Operating Engineers, Local 520

256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Local 520, AFL-CIO and Home Building Contractors, Inc., and Home Building Corporation and General Drivers, Warehousemen and Helpers Local Union No. 534, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 14-CD-259 November 15, 1967 DECISION AND DETERMINATION OF DISPUTE By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, fol- lowing a charge filed by Home Building Contrac- tors, Inc., and Home Building Corporation, herein jointly called the Employer, alleging that Local 520, International Union of Operating Engineers, AFL-CIO, herein called Engineers Local 520, had violated Section 8(b)(4)(D) of the Act by conduct intended to force or require the Employer to assign certain work to Local 520 members rather than to the Employer's own employees who are represented by General Drivers, Warehousemen and Helpers Local Union No. 534, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousem n & Helpers of America, herein called Teamsters Local 534. Pursuant to notice, a hearing was held before Hearing Officer John S. Stevens on August 21, 22, and 23, 1967. All parties appeared at the hearing and were af- forded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. A brief filed by the Employer has been given due consideration. Upon the entire record in this case, the Board makes the following findings: 1. THE EMPLOYER The Employer, Home Building Contractors, Inc., and Home Building Corporation, are two separate Missouri corporations, which are interrelated both in management and in operation. The companies are engaged in the manufacture and construction of prefabricated homes. Each corporation annually sells materials and merchandise valued in excess of $50,000 to customers located outside the State of Missouri. The parties stipulated, and we find, that the Em- ployer is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. 11. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated , and we find, that En- gineers Local 520 and Teamsters Local 534 are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work at Issue The dispute involves the following work: Operation of an A-frame boom and winch mounted on a tractor unit used to move house sec- tions from a trailer to a house foundation. B. Background and Basic Facts of the Dispute The Employer is engaged in the manufacture and construction of prefabricated homes. The com- ponent sections are manufactured at the Em- ployer's factory in Sedalia, Missouri, and are trans- ported on trailers to the construction site by mem- bers of Teamsters Local 534, who are employed by the Employer. After the sections arrive at the con- struction site, they are hoisted from the trailer and moved to the foundation by use of an A-frame boom and winch which is mounted on the trailer. The construction is completed by a team of five or six carpenters who work together with the operator of the truck. It is the operation of the A-frame boom and winch in moving the component parts from the trailer to the foundation which is disputed in this proceeding. In March 1966, the Employer was erecting a prefabricated house in Troy, Illinois. The Em- ployer's foreman on the job, Frank Cohalla, was ap- proached by a business representative of Engineers Local 520, who demanded that the disputed work be assigned to a member of his Union and threatened to picket if this assignment was not made. Although Cohalla did hire an operating en- gineer, the record indicates that the employee who was hired did not actually operate the A-frame boom. Shortly after the employee arrived, the business representative presented Cohalla with a collective- bargaining contract which Cohalla signed. Cohalla testified that he had not realized he was signing a contract and that he had informed the business representative that he lacked authority to execute agreements on behalf of the Employer. In May 1967, another business representative of Local 520 appeared at another jobsite of the Em- 168 NLRB No. 38 OPERATING ENGINEERS, LOCAL 520 257 ployer in Collinsville, Illinois, and demanded that the work in question be assigned to a member of his Union. On this occasion, the purchaser of the home paid the wages for an operating engineer, but again the engineer did not actually operate the A-frame boom. On or about July 13, 1967, the A-frame boom was being operated at a construction site in Maris- sa, Illinois, by a member of Teamsters Local 534. A business representative of Local 520 appeared and demanded that this work be assigned to an en- gineer. When his demand was refused, the business representative brought a picket to the construction site, whose sign read as follows: NOTICE TO THE PUBLIC Home Building Corporation has breached its agreement with Engineers 520. Employees of other employers are not requested to refrain from working. Shortly after the picket arrived, the carpenters en- gaged in erecting the house stopped working. The purchaser of the home and the business representa- tive of Local 520 then agreed that the picketing would cease if the A-frame boom would be moved from the construction site. The A-frame boom was then removed and the carpenters completed con- struction by hand. On July 17, 1967, the Employer began erecting another house at Marissa. The following day, a picket arrived with a sign bearing the same legend as had been used at the first house. On this occa- sion, the picketing did not stop as soon as the A- frame boom was removed. It did stop, however, after the foreman spoke with the attorney for En- gineers Local 520 on the telephone and, pursuant to that telephone call, instructed the picket to call the attorney. C. Contentions of the Parties Local 520 claims the disputed work on the basis of the following: (1) the collective-bargaining con- tract signed by Cohalla; (2) an agreement between the International Union of Teamsters and the Inter- national Union of Operating Engineers; (3) indus- try and area practice; and (4) decisions of the Na- tional Joint Board for the Settlement of Jurisdic- tional Disputes. Additionally, Engineers Local 520 contends that the picketing, which is the subject of the charge, was not intended to force the Employer to assign the work in question to members of Local 520, but was simply intended to compel compliance with the contract between Engineers Local 520 and the Employer. Thus, Engineers Local 520 contends that the Board lacks jurisdiction to decide the dispute pursuant to Section 10(k) because there is no basis for believing that a violation of Section 8(b)(4)(D) has occurred. Teamsters Local 534 claims the disputed work on the basis of its collective-bargaining agreement with the Employer, the Employer's past practice, and the skills possessed by Teamster members. The Employer contends that the agreement signed by its foreman, Cohalla, is not binding because Cohalla lacked authority, actual or ap- parent, to consummate collective-bargaining agree- ments on the Employer's behalf. It also contends that the work should be assigned to members of Teamsters Local 534 on the basis of past practice, safety, efficiency and economy, and the nature of the skills involved. D. Applicability of the Statute Before the Board may proceed with a determina- tion 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. As indicated above, Engineers Local 520 con- tends that no such reasonable cause exists because the picketing in question was intended to compel contract compliance rather than the assignment of work . We do not agree . The fact that the picket signs were phrased in terms of breach of contract does not alter the nature of the dispute , which, in fact , centers on the demand that the operation of an A-frame boom be assigned to members of En- gineers Local 520. We do not find the existence of the contract claim a reason to view this dispute as outside the scope of Section 8(b)(4)(D).' Accordingly , 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. E. Merits ofthe Dispute Section 10 (k) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to various relevant factors. The following factors are relevant in mak- ing a determination of the dispute before us. 1. Contracts A collective-bargaining agreement is currently in effect between Teamsters Local 534 and the Em ployer covering employees performing the work in I Willamette National Lumber Co , 1117 NLRB 1141 , Local / / 0, Sheet Metal Wor/ert Union (Brown & Williamson Tobacco Co ), 143 NLRB 947 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dispute. Similar agreements were in effect for a number of years prior to the present one. Although the definition of "work" in the present contract neither includes nor excludes operation of an A- frame boom, the Teamsters has been, and currently is, representing the employees who perform this kind of work. Engineers Local 520 contends that the contract signed in May 1966 by Foreman Frank Cohalla constitutes a valid assignment of the disputed work to operating engineers. Cohalla and all of the other employer witnesses who testified as to the signing of the agreement stated that Cohalla was never given authority to sign collective-bargaining agree- ments on behalf of the Employer. The Engineers contends, however, that even if Cohalla lacked ac- tual authority, he nonetheless possessed "apparent authority" to execute the agreement. We do not agree. Cohalla was a foreman, dressed in working clothes, whose ostensible duty was to supervise a field crew of six carpenters. The limits of Cohalla's authority were clearly indicated by his reluctance to hire an engineer without obtaining authorization from the Employer's home office. When requested to do so by the Engineers business representative, Cohalla told the representative that he would have to call the home office and then, after the telephone call, he stated that "he had been authorized" to hire an engineer. Since the business representative knew that Cohalla was unable to hire an extra employee without obtaining authorization from the Em- ployer's main office, he had no reason to assume that Cohalla possessed sufficient authority to ex- ecute collective-bargaining contracts on the Em- ployer's behalf. Under these circumstances, we find that Cohalla did not have apparent authority to sign a complicated labor agreement which purported to bind the Employer for a period of 2 years in all con- struction operations within a broad geographic area. 2 After Cohalla signed the contract and hired an engineer, a check for $3.80 was sent from the Em- ployer's home office to the Engineers pension and welfare fund, as required by the collective-bargain- ing agreement signed by Cohalla. Engineers Local 520 contends that the sending of this check amounted to a ratification by the Employer of Cohalla's unauthorized act. We do not agree. The check for $3.80 was the only payment made by the Employer to the Engineers fund. There is no evidence that any officer of the Employer knew about the agreement with the Engineers when the check was sent to that Union. In the absence of such knowledge, the sending of the check could not 2 Cf Lo( Joint Executive Bd, Hotel and Restmoant Employees and Bartenders Intl Union v Nationwide Downtowner Motor Inns, 229 F Supp 413 (D C Mo 1964), Nelson v Victors, Electric Works, 227 F Supp 404 ( D C Md 1964 ), affd and remanded 338 F 2d 994 (C A 4 1964) amount to a ratification of Cohalla's unauthorized act.3 Engineers Local 520 also relies on an agreement, executed in 1945, between the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and the In- ternational Union of Operating Engineers which provided that the operation of a dual purpose truck to hoist or transport loads suspended from a boom is within the jurisdiction of the Operating En- gineers. In determining the weight that should be accorded to this agreement, we note that the A- frame boom in dispute in the instant case is atypical in several ways. Its boom is longer than the ordina- ry boom. The high position of the boom creates a high center of gravity which increases the instability of the truck. Because of this instability, there is a significant danger that the truck will tip over if the boom is operated incorrectly. For this reason, drivers are customarily trained for 2 or 3 days be- fore they are permitted to operate the boom. Unlike the typical A-frame truck, the boom and mast on the Employer's truck is positioned behind the cab, instead of being near the rear of the truck bed. Furthermore, since the Employer's truck is used for transportation as well as for hoisting, its boom, un- like the typical boom, is collapsible. Thus, because the Employer's A-frame is atypical, it is not entirely clear whether the truck in dispute is an A-frame truck within the meaning of the 1945 agreement. We do not deem it necessary, however, to resolve this question. We simply note that the unique features of the Employer's A-frame boom diminish the weight that might otherwise be accorded to the 1945 agreement. 2. Awards of other forums Engineers Local 520 also relies on three deci- sions, the most recent of which was rendered in 1959 by the National Joint Board for the Settlement of Jurisdictional Disputes which assigned the operation of an A-frame boom and winch to the Operating Engineers, rather than the Teamsters. Neither Local 520 nor Local 534 was a party to those proceedings. Because the Employer was not a party to those proceedings, it is, of course, not bound by the decisions therein. Additionally, the uniqueness of the Employer's equipment, the safety factors mentioned above, and the peculiarities of the Employer's construction procedure, discussed below, make it impossible to determine whether the Joint Board decisions were intended to cover the ' Restatement (Second) of Agency, Section 91 (1958), Restatement (Second) of Agency, Appendix 158-162 (1958) (citing cases) OPERATING ENGINEERS , LOCAL 520 259 kind of operation which is disputed in this proceed- ing. 3. The Employer' s past practice For 20 years, the A-frame boom and winch has been operated at the jobsite by teamsters. Operat- ing engineers were never hired for this purpose until this dispute began. The Employer's past practice thus favors an award to teamsters. 4. Efficiency and economy of operation The Employer contends that assignment of the disputed work to engineers would promote ineffi- ciency and increase costs unnecessarily. The record indicates that the amount of time needed to move component parts from the trailer to the foundation varies from several hours to 2 days, depending upon the size of the house and the evenness of the terrain. When the operator completes work with the A- frame truck, he either returns to the factory or con- tinues directly to another jobsite. The carpenter crew remains to finish construction. If operation of the A-frame boom were assigned to an operating engineer, the teamster who drove the truck to the construction site would be forced to remain idle while the engineer operated the boom. Thus, assign- ment to the engineers might result in the employ- ment of two men to perform a job that can be effi- ciently performed by one. The prospect of an idle period, which could last as long as 2 days, might make it difficult for the Employer to hire teamsters for over-the-road hauling. We also note that the Employer has not allowed employees to operate the A-frame boom until they have been properly trained. If the Employer were compelled to hire a new engineer at each jobsite, it would have to allow time for training the new employee, thereby in- creasing costs and delaying the construction process unnecessarily. Considerations of efficiency favor assignment to Teamsters Local 534. 5. Area practice In addition to the National Joint Board decisions referred to above, Engineers Local 520 introduced testimony indicating that operation of A-frame equipment within the relevant geographic area is customarily performed by operating engineers. Once again, however, we note that the uniqueness of the Employer's operation diminishes the weight that would ordinarily be accorded to area practice. 6. Conclusions as to the merits of the dispute Weighing the relevant factors, we believe that, on balance, the employees represented by the Team- sters are entitled to the work in dispute. We rely primarily on the fact that the work has been per- formed by teamsters for 20 years, that the Team- sters has represented employees performing this work under present and prior collective-bargaining contracts, and that an assignment to engineers would impair efficiency and increase costs unneces- sarily. Accordingly, we shall determine the jurisdic- tional dispute by deciding that employees represented by Teamsters Local 534, rather than those represented by Engineers Local 520, are enti- tled to the work in dispute. In making this deter- mination, we are assigning the disputed work to the employees of the Employer who are represented by the Teamsters, but not to that Union or its mem- bers. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended , and upon the basis of the foregoing and the entire record in the case, the National Labor Relations Board makes the follow- ing Determination of Dispute. 1. Employees of Home Building Contractors, Inc., and Home Building Corporation , currently represented by General Drivers, Warehousemen and Helpers Local Union No. 534, affiliated with International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America, are entitled to perform the following work when such work is performed by the aforementioned Em- ployer: Operation of an A-frame boom and winch mounted on a tractor unit used to move house sections from a trailer to a house foundation. 2. International Union of Operating Engineers, Local 520, AFL-CIO, is 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 operating engineers who are represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute , International Union of Operating Engineers , Local 520, AFL-CIO, shall notify the Regional Director for Region 14, in writing , whether it will refrain from forcing or requiring the Employer , by means proscribed in Section 8 (b)(4)(D), to assign the work in dispute to employees represented by Engineers Local 520 rather than to those represented by Teamsters Local 534. 336-845 0 - 70 - 18