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NLRB’s delivery-labor standard sinks Operating Engineers’ serial grievances

This year is winding down with signs of recovery throughout construction. Certain union locals might find 2013 wanting, however, as National Labor Relations Board authorities have determined that their attempts to come between concrete suppliers and contractors violate the National Labor Relations Act (NLRA).

NLRB Administrative Law Judge John McCarrick has ordered Operating Engineers Local 12 to cease threats and coercive actions directed at two highway customers of Short Load Concrete, an Anaheim, Calif., volumetric mixer fleet. His decision follows peer actions earlier this year against three Teamsters locals who wanted to limit or restrain commerce for Aggregate Industries Northeast Region, Saugus, Mass.; JDM Materials, Huntingdon Valley, Pa.; and, County Concrete, Corp., Kenvil, N.J.

A recent Judge McCarrick decision details a sequence of 2010-2012 incidents where Operating Engineers Local 12 sought to hold Chumo Construction Inc. and Griffith Co., both Associated General Contractors of California employer-members, to union interpretation of an AGC Master Labor Agreement terms. Chumo Construction enlisted nonunion Short Load Concrete to supply site-mixed material for an April 2011-June 2012 repair project along 14 miles of California Highway 60. From late-June through early-December 2011, Local 12 pursued a grievance against Chumo, alleging collective bargaining agreement violations and “demanding compensatory damages for all wages and fringes owed” regarding one loader, one augur/aggregate/water mixer and seven volumetric mixer truck operators.

The contractor countered the allegations, contending that Short Load Concrete was a supplier versus a Master Labor Agreement-defined subcontractor. Local 12 withdrew the grievance in December 2011, but soon after found itself on the respondent side of an NLRB action. In January 2012, Short Load Concrete filed a charge challenging the Operating Engineers’ filing and pursuit of the Chumo grievance. An informal settlement in April 2012 required Local 12 to abide by the NLRA, specifically agreeing not to “threaten, coerce, or restrain Chumo Construction, Inc., or any other person engaged in commerce or in an industry affecting commerce, by pursuing grievances against them.”

Just shy of a month after the settlement, Local 12 filed a grievance against Griffith, which had turned to Short Load Concrete for material on an Interstate 15 contract with projected April 2012–June/July 2013 schedule. The grievance was modeled after the one filed against Chumo, and prompted Griffith to cancel a purchase agreement with Short Load Concrete. The volumetric operator ceased deliveries to Griffith’s I-15 crews from August through November. Facing liquidated damages from failure to complete the project on schedule, the contractor resumed a supply arrangement with Short Load Concrete, accepting the potential costs tied to Local 12’s grievance.

Judge McCarrick found that Local 12 broke the informal agreement with Short Load Concrete—tabling the grievance concerning Chumo—by pursuing the second grievance against Griffith, then violating the NLRA through activities aimed at halting the contractor’s business with the volumetric fleet.

He also refuted claims, based on the union’s NLRA Section 8 interpretation, that Short Load Concrete was a subcontractor as opposed to supplier, and concluded, “The Board has held for over 50 years that delivery and pouring of concrete at a construction site is not onsite work but rather is the delivery of materials.” He traced the precedent through a series of NLRB cases, beginning in 1962, involving ready mixed producers Connecticut Sand & Stone, Island Dock Lumber and Dravo Corp., plus a volumetric mixer fleet operator, Inland Concrete Enterprises.

Short Load Concrete becomes the latest chapter for a time-tested NLRB standard, a union’s failure to restrain trade the just and happy lesson.