United Brotherhood of Carpenters, Etc., Local 526

UNITED BROTHERHOOD CARPENTERS, ETC., LOCAL 526 779 chine and its Jampol plate pusher to employees engaged as plate- boys, who are currently represented by the New York Newspaper Printing Pressmen's Union No. 2, AFL-CIO. 3. Within 10 days from the date of this Decision and Determina- tion of Dispute, New York Newspaper Printing Pressmen's Union No. 2, AFL-CIO, shall notify the Regional Director for Region 2, in writing, whether or 'not it will refrain from forcing or requiring the New York Times Company by means proscribed by Section 8(b) (4) (D) to assign the work in dispute to plateboys rather than to stereotypers. United Brotherhood of Carpenters and Joiners of America, Local 526, AFL-CIO, and Its Agent P. C. Cummins and Bel-Toe Foundation Co. Case No. 23-CD-79. January 4, 1965 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 Bel-Toe Founda- tion Co., hereinafter called the Employer, alleging that United Brotherhood of Carpenters and Joiners of America Union 526, AFL-CIO, hereinafter called Local 526 or Respondent, and its agent P. C. Cummins, had violated Section 8 (b) (4) (i) and (ii) (D) of the Act. The charge alleges in substance, that the Respondent and its agent P. C. Cummins induced and encouraged employees to en- gage in a strike or refusal to work, and threatened, coerced, or restrained the Employer with an object of forcing or requiring the Employer to assign particular work to employees represented by Respondent rather than to employees represented by Local 450, International Union of Portable and Hoisting Engineers, AFL- CIO, herein called Operating Engineers, Local 450, and by Local 116, International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO, herein called Laborers, Local 116. Thereafter, a hearing was held before Hearing Officer Evert P. Rhea on July 14 and 15, 1964. All parties appeared at the hearing and were afforded full opportunity 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. The briefs filed by the Respondent and the Employer have been duly considered. Pursuant to Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chair- man McCulloch and Members Fanning and Brown]. 150 NLRB No. 70. 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following findings : 1. The business of the Employer Bel-Toe Foundation Co. is a Texas corporation engaged in foun- dation drilling in the construction industry and annually provides services for interstate companies, such as American Construction Company and Peter Kiewit & Sons, valued in excess of $50,000, and annually receives supplies of cement and steel from points located outside the State of Texas of a value in excess of $50,000. . . The parties agree, and we find, that the Employer is engaged in com- merce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction. 2. The labor organizations involved The parties stipulated, and we find, that the Respondent, Operat- ing Engineers Local 450, and Laborers Local 116 are labor organiza- tions within the meaning of Section 2 (5) of the Act. 3. The dispute A. Background facts This dispute arose while the Employer was constructing under- ground reinforced concrete foundation pillars for a multistory motel at the Pleasure Pier in Galveston, Texas. In their most simple form, such foundation pillars are constructed by drilling a shaft and filling the shaft with concrete. More sophis- ticated procedures are 'called for in instances where reinforcing is required or where,the ground is such that it will collapse into the shaft before the concrete can be poured. The drill used to prepare a shaft in which such pillars are formed is mounted on either a crawler machine resembling a mobile crane, called a dragline, or a truck. The dragline or truck is equipped with a boom, which in its outermost area supports a power driven rotary called a kelly, to which are connected the drilling tools and accessories as they are needed. It is also equipped with a power-operated line, called a service line, which is hooked onto tools, accessories, and casings to move them to and from the vicinity of the drilling operation. It is customary that an operator and an oiler be permanently assigned to operate each machine and that laborers be hired to attach the tools to-the rotary or kelly in the sequence in which they are needed, to clean up, and otherwise to assist in the operation as is more fully described hereinafter. On the Galveston project the procedure followed by the Employer is as follows: After the dragline and its attachments are unloaded UNITED BROTHERHOOD CARPENTERS, ETC., LOCAL 526 781 and assembled by employees represented by the Operating Engi- neers, the operator, under the direction and signaling of the oiler, called "flagging," moves the dragline to the spot where the drilling is to be done. The oiler then spots the kelly directly over this spot, called "spotting," and aligns the dragline relative to the spot, called "aligning." The laborers then attach the service line to the auger, the operator brings it into position and the laborers attach it to the kelly. The operator drills the shaft, periodically removing the auger to be cleaned, either by the operator shaking the dirt free or, when necessary, by the laborer shoveling the dirt away from the auger. When the desired depth is reached, a cylindrical casing, inches smaller in diameter but a few feet longer than the shaft, must be inserted into the shaft. To insert the casing, the laborers' attach the service line to the casing with shackles and the operator moves it into position and lowers it into the shaft while it is' aligned or guided by the laborers. This procedure of the laborers attaching the service line to the drill accessories and tools and connecting them to the kelly when necessary is followed throughout the entire operation. Next, another attachment called a header is in this manner connected to the kelly. The header locks into the protruding end of the casing and permits the operator to rotate the casing enabling it to descend to the bottom of the shaft. After this is accomplished the laborers attach a smaller diameter auger to the kelly and the operator drills the shaft deeper into the ground. Another casing a few feet longer than the completed shaft is inserted into the shaft in the same man- ner as was the first casing. The laborers then attach a reamer to the kelly and the operator reams a bell-shaped opening at the bottom of the extended shaft just below the inside casing. Employees rep-, resented by the Ironworkers then assemble a steel reinforcing cage and assist the operator by aligning it as he lowers it'with the service line into the inside casing. Next the operating engineers operate a pump to remove water from the shaft and the laborers attach a funnel-like device called a tremie to the service line to be lowered into the inside casing. When this tremie is in place the laborers align the concrete truck shoot over the tremie and concrete is poured into the inside casing to fill the bell-shaped portion of the shaft. With the laborers' assistance this tremie is then removed, another of a different type is inserted, and concrete is poured surrounding the reinforcing cage and completely filling the inside casing. The labor- ers then shovel sand into the space between the inside and outside casing and a hose is used to wet it down. As this space is filled the operator withdraws the inside casing with the service line. Days later after the concrete is hardened the outside casing is removed and work on the pillar is thereby completed. If at any time during 782 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD the operation any of the tools or accessories need repair or mainte- nance on the site, this work is done by the oiler. His job also in- cludes oiling and other general maintenance of the dragline. The laborers performing this work are currently represented by Local 116, Laborers. The operators and oilers performing this work are engineers currently represented by Local 450, Operating Engi- neers. The present dispute involves the question of whether the Carpenters are entitled to require the Employer to assign to pile- drivers represented by them, (1) the work of flagging, spotting, and aligning the dragline and maintaining and repairing the tools and accessories at the site rather than to the engineers, and (2) the work of attaching the service line to the casings and aligning the casings as they are inserted into the shaft and similarly attaching the serv- ice line to the casings for their ultimate withdrawal from the shaft, rather than to the laborers. Although the Employer has no collective-bargaining agreement with any union, it pays the wage scale and follows the conditions of the bargaining area as stated in the Association of General Con- tractors (hereinafter called A.G.C.) contract for the area. How- ever, the Employer is not a member of A.G.C., nor has it given to A.G.C. authority to bargain on its behalf. Accordingly, the Em- ployer is not subject to the jurisdiction of the National Joint Board. The parties agreed that to their knowledge no arbitration procedures or dispute settlements exist which have a bearing on this dispute. P. C. Cummins, business manager of Carpenters Local 526, testi- fied that on either June 15 or 18, and again on June 22, he attempted to persuade the Employer to hire a piledriver represented by the Carpenters to work on each of the two rigs at the Galveston Pier project to perform the disputed work. At the close of the June 22 conversation Cummins told the Employer that if it would not so assign the work it should be prepared for a strike the next day. On June 23 Cummins posted a picket at the site. No employees crossed the picket line and work ceased until the picket was re- moved at approximately 1:30 the following day. Pursuant to a stipulation entered into at this time by the parties, no further work stoppages have occurred. . Under the stipulation, Respondent and its agents agreed not to coerce the Employer into reassigning the work in dispute. However, at the instant hearing, both the Respond- ent and the Laborers and Engineers reiterated their respective claims to the disputed work. B. Contentions of the parties It is Respondent's contention that the piledrivers it represents are entitled to the disputed work. Respondent argues (1) that the pile- drivers have been assigned prepacked concrete jobs in the Galveston UNITED BROTHERHOOD CARPENTERS, ETC., LOCAL 526 783 area and that the Employer's Galveston Pleasure Pier job is not unlike a prepacked concrete job, and (2) that inasmuch as the com- pleted product resembles a piling in appearance and function,'.the work of creating it is piledrivers' work. ; - , 1, The Employer takes the position that it has always assigned' the work in the same manner as it presently does and that this assign- ment is in conformance with the industry practice. The Employer also points out that were it to assign the work to the Respondents it would still be required to hire the same number of engineers and laborers for each job., The Engineers and the Laborers contend that they are entitled to the work they have previously done on these jobs in accordance with their past practice of performing the work. C. Applicability of the statute Section 10 (k) of the Act empowers the Board to hear and deter- mine a dispute out of which a Section 8(b) (4) (D) charge has arisen, unless the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Before the Board proceeds with a determination of dispute however, it is required to find that there is reasonable cause to believe that Section 8(b) (4) (D) has been violated. ' The record shows that the Employer assigned the disputed work to employees represented by the Laborers Local 116 and the Oper- ating Engineers Local 450, whereupon Respondent claimed that its members were entitled to the work. The Respondent thereafter threatened to picket and did picket the Employer's jobsite on July 23 and 24, and, as a result of the picketing all of the employees on the jobsite refused to work. It is clear that the object of these threats and inducements was to force the Employer to change work assignments, within the apparent meaning of Section 8(b) (4) (D). .we therefore find reasonable cause to believe that Section 8 (b) (4) (i) and (ii) (D) of the Act has been violated and accordingly that the dispute is properly before this Board for determination under Section 10 (k) of the Act. D. Merits of the dispute 1. Company and industry practice Glyen Farmer, the general manager and secretary-treasurer of the Employer, testified that its assignment of the disputed work has always been in conformance with its work assignment on the Galves- ton Pleasure Pier project. 775-692-65-vol. 150-51 784 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD Five witnesses from as many companies testified as to practices throughout the industry. The Galveston area was given special attention but the testimony of these people extended as well to most all of the States in the Southwest and to some States outside. The variations in the use of equipment were minor, and the work assign- ments by the companies were uniform throughout the industry and identical to those of the Employer at the Galveston Pleasure Pier project. The record shows that the piledrivers have never been assigned either the work being done by the engineers or the work being done by the laborers. A process known as Prepak has been employed in drilling operations on two locations on the Galveston Island, but the record is clear that the • Prepak process is not the same process as presently employed by the Employer, and the variation is substan- tial. In the Prepak process, the kelly-auger, which appears to be a single instrument, has a hollow core through the center. When drilling is complete, cement grout is pumped under pressure through this hollow core and the kelly-auger is pushed thereby out of the shaft. No reinforcing steel is introduced and no casings are used. Accordingly, we find that this work assigned to piledrivers on Pre- pak concrete fails to detract from the clear and convincing showing on the record of the industry past practice of assignment of the disputed work in conformance with the Employer's assignment on the Galveston Pleasure Pier project. 2. The efficient operation of the Employer's business Cummins and Farmer were in complete agreement at the hearing that, were the piledrivers to be assigned the disputed work they would nonetheless not replace any of the present employees. The disputed work is only a portion of the work performed by these employees - during a drilling operation. Accordingly, they would have to be retained to perform the remainder of their duties. Fur- thermore, as the drilling is a continuous operation, one hole being drilled after another throughout the day, they would have to be retained full time to be available to perform their duties as they became necessary. Accordingly, from the viewpoint of economy, compliance with the Respondent's request would result in increasing the Employer's payroll costs by the salary of a piledriver for each rig, while not increasing the work output of the job crew. In view of the foregoing, particularly the evidence as to area prac- tice, we shall determine the jurisdictional dispute herein by'award- ing the disputed work of flagging, spotting, and aligning the drag- line and maintaining and repairing the tools and accessories at the site to engineers , and of hooking on the service line to the casings for their insertion and removal from the shaft and aligning the UNITED BROTHERHOOD CARPENTERS, ETC., LOCAL 526 785 casings during their insertion into the shaft to the laborers.' In making the determination, the Board is assigning the disputed work to engineers who are represented by Local 450, Operating Engineers, and to laborers who are represented by Local 116, Laborers, but not to these Unions or their members. In view of the above, we find that Respondent Union and its agent P. C. Cummins were not and are not entitled by means proscribed by Section 8(b) (4) (i) and (ii) (D) to force or require Bel-Toe Foundation Co., to assign the disputed work to the piledrivers rather than to the laborers and operating engineers. DETERMINATION OF DISPUTE Upon the basis of the foregoing, 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 laborers, currently represented by Local 116, International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO, are entitled to perform the work of hooking on the dragline service line to the casings for their insertion and removal from the shaft and aligning the casings during their insertion into the shaft. 2. Employees engaged as operating engineers, currently repre- sented by Local 450, International Union of Portable and Hoisting Engineers, AFL-CIO, are entitled to perform the work of flagging, spotting, and aligning the dragline and maintaining and repairing the tools and accessories at the site. 3. United Brotherhood of Carpenters and Joiners of America, Local 526, AFL-CIO, and its agent, P. C. Cummins, are not en- titled, by means proscribed by Section 8(b) (4) (D) of the Act, to force or require the Employer to assign the above work to pile- drivers represented by it. 4. Within 10 days from the date of this Decision and Determina- tion of Dispute, United Brotherhood of Carpenters and Joiners of America, Local 526, AFL-CIO, and its agent, P. C. Cummins, shall notify the Regional Director for Region 23, in writing, whether or ' The Employer's foundation construction work on the Galveston Pleasure Pier project has no doubt at this time been completed . Our assignment is to be regarded as limited to the facts and circumstances of the controversy which gave rise to this proceeding, and shall cover the assignment by the Bel -Toe Construction Company, of ( 1) the work in dispute between Local 526, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and Local 450, International Union of Operating Engineers , AFL-CIO, in any area where their geographical jurisdictions coincide and, (2 ) the work in dispute between Local 526, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and Local 116, In- ternational Hod Carriers , Building and Common Laborers Union of America , AFL-CIO, in any area where their geographical jurisdictions coincide . Cf. Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO (Western Electric Company, Incorporated), 141 NLRB 888, footnote 12. See also International Union of Operating Engineers, Local 66, AFL-CIO (Frank P. Badolato & Son), 135 NLRB 1392, 1401. 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not they will refrain from forcing or requiring Bel-Toe Construc- tion Co., by means proscribed by Section 8 (b) (4) (D) to assign the work in dispute to the piledrivers rather than to laborers and oper- ating engineers. Midway Drilling & Pump Co. and International Union of Oper- ating Engineers, Local No. 12, AFL-CIO, Petitioner. Case No. 31-RC-8857. January 5, 1965 DECISION DISMISSING PETITION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Hearing Officer Barton W. Robertson. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant 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 [Members Fanning, Brown, and Jenkins]. Upon the entire record in this case, the Board finds: 1. The Employer is a sole proprietorship engaged in the business of water well drilling, pump testing, and pump installing in Cali- fornia. In 1963, the Employer was paid $155,000 by the State of California for the drilling of two exploratory water wells. The purpose of the wells is to secure water to be used in settling the basin of a reservoir being constructed by the State water facility for the California aqueduct, San Joaquin Valley. In 1 or 2 years this reservoir will be joined to the California Water Resources De- velopment system, the so-called Feather River project. This is a State project, the purpose of which is to bring water from northern California to southern California. The State of California has appropriated $1,375,000 for the system. The Federal Government will make specific contributions totaling approximately $266,000,000 toward the construction of the San Luis Reservoir at Los Banos, California, and the Oroville Dam at Oroville, California, although there are no Federal funds designated generally for the Feather River project. A contribution of slightly less than $200,- 000,000 for the reservoir is in consideration for the Federal right to use 45 percent of its storage capacity. A contribution of $66,000,000 toward the Oroville Dam represents 22 percent of the cost of con- struction and is being made because the dam will be used in Federal flood control projects. Both the dam and reservoir are integral parts of the Feather River project. The Employer drilled wells for the San Joaquin Reservoir which is located at a point distant from both the San Luis Reservoir and 150 NLRB No. 72.