Local 132, Operating Engineers

374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 132, International Union of Operating En- gineers, AFL-CIO and Pritchard Electric Co., Inc. and Local 317, International Brotherhood of Electrical Workers, AFL-CIO. Case 9-CD-108 November 21, 1967 DECISION AND DETERMINATION OF DISPUTE By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Pritchard Electric Co., Inc., herein called the Company or Pritchard, alleging that Local 132, International Union of Operating Engineers, AFL-CIO, herein called the Respond- ent or Operating Engineers, violated Section 8(b)(4)(D) of the Act. A duly scheduled hearing was held before Hearing Officer Cassius B. Gravitt, Jr., on August 3, 1967. All parties appearing were af- forded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing upon the issues. Thereafter, the Company, the Operating Engineers, and Local 317, Interna- tional Brotherhood of Electrical Workers, AFL-CIO, party to the dispute, herein called the IBEW, filed briefs. 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 Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE COMPANY The parties stipulated that the Company is a West Virginia corporation engaged in the electrical contracting business; that during the past 12 months the Company performed services valued at more than $50,000 outside the State of West Vir- ginia; and that during that same period, it also purchased directly from firms located outside the State of West Virginia goods valued in excess of $50,000. The parties further stipulated, and we find, that the Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the policies of the Act to assert ju- risdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Operating Engineers and the IBEW are labor or- ganizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE Pritchard is an electrical contractor operating mainly in West Virginia. It is a member of the American Line Builders Chapter of the National Electrical Contractor's Association, herein called NECA, and therefore bound by the Commercial Line agreement between NECA and the IBEW. This agreement provides that NECA members will utilize IBEW members in the performance of work involving the construction of power distribution systems and tramission lines, referred to herein as "outside" work. In addition, Pritchard and the IBEW are parties to an inside agreement which covers "inside" or building construction work. Pritchard has never employed a member of the Operating Engineers on any of its jobs. The contractual work involved in the instant proceeding is the erection and wiring of a temporary powerline distribution system for the Cabot Cor- poration project at Waverly, West Virginia, under a subcontract with Gorrell Electric Company. The disputed work involves the operation of an A-frame truck when it is used to drill post holes with an auger attachment and to set the poles in place. On behalf of its members, the Respondent claims the disputed work. Pritchard and the IBEW insist that the work may properly be performed by the Com- pany's present complement of employees who are represented by the IBEW and to whom Pritchard has assigned the work. Whenever the holes are dug and the poles erected by manual means on this pro- ject the Respondent makes no claim to the work, nor does it claim the work of driving the trucks or stringing the wires. A. The Contentions of the Parties Respondent contends that the disputed work is within its jurisdiction and that this work should have been assigned to its members rather than to members of the IBEW , on the basis of industry, area , and employer practices . It points to numerous awards of the National Joint Board for Settlement of Jurisdictional Disputes , herein called the Joint Board, one of the most recent dated February 28, 1967, involving a dispute between the same parties at the DuPont plant at Washington Bottom, West Virginia , where the Joint Board awarded the work of operating an A-frame truck and power auger used to dig post holes to Respondent. The IBEW contends that the disputed work, being outside electrical work under the Commercial Line Agreement, is not subject to the Joint Board jurisdiction , and, in fact, the present dispute is not before the Joint Board for disposition. IBEW con- cedes that it has agreed to be bound by Joint Board decisions concerning inside electrical work. 168 NLRB No. 58 LOCAL 132, OPERATING ENGINEERS 375 Pritchard contends that it has always assigned this work to members of the IBEW and that on the entire record the Board can only determine the dispute in favor of the Company's established prac- tice. Moreover, Pritchard maintains that it is not bound by the Joint Board decision in the DuPont case as that work fell under the Commercial Line Agreement. has with any union covering Pritchard's employees. There is nothing in the record to show that Pritchard has ever recognized or dealt with the Respondent. Accordingly, the collective-bargaining contract between NECA and the IBEW covering outside electrical work is a factor favoring the as- signment of the work to electricians represented by the IBEW. B. The Applicability of the Statute Section 10(c) of the Act empowers the Board to hear and determine a dispute out of which an 8(b)(4)(D) charge has arisen . Before making a determination of the dispute , the Board is required to find there is reasonable cause to believe that Sec- tion 8 (b)(4)(D) has been violated. The facts show that Pritchard assigned the disputed work to its employees . These are members of the Electrical Workers. The Operating Engineers claimed this work for its members and threatened to walk off the job if the work was not assigned to its members. 'When Pritchard refused to use an operating engineer and proceeded with the work using a member of IBEW , the Operating Engineers called its members off the job . The operating en- gineers did not return to work until the Pritchard crew discontinued work and left the jobsite. On Sunday , April 30, 1967, the Pritchard crew per- formed the disputed work at the jobsite . The next day the operating engineers refused to work and did not return to work until later in the week. Ac- cordingly , we find reasonable cause to believe that Section 8 (b)(4)(D) of the Act has been violated, and that the dispute is properly before the Board for determination under Section 10(k) of the Act. C. The Merits ofthe Dispute As we stated in J.A. Jones Construction Com- pany, 1 we will determine the appropriate assign- ment of disputed work in each case presented for resolution under Section 10(k) of the Act only after taking into account and balancing all relevant fac- tors. 1. Collective-bargaining agreements As stated above , NECA has entered into a col- lective-bargaining agreement , known as the Com- mercial Line Agreement , with the IBEW, and Pritchard , as a member of NECA, considers itself bound by this contract. The agreement, which covers commercial outside power work, and another collective -bargaining contract between NECA and the IBEW covering inside electrical work , appear to be the only contracts that Pritchard 2. Determinations of the Joint Board Respondent contends that the Joint Board has heard and decided numerous jurisdictional disputes involving local unions of the International Union of Operating Engineers , AFL-CIO (IUOE herein), and the International Brotherhood of Electrical Workers , AFL-CIO, and has consistently awarded the work of operating an A-frame truck to hoist materials and equipment or to dig post holes with an attachment to the truck to the IUOE locals. How- ever, the evidence before us appears to disclose at best only three instances wherein awards were made to the IUOE locals involving the operation of an A-frame truck and power auger used to dig post holes. Insofar as the record discloses, the Joint Board made no distinction between outside and in- side electrical work . It appeared to base its award on a 1907 decision of record , but did not otherwise give any consideration to the relevant factors we normally consider in making our determinations in jurisdictional dispute cases. Even assuming that these Joint Board awards were intended to assign the operation of power- driven equipment used in electrical pole line work to IUOE locals , there is no indication that the IBEW or the employers in interest joined in sub- mitting any of those disputes to the Joint Board. On the contrary , the IBEW takes the position that the disputed work herein is outside work for which it not only has not stipulated to be bound by Joint Board decisions but has consistently protested Joint Board action in such cases for many years. As a matter of fact, the disputed work involved in this case has not been submitted to the Joint Board for decision . Accordingly , on the basis of the record as a whole, we are not able to accord to the Joint Board's awards in prior decisions sufficient weight to offset the other relevant considerations appear- ing in the record. 3. Company , area and industry practice Other than the Joint Board decisions introduced in evidence, there is nothing in the record on which to base any finding of a broad national pattern in the industry. Evidence was introduced , however, respecting the practices in the State of West Vir- ' International Association of Machinists, Lodge No 1743 (J A Jones Construction Company), 135 NLRB 1402 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ginia, where the parties here involved generally operate. Respondent asserts that its members have operated A-frame trucks and other similar equip- ment in the area for several electrical contractors. However, there is nothing in the record to indicate whether operating engineers operated this equip- ment in the performance of work similar to the work in question herein. On the other hand, representatives of Pritchard and other electrical contractors testified that the past practice of electrical contractors in the area has traditionally been to assign members of IBEW to operate the equipment in the performance of the disputed work. As to the past practice of Pritchard, its president's testimony is clear and uncon- tradicted. He has been in the electrical industry in West Virginia since about 1946, and head of his own company for the past 5-1/2 years. He testified that he has always assigned the operation of the line truck to members of IBEW and has never seen an operating engineer operating a line truck. 4. Safety of operation and skills needed There is some testimony that safety requires that an electrician operate the line truck in performing the type of work involved here. Apparently, the basis for this requirment is that on occasions the work, including the setting of poles, is performed when the electrical line being worked on is ener- gized. However, as it appears that the actual disputed work at the Cabot job did not involve any "hot" wires, we do not find that the factor of safety influences the assignment of the disputed work to either job classification. Pritchard and the IBEW contend that only elec- tricians possess the necessary skills to perform the disputed work, while the Operating Engineers as- serts that the work does not require a high degree of skill and that its members possess sufficient skill to perform this work. It appears from the record that the work in dispute does not require a high level of skill, and also that engineers have operated similar equipment on other jobs. Accordingly, we find that members of the IBEW and Operating Engineers possess sufficient skill to perform the disputed work. 5. Efficiency and economy of operation Pritchard and the I BEW contend that assignment of the disputed work to a member of the IBEW rather than to a member of the Operating Engineers results in more efficient and economical per- formance of this work. The truck used in this opera- tion belongs to Pritchard and had been fitted with the attachments used in performing the work in question. The truck also serves as a storage place for tools and equipment used by the linemei. in their work. Pritchard's president testified that the truck is in operation about 25 percent of the time, at most, and serves only as a storage place for tools the remainder of the time. During the time that the truck is not in operation, the truck operator engages in other lineman's work about the job. Thus, it seems clear that a requirement for an additional em- ployee operating the line truck would increase the costs of operation without any increase in efficiency or safety of operation. Thus, the factors of efficien- cy and economy of operation favor the assignment of the disputed work to electricians. CONCLUSION On the basis of the foregoing considerations, it is clear that none of the relevant factors favor an as- signment of work as claimed by the Operating En- gineers. Such factors as the company and area prac- tice, the collective-bargaining agreement, and effi- ciency and economy of operation favor the present assignment. Accordingly, we shall determine the dispute by confirming the Company's present as- signment to electricians represented by the IBEW, but not to that Union or its members. It appears from the record that the disputed work has been completed at the Cabot jobsite. Pritchard and Electrical Workers contend that because of the Respondent's attempt to have similar work as- signed to its members at the Du Pont jobsite, the Board's determination in this case should include all similar work within the jurisdiction of the Operating Engineers. While the Board has made such broad determinations in the past, the evidence in the record in this case is not sufficient to warrant such determination here. Accordingly, the determination shall apply only to the disputed work at the Cabot jobsite, Waverly, West Virginia. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the Act, and upon the basis of the foregoing findings and the entire record in this proceeding , the National Labor Rela- tions Board makes the following Determination of Dispute: 1. Employees of Pritchard Electric Co., Inc., currently represented by Local Union No. 317, In- ternational Brotherhood of Electrical Workers, AFL-CIO , are entitled to operate A-frame line trucks with diggers to provide post holes for instal- lation of poles and to set the poles at the Cabot Cor- poration construction site at Waverly , Pleasants County, West Virginia. 2. Local Union No. 132, International Union of Operating Engineers , AFL-CIO, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, LOCAL 132, OPERATING ENGINEERS 377 to force or require the Company to assign the above work to its members. 3. Within 10 days from the date of this Decision and Determination of Dispute , Local Union No. 132, International Union of Operating Engineers, AFL-CIO, shall notify the Regional Director for Region 9, in writing, whether it will refrain from forcing or requiring the Company, by means proscribed by Section 8(b)(4)(D), to assign the work in dispute to Operating Engineers rather than to the Company's employees represented by the Electrical Workers Local Union No. 317.