Local 181, Int'l Union of Operating Engineers

LOCAL 181, INT'L UNION OF OPERATING ENGINEERS 483 representative, and will abstain thereafter from picketing for such objects for ia period of 12 months. WE WILL NOT picket, or cause to be picketed, or threaten to picket, James- town Sterling Corporation, where an object thereof is to force or require the Company to recognize or bargain collectively with us as the representative of the employees in the bargaining unit at the Ellicott plant, or said unit employees to accept or select us as their collective-bargaining representative , where a valid election which we did not win has been conducted by the National Labor Relations Board among the employees in the bargaining unit at the Ellicott plant, within the preceding 12 months. UNITED FURNITURE WORKERS OF AMERICA, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- ' (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with - the Board's Regional Office, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York, Telephone No. '11. 6-1782, if they have any questions concerning this notice or compliance with its -provisions. Local Union No. 181, International Union of Operating Engi- neers, AFL-CIO and Service Electric Company. Case No. 9-CD-69-1. March 25, 19641 DECISION AND DETERMINATION OF DISPUTE This is a , proceeding pursuant to Section 10(k) of the National -Labor Relations Act, following a charge filed by Service Electric -Company, herein called Service, alleging that Local Union No. 181, International Union of Operating Engineers, AFL-CIO, herein called called Engineers or Respondent, had violated Section 8(b) (4) (D) of the Act. Pursuant to notice, a hearing was held on -October 24 and 25, 1963, before Hearing Officer Donald O. Logsdon. All parties appeared at the hearing and were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues.' The rulings of the Hearing Officer made at the hearing-are- free from prejudicial error and are hereby affirmed. Briefs have been filed by Service, by Engineers, and by Local Union No. 183, International Brotherhood of Electrical Workers, AFL-CIO, herein called the IBEW. Upon the entire record in the case, the Board 1 makes the following -findings : 1. The business of the Employer Service Electric Company, a Tennessee corporation , is an electrical contractor engaged primarily in the construction of powerhouses and 1Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its ,powers in connection with this case to a three-member panel [Chairman McCulloch and -Members Leedom and Jenkins]. 146 NLRB No. 64. 484 DECISIONS OF NATIONAL' LABOR RELATIONS' BOARD' substations. In the 12 months preceding the hearing,-'a representa- tive period, it performed services outside the State of -Tennessee valued at more than $400,000. Its contract on the project involved herein is for an amount in excess of $1,000,000. The parties stipu- lated, and we find, that Service is engaged in commerce within the meaning of the At, and that it will effectuate the policies of the Act to assert jurisdiction herein. - 2. The labor organizations involved Local Union No. 183, International Brotherhood of Electrical Workers, AFL-CIO, and Local Union No. 181, International Union of Operating Engineers, AFL-CIO, are labor organizations within the meaning of the Act. ' '3. The- dispute A. The work at issue Service is the prime contractor for the electrical work in the con- struction of a powerhouse and substation for East Kentucky Rural Electrical Corporation, herein called East Kentucky, at a site near Burnside, Kentucky. • Service is responsible for the installation of certain electrical wiring in the powerhouse and for the erection of the first substation on the powerplant's distribution lines. . In the course of its work on this project it was necessary for Service to use a crane. The introduction of this- piece of equipment' on the project site precipitated the dispute' herein. The crane, a Pitman hydra-lift, is a hydraulic hoist mounted on the bed of a truck. It consists of an arm or boom which is operated with a winch that is powered by the motor of the truck. Upon delivery of the hydra-lift to the j obsite • the Engineers, on behalf of its members, claimed the work of operating it. Service and the IBEW insist the work-should be performed by Service's present employees who are electricians represented by IBEW and to whom Service assigned the work. B. Evidence of conduct violative of Section 8(b) (4) (D) On August 1, 1963, the hydra-lift was delivered to the project site. On or about August 20, Jim Waldin, job steward for the Engineers, told W. R. Painter, job superintendent for Service, that the operation of the machine belonged to a member of the Engineers and that if Service continued to use an IBEW member to operate it a picket line would be placed on the job. About August 26, Russell Pierce, Re- spondent's business agent, told Painter that he was backing up his job steward, and that the operation of the hydra-lift would have to be assigned to a member of the Engineers or there would be a strike. LOCAL 181, INT'L UNION OF OPERATING ENGINEERS 485 On October 17, when'the hydra-lift was being moved to a place on the jobsite so that pictures of it could be made to serve as exhibits in this case, a representative of the Engineers objected to the IBEW man operating the machine. All members of the Engineers working at the jobsite thereupon walked off the job sand did not report back until the following Monday, October 21. C. The contentions of the parties (1)' The Engineers denies that it engaged in any illegal conduct and affirmatively contends that its members are entitled to the dis- puted work on the basis of tradition and custom in the industry and an award by the National Joint Board for Settlement of Jurisdic- tional Disputes, herein called the Joint Board. (2) The IBEW asserts, that the work involved herein has histori- cally been' performed by its members., It further contends that it is not bound by the decision of the Joint Board. (3) Service argues that the efficient., operation of its business re- quires that the hydra-lift be operated by electricians rather than by operating engineers, that the hydra-lift replaces A-frame trucks which have always been operated by members of the IBEW, and that it is. not bound by the award of the Joint Board. D. Applicability of, the statute The Engineers contend tliat both Service and IBEW have agreed to submit jurisdictional disputes to the Joint Board for settlement, that the parties have thus adjusted or agreed upon methods for the voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act, and, therefore; that the notice of hearing should be quashed. The identical contention was made in the Nichols ' Electric case,2' and the Board found, as did the court in enforcing the Board's order,, that the IBEW and electrical contractors have agreed to submit to, the Joint Board only jurisdictional disputes involving inside work, and have expressly refused to submit to that board disputes relating to outside work. The present dispute involves outside work.' We• find, accordingly, that the parties have not adjusted or agreed upon methods for the voluntary adjustment of the present dispute. We find, based upon Respondent's threat to strike unless the opera- tion of the hydra-lift was assigned to •a member of Respondent and upon the actual walkout which occurred while an IBEW member was operating the hydra-lift, that there.is'reasonable'cause to believe that 2 Local Union 825, International Union of Operating Engineers, AFI CIO (Nichols Electric Company ), 137 NLRB 1425, enfd. 326 F 2d 213 (C.A. 3). 3Inside work is generally defined as all work perlormed inside the generating station building; outside work, also called line work, is that performed outside the building. 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a violation of Section 8 (b) (4) (D) - has occurred and- that the dispute is properly before the Board for determination under .Section 10(k) of the Act. E. The.merits of the dispute The Board has not certified either'of the contending labor organiza- tions as bargaining representative of employees involved in this dis- pute. Service does not have collective-bargaining, contract directly with either the IBEW or the Engineers. However,•it (abides by the bargaining contract between the IBEW and local employers in the union's jurisdictional area and has obtained all its electricians by re- ferral from the IBEW's hiring hall. It does not have in its employ any members of the Engineers. Although the Joint Board awarded the disputed work to the En- gineers, neither IBEW nor Service was a party to' the proceeding which resulted in the award. Both IBEW and Service have expressly refused to submit themselves to the jurisdiction of the Joint Board in disputes relating to outside work, the kind involved in this case .4 Ac- cordingly, we cannot give controlling weight to the award of the Joint Board. The,IBEW and the Engineers agreed that at this jobsite members of the latter would operate overhead cranes, and members of the for- mer would operate A-frame winch trucks. Service and the IBEW contend that the Pitman hydra-lift'is,merely an advanced "design of the A-frame winch truck and is used as a substitute for the latter. The evidence bears out this contention. There is no special competence required to operate the hydra-lift. Both operating engineers and electricians are equally capable of op- erating it. Service has used the hydra-lift on other jobs and 'has always had electricians operate it. On the other hand, engineers have operated the hydra-lift on this and other jobs for other nonelectrical employers. One of the nonelectrical contractors on the project, J. A. Jones Construction Co., also has a hydra-lift and uses an operating engineer to man it. The hydra-lift is used as a portable hoist and as a'platform from which linemen perform necessary erection or assembly work. It is used only intermittently. Under present practice, when the hydra- lift is not in use, the operator, an electrician, performs other electrical work. If Service were required to use an engineer to operate the hydra-lift, it would have to lay him off periodically, which would be an inefficient procedure. We shall award the disputed work to electricians rather than to operating engineers. We base the award on the following: (a) the Local Union 825, International Union of Operating Engineers (Nichols Electric Com- pany), supra. AMERICAN PRESIDENT LINES, LTD. 487 agreement between the contending labor organizations that electricians were to operate A-frame winch trucks, the hydra-lift being a substitute for and very similar to the A-frame winch truck; (b) the practice of Service an other jobs to use electricians for operating the hydra-lift; (c) the equal competency of electricians to operate the equipment; and (d) the greater efficiency in the utilization of personnel if electricians rather than engineers operate the hydra-lift. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings and the entire record in the case, the Board makes the following Determination of Dispute pursuant to Section 10 (k) of the Act : 1. Employees engaged as electricians, currently represented by Local Union No. 183, International Brotherhood of Electrical Workers, AFL-CIO, are entitled to operate the Pitman hydra-lift for Service Electric Company at the East Kentucky Rural Electrical Corporation project, Burnside, Kentucky. 2. Local Union No. 181, International Union of Operating En- gineers, AFL-CIO, is not entitled by means proscribed by Section 8 (b) (4) (D), to force or require Service Electric Company to assign the work of operating the Pitman hydra-lift to employees engaged as operating engineers, who are currently represented by Local Union No. 181, International Union of Operating Engineers, AFL-CIO. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local Union No. 181, International Union of Operating Engineers, AFL-CIO, shall notify the Regional Director for, the Ninth Region, in writing, whether or not it will refrain from forcing or requiring Service Electric Company by means proscribed by Sec- tion 8(b) (4) (D) to assign the work in dispute to operating engineers rather than to electricians. American President Lines, Ltd. and Office and Professional Em- ployees, Local No. 3, Office Employees International Union, AFL-CIO and Employee Relations Committee, Party in Inter- est. Case No. 20-CA-°2638. March 06, 1964 DECISION AND ORDER On December 3, 1963, Trial Examiner David F. Doyle issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Decision. Thereafter, 146 NLRB No. 66.