamsters, who operate the ready-mix trucks that deliver the concrete, and vehicle mechanics, represented by the Machinists, who service the ready-mix trucks.
[7] Local 3 did not file a posthearing brief.
[8] Local 10 notes, and the Employer acknowledges, that the Employer contracts with stevedoring companies to unload oceangoing vessels, and that the employees of those companies are covered by a collective-bargaining agreement between Local 10 and the Pacific Maritime Association. The Employer is not, however, bound to that agreement.
[9]
In its brief, the ILWU argues that the Employer’s stated preference to assign
the disputed work to employees represented by the Operating Engineers is
contradicted by the “admission” of Joe Sosteric, a manager for the predecessor,
RMC Pacific. An ILWU witness testified
that, when RMC Pacific was considering locating a batch plant adjacent to a
pier at the
[10] The parties did not offer any separate evidence of industry practice. Indeed, they do not agree as to what the relevant industry is here.
11 In arguing that the factor of economy and efficiency of operations favors an award of the disputed work to employees represented by the Operating Engineers, the Employer expressed a concern that Local 10 may not have a sufficient number of qualified bucket-loader operators to ensure that, on any given day, its hiring hall could supply a qualified operator to the Employer. Local 10 claims that it has enough workers at the hiring hall who possess all the requisite skills, so that the Employer's operations would not be adversely affected by an award of the disputed work to ILWU-represented employees. Because the reasons described above lead us to find that this factor strongly favors awarding the work to employees represented by Local 3, we find it unnecessary to address whether the Employer’s concern is valid and further bolsters that finding. Thus, we do not pass on whether the ILWU’s hiring hall would have enough qualified bucket-loader operators to supply the Employer’s needs.