Operating Engineers, Local Union No. 3

1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL OFFICERS AND MEMBERS OF NEW YORK LITHOGRAPHERS & PHOTO- ENGRAVERS UNION No. ONE-P, INTERNATIONAL LITHOGRAPHERS & PHOTO- ENGRAVERS UNION (AFL-CIO) Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT engage in, or induce or encourage any individual employed by Alco-Gravure Division of Publication Corporation to engage in a strike or refusal in the course of his employment to use, process, transport, or other- wise handle or work on any goods, articles or commodities or to perform any services, or threaten, coerce, or restrain Alco-Gravure Division of Publication Corporation, with an object of forcing and requiring Alco-Gravure Division of Publication Corporation to cease doing business with Printing Development, Inc. NEW YORK LITHOGRAPHERS & PIIOTO-ENGRAVERS UNION No ONE-P, INTERNATIONAL LITHOGRAPHERS & PHOTO- ENGRAVERS UNION (AFL-CIO), Labor Olganizatlon. 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 If members and officers have any question concerning this notice or compliance with its provisions, they may communicate directly with Board's Regional Office, 641 National Newark Building, 744 Broad Street, Newark, New Jersey 77002, Telephone 228-4722. International Union of Operating Engineers, AFL-CIO, Local Union No. 3 (American Pipe and Construction Co.) and Inter- national Association of Machinists and Aerospace Workers, AFL-CIO, Local Lodge No. 1546. Case 2O-CD-189. Septem- ber 23, 1966 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by International Association of Machinists and Aerospace Workers, AFL-CIO, Local Lodge No. 1546, hereinafter called the IAM or the Machinists, against International Union of Operating Engineers, AFL-CIO, Local Union No. 3, hereinafter called the Operating Engineers. The charge alleged that the Operating Engineers had threatened a strike and had caused a work stoppage with an object of forcing or requir- ing American Pipe and Construction Co., hereinafter called the Employer, to assign certain work to its members rather than to mem- bers of the IAM. A hearing was held at San Francisco, California, on May 23 and 24, 1966, before Hearing Officer Robert B. Hoffman. All parties participated in the hearing and were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to 160 NLRB No. 96. OPERATING ENGINEERS, LOCAL UNION NO. - 3, 1233 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 Machinists and the Operating Engineers filed briefs in support of their positions, and these have been given due consideration. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Jenkins and Zagoria]. Upon the entire record in this case, the Board makes the following findings : 1. THE EMPLOYER The Employer, a California corporation, is engaged in the manu- facture of reinforced concrete pipe products at various plants in the western area of the United States. Incidental to this operation is the delivery of the pipe to jobsites by truck. The Employer's Hayward, California, plant, which is involved in this dispute, is the headquar- ters for its northern California division. Upon the basis of the facts stipulated to by, the parties, we find that the Employer is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATIONS The parties stipulated, and we find, that the Operating Engineers and the Machinists are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The work at issue This proceeding arises out of a dispute over work assignments involving jobsite maintenance and repair of tractors used by the Employer to offload sections of pipe from its trucks at the San Fran- cisco Water Department Aqueduct project. The work includes the installation, removal, and replacement of motors in the tractors at the site of construction. The Operating Engineers Union makes no claim to any repair or maintenance work performed at the Employer's plant, conceding that this work properly belongs to employees who are members of the IAM. - B. Background and basic facts of the dispute The. Employer's Hayward plant is divided into several depart- ments, one of which, the garage, is responsible for the repair and 257-551-67-vol. 160-79 1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found the Respondent Local 2-P has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Although the negotiations between the various locals of the International and P.D.I have resulted in agreements which, in effect, have virtually brought the ne- cessity for secondary activity to an end in that P.D I. has agreed not to produce scanned negatives for the gravure industry, an improper object which is not any longer operative may nevertheless be the basis for a Board Order because such object may again become operative in the future. Accordingly, I recommend that a• cease-and-desist order in the usual form be issued. CONCLUSIONS OF LAW 1. Baltimore Lithographers and Photoengravers Union, Local 2-P, International- Lithographers and Photoengravers Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By inducing and encouraging employees of Alco-Gravure Division of Publica- tion Corporation to engage in a strike or concerted refusal in the course of their employment to handle or process scanned positives manufactured by P.D.I., an objective thereof being to force or require Alco to cease doing business with P.D.Y., the Respondent, Local 2-P, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(4)(i)(B) of the Act. 3. By the acts described above in paragraph 2, for the objects set forth in said paragraph, Respondent did threaten, coerce, and restrain and is now threatening, coercing, and restraining Alco, a person engaged in commerce and in an industry affecting commerce, and the Respondent thereby has engaged in and is now engaging in unfair labor practices within the meaning of Section 8(b) (4) (ii) (B) of the Act. 4. The aforesaid unfair labor practices, are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] New York Lithographers & Photo-Engravers Union No. One-P, International Lithographers & Photo-Engravers Union, AFL- CIO and Alco-Gravure Division of Publication Corporation. Case 22-CC-278- Septen tber 2f, 1666 DECISION AND ORDER December 13, 1965, Trial Examiner Morton D. Friedman issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take, certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof, and the Charg- ing Party, hereinafter referred to as Alco, filed an answering brief. The National Labor Relations Board has reviewed the rulings of 160 NLRB No. 91. 1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD maintenance of all automotive equipment. The garage has approxi- mately ' 20 employees, all of whom are skilled automotive mechanics, some being qualified to work on diesel equipment . Since 1952 these employees have been represented by the IAM under successive collective-bargaining agreements with the Employer,' and it appears that the bargaining relationship predated that. As an integral part of its operation in northern California, the Hayward plant normally delivers the pipe which it has manufactured to the construction sites where it will be used . There the pipe is off- loaded either by the Employer 's own employees or by employees of the contractor. Before 1964, the Employer offloaded its product by hand, by forklift, or, at least until 1956, with the use of a truck crane. In 1964, however, when it began manufacturing a new line of large heavy pipe which was to be used at a site with difficult terrain, the Employer transferred a diesel caterpillar tractor with a boom attached , called a "side boom cat," from its southern California divi- sion to facilitate the offloading operation. When the truck crane was in use by the Employer before 1956, it was operated by members of the Teamsters Union and any necessary field maintenance or repair work on it was assigned to the garage mechanics . The record fails to indicate whether any fieldwork was ever required on the forklifts. When the Employer began to use side boom cats in 1964, however , it is clear that garage employees were regularly sent out to repair and maintain them. The first job requiring use of a side boom cat was the Bushy Creek project in the summer of 1964. The foreman and two mechan- ics from the garage went to the site and assembled the boom and counterweights on the cat . An operator for the tractor was hired through the Operating Engineers ' hiring hall, and a few days later, when he complained that the cat was steering hard, garage employees made the necessary jobsite repairs . In the course of the Bushy Creek project several other onsite repairs were necessary , and the work was performed by garage employees, with the operator occasionally pro- viding some minor assistance . The garage foreman made one or two inspection trips a week to determine if the tractor was running prop- erly, and when the job was finished, garage mechanics stripped the tractor down for transport. In 1965 the side boom cat was used for a job in Santa Clara County. As before, an operator was hired from the Operating Engi- neers' hiring hall and members of the IAM assembled the equipment at the jobsite. During the course of this job it was necessary to remove the boom in order to shorten it. The operator assisted the garage i Neither Union involved herein has been certified by the Board. OPERATING ENGINEERS , LOCAL UNION NO. 3 1235 mechanics in the removal and replacement of the boom, and it was shortened in the shop by garage employees. In both this job and the Bushy Creek project no dispute arose as to the assignment of the repair and maintenance work. In January of 1966, the Hayward plant began to manufacture pipe for a new job on which two side boom cats would be used-the San Francisco Aqueduct project. About this same time a representative of the Operating Engineers requested that the Employer sign a collective-bargaining agreement covering offloading operations in the field. -The Employer's personnel manager testified that the contract discussions centered only about the agreement's coverage of the trac- tor operators and that it was his understanding that it would not cover repair and maintenance work. A copy of the proposed contract was forwarded to the Employer's main plant in southern California, and it was subsequently signed by the Employer. When the tractors were sent out to the San Francisco Aqueduct jobsite in February, the necessary assembly operations were per- formed at the site by the garage mechanics with the aid of one of the operators. In late March one of the tractors broke down and the shop foreman, who was most familiar with the equipment, and another mechanic immediately went to the j obsite to make the needed repairs. With the assistance of the operator they examined the engine and discovered a broken crankshaft. Another garage mechanic was sum- moned, and, together with the operator, the shop employees began to remove the engine in order to take it back to the garage for repairs. While these employees were in the process of removing the engine, a representative of the Operating Engineers appeared on the scene and stated that the work was within the exclusive jurisdiction of his Union. Because the job was almost completed, however, he said he would not object to its removal by the garage employees. But he insisted that the engine be replaced by repairmen who were members of the Operating Engineers Union. The engine was then taken back to the shop where it was repaired. Upon being informed of the Operating Engineers' position, a rep- resentative of the Machinists threatened to close down the shop if the Employer allowed members of the Operating Engineers to perform the disputed work. Because of this threat and because it was felt that the work properly belonged to the Machinists, the Employer assigned the job of installing the engine to employees who worked in the garage department. These employees, and an operator, had just begun to place the engine back in the tractor when the Operating Engineers' representative arrived and threatened to call a strike if members of this Union were not given exclusive jurisdiction over the work. He thereupon pulled the two operators off the job. 1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After conferring with the Machinists Union, the Company, in order to get on with the job, agreed to the Operating Engineers' demand and hired two repairmen through its hiring hall. The repairmen arrived the next morning and the engine was installed in about 11/2 days. As a result of these events the Machinists filed the 8(b) (4) (D) charge against the Operating Engineers which is now before us and an unfair labor practice charge against the Employer.2 The latter charge was subsequently withdrawn. Thereafter, several other field repairs on the tractors were required. In one instance the two operators removed a transmission and, after it was repaired in the shop, reinstalled it. At another time an oper- ator assisted a garage mechanic in replacing an idler. This last inci- dent resulted in the reinstitution of 8(a) (3) and (1) charges against the Employer by the IAM, which charges are still pending. And about 10 days prior to the hearing in this case another dispute arose as to whether an operator should be used to assist the mechanics in making some minor adjustments and repairs. C. Contentions of the parties The Operating Engineers Union bases its claim for the work pri- marily on the terms of its collective-bargaining agreement. In addi- tion it claims that efficiency of operation and the past practices of the Employer give it a primary right to the disputed work. The JAM contends the work should be assigned to its members on the basis of past practice and its longstanding contractual relation- ship with the Employer. In support of its claim it also points to con- siderations of efficiency and economy and the fact that the Employer would prefer to assign the work to its regular maintenance employ- ees. The IAM takes the position that a member of the Operating Engineers should not even be allowed to assist its members. The Employer's position, as expressed at the hearing, is essentially the same as the IAM's. The Employer states that it had no intention of contracting field repair work to the Operating Engineers when it signed the collective-bargaining agreement with that Union. D. Applicability of the statute Before the Board may proceed with a determination of the dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b) (4) (D) has been violated. 2 An IAM representative testified that he agreed to cooperate with the Employer by allowing the operator to continue helping the garage employees , but that he had no inten- tion of allowing the Company to hire two extra repairmen from the Operating Engineers. OPERATING ENGINEERS, LOCAL UNION NO. 3 1237 The record establishes that on March 21, 1966, the Operating Engi- neers threatened the Employer with a strike and caused a work stop- page with the avowed objective of forcing or requiring the Employer to reassign the disputed work to its members rather than to employ- ees who are members of the Machinists Union. We find that there is reasonable cause to believe that a violation of Section 8(b) (4) (D) has occurred, and that the dispute is properly before the Board for determination pursuant to Section 10 (k) of the Act .3 E. Merits of the dispute Section 10 (k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various relevant factors. As the Board has stated, its determination in a juris- dictional dispute case is an act of judgment based upon common- sense and experience in the weighing of these factors.4 The following factors are relevant in making a determination of the dispute before us. 1. Collective-bargaining agreements The Machinists' current contract with the Employer provides sim- ply that it shall cover all employees of the Employer within the jurisdiction of the Local Lodge, without specifying the scope of this jurisdiction. The previous collective-bargaining agreement between the IAM and the Employer, which was in effect when the Employer began to use its garage mechanics for onsite work on the tractors, spelled out the jurisdiction as'extending to all employees engaged in "maintenance, rebuilding, dismantling, assembling, repairing, install- ing .. _ of all automotive parts, units or auxiliaries . . . connected to . . tractors . . . " Similar wording is to be found in the IAA/1's constitution. Nowhere is there any provision limiting the locus of such work to the plant, and no such restriction has been assumed by either the Employer or the IAM. ' The'Operating'Engineers' collective-bargaining agreement with the Employer provides coverage of field- repairs in -its initial section, although the wording is somewhat ambiguous.- Thus, section 1(c) states that the agreement shall cover "all maintenance and repair shops, and all field repairs and equipment maintenance of the indi- vidual Employers covered hereby, if the individual Employer is not covered by a bona fide,existing written agreement with another local labor organization covering shop work . . ." The coverage is made 3 No party suggests that there is an agreed-upon method for voluntary adjustment of the dispute 4 International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Con- atruction Company ), 135 NLRB 1402, 1410. 1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD more explicit in a later clause, section 4(18), which provides that "the operation of equipment covered by this Agreement, and the main- tenance and repair of such equipment done at the site of construction . . . shall,be performed exclusively by an employee, or by employees covered by a collective-bargaining agreement with the Union . . . ." Both Unions appear to have a valid claim to the disputed work under the terms of their agreements. The fact that the Operating Engineers' contract may be more specific in its coverage of field repairs will not be given controlling weight by the Board, since it was executed at a time when jobsite repair work was being performed by the, garage mechanics under an existing collective-bargaining agreement between the Machinists and the Employer.5 Consequently, we cannot base an award on the terms of either agreement and must look to other pertinent factors.' 2. Skills The record indicates that members of both Unions possess the skills necessary for the work involved. However, the shop employees, by virtue of their familiarity with the Employer's automotive equip- ment, are in a ,better position to know the peculiarities of the equip- ment and any special procedures that may be required. 3. Past practices of the Employer As indicated above, it has been the practice of the Employer to utilize its garage employees, who are represented by the IAM, to assemble, maintain, and repair heavy, duty equipment in the field. We do not accept the Operating Engineers' argument that we are pre- cluded from considering practice which occurred before its 1966 agreement was executed, and we find that the Machinists claim is supported by this factor. To the extent that the operators of disabled tractors have been used by the Employer to assist in repairing the tractors the Operating Engineers', claim is supported. The Operating Engineers contend, however, that the practices of the Employer in its southern California division demonstrate that all the disputed work is properly within its jurisdiction. There Oper- ating Engineers operated and maintained tractors used on a construc- tion project. At that time, however, the Employer had a separate construction division which was in charge of the entire project and which used Operating Engineers exclusively for its work. Since then the construction division has been abolished and the offloading of 5 Wood, Wire and Metal Lathers International Union, Local No. 68 (Drywall Steel Erectors ), 159 NLRB 1409. B lVarehou8esnen's Union Local 6 (Puget Sound Tug & Barge Company ), 144 NLRB 1489, 1493. OPERATING ENGINEERS, LOCAL UNION -NO. 3 1239 pipe is now merely incidental to its manufacture. We thus cannot consider the experience of the southern California division to be a determinative of this dispute. 4. Efficiency and economy of operation Garage mechanics in the employ of the Employer are readily avail- able to be dispatched to the San Francisco Aqueduct project if they are needed to perform repairs or maintenance work. As stated above, they are familiar with the Employer's equipment and are thus best suited to'perform the work on it. If they determine that certain parts can be better repaired at the plant, they can make that decision, repair the parts, and replace them without any unnecessary delays. The Employer- would not be required to pay out additional wages for these repairmen, and if they find that the work is quickly accom- plished, the mechanics can be back at their shop jobs in a short time. - On the other hand, repairmen from the Operating Engineers Union must be. obtained through hiring halls. This can result in substantial delays, and there is always the possibility that no repairman will be available when needed. If the necessary fieldwork is relatively minor, the delays and expense' of obtaining repairmen from the Operating Engineers' hiring hall, as compared to sending a mechanic out from the garage, can be considerable. Furthermore, if repairs must be per- formed both at the jobsite and in the shop, considerations of efficiency dictate that one group of employees rather than two groups work in the project. For these reasons, we find that the most efficient and economical operation would be to assign the disputed field mainte- nance and repair work at the San Francisco Aqueduct project to employees in the garage department who are represented by the IAM. However,' we note that the operator of a disabled tractor would be left idle if all the repair work were to be awarded to the garage employees. Therefore, consistent with past practice, we determine that it would' be most efficient and economical to permit the operator to assist the garage employees in performing necessary work. The San Francisco Aqueduct project is located just a few miles from the Hayward plant. The Operating Engineers Union points out that while garage mechanics may easily be dispatched to that site, other projects of -the Employer may require them to be sent much longer distances and may involve considerably greater expense and delay. Since the Operating Engineers' has dispatching offices through- out northern California, it argues that the most efficient and econom- ical operation would require an award to its members. However, we are here dealing only with the assignment of the disputed work at the San Francisco Aqueduct project and are not now deciding the assign- ment of work at future projects in other locations. 1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. Industry and area practice The evidence as to industry and area practice is inconclusive, show- ing only that the two area shops which specialize in the repair of tractors have contracts with both Unions and that a nearby drayage company uses IAM repairmen on its equipment, which does not appear to include tractors. IV. CONCLUSION Based upon the entire record and after full consideration of all relevant factors, particularly efficiency and economy of operation, the past practices of the Employer, and its preference, we conclude that the garage employees represented by the Machinists Union are entitled to the work in dispute. However, we also believe that effi- ciency, economy, and past practices dictate the use of operators of disabled tractors, represented by the Operating Engineers Union, as assistants to the garage mechanics to the extent required. Accord- ingly, we shall determine the existing dispute by deciding that employees represented by the Machinists, rather than those repre- sented by the Operating Engineers, are entitled to the disputed work, with the exception of tractor operators, represented by the Operating Engineers, may be used to assist in making needed repairs. Our pres- ent determination is limited to the particular jobsite where this dis- pute arose.7 These assignments are made to employees represented by the respective Unions, but not to the Unions or their members. DETERMINATION OF DISPUTE "Pursuant' to Section 10(k) of the, National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the record in this proceeding, the National Labor Relations Board hereby makes the following determination of dispute : - 1. Employees of American Pipe and Construction Company, who are represented by, International Association of Machinists and Aero- space Workers, AFL-CIO, Local Lodge No. 1546, are entitled to per- form the work of jobsite maintenance and repairs of tractors used to offload sections of pipe manufactured at the Hayward, California, plant of American Pipe and Construction Company and delivered to the San Francisco Water Department Aqueduct project. 2. Employees of American Pipe and Construction Company, who are represented by International Union of Operating Engineers, 7 We reject the Machinists' request that our determination extend to all work performed by the Employer in the geographical area covered by its collective -bargaining agreement, for the essential factors of efficiency and economy might be quite different at some other site BOILERMAKERS , LOCAL 204 1241 AFL-CIO, Local No. 3, and who operate tractors which require main- tenance or repair at the San Francisco Water Department Aqueduct project jobsite, are entitled to assist employees of American Pipe and Construction Company, who are represented by International Asso- ciation of Machinists and Aerospace Workers, AFL-CIO, Local Lodge No. 1546, in performing jobsite repairs and maintenance. 3. International Union of Operating Engineers, AFL-CIO, Local No. 3, is not entitled, by means proscribed by Section 8(b) (4) (D), to force or require American Pipe and Construction Company to assign the work of performing jobsite repairs and maintenance on tractors at the San Francisco Water Department Aqueduct project to its members, except to the extent permitted above. 4. Within 10 days from the date of this Decision and Determi- nation of Dispute, International Union of Operating Engineers, AFL-CIO, Local No. 3, shall notify the Regional Director for Region 20, in writing, whether or not it will refrain from forcing or requir- ing American Pipe and Construction Company, by means proscribed by Section 8(b) (4) (D) of the Act, to assign the work in dispute, and not assigned to it in this Determination' of Dispute, to'-its members rather than to employees represented by International Association of Machinists and Aerospace Workers, AFL-CIO, Local' Lodge No. 1546. International Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths,. Forgers and Helpers, Local 204, AFL-CIO (Ha- waiian Dredging & Construction Co., Ltd.) and International Association of Machinists and Aerospace Workers, Lodge 1245, AFL-CIO International Association of Machinists and Aerospace Workers, Lodge 1245, AFL-CIO (Hawaiian Dredging & Construction Co., Ltd.) and International , Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 204, AFL-CIO. Case 37-CD-9 and 10. September 23, 1966 DECISIONS AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the National Labor Relations' Act, as amended, following two charges alleging violations of Section 8(b) (4) (D) of the Act. The first of these charges (Case 37-CD-9) was filed by the International Association of, Machinists and Aerospace Workers, Lodge 1245, AFL-CIO, hereinafter referred to as IAM or Lodge 1245, and alleged that International Brother- hood of Boilermakers, Iron' Ship Builders, Blacksmiths, Forgers and 160 NLRB No. 98.