Omaha Carpenters District Council

OMAHA CARPENTERS DISTRICT COUNCIL, ETC. 991 Omaha Carpenters District Council, and its agent Don Bastemyer and Bel-Toe Foundation Co. Case No. 17-CD-57. January 13, 1965 DECISION AND DETERMINATION OF DISPUTE This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by Bel-Toe Foun- dation Co., hereinafter called the Employer, alleging that Omaha Car- penters District Council and its agent, Don Bastemyer, hereinafter called Carpenters or Respondents, had violated Section 8(b) (4) (i) and (ii) (D) of the Act. The charge alleges, in substance, that the Respondents and their agent Don Bastemyer induced and encouraged employees to engage in a strike or refusal to work, and threatened, coerced, or restrained the Employer with an object of forcing. or re- quiring the Employer to assign particular work to employees repre- sented by Respondents rather than to employees represented by Local 571, International Union of Operating Engineers, AFL-CIO, herein called Operating Engineers Local 571, and by Local 1140, Interna- tional Hod Carriers, Building and Common Laborers of America, AFL-CIO, herein called Laborers Local 1140. Thereafter, a hearing was held before Hearing Officer Vincent M. Helm, on November 12 and 13, 1964. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine wit- nesses,, 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 Laborers Local 1140, Operating Engineers Local 571, and the Employer, have been duly considered. The Respondents filed no brief. Pursuant to Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Mem- bers Fanning, Brown, and Jenkins]. 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 founda- tion drilling in the construction industry and annually provides serv- ices for interstate companies, such as 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 1 Representatives of the Respondents left the hearing after participating in certain preliminary stages of the hearing in which they joined in the Laborers ' motion to quash the 10 ( k) hearing. 150 NLRB No. 94. 775-692-65-vol. 150-64 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $50,000. We find that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organizations involved . The parties stipulated, and we find, that the Omaha Carpenters District Council, Operating Engineers Local 571, and Laborers Local 1140, are labor organizations within the meaning of Section 2(5) of the Act. 3. The dispute A. The work at issue This dispute arose while the Employer was installing concrete foundation pillars for a processing plant for the Kellogg Company at 96th and F Streets, Omaha, Nebraska. In their simplest form, such foundation pillars are constructed by drilling a shaft and filling the shaft with concrete. More sophisti- cated 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 the 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 is 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 local operators and oilers be hired as they are needed. The Employer employs a permanent force of laborers and also hires them locally- as they are needed. The laborers attach the tools to the rotary, or kelly, in the sequence in which they are needed, clean up, and otherwise assist in the operation. Such assistance is more fully described hereinafter. On the Omaha project the procedure followed by the Employer is as follows : After the dragline and its attachments are unloaded and assembled by employees represented by the Operating Engineers, the operator, under the direction and signaling of the oiler, called flag- ging, 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 OMAHA CARPENTERS DISTRICT COUNCIL, ETC. 993 by the `operator shaking the dirt free or, when necessary, by the laborers 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 a choker on a sling 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 attach- ment 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. The laborers then attach an underreaming tool to the kelly and the operator reams a bell-shaped opening at the bottom of the extended shaft just below the casing. A laborer is then lowered to the bottom of the shaft by the service line on the dragline with a cleanout bucket and the filled bucket is attached to the service line and removed from the shaft by the operator and dumped by another laborer. The shaft is then inspected and, if approved, the shaft is ready for the insertion of concrete. The concrete is brought to the site by a transit-mix truck, which is backed up to the shaft, and the concrete is inserted into the shaft through a chute. On some occasions the concrete does not flow through the chute into the shaft evenly and the laborers have to shovel it down the chute into the shaft. After the concrete is poured,the casing is removed. If at any time during the operation any of the tools or foundation accessories need repair or maintenance on the site, this work is done by the oiler. His job also includes oiling and other general maintenance of the dragline. Although the Employer has no collective-bargaining agreement with any union, the laborers performing this work are currently being represented by Local 1140, Laborers, and the operators and oilers performing this work are currently being represented by Local 571, Operating Engineers. The present dispute involves the question of whether the Carpenters are entitled to require the Employer- to assign to piledrivers represented by the Carpenters (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 oilers, 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 service line to the casings for their ultimate withdrawal from the shaft, rather than to the laborers. 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pete Quinton, Employer's construction superintendent, testified that approximately 3 days before the construction project began in Omaha he was approached by Art Dessech, a business agent of the Carpenters District Council, who requested that a couple of pile- drivers be put on the Employer's rigs, stating that he thought that it was their work. Quinton refused, stating that the Company had never used piledrivers on that type of work. The next day, Quinton was approached by the Carpenters' District Council business agent Don Bastemyer, who requested that piledrivers be assigned to the work, and again Quinton refused. A few days later, Bastemyer handed Quinton a telegram from the International Carpenters Union addressed to Bastemyer, which stated that the work of the aligning, spotting, insertion, and removal of the casings, and the welding; cut- ting, and general maintenance was the work of the Carpenters. Sometime later, Bastemyer again accosted Quinton with a letter from the National Joint Board for the Settlement of Jurisdictional Dis- putes purporting to award the above-mentioned work to piledrivers, and the removal of dirt and debris from the equipment and pouring of concrete as well as general assistance in handling of casing and material to the laborers. Quinton reiterated the Company's refusal to reassign the work, and Bastemyer then stated that the project would be picketed the following morning. The next day,.a, picket was placed at the jobsite by the District Council, and remained there for a week. B. Contentions of the parties Since the Respondents did not file a brief, their present position is unknown. At the hearing the Respondents appeared to contend that no jurisdictional dispute existed. The Employer takes the position that it has always assigned, the work in dispute to laborers and operating engineers, as it has done in the present case and that said assignment conforms with industry practice. The Employer also points out that were it to assign the work in dispute to the Respondents, it would still have to hire the same number of oilers and laborers to, perform the remaining por-, tions of the job not claimed by the Respondents. The Laborers, prior to the hearing, submitted a motion to quash the entire 10(k) hearing to the Regional Director for Region 17. The Laborers based its motion on an agreement between it and the Respondents which stipulated that the work in dispute at the specific project was proper work that belonged to the Respondents. The Laborers therefore argues that no jurisdictional dispute exists and that the necessity for a 10(k) hearing has been removed. The Regional Director denied the motion. The Laborers petitioned the Board for a review of the Regional Director's decision 2 At the hear-' 2 The Board, by Order dated November 10, 1964, denied the request. OMAHA CARPENTERS DISTRICT COUNCIL, ETC. 995 ing the Laborers again presented its motion and the Hearing Officer referred the motion to the Board for a decision. In its brief to the Board, the Laborers contends that the motion should be granted for the reasons set out above. However, if the motion is not granted, it argues that the Board should make a determination on the merits of the case and award it the work laborers have previously done on these jobs in accordance with the past practice of performing the work .3 The Engineers contends that it is entitled to the work it has pre- viously done on these jobs in accordance with its 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 agreed-upon methods for the volun- tary 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 Laborers Local 571 and Operating Engineers Local 1140, whereupon Respondents claimed that their members were entitled to the work. The Respondents thereafter threatened to picket and did picket the Employer's jobsite. It is clear that the object of these threats and inducements was to force the Employer to change work assignments, an object prohibited by 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 4 a The Laborers also contends that the National Joint Board award assigning the work to the Carpenters settled the jurisdictional dispute and therefore a 10(k) hearing is not necessary. We find this contention without merit since we have consistently held that the involved employer must be a party to an agreement that purports to settle an existing jurisdictional dispute. Local 450, International Union of Operating Engineers (Painting and Decorating Contractors of America, Houston Chapter, etc ), 119 NLRB 1725. * The Laborers-Carpenters agreement, which purports to constitute a settlement of the jurisdictional dispute involved, apparently stipulates that the work in dispute on the specific Kellogg project belonged to the Carpenters. The Laborers however does not con- cede that on other projects the work performed would properly be the work of the Car- penters. Indeed, it contends to the contrary. Moreover, there is no dispute that prior to the execution of the agreement the Laborers was maintaining its right to perform the particular work in dispute. Furthermore, apart from stipulating that certain work of the Laborers belonged to the Carpenters, the agreement also purports to dispose of the Operating Engineers' claim. Neither the Operating Engineers, nor the Employer for that matter, was signatory to the agreement purporting to settle the jurisdictional dispute. Under the circumstances, we cannot agree with the Laborers' contention that a jurisdic- tional dispute no longer exists and that the question is now moot. Accordingly, we must deny the Laborers' motion, in which the Respondents joined, to quash the hearing and dismiss the charge. 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Merits of the dispute As we stated in J. A. Jones case,5 we will, pursuant to the Supreme Court's CBS decision, determine in each case presented for resolu-. tion under Section 10(k) of the Act, the appropriate assignment of disputed work only after taking into account and balancing all rele- vant factors . The following factors are asserted in support of the claims of the parties herein : 1. Company and industry practice. Mr. Glyen Farmer, the general manager and secretary-treasurer of the Employer, testified that its assignment of the disputed work on the Omaha Kellogg project has always been in conformance with its established practice of assigning the particular work in dispute to the laborers and the oilers. More- over, representatives of two other companies engaged in similar con- struction testified, with minor exceptions, that it was the uniform practice in the industry not only in the Omaha, Nebraska, area but in most of the States in the Midwest and Southwest, and in some States outside of these areas, to assign the particular work in dispute to the laborers and oilers. Furthermore, no evidence was presented that the work of operating equipment of the type used on the Omaha Kellogg project had ever been assigned to piledrivers who are represented by the Carpenters. We find that the factor of employer and industry practice definitely favors the employees who are represented by the- Laborers and the Operating Engineers. 2. The eScient operation of the Employer's business. Glyen Farmer testified that were 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 per- formed by the laborers and oilers during a drilling operation. Thus, in addition to hiring piledrivers, the Employer would also have to' hire the same number of laborers and oilers to perform the remainder of their duties. Furthermore, as the drilling proceeds as a continuous operation, one hole being drilled after another throughout the day, the oilers and laborers would have to be retained full time to be avail- able to perform their duties as they become necessary. Accordingly, from the viewpoint of economy, compliance with the Respondents' request would result in the increase of Employer's payroll costs by the salary of a piledriver for each rig, while not increasing the work output of the job crew. We find therefore that the factors of effi- ciency and economy favor the use of employees who are represented by the Laborers and Operating Engineers. rl^ 61nternational Association of Machinists, Lodge No. 1743 (J. A. Jones Construction Company). 135 NLRB 1402 9 N.L.R.B. v. Radio A Television Broadcast Engineers Union, Local 1212, etc. (Colum- bia Broadcasting System), 364 U.S. 573. OMAHA CARPENTERS DISTRICT COUNCIL, ETC. 997 3. Conclusions as to the merits of the dispute. On the basis of the record as a whole, particularly the evidence as to employer and industry practice, and the economy and efficiency ' of the operation, and in the absence of other evidence as to factors that would favor the Carpenters, we shall determine the jurisdictional dispute herein by awarding the disputed work of flagging, spotting, and aligning the dragline and maintaining and repairing the tools and accessories at the site to employees who are represented by the Operating Engineers, and the work of hooking on the service line to the'casings for their insertion and removal from the shaft and aligning the casings during their insertion into the shaft to employees who are represented by the Laborers.? Ili making these determinations we are assigning the disputed work to oilers who are represented by Local 571, Operating Engineers and to laborers who are represented by Local 1140, Laborers, but not to these Unions or their members. In view of the above, we find that Respondent Union and its agent Don Bastemyer were not and are not entitled by means proscribed by Section 8(b) (4) (i) and (ii) (D) to force or require Bel-Toe Founda- tion Co. to assign the disputed work to the Carpenters 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 1140,, 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 oilers or operating engineers, currently represented by Local 571, International Union of Operating Engi- neers, AFL-CIO, are entitled to perform the work of flagging, spot- ting, and aligning the dragline and maintaining and repairing the tools and accessories at the site. 7 The Employer's foundation construction work on the Omaha Kellogg project has been completed We reject the Employer 's contention that the Board' s determination be em- ployerwide in scope . Our assignment is to be regarded as limited to the facts and cir- cumstances 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 Omaha Carpenters District Council and Local 571, International Union of Operating Engineers, AFL-CIO, in any area where their geographical jurisdictions coincide and (2) the work in dispute between Omaha Carpenters District Council and Local 1140, International Hod Carriers', Building and Common Laborers ' Union of America , AFL-CIO, in any area where their geographical jurisdictions coincide. International Union of Oper- ating Engineers, Local 66 (Frank P. Badalato & Son), 135 NLRB 1392 at 1401. 998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Omaha Carpenters District Council and its agent Don Baste- myer are not entitled, by means proscribed by Section 8(b) (4) (D) of the Act, to force or require the Employer to assign the above work to piledrivers represented by the Carpenters. 4. Within 10 days from the date of this Decision and Determina- tion of Dispute, Omaha Carpenters District Council and its agent Don Bastemyer, shall notify the Regional Director for Region 17, in writing, whether or not they will refrain from forcing or requiring Bel-Toe Foundation Co., by means proscribed by Section 8 (b) (4) (D), to assign the work in dispute to its members rather than to laborers and operating engineers employed by the Employer, and represented by the Laborers Union and Operating Engineers respectively. Kern's Bakery, Inc. and Milk, Ice Cream Drivers and Dairy Em- ployees Local Union #783, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica. Cases Nos. 9-CA-3015 and 9-CA-3115. January 14, 1965 DECISION AND ORDER On September 11, 1964, Trial Examiner A. Bruce Hunt issued his Decision in the above-entitled proceeding, involving two unconsoli- dated cases with the same parties, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in these cases , and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner as modified herein. In Case No. 9-CA-3015 the Trial Examiner found, and we agree, that General Manager Hart's interrogation of applicant Bill Sams as to whether employees at Sams' previous place of employment were represented by a union constituted interrogation of Sams as to his own union membership and therefore violated Section 8(a) (1) of the 150 NLRB No. 87.