Int'l. Union of Operating Engineers

672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Local 49, AFL-CIO and Egan-McKay Electrical Contractors , Inc. and Inter- national Brotherhood of Electrical Workers, Local 292, AFL-CIO. Case 18-CD-59. May 16, 1967 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, JENKINS, AND ZAGORIA This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following the filing of charges under Section 8(b)(4)(D) of the Act by Egan-McKay Electrical Contractors, Inc. (hereinafter called Egan-McKay), alleging that International Union of Operating Engineers, Local 49, AFL-CIO (herein called Operating Engineers), induced or encouraged employees to cease work in order to force or require Egan-McKay to assign the work in dispute to members of Operating Engineers. Pursuant to notice, a hearing was held on December 6, 7, and 19, 1966, before Hearing Officer R. J. Della Rocca of the National Labor Relations Board. All parties were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing upon the issues. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. Briefs were filed by Operating Engineers and Egan-McKay and have been duly considered. Upon the entire record in this case, the Board makes the following findings:' 1. THE BUSINESS OF THE EMPLOYER Egan-McKay is engaged in the business of electrical construction with its principal place of business located at 7100 Medicine Lake Road, Minneapolis, Minnesota. The parties stipulated, and we find, that Egan-McKay is engaged in commerce within the meaning of the Act, and that during the past year it made sales of good and services in excess of $50,000 outside the State of Minnesota. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Operating Engineers and the International Brotherhood of Electrical Workers, AFL-CIO (hereinafter called IBEW), are labor organizations within the meaning of Section 2(5) of the Act. - III. THE DISPUTE A. The Basic Facts The disputed work is the operation of a hydraulic and backhoe trencher, which is used to dig trenches for the laying and installation of electrical conduits on the Nicollet Mall in Minneapolis, Minnesota. Egan-McKay contracted with the City of Minneapolis to perform all the electrical work on the Nicollet Mall. Included in this work is the laying of large banks of electrical conduits in ditches adjacent to the curb for approximately 10 city blocks. The record indicates that the trencher was purchased and subsequently delivered by Egan- McKay to the worksite on approximately September 15, 1966, and since that time the machine has been operated periodically by Egan- McKay employees who are also members of or represented by IBEW. On September 26, 1966, Larkin McLellan, recording and corresponding secretary of Operating Engineers, contacted the superintendent for Egan-McKay and asked whether or not the operation of trenchers was to be assigned to members of Operating Engineers. The superintendent replied that Egan-McKay was required by the business manager of IBEW to employ a member to operate the machine. McLellan then called Joseph F. Krech, business manager of IBEW, and informed him that if IBEW claimed jurisdiction over the operation of the Trackmaster, Operating Engineers would take the dispute to the National Joint Board for Settlement of Jurisdictional Disputes Within the Building and Construction Industry (hereinafter called Joint Board). McLellan then called Thomas J. McKay, president of Egan- McKay. In response to McKay's assertion that the trencher would be operated by a member of IBEW, McLellan reiterated that the dispute would be referred to the National Joint Board. Subsequently, Operating Engineers did submit the dispute to the Joint Board. On October 4, 1966, the Joint Board sent Egan-McKay a telegram in which it requested information regarding the dispute and the participation of Egan-McKay in its work award. The Joint Board was then informed by the Minneapolis Chapter of the National Electrical Construction Association (herein NECA), of which Egan-McKay is a member,2 and IBEW, that because of the nature of the work involved, consisting of "outside" work, neither the NECA nor IBEW considered themselves bound by a Joint Board award. On October 11, 1966, the Joint Board rendered a decision in which it awarded the operating of the trencher to Operating Engineers. Following the Joint Board decision, Operating Engineers made further demands on the Employer that the operation of the trencher be assigned to its members, during which Operating Engineers threatened to picket the work if the trencher continued to be operated by an IBEW member. Unsuccessful meetings took place among the various I 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 As a member, Egan-McKay has designated NECA as its collective-bargaining representative and is therefore subject to the contract between its Minneapolis Chapter and IBEW 164 NLRB No. 94 INTL. UNION OF OPERATING ENGINEERS 673 parties in an attempt to settle the dispute , including one on October 21, 1966, with the State Labor Conciliator. Then on October 24, 1966 , a picket from Operating Engineers appeared on the jobsite carrying a sign . The picket sign read as follows: EGAN-McKAY ELECTRICAL CONTRACTORS UNFAIR FOR REFUSING TO ABIDE BY THE NATIONAL JOINT BOARD DECISION IUOE, LOCAL 49 The picket remained on the jobsite through November 11, 1966. B. Contentions of the Parties Egan-McKay contends that Operating Engineers by their picketing of the jobsite at Nicollet Mall attempted to force it to assign the work in dispute to Operating Engineers. As to the merits, Egan-McKay and IBEW contend that neither of them are bound by the award of the Joint Board in connection with the work involved in this dispute. Further, they contend that the work should be assigned to IBEW on the basis of the NECA contract with the Union, the efficiency of its operations, the relative skills involved, and economy of operation. Operating Engineers contends that it did not violate Section 8(b)(4)(D), having done nothing more than request for its members the work in dispute, and that the sign carried by its picket at the jobsite did not have the object of forcing Egan-McKay to employ an operating engineer but its purpose was to inform the public that Egan-McKay was unfair in its refusal to abide by the Joint Board decision. As to the merits, Operating Engineers contends that the work in dispute should be assigned to its members on the basis of the decision by the Joint Board awarding it the work, and on the basis of skills involved, area practice, and that traditionally the work has been performed by its members, and more particularly, with the exception of Egan-McKay, all the contractors on the project at the time of the dispute, including the city of Minneapolis, have assigned the operation of the hydraulic trenching machine and backhoes to members of Operating Engineers. C. Applicability of the Statute Before the Board may proceed with a determination of 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. The record shows that Respondent threatened to picket the Employer's worksite unless the operation of the trencher was assigned to one of its members and that Respondent actually picketed the worksite causing some interference with the Employer's operation. Operating Engineers contends that Egan-McKay and IBEW promised to abide by the decision of the Joint Board and that its picketing merely publicized that fact. Whether Egan-McKay and IBEW -so indicated is not clear, but they did advise the Joint Board prior to issuance of its award that , since the work in dispute was "outside work," neither Egan- McKay nor IBEW would participate in the hearing nor be bound by the Joint Board's jurisdiction. The trench digging in dispute, performed as it is on a public thoroughfare , we find to be outside work. See Local Union No. 181, International Union of Operating Engineers , AFL-CIO (Service Electric Company), 146 NLRB 483. Accordingly, we find that Egan-McKay and IBEW have not adjusted or agreed upon methods for the voluntary adjustment of the present dispute. On the basis of the entire record , 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 under Section 10(k) of the Act. D. The Merits of the Dispute Neither of the contending labor organizations is the certified bargaining representative of Egan- McKay's employees. Although Egan-McKay is a member of the Minneapolis branch of the NECA and as such abides by the contract NECA has with IBEW, the contract provisions urged are not described in terms which would include a project such as Nicollet Mall. Members of both Unions possess the skills necessary to operate the trencher, and although McKay testified that in his opinion a member of IBEW would be more efficient and economical because the operation of the trencher is not a full-time operation and he could do work when not operating the trencher, we note that the wage rate for members of Operating Engineers is considerably lower than that of IBEW for this kind of work and it is possible that a member of Operating Engineers could perform other kinds of ditchwork for the Employer if not needed on the trencher. There was testimony that some members of NECA who have their own ditchdigging equipment do employ members of IBEW to operate the equipment. However, the record indicates that, in the Minneapolis area, this kind of work is generally handled by members of the Operating Engineers. The city of Minneapolis employs members of Operating Engineers to operate its trenching equipment in connection with the installation of electrical conduits. Moreover, among Operating Engineers' collective-bargaining agreements with employers in the construction industry , there are 34 with Minnesota employers who do trenching work 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the installation of electrical conduits. Employer testified that on "inside jobs" it had subcontracted trenching work to subcontractors who employed members of Operating Engineers to operate the trenching equipment. Further, with the exception of Egan-McKay, all the contractors on the Nicollet project have assigned the operation of the trenching machines and backhoes to Operating Engineers. Accordingly, on the basis of predominant area and industry practice, we shall determine the existing jurisdictional dispute by awarding the work in dispute to employees represented by Operating Engineers, rather than to employees represented by IBEW . Our present determination is limited to the particular controversy which gave rise to this proceeding. DETERMINATION OF DISPUTE On 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: Employees engaged as operating engineers and currently represented by International Brotherhood of Operating Engineers , Local 49, AFL-CIO, are entitled to the assignment of operating the hydraulic and backhoe trencher being used by Egan-McKay Electrical Contractors, Inc., on its project at Nicollet Mall, Minneapolis , Minnesota.