Local Union No. 317, IBEW, AFL-CIO

412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No . 317, International Brotherhood of Electrical Workers, AFL-CIO and International Union of Operating Engineers, AFL-CIO and Hughes-Bechtol, Inc. Case 9-CD-171 III. THE DISPUTE A. Background and Facts of the Dispute June 16, 1970 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, BROWN, AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by International Union of Operat- ing Engineers , AFL-CIO, herein called Operating Engineers , alleging that Local Union No. 317, In- ternational Brotherhood of Electrical Workers, AFL-CIO, herein called Electrical Workers, vio- lated Section 8(b)(4)(D) of the Act. A duly scheduled hearing was held before Hearing Officer Mark Fox on December 16 and 23, 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. 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. The rulings are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER Hughes-Bechtol, Inc., herein called Hughes- Bechtol or Employer, is an Ohio corporation en- gaged in the electrical and mechanical contracting business. During the past year, the Employer had a direct flow of products in interstate commerce valued in excess of $50,000, which were purchased and caused to be shipped to its place of business in Dayton, Ohio, from points directly outside the State of Ohio. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that Electri- cal Workers and Operating Engineers are labor or- ganizations within the meaning of Section 2(5) of the Act. Hughes-Bechtol has several contracts at the J. M. Stewart Generating Station at Aberdeen, Ohio. Ed- ward Fester is project manager for Hughes-Bechtol at this site. For this project, there was a prejob con- ference in March 1968 which was attended by Charles Baldwin, Fester's assistant; Russell Kinney, assistant business manager for the Electrical Work- ers; Clifford Farwell, business representative for the Operating Engineers; General Electric's project manager, Trimbach; and representatives of several other unions. Trimbach discussed the installation specifications of certain air circuit breakers. Fester and Baldwin conferred with the foreman for Bertke Electric, a contractor also on the project, to find out the type of hoisting equipment that should be used for lifting the large air circuit breakers. Bert- ke's foreman and one of the operators of their equipment advised that the type of hydrocrane used by Bertke would not serve their purpose. Arrange- ments were then made for a rental of a "Bay City crane"' from an equipment rental operator named McFarland. The crane came with an operator and an oiler who were members of Operating En- gineers . About April 7, 1969, the Employer began unloading component parts of the circuit breakers from railroad cars utilizing the Bay City crane and moved them to the switchyard. This operation lasted about 4 weeks. During this period the operat- ing engineers and the electrical workers worked together. Electrical Workers never claimed the operation of the Bay City crane, nor did it attempt to cause Hughes-Bechtol to perform the work with any other type of equipment. While the unloading was proceeding, Fester and Baldwin considered the possibilities of installing the circuit breakers with a smaller type of crane known as a cherry picker. However, the problem with using a cherry picker was that the terrain of the switchyard was muddy and soft. Any cherry picker available at that time was lighter than the Bay City crane , was hydraulically driven, and was considered unsafe for the operation. The possibility of leveling the terrain was discussed with the representatives of Maxon Construction Company, the contract manager. No firm arrangements were made for leveling the terrain, and Fester and Baldwin thereafter decided that safety required them to use the larger Bay City crane for the installation of the circuit breakers. ' This crane is described as a 25-ton Bay City cable -driven truck crane and was apparently larger than the type of cranes used by Bertke. 183 NLRB No. 52 LOCAL UNION NO. 317, IBEW , AFL-CIO On May 15, 1969, Carl Crump, Electrical Work- ers job steward, told Baldwin that the linemen could not go on working with the Bay City crane. The linemen then performed "busy work", i.e., they were "unavailable" to help install the circuit breakers, and this continued on May 16, 1969. Jan- now, the General Electric installer on the job, com- plained that the linemen were refusing to work with the crane, and Jannow was concerned that the cir- cuit breakers would be damaged due to their inac- tivity. On May 19, 1969, Baldwin told Spears, the linemen foreman, to start getting the insulators up on a stand. Spears answered that he had been in- structed not to do it. Berry, business manager of the Electrical Workers, informed the Employer that he would not permit his men to work with the Bay City crane in hoisting and setting the circuit breakers. The object of the acts and conduct of Berry was to force the Employer to utilize a crane, presumably a cherry picker, that would be run by electrical work- ers for the work of hoisting and erecting air circuit breakers rather than utilizing the Bay City crane run by employees who are members of or represented by Operating Engineers. 413 D. Applicability of the Statute Before the Board may proceed with a determina- tion 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. In this case, as detailed previously, the original assignment of the operation of the disputed equip- ment was made to the operating engineers. It ap- pears that Electrical Workers claimed the work in dispute for its members and informed the Employer that it would not permit employee-members of its union to perform work with the Bay City crane, thereby preventing the completion of the work in accordance with the work assignment, and caused the employees of the Employer to stop work at this jobsite until members of Electrical Workers sub- sequently agreed to return to work. We find there is a reasonable cause to believe that violations of Sec- tion 8(b)(4)(D) have occurred, and that the dispute is properly before the Board for determina- tion under Section 10(k) of the Act. E. Merits of the Dispute B. The Work in Dispute The work here in dispute involves the manning and operation of a crane used for hoisting and erecting air circuit breakers in a switchyard at the J. M. Stewart Generating Station at Aberdeen, Ohio. C. The Contentions of the Parties Operating Engineers contends that the Employer had the right to perform the work involved with the equipment of its own choosing, the Bay City crane, and Operating Engineers were the operators of the crane. Electrical Workers asserts that there is insuffi- cient evidence to warrant a finding by the Board that there is reasonable cause to believe that Sec- tion 8(b)(4)(D) of the Act has been violated or that the dispute is properly before the Board for determination. Hence, it requests the Board to quash the notice of hearing issued in this matter and to dismiss the charges giving rise to such notice of hearing. Alternatively, Electrical Workers con- tends an award of the operations of the equipment utilized to hoist and erect air circuit breakers should be made to members of its union rather than to members of Operating Engineers. 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 determina- tion in jurisdictional dispute cases is an act of judgment based on commonsense and experience in balancing such factors.2 Electrical Workers does not contend that the operation of the Bay City crane should be awarded to its members, but contends it should have the work assignment of both hoisting and installing the air circuit breakers. Inherent in such contention is that the Employer should use a lighter crane in order that employees represented by Electrical Workers could operate it. Viewed in such light, it is clear that their claim that a smaller crane be util- ized was simply a method of asserting their claim for the work. Testimony was introduced by Electri- cal Workers to the effect that members of their union have operated equipment to hoist and erect breakers on similar type projects in different parts of the country. They have used equipment such as a cherry picker or "hydrocrane." The record shows that the Employer considered using such hoisting equipment as a cherry picker for the installation of the air circuit breakers on this project but decided Y International Association of Machinists, Lodge No 1743, AFL-CIO (J A Jones Construction Co ), 135 NLRB 1402, 1410 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that this piece of equipment was too light to per- form the work. Moreover the terrain of the switchyard was uneven and soft, and the Employer concluded that it would be unsafe to use a cherry picker. A 25-ton Bay City cable-driven truck crane was recommended for the job on this project and the Employer decided to rent the Bay City crane from McFarland. This was accomplished on the basis of a package hourly rate which included the wages of the operator and oiler assigned to the crane. As noted above, Electrical Workers never claimed the operation of the Bay City crane and it never offered to supply an operator and an oiler. Although it may have been more economical for the Employer to have had an electrical worker operate a cherry picker and then perform other work when the cher- ry picker was not in use, this, in the judgment of the Employer, would be unsafe. The Employer's judgment to utilize the Bay City crane was reached after consultation with and on the advice of com- petent equipment operators; such decision was reasonable and was heavily influenced by the safety factors involved. The record shows that the work performed by members of Operating Engineers has been satisfactory. We determine that the work in dispute shall be awarded to the operating engineers, employed by Hughes-Bechto13 who are represented by Operating Engineers, but not to that union or its members. The present determination is limited to the particu- lar controversy which gave rise to this proceeding. 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 entire record in this case, the National Labor Relations Board makes the following determination of dispute: 1. Operating engineers represented by Interna- tional Union of Operating Engineers, AFL-CIO, and employed by Hughes-Bechtol, Inc., are entitled to perform the tasks of operating the Bay City crane in connection with the installation of the air circuit breakers at the J. M. Stewart Generating Station at Aberdeen, Ohio., 2. Local Union No. 317, International Brother- hood of Electrical Workers, AFL-CIO, is not enti- tled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Hughes-Bechtol, Inc., to assign the work in dispute to employees represented by the aforesaid union. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local Union No. 317, International Brotherhood of Electrical Work- ers, AFL-CIO, shah notity the Regional Director for Region 9, in writing, whether or not it will refrain from forcing or requiring Hughes-Bechtol, Inc., by means proscribed by Section 8(b)(4)(D), to assign the work in dispute in a manner incon- sistent with the above determination. ' As noted earlier in the Decision , Hughes-Bechtol rents the Bay City crane on a package basis Although the crane operator and oiler are on Mc- Farland's payroll, we find that Hughes-Bechtol is a joint employer with Mc- Farland as it appears that while on the job Hughes-Bechtol exercises direction and control over the operator and oiler