Intl. Union of Operating Engineers, Local 701

INTL. UNION OF OPERATING ENGINEERS , LOCAL 701 77 International Union of Operating Engineers Local No. '701, AFL-CIO' and Grinnell Company of Oregon and Road Sprinkler Fitters Local Union No. 669 , United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada , AFL-CIO.' Case 36-CD-60 find that it will effectuate the policies of the Act to assert jurisdiction herein II. THE LABOR ORGANIZATIONS INVOLVED We find that the Engineers and Sprinkler Fitters are labor organizations within the meaning of Section 2(5) of the Act. April 22, 1970 DECISION AND DETERMINATION OF DISPUTE' By MEMBERS FANNING, BROWN, AND JENKINS This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by Grinnell Company of Oregon, herein called the Employer, alleging a violation of Section 8(b)(4)(D) of the Act by International Union of Operating Engineers Local No. 701', AFL-CIO, herein called Engi- neers or Respondent. The charge alleges, in substance, that the Engineers induced and encouraged employees to engage in a strike or refusal to work, and has threat- ened, coerced, and restrained persons engaged in com- merce, where in both cases an object thereof is to force or require the Employer to assign particular work to employees represented by Respondent rather than to employees represented by Road Sprinkler Fitters Local Union No. 669, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Indus- try of the United States and Canada, AFL-CIO, herein called Sprinkler Fitters. Pursuant to notice, a hearing was held before Hearing Officer Richard V. Stratton on December 3, 4, and 5, 1969. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The Employer, the Engineers, and the Sprinkler Fitters have filed briefs which have been duly considered. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in con- nection 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 affirmed. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER Grinnell Company of Oregon is engaged in installing automatic fire extinguishing equipment, as well as the sale and installation of fixtures and other devices. During the past 12 months, the Employer has purchased and received goods and materials valued in excess of $50,000 at its Oregon operation directly from States in the United States other than the State of Oregon. The parties stipu- lated, and we find, that the Employer is engaged in commerce within the meaning of the Act. We further ' The correct names of the two competing Unions involved herein appear in the caption as amended at the hearing III. THE DISPUTE I A. The Work in Dispute The disputed work involves the operation of forklift trucks when used as mobile scaffolds in connection with the installation of piping on fire sprinkler systems. B. 'The Facts The Grinnell Company of Oregon is a wholly owned subsidiary of Grinnell Corporation, a company which has its national headquarters in Rhode Island. The Grin- nell Corporation has four separate and autonomous divi- sions consisting of manufacturing, supply-sales, industri- al piping, and fire protection. Grinnell Company of Ore- gon has only two divisions: the supply-sales and the fire protection divisions. The industrial piping division of the parent Grinnell firm has a national agreement with the International Union of Operating Engineers. Neither the International Union nor Respondent Local 701 has any contract with Grinnell Company of Oregon. The National Automatic Sprinkler and Fire Control Asso- ciation, herein called NASFCA, is the collective-bargain- ing representative for sprinkler fitters of the fire protec- tion division of Grinnell Corporation, its subsidiaries, including Grinnell Company of Oregon, and other employers. NASFCA has had collective-bargaining agreements with the Sprinkler Fitters for many years, both prior to and since the Sprinkler Fitters certification by the Board in 1954. As Grinnell Company of Oregon was and is a member of NASFCA, it is a party to and is bound by such agreements. Grinnell Company of Oregon installs automatic sprink- ler systems in the ceilings of buildings and warehouses in Oregon, southern Washington, and southern Idaho. The system is a series of sprinkler heads attached to iron pipes strung below ceilings with feeder lines and connecting water mains. Prior to 4 or 5 years ago, the overhead work was done from scaffolds on wheels which were constructed on the jobsite and rolled into position on the floor. In recent years, the overhead work has been done from a mobile scaffold which is attached to the forks on a forklift truck. The forklift hoists the mobile scaffold containing men and materials into place where the men perform the piping work. The use of a forklift truck has increased from a limited use at first to an almost exclusive use, where possible, in the last 4 or 5 years.2 In September 1969, Grinnell Company of Oregon began installation of a sprinkler system at the addition to the plant of the Duraflake Division of Willamette 2 The forklift truck is not used at all in the Detroit area. Additionally, the forklift cannot be used where there are obstructions or where it is impossible or inconvenient to enter, such as offices or powderrooms 182 NLRB No. 14 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Industries, Inc , near Albany, Oregon, using employees represented by the Sprinkler Fitters Thereafter, James Michaeltree, a field representative for Respondent Local 701, approached Grinnell's working foreman on the job site and told him that if Grinnell "didn't stop then and put an operator [engineer] on, they would put a banner up " Michaeltree then went to Duraflake's vice president and told him that, if Grinnell did not use operating engineers to operate the mobile scaffold, the engineers "would have to put a picket at the plant Later, Michaeltree again contacted Duraflake's vice pres ident and stated he would place a picket on the job so that the engineers "could have that type of work of operating lift trucks " When Grinnell continued to use sprinkler fitters to operate the mobile scaffolds, Michaeltree established a picket line which was respected by delivery trucks and arriving employees Duraflake's representative then told Grinnell's employees to leave the job Subsequently, Grinnell Company filed the charge giving rise to this proceeding The Duraflake job was not the only instance where the Respondent attempted to force Grinnell to assign the operation of the forklift trucks in mobile scaffold work to its members In January 1969, Russ Joy, financial secretary and chief executive officer of Engineers Local 701, and Clyde Johnson, business agent , caused a picket to be placed at the Waterway Terminals (Crown Zeller back) jobsite where Grinnell was in the process of installing a fire sprinkler system When Grinnell employ ees left the job, the picketing stopped After Grinnell hired employees represented by Respondent to perform the mobile scaffold work on that job, the job was not again picketed In February 1969, Grinnell was using sprinkler fitters to install ceiling sprinkler systems in a plant for Libby, McNeill & Libby in Salem, Oregon, when Johnson told Grinnell that the Engineers "would take whatever steps again they deemed necessary to get the sprinkler fitters off the lift trucks and operating engineers on them " After Engineers Local 701 picketed the Libby job, Grinnell hired operating engineers to operate the mobile scaffolds on that job 3 Similarly, in September 1969, Johnson threatened to picket the Freight Liner Company job on Swann Island , Oregon, where Grinnell was using sprinkler fitters to operate the mobile scaffolds After the prime contractor on the job advised Grinnell that it "cannot allow a work stoppage caused by a jurisdictional dispute" and the job "Must continue to go on," Grinnell assigned the disputed work of operating the forklift trucks with their mobile scaffolds to the engineers, making clear that its assignment was "under duress " On two other jobs, American Can in Halsey, Oregon, and Mainline Foods in Brooks, Oregon, Grinnell assigned the disputed work to employees represented by Engineers Local 701 because agents of Respondent had threatened to close the jobs down if this was not done On the Agricultural Exhibit Building in Salem, Oregon, and the Commodore Trailers job in Lebanon, Oregon, Grinnell continued J On February 18 1969 Grinnell filed a charge based on the picketing at this job which charge was later withdrawn after assurances from the Engineers that there would be no further pressures to use its own employees represented by the Sprinkler Fitters to do the disputed work although agents of Respondent had threatened to picket if the work assign- ment were not made to the Engineers National pressure was brought to bear by the Interna tional Union of Operating Engineers, when they threat ened to cancel their national agreement with the industrial piping division of Grinnell Company In order to maintain some type of harmony, the industrial piping division and the International set out an agreement in a letter dated March 7, 1969, in which it was stated that "When a fork lift is used as a working platform the I U 0 E will use good common sense and will not exert complete jurisdiction over this operation unless State ordinances dictate otherwise " Following the setting of the hearing in this proceeding, the International Union again threat- ened to terminate the national agreement with the indus- trial piping division since Grinnell was proceeding to hearing in this dispute C Contentions of the Parties Grinnell Company of Oregon, the Employer and Charging Party, contends that Respondent Engineers Local 701, as well as the International Union of Operating Engineers, has violated Section 8(b)(4)(D) of the Act by exerting coercive pressures on the Employer to com pel it to assign the disputed work to members of the Engineers Although no charge was filed against the International, Grinnell urges that inasmuch as the Inter national has threatened to cancel its national agreement with the industrial piping division of Grinnell Company, in furtherance of their work claim, a determination of this dispute should be nationwide in scope The Employer further contends that, pursuant to a certifica- tion and collective-bargaining agreement, the work was awarded to the Sprinkler Fitters, and that such work should properly be awarded to employees represented by the Sprinkler Fitters in view of (a) area and industry practice, (b) economy and efficiency, (c) the skills involved, and (d) the Employer assignment and history of the bargaining relationship between the Sprinkler Fitters and the Employer The position of the Sprinkler Fitters is consistent with the position taken by the Employer The Engineers claim that the National Labor Relations Board is precluded from proceeding with a determination of the dispute since the Employer has agreed upon a method for voluntary adjustment of the dispute In this regard, Respondent points out that the parent corpo- ration's industrial piping division maintains a national agreement with the International Union of Operating Engineers which provides for submission of jurisdictional disputes to the National Joint Board for Settlement of Jurisdictional Disputes In support of this contention, the Engineers submitted into evidence three awards by the Joint Board Additionally, Respondent claims that through a letter of understanding the Employer has made a contractual assignment of the work in dispute to the Engineers, and that no reasonable cause exists for believing an unfair labor practice has been committed Also, the Engineers would limit any determination of INTL . UNION OF OPERATING ENGINEERS , LOCAL 701 work assignment toy the present dispute in the State of Oregon , D. Applicability bf the Statute Before the Board may proceed with the determination of a 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 previously stated , Respondent 's officials approached Grinnell 's foreman at the Duraflake job and told him that , if the operation of the forklift used as a mobile scaffold by sprinkler fitters was not assigned to engineers represented by Engineers Local 701, the Engineers would shut the job down with a picket line. Respondent 's official also stated essentially the same thing to a Duraflake representative . When sprinkler fitters continued to operate the forklift used as a mobile scaffold , the Engineers established a picket line which was respected by delivery trucks, and other employees arriving on the job. It was only after all Grinnell employ- ees were forced to leave the job that the picket line was removed . The fact that the picket signs were phrased in terms of publicizing that Grinnell had allegedly breached a contract does not alter the nature of the dispute, which , in fact , centers on the demand , apparent from the Engineers ' entire course ' of conduct , that the work of operating the forklift truck used as a mobile scaffold be reassigned to members of the Respondent. Accordingly , on the basis of the entire record, we find there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred Nor do we find merit in the contention by the Engi-„ neers that Grinnell agreed to . a voluntary settlement of the dispute , either through the Joint Board or a ' letter of understanding . In this connection, the record shows that Grinnell Company of. Oregon was not a signatory to the agreement betweennthe parent company's industrial piping division and the Respondent ' s Interna- tional Union , and there is no showing that Grinnell Company of Oregon ever participated in a Joint Board proceeding . In fact, the Grinnell Company of Oregon does not have an industrial piping division . Therefore, the Grinnell Company of Oregon was not bound contrac- tually, or by any letter of understanding, to submit this dispute to the Joint Board . Moreover , the letter of understanding appears ambiguous and lends no sup- port to Respondent 's claim for the disputed work. IV. MERITS OF THE DISPUTE Section 10(k) of the Act requires the Board to make, an affirmative award of the disputed work after giving due consideration to various relevant factors , and the Board has held that its determination in a jurisdictional dispute case is an act of judgment based upon common sense and experience in balancing such factors. 1. Past practice , assignment , and area practice Installing automatic sprinkler systems requires a series of sprinkler heads be attached to iron pipes which are strung below ceilings. In past years, the ceiling work was done from , scaffolds which were constructed on 79 the jobsite and rolled into position on the floor. The scaffolding was made and positioned by sprinkler fitters. In the past 5 years, the mobile scaffold attached to forklift trucks has been used almost exclusively. It has been the Employer 's consistent practice to assign opera- tion of the forklift trucks to its employees represented by the Sprinkler Fitters . The record also supports the contention that the practice of other employers in the area, as well as nationwide , is to assign such work to employees represented by Sprinkler Fitters. 2. Contract and certification The Sprinkler Fitters introduced their 1954 certification of representatives in the multiemployer association of the National 'Automatic Sprinkler and Fire Control Asso- ciation , Inc:, of which Grinnell is a member . Through its membership in NASFCA, Grinnell Company of Ore- gon has been ' a party to a labor agreement with the Sprinkler Fitters for many years and is presently a party to a current contract with the Sprinkler Fitters In that contract, the Sprinkler Fitters jurisdiction is set out in article XV to consist of "the installation of all fire protection and fire control systems including the unloading, handling by hand and power equipment and installation of all piping or tubing . . . ... Neither the International Union of Operating Engineers nor its Local 701 has a collective-bargaining agreement with this Employer , Grinnell Company of Oregon. As we view the limited operation of the -forklift trucks as an integral part of the installation of fire control systems and more specifically the installation of the "piping or tubing," we 'find that the contract with the Sprinkler Fitters supports their claim for the disputed work 3.' Skills, economy, and efficiency Part of the apprenticeship training for a sprinkler fitter consists of learning the operation of the forklift truck and the safety factors involved . As part of the forklift operator' s experience has been working on the mobile scaffold while it is aloft, a sprinkler fitter is able to anticipate the needs and problems of the men in the air and, consequently, works as a team with the two men on the scaffold . In addition , the sprinkler fitter operating the forklift' truck uses time when the lift is not in operation to lay out work , to make fittings, fabrications, and lubrications, and to read plans . Testi- mony shows , that such additional skills are available only, to a sprinkler fitter and not to an operating engineer. Furthermore , when an operating engineer operates the forklift with the mobile scaffold , the Employer must still use a sprinkler fitter on the ground as part of the sprinkler fitter team , to lay out plans, etc., while the operating engineer would only operate the forklift, at most , 2-l hours per day. Some days the forklift truck is not used at all and , if an ,operating engineer were otherwise required , he would have to be laid off on those days. The Employer 's practice of assigning three-man sprinkler fitter crews to each mobile scaffold has become standard in the industry and, once the 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD team develops a degree of proficiency, they are kept together Conclusions as to the Merits of the Dispute Upon consideration and appraisal of all the relevant factors, including industry and employer assignment, the economical and efficient operation of the work as currently assigned, and the certification and collective bargaining agreement, we shall determine the existing jurisdictional dispute by awarding the work of operation of forklift trucks used as mobile scaffolds in the installa- tion of piping to the Employer's employees represented by Sprinkler Fitters, rather than to employees represent- ed by the Respondent As it appears from the record that the Respondent has repeatedly demanded this type of work assignment on jobsites other than the current dispute and inasmuch as Respondent acknowledges that it will do so in the future, it is apparent that similar disputes are likely to occur in the future Therefore, we hold that the determination in this case applies not only to the specific job which gave rise to this proceeding, but to all similar work disputes arising between Respondent Local 701 and Grinnell Company of Oregon 4 In making this determination, the Board is assigning the disputed work to employees represented by the Sprinkler Fitters, but not to that Union or its members and the entire record in this proceeding, the National Labor Relations Board makes the following Determina tion of Dispute 1 Employees of Grinnell Company of Oregon, cur rently represented by Road Sprinkler Fitters Local Union No 669, United Association of Journeymen and Appren- tices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, are entitled to perform the work of operating the forklift truck when used as a mobile scaffold in the installation of piping for their Employer 2 International Union of Operating Engineers Local No 701, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require, directly or indirectly, Grinnell Company of Oregon, its successors or assigns , to assign any of the above work to employees represented by said Union 3 Within 10 days from the date of this Decision and Determination of Dispute , International Union of Operating Engineers Local No 701, AFL-CIO, shall notify the Regional Director for Region 36, in writing, whether it will or will not refrain from forcing or requir- ing, directly or indirectly, Grinnell Company of Oregon, its successors or assigns , by means proscribed by Section 8(b)(4)(D) of the Act, to assign the above-described work to employees represented by said Union DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Rela ' Although we have considered the conduct of the International Union of Operating Engineers and find that it was in furtherance of Local 701 s claim for the disputed work no remedial order has been specifically directed to the International inasmuch as it was not named as a Respond tions Act, as amended, and upon the foregoing findings ent herein