Laborers, Local 423

LABORERS , LOCAL 423 895 Laborers' International Union of North America, Local 423, AFL-CIO and International Union of Operating Engineers, Local 18, 18A, 18B, AFL-CIO and Electrical Constructors and Inter- national Brotherhood of Electrical Workers, Local 71, AFL-CIO International Union of Operating Engineers, Local 18, 18A, 18B, 18C, 18RA, AFL-CIO and Laborers' International Union of North America, Local No. 265 , AFL-CIO and Electrical Con- structors and International Brotherhood of Elec- trical Workers, Local 71, AFL-CIO. Cases 9-CD-159-1, 9-CD-159-2, 9-CD-186-1, and 9-CD-186-2 June 22, 1970 DECISION, DETERMINATION OF DISPUTE, AND ORDER powers in connection with these cases to a three- member panel. The Board has reviewed the Hearing Officers' rulings made at the hearings and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in these cases, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated that Electrical Construc- tors is engaged in electrical construction work in the several States of the United States, with its prin- cipal offices in Columbus, Ohio. During a recent, representative 12-month period it purchased in ex- cess of $50,000 worth of goods and supplies from outside the State of Ohio. Accordingly, we find that Electrical Constructors is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. BY MEMBERS MCCULLOCH, BROWN, AND JENKINS This is a consolidated proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by Electrical Con- structors alleging violations of Section 8(b)(4)(D) by International Union of Operating Engineers, Local 18, 18A, 18B, 18C, 18RA, AFL-CIO, herein called Operating Engineers, and by Laborers' Inter- national Union of North America, Locals 423 and 265, herein called Laborers Local 423 and Laborers Local 265, respectively. Pursuant to notice, a hearing was held in Columbus, Ohio, in Cases 9-CD-159-1 and 9-CD-159-2 on July 1, 1969, before Hearing Officer James E. Murphy and on October 13, 1969, before Hearing Officer Mark Fox. After these cases were consolidated, and pur- suant to notice, a hearing was held on December 9, 10, and 11, 1969, in Cincinnati, Ohio, before Hear- ing Officer Mark Fox. Operating Engineers, Electri- cal Constructors, and International Brotherhood of Electrical Workers, Local 71, AFL-CIO, herein called Electrical Workers, appeared at the hearing' and were afforded full opportunity to be heard„to examine and cross-examine witnesses, and to ad- duce evidence bearing on the issues. Electrical Workers and Operating Engineers have filed briefs with the National Labor Relations Board. 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 ' Laborers Locals 423 and 265 disclaimed any interest in the work in dispute and declined to appear or participate in the hearing They have moved to dismiss all charges filed against them II. THE LABOR ORGANIZATIONS INVOLVED The parties appearing at the hearing stipulated, and we find, that Operating Engineers, Laborers Locals 423 and 265, and Electrical Workers are all labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute Electrical Constructors is an Ohio partnership, the partners being T. W. Eisenman ( an individual), Concor Construction Company, Electro Construc- tion Company, and ECCO. Concor and Electro are investment companies and have not been engaged in the construction industry for some time. Their principal stockholders are T. W. Eisenman and his wife . ECCO, an Ohio partnership , is a contractor engaged in excavation and general laboring work. The children of T. W. Eisenman and their spouses share a partnership interest in ECCO. Electrical Constructors is managed by T. W . Eisenman, while his son, Richard L. Eisenman, is ECCO's managing partner. Electrical Constructors and ECCO share a common address and telephone number . There is total interchange of equipment and mangerial and supervisory personnel between Electrical Construc- tors and ECCO. Richard Eisenman testified that 183 NLRB No. 91 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from 1964 and continuously through the project completed immediately prior to the project in- volved in Cases 9-CD-159, et al., Electrical Con- structors has subcontracted 'all excavation and laboring work, including operation of the hydraulic crane or "cherry picker" and the horizontal boring machine, to ECCO. During the'same period, ECCO has performed no work for anyone other than Elec- trical Constructors. It has been ECCO's practice , whenever it has been a subcontractor of Electrical Constructors, to employ individuals represented by an appropriate local of International Union of Operating Engineers and to assign to them all work within their jurisdic- tion . Pursuant to area collective-bargaining agree- ments, operation of the cherry picker and bor- ing machine has been assigned to individuals represented by the I.U.O.E. Electrical Constructors has been a party by means of letters of assent to a series of collective-bargaining agreements between International Brotherhood of Electrical Workers and American Line Builders Chapter, NECA. Elec- trical Constructors has signed these letters of assent continuously since 1950 and alleges that it has no collective-bargaining agreements with any other labor organization. A purported contract and letter of assent, which were signed by John McCaulley on behalf of ECCO , between ECCO and Operating Engineers , was signed in September 1968 on a prior job being performed for Cincinnati Gas and Elec- tric Company in Cincinnati , Ohio . It was claimed that McCaulley had no authority to bind ECCO to any contract, although ECCO admittedly did give force and effect to the contract, including payment to the pension fund of the Operating Engineers. The events leading to the filing of charges in Cases 9-CD-159-1 and 9-CD-159-2 began to develop in late 1968 when Electrical Constructors obtained a contract for the installation of un- derground cable in the Columbus, Ohio, area. In January 1969, Project Manager Richard Eisenman, acting on the behalf of Electrical Constructors, ad- vised Woodell , business manager of Electrical Workers, that it would need a crew of Electrical Workers' members for cable installation . At a sec- ond conference in February, Woodell demanded that Eisenman assign the operation of all equipment on the project to employees represented by Electri- cal Workers . Eisenman refused the demand, but "informally" assigned operation of the cherry picker to Electrical Workers . All other employees (opera- tors and laborers) were nonunion. Eisenman testified that he did so because he feared that em- ployees represented by Electrical Workers would not work under the cherry picker unless it was manned by a member of Electrical Workers. In March , prior to the start of construction, Eisenman met with Kimberly , an agent of Operating En- gineers, and Laborers Local 423 agent , Wood, and discussed Electrical Constructors ' intentions re- garding the manning of equipment on the Colum- bus job , particularly the cherry picker . Eisenman asked if there had been any resolution of the dispute between the Internationals of Operating Engineers and Electrical Workers over the opera- tions of the cherry picker, and inquired as to what would happen if no agreement was reached. Kim- berly replied, "I 'll just have to take my best hold and you 'll have to take yours , and we'll see what happens...." On March 26, after the job had begun , a group of apprximately 35 men ( not employees) lined up along the trench, preventing further work. Representatives of both Operating Engineers and Laborers Local 423 were present. Operating En- gineers announced to Eisenman that it had a con- tract with Electrical Constructors and the men were there to claim their work . Eisenman denied the claim, but his attempt to put his employees back to work was frustrated by the pickets . The project was closed on March 26, 27, 30, and 31 because of mass picketing . A state court injunction was ob- tained against the mass picketing on April 1, and thereafter the project was peacefully picketed by individuals wearing Operating Engineers and Laborers buttons. This job is now complete. Cases 9-CD-186- 1 and 9-CD-186-2 developed from a similar project in Cincinnati , Ohio, in Au- gust 1969 . Electrical Constructors assigned the operation of the cherry picker and the boring machine to employees represented by Electrical Workers, with the balance of the labor again being nonunion . Farwell, a representative of Operating Engineers, visited the jobsite on September 17,19, and 22. On the latter occasion he was accompanied by Jackson, a representative of Laborers Local 265. They sought and obtained authorization cards from all nonunion operators and laborers at the jobsite. No attempt was made to solicit cards from the Electrical Workers operators of the cherry picker and boring machine. On September 22, Farwell and Jackson met with the two Eisenmans and demanded a bargaining contract. The membership authorization cards were presented and examined by Electrical Constructors' representatives . Majority status was not questioned, but T. W. Eisenman refused to extend recognition and to bargain with the unions . Instead, he offered to subcontract the operation of all equipment ex- cept the cherry picker and boring machine to LABORERS , LOCAL 423 ECCO, where Operating Engineers and Laborers Local 265's existing contracts would apply, if Operating Engineers would waive any jurisdictional claim that it might have to operate the cherry picker and horizontal boring machine . Farwell refused to do this, claiming lack of authority to make such a waiver , and reiterating that the pur- pose of the meeting was to gain recognition and a contract for employees whose authorization cards had been presented . Farwell for the Operating En- gineers and Woodell for the Electrical Workers met on September 23 in an unsuccessful attempt to resolve their jurisdictional dispute involving opera- tion of the cherry and boring machine . There is conflicting testimony as to whether Operating En- gineers claimed operation of the cherry picker and boring machine at that meeting . There is no evidence that it specifically asserted such a claim to Electrical Constructors at any of the representation meetings. Pickets from Operating Engineers appeared at the jobsite on September 24 carrying signs charging Electrical Constructors with refusal to bargain, later modified to include a claim of unfair labor practice. A petition for an election was filed by Operating Engineers on September 26, 1969, seek- ing a unit of all equipment operators , excluding those employees represented by any other labor or- ganization. B. The Work in Dispute The dispute in Cases 9-CD-159-1 and 9-CD-159-2 involves the assignment of the opera- tion of the hydraulic crane or cherry picker , and re- lated mechanized construction equipment used in laying a 138,000 volt pipe-type underground elec- tric transmission line at the Columbus and Southern Ohio Electric Company project sites of Electrical Constructors in Columbus, Ohio. The dispute in Cases 9-CD-186-1 and 9-CD-186-2 concerns the work of operating cher- ry pickers and a horizontal boring machine used in laying a 130,000 volt pipe-type underground elec- tric transmission line at the Cincinnati Gas and Electric Company' construction sites of Electrical Constructors in Cincinnati, Ohio. C. Contentions of the Parties Electrical Constructors has assigned the work in dispute to employees represented by Electrical Workers. In support of this assignment, both Elec- trical Constructors and Electrical Workers argue that Electrical Constructors has performed nu- merous jobs identical to the instant ones, and that 897 in all cases where Electrical Constructors has reserved the work in dispute for itself, it has always assigned that work to individuals represented by In- ternational Brotherhood of Electrical Workers. This practice , they contend , is in conformity with area and industry practice . In addition , they con- tend that the applicable contract clauses, con- siderations of efficiency and economy , and Electri- cal Constructors' preference for and satisfaction with the performance of employees represented by Electrical Workers all favor an assignment to Elec- trical Workers. Operating Engineers contends that Cases 9-CD-159-1 and 9-CD-159-2 are moot, and it has disclaimed any interest in the work in dispute in- volved therein . It also contends that a jurisdictional dispute does not exist in Cases 9-CD-186-1 and 9-CD-186-2, alleging that a demand for the work in dispute was never made and that the picketing was to protest Electrical Constructors' failure to recognize Operating Engineers as the collective- bargaining representative for certain of its em- ployees, and to protest certain unfair labor prac- tices . Operating Engineers further contends that should the Board reach the merits of these cases, the work should be assigned to its members. It ar- gues that Electrical Constructors and ECCO are a single employer and that Electrical Constructors is thereby bound to the collective-bargaining agree- ments between ECCO and Operating Engineers. Operating Engineers also contends that only it pos- sesses sufficient skilled employees to perform the work, and that considerations of efficiency, econo- my, the Employer's (Electrical Constructors- ECCO) past practice, and area practice all favor Operating Engineers. D. Applicability of the Statute Section 10(k) of the Act provides , in part, that the Board is empowered and directed to hear and determine a so-called jurisdictional dispute only when the Board has reasonable cause to believe that the party against whom the charge has been filed has engaged in an unfair labor practice within the meaning of Section 8(b)(4)(D). The record in Cases 9-CD-159-1 and 9-CD-159-2 indicates that on or about March 10, 1969 , Operating Engineers told R . Eisenman that if individuals represented by Electrical Workers performed the work in dispute, Operating Engineers would "take its best hold" in furtherance of its demand for the work. Individuals representing Operating Engineers and Laborers Local 423 thereafter picketed Electrical Construc- tors'jobsites on March 26, 27, 30, and 31. In view of the conduct described above, we find that there is reasonable cause to believe that a viola- 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of Section 8(b)(4)(D) has occurred in Cases 9-CD-159-1 and 9-CD-159-2, and that the dispute is properly before the Board for determina- tion under Section 10(k) of the Act. Section 8(b)(4)(D) provides, in part, that it is an unfair labor practice for a labor organization to en- gage in coercive action where an object is: ... forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class .... The evidence in Cases 9-CD-186-1 and 9-CD-186-2 does not give us cause to believe that Operating Engineers and Laborers Local 265 had any object proscribed by Section 8(b)(4)(D). On the contrary, the record clearly shows that Operat- ing Engineers and Laborers Local 265 did not seek to force or require Electrical Constructors to assign the work involved to one group of employees "rather than" to the group of employees then per- forming the work. The record further shows that Operating Engineers has filed a petition for an elec- tion with Region 9, seeking a unit of all heavy equipment operators employed by Electrical Con- structors, excluding employees represented by other labor organizations.2 We have long held that a dispute within the meaning of Section 8(b)(4)(D) requires a choice between two groups. There must be either an attempt to take a work assignment away from another group, or to ob- tain the assignment rather than have it given to another group .... A demand for recognition as bargaining representative for employees doing a particular job ... does not to the slightest degree connote a demand for the as- signment of work to particular employees rather than to others.' Upon the basis of the foregoing, we are satisfied and conclude that the dispute in Cases 9-CD-186-1 and 9-CD-186-2 is not over the as- signment of work within the meaning of Section 8(b)(4)(D). Thus, the dispute in Cases 9-CD-186-1 and 9-CD-186-2 is not a dispute within the meaning of Section 10(k). Accordingly, we shall quash the notice of hearing. E. Merits of the Dispute in Cases 9-CD-159-1 and 9-CD-159-2 Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to all relevant fac- tors.' In International Association of Machinists, Lodge No. 1743, AFL -CIO (J. A. Jones Construc- tion Co.),' the Board set forth the following criteria to be considered in the making of an affirmative award in a 10(k) proceeding: The Board will consider all relevant factors in determining who is entitled to the work in dispute, e.g., the skills and work involved, cer- tification by the Board, company and industry practice, agreements between unions and between employers and unions, awards of ar- bitrators, joint boards, and the AFL-CIO in the same or related cases, the assignment made by the employer, and the efficient operation of the employer's business.6 1. Certification and bargaining agreements The record does not indicate that any of the labor organizations herein have been certified by the Board. As noted above, Electrical Constructors has assented to the International Brotherhood of Electrical Workers contract. That agreement makes no specific grant of the work involved in the opera- tion of lowering conduit into a trench, although it does cover pipe installation. The agreement also in- cludes a wage schedule for "operators," without defining what an "operator" is. ECCO signed and honered a letter of assent to the collective-bargain- ing agreement between Operating Engineers and the Ohio Contractors Association, A.G.C., on Au- gust 19, 1968. This agreement will terminate on May 1, 1972. Article I, Geographic and Industrial Scope of Agreement, grants heavy construction work, including utility transmission lines and con- struction, to employees represented by Operating Engineers. Specifically included in the agreement are wage classification and rate of pay schedules for operation of the cherry picker, the work in dispute in Cases 9-CD-159-1 and 9-CD-159-2. Operating Engineers contends that Electrical Constructors and ECCO are a single employer, and ' We need not , and do not, pass upon the validity of the authorization cards relied on by Operating Engineers and Laborers Local 265 , nor do we consider whether or not the demands for recognition are appropriate within the meaning of Section 9. s Communications Workers of America, AFL-CIO (Mountain States Telephone & Telegraph Co ), 1 18 NLRB 1104,1107,1108 ' N L.R B v Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers [Columbia Broad- casting System], 363 U S 573 " 135 NLRB 1402 "Id at 1410,1411 LABORERS , LOCAL 423 that Electrical Constructors is thus bound to EC- CO's collective-bargaining agreement with Operat- ing Engineers . Implicit in this contention is the ar- gument that the agreement with Operating En- gineers should be given precedence . The Board has long held that separate corporations would be treated as a single employer if they were highly in- tegrated with respect to ownership and operations.7 We are persuaded that the record , as set forth fully above , including the fact that there is a common of- fice, complete interchange of equipment and managerial and supervisory personnel , interlocking ownership of the two companies , and the fact that ECCO has been Electrical Constructors ' exclusive subcontractor for the work in dispute for an im- mediately prior 5 -years period , establishes a sub- stantial degree of integration of ownership and operations between Electrical Constructors and EC- CO.8 We find that Electrical Constructors and ECCO constitute a single, functionally integrated firm and, therefore , that ECCO's collective-bar- gaining agreements with Operating Engineers are also those of Electrical Constructors. Another equally important factor we consider in determining which collective -bargaining agreement to weigh more heavily is that the work in dispute is not really electrical work. "Although the work is in- cidental to other electrical work , it does not require a knowledge of the intricacies of electrical cir- cuitry."' Indeed, ECCO 's operating engineer em- ployees have long performed the same type of work in dispute in coordination with Electrical Construc- tors' electrical employees. In the above circum- stances, we find that the contracts favor Operating Engineers and consider the contract between Elec- trical Constructors-ECCO and Operating Engineers to be of great weight. 2. Employer, area, and industry practice Sam Jones, chapter member of National Electri- cal Constructors Association (NECA), testified that there are four major companies in the United States engaged in the installation of pipe-type cable, of which Electrical Constructors is one. Jones testified that the other three major companies in the indus- try have assigned the operation of equipment identical to that in dispute herein to employees represented by International Brotherhood of Elec- trical Workers. All three other major companies are members of NECA, while Electrical Construc- tors is not. r International Union of Operating Engineers, Local 428, AFL-CIO (See Bee Slurry Matic, Inc ), 169 NLRB 184, illustrates factors the Board con- siders relevant in determining whether a sufficient degree of integration of operations exist See also Twenty -first Annual Report, pp 14-15, and cases cited therein 899 Richard Eisenman testified that Electrical Con- structors' practice prior to 1964 was to retain all work for itself and assign the work in dispute to em- ployees represented by International Brotherhood of Electrical Workers. He also stated that, in 1964, Electrical Constructors began the practice of sub- contracting the work in dispute to ECCO. Electri- cal Workers did not protest Electrical Constructors' practice until early 1969, when it demanded and received assignment of the work in dispute in Cases 9-CD-159-1 and 9-CD-159-2. As to area prac- tice, Eisenman testified that Electrical Constructors assigned operation of the cherry picker to Electri- cal Workers in Columbus, Ohio, in 1959, 1960, and 1963. Electrical Constructors, through ECCO, as- signed operation of the cherry picker to Operating Engineers in Cincinnati, Ohio, in 1968. There is no evidence in the record of any of the other three major companies performing this type of work in the Ohio area. It is apparent, therefore, that both the Employer's practice since 1964 and the recent area practice favor awarding the work to Operating Engineers. 3. Skills, efficiency, and economy The record indicates that members of both unions possess sufficient skills to operate the cherry picker satisfactorily. Eisenman testified that effi- ciency and economy of operation are substantially increased by assigning the work in dispute to an em- ployee represented by Electrical Workers. The operation of the cherry picker is not a full-time job, Eisenman stated, and when not thus occupied, an Electrical Worker operator can work in the ditch with other Electrical Workers employees. It ap- pears, however, that Electrical Constructors em- ploys both equipment operators and electricians continuously, and an operator who is a member of Operating Engineers could work with another machine when not working on the cherry picker. Indeed, there is no showing that such utilization of operators was not feasible or in fact used in the past when operating engineers were assigned to the cherry picker under the ECCO subcontract procedure or that the Employer was dissatisfied with such arrangement. These factors, therefore, favor neither union. 4. Conclusion Upon consideraion of all pertinent factors, we shall assign the work in dispute in Cases s See Journeymen Plasterers ' Protective and Benevolent Society of Chicago, Loc 5, AFL-CIO ( Royal-Rin Builders ), 158 NLRB 1608 9 International Union of Operating Engineers, Local 450 (Rust Engineer- ing Company ), 169 NLRB 1026 427-258 O-LT - 74 - 58 900 DECISIONS OF NATIONAL 9-CD-159-1 and 9-CD-159-2 to individuals represented by Operating Engineers . Therefore, we find that Operating Engineers was entitled to de- mand the work in dispute, since such work should properly be assigned to employees who are represented by Operating Engineers. 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 Cases 9-CD-159-1 and 9-CD-159-2, the National Labor Relations Board makes the following deter- mination of dispute. LABOR RELATIONS BOARD Employers and individuals represented by Inter- national Union of Operating Engineers , Local 18, 18A, 18B , AFL-CIO, are entitled to the assignment of operating the hydraulic crane , or cherry picker, and related mechanized construction equipment used in laying a 138,000 volt pipe-type un- derground electric transmission line at the Colum- bus and Southern Ohio Electric Company project sites of Electrical Constructors in Columbus, Ohio. ORDER It is hereby ordered that the notice of hearing is- sued in Cases 9-CD-186-1 and 9-CD-186-2 be, and it hereby is , quashed.