International Union of Operating Engineers, Local 18

134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Local No. 18, AFL-CIO and The Mayer Corporation and Building Laborers' Local 310, Laborers' In- ternational Union of North America , AFL-CIO.' Case 8-CD-188 June 30, 1970 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS MCCULLOCH , BROWN , AND JENKINS Corporation is an Ohio corporation engaged in per- forming reinforced concrete construction work. Its main headquarters are in Cleveland, Ohio. Un- rebutted testimony by Martin Mayer, the Em- ployer's president, established that during the past year the Employer has purchased goods and materi- als valued in excess of $50,000 directly from points outside the State of Ohio. We find, therefore, that the Employer 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. This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing the filing of charges by the Mayer Corporation, herein called the Employer, alleging that Interna- tional Union of Operating Engineers, Local No. 18, AFL-CIO, herein called Local No. 18 or Respon- dent, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to as- sign the work in dispute to members of Local 18 rather than to employees of the Employer represented by Building Laborers' Local 310, Laborers' International Union of North America, AFL-CIO, herein called Local 310. Pursuant to notice, a hearing was held before Hearing Officer Sanford Gross in Cleveland, Ohio, on March 4, 5, 17, 18, and 27, 1970.2 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. Thereafter, briefs were filed by the Employer, Local No. 18, and Local 310. Pursuant to the provisions of Scction 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 rulings of the Hear- ing Officer made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. The Board has considered the entire record in this case, including the briefs, and hereby makes the following findings: 1. THE BUSINESS OF THE EMPLOYER Local No. 18 declined to stipulate that the Em- ployer is engaged in commerce within the meaning of the Act. The record indicates that the Mayer As amended by stipulation at the hearing ` All dates are 1970 unless stated otherwise The Board's standard for exercising jurisdiction over a nonretad enter- prise is a minimum of $50,000 outflow or inflow, direct or indirect II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated , and we find, that Local No. 18 and Local 310 are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Background Facts The situs of this dispute is a reinforced concrete multifloor apartment building under construction at 27843 Detroit Road, Westlake, Ohio, within the Cleveland metropolitan area. The Employer is a subcontractor on this project and is responsible for, among other items, fabrication and installation of precast concrete window divider panels. These precast panels, cast at the jobsite, measure 6 feet by 4 feet by 4 inches and weigh approximately 1,350 pounds. Installation is accomplished by bolt- ing these panels to the exterior face of the building. The Employer has not had any previous experience with the installation of precast concrete panels. The record indicates that at sometime in December 1969 or early January 1970, the Em- ployer was advised of the existence of a machine designed to faciliate installation of precast concrete panels and purchased the machine on January 7. This machine, the subject of the instant dispute, is a walk-behind forklift buggy modified by removal of the forks and the addition of a boom and hook. The Employer planned to install the precast concrete panels by having the project's tower crane, operated by a member of Local No. 18, lift the precast panels from their beds on ground level and hoist them to the floors to which they were to be bolted. The precast panels were to be temporarily placed in wooden racks by the tower crane opera- tor. It was then planned that the modified forklift Stemon, Mailing Service , 122 NLRB 81, 85, Eau Clair and Vicinity Building and Construction Trades Council ( St Budget ' s Catholic Congregation, Inc ), 122 NLRB 1341, 1343 184 NLRB No. 15 INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 18 135 would lift a precast panel from the storage racks, transport it to the installation site , and lower and hold the precast panel in place while a combined crew of ironworkers and brick masons secured the precast panel to the face of the building. The modified forklift was first operated on January 13 under the control of an employee represented by Local 310. It was immediately discovered that the modified forklift carried insuffi- cient counterweight, and operation of the machine was suspended for the balance of the day while ad- justments were made. The next day, January 14, the Employer's superintendent, Vogel, was in- formed by tower crane operator Giordano that the operation of the modified forklift buggy belonged to Local No. 18. Vogel arranged a meeting that same day between representatives of Local No. 18 and Local 310. Both Unions claimed that the operation of the modified forklift was within their respective jurisdictions . No agreement was reached and Vogel made no assignment . Vogel testified that, at the close of the meeting, Local No. 18's business agent told Giordano to shut down the tower crane if the modified forklift was not operated by a member of Local No. 18. Giordano denied that such a statement was made to him. A second meeting of the parties was held on January 19 at Mayer 's request. Local No. 18 and Local 310 reiterated their claim over the work. Rutherford , the president of Local No. 18, made a statement to Mayer to the effect that if the work was awarded to Local 310, the Employer could then give all work normally performed by Local No. 18 to Local 310. Mayer questioned if this was a strike threat. Rutherford denied that it was, and told Mayer that "we can't split equipment here, I would suggest that you give it all to the Laborers." At the conclusion of the meeting, Mayer an- nounced that he was awarding the work to Local 310, but urged the parties to submit statements in support of their respective claims. The Employer filed the instant unfair labor practice charge the next day, January 20. The project was shut down from January 19 through January 26 due to inclement weather. On January 26, the Employer assigned an employee represented by Local 310 to operate the modified forklift and began to install the precast concrete panels. Shortly afterwards, tower crane operator Giordano told Vogel that "the crane is down." Vogel testified that Giordano told him that the shutdown had been ordered by Local No. 18. Girodano denied that he was ordered by Local No 18 to cease operations. Giordano and his oiler did not return to work until January 30, and the project was shut down on January 28 and 29. The crane, and the project, resumed operation on January 30 after the Employer and representatives of Local No. 18 agreed that the modified forklift would not be operated until the dispute over its assignment was resolved. There was a work stoppage of short duration by Giordano on February 18, when the Employer again attempted to operate the modified forklift with an employee represented by Local 310. The record indicates that all precast concrete window divider panels have subsquently been in- stalled by alternate means. B. Work in Dispute The work in dispute ►s the operation of the modified walk-behind forklift buggy powered by a small gasoline engine. In the modification, the forks from the front of the machine have been removed, and the short remaining stubs, which are rubber covered, serve to brace and stablize the load, but do not in any way support the load itself. A boom has been affixed to the upper portion of the forklift frame, and moves in the same manner as the forks did before the alteration. A hook is secured to the boom and cannot move in a vertical plane indepen- dent of the boom, although it may be operated along the length of the boom by means of a threaded rod and fitting. Counterweights are af- fixed to the sides of the machine. As with standard forklift buggies, the operator of the modified machine does not sit on or ride in the machine, but directs the machine by means of a handlebar at- tached to the rear. C. Contentions of the Parties The Employer contends that Local No. 18 vio- lated Section 8(b)(4)(D) of the Act by threatening the Employer with a work stoppage in an effort to have the Employer assign the work in dispute to in- dividuals represented by Local No. 18. The Em- ployer further contends that the work has been as- signed to employees represented by Local 3 10 and that such work should properly be awarded to members of Local 310 in view of (a) Employer and area past practice; (b) absence of a voluntary method for settling the dispute; (c) considerations of skill, efficiency, and economy; and (d) the fact that the assignment does not entail the layoff or ter- mination of employees represented by Local No. 18. Local 310 has taken a position basically con- sistent with that adopted by the Employer regarding the work in dispute, contending, in addition, that the collective-bargaining agreement between the Employer and Local 310 supports the Employer's assignment. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local No. 18 contends that the work in dispute should be assigned to its members. In support of its position, Local No. 18 argues that walk-behind fork- lifts are within its jurisdiction when used in con- junction with a composite crew, citing its collec- tive-bargaining agreement, and, alternatively, that the modified forklift is actually a hoist, and hoists are within the jurisdiction of Local No. 18 by virtue of the collective-bargaining agreement. Local No. 18 also argues that its claim to the work is strengthened by area past practice and by con- siderations of skill and efficiency. Local No. 18 further contends that a valid collective-bargaining agreement does not exist between Local 310 and the Employer. D. Applicability of the Statue Before the Board may proceed with a determina- tion 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 set forth previously, Local No. 18 has demanded the assignment of operating the modified forklift. Vogel testified that on at least two separate occasions he was told by Giordano that the crane would be, or was, shut down by order of Local No. 18. Giordano has denied making such statements. Mayer testified without contradiction that Ruther- ford suggested that the Employer assign all work to members of Local 310 if the Employer did not award operation of the modified forklift to Local No. 18. Rutherford admitted the statement, but stated that he told Mayer it was not a threat of a strike by Local No. 18. Moreover, on January 26, Giordano shut down the crane and operations were not resumed until the Employer agreed with Local No. 18 that it would not operate the modified for- klift before the dispute was settled. In a jurisdic- tional dispute context, the Board is not charged with finding that a violation did in fact occur, but only that there is reasonable cause to believe that there has been a violation.' On these facts, and without ruling on the credibility of the testimony in issue,' we are satisfied that there is reasonable cause to believe Local No. 18 threatened to and did strike and that an object of such action was to force the Employer to assign the disputed work to in- dividuals represented by Local No. 18, rather than to those employees represented by Local 310. On the basis of the entire record in this case, 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 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.' The Board has held that its determination in a jurisdictional dispute is an act of judgment based upon commonsense and experience , reached by balancing those factors involved in a particular case." The following factors are relevant in making a determination of the dispute before us. 1. Certification and collective-bargaining agreements Neither of the labor organizations involved herein has been certified by the Board nor is there evidence indicating that a Board certification covers the disputed work. The Employer claims that it is bound by Letter of Assent to the collective-bargaining agreement between Local 310 and the Building Trades Em- ployer's Association (BTEA), Cleveland Chapter, Associated General Contractors. The alleged letter of assent signed by the Employer was not produced at the hearing, although the Employer did in- troduce a copy of an assent to participate in and make contributions to Local 310's welfare and pen- sion funds, as prescribed in the collective-bargain- ing agreement. The record indicates that both the Employer and Local 310 have at all times material herein considered and conducted themselves as bound to the Local 310-BTEA agreement. We find therefore that the Employer and Local 310 have agreed to be bound by the collective- bargaining agreement, and its terms are properly considered as a factor in the determination of dispute. Article I of this agreement provides, in part , that the distribu- tion of all materials used by brick masons shall be performed by laborers, specifically including dis- tribution by means of "walk along forklift trucks or other machines of similar or like characteristics." The Employer signed and adopted the collective- bargaining agreement between Local No. 18 and ' Locals 138, 138A, 1388, 138C, and 138D , International Union of Operating Engineers , AFL-CIO (Cafatiso Lathing and Plastering , Inc ), 149 NLRB 156, 158-159 s See Local Union No 3, International Brotherhood of Electrical Workers, AFL-CIO ( Western Electric Company, Incorporated), 141 NLRB 888, 893 " The parties have not submitted satisfactory evidence that they have ad- justed or agreed upon methods for the voluntary adjustment of the dispute ' N L R B v Radio and Television Broadcast Engineers Union, Local /212, International Brotherhood of Electrical Workers, AFL-CIO ( Columbia Broadcasting System ), 364 U S 573 ' International Association of Machinists , Lodge No 1743, AFL-CIO (J A Jones Construction Co ), 135 NLRB 1402 INTERNATIONAL UNION OF OPERATING ENGINEERS , LOCAL 18 137 BTEA on May 15, 1968. That agreement does not specifically cover the work in dispute, although it does include operation of forklifts within its wage classification and rates of pay tables. We conclude that the operation of the midified forklift is not clearly covered by the terms of either collective- bargaining agreement with the Employer, and that this factor favors neither labor organization. 2. Company and area practice The record shows that the Employer has never utilized a forklift modified here; the Employer has long assigned operation of standard walk-behind forklifts to employees represented by Local 310. As to area practice, uncontradicted testimony by mem- bers of Local 310 established that the operation of machinery identical to that in dispute here, as well as operation of the standard walk-behind forklift, has uniformly been assigned to individuals represented by Local 310. Accordingly, these fac- tors favor an award consistent with that made by the Employer. 3. Skills, efficiency, and economy There is no showing that the disputed work requires skills not possessed by employees represented by Local 310 The Employer testified that it is more efficient and economical to assign the work to members of Local 310. The record in- dicates that an employee represented by Local 3 10 may be assigned to a variety of jobs while not operating the modified forklift, whereas an em- ployee represented by Local No 18 would be idle should the forklift become inoperable or should the installation work be interrupted. Accordingly, we find that factors of efficiency and economy favor an award to Local 310. F. Conclusions Having considered all pertinent factors present here, we conclude that employees represented by Local 310 are entitled to perform the work in dispute. This assignment is compatible with the col- lective-bargaining agreement between Local 310 and the Employer. Moreover, the assignment is consistent with both Employer and area past prac- tice. In addition, members of Local 3 10 possess suf- ficient skills to perform the disputed work and the Employer has been satisfied with their perfor- mence . We conclude from all of the foregoing that the Employer's assignment of work to employees represented by Local 310 should not be disturbed. On the basis of the entire record, therefore, we shall determine the existing jurisdictional con- troversy by awarding to the employees of the Em- ployer represented by Local 3 10, rather than to in- dividuals represented by Local No. 18, the opera- tion of the modified forklift. In making this deter- mination, we are assigning the disputed work to the employees of the Mayer Corporation who are represented by Local 310 but not to that Union or its members. G. Scope of the Determination The work which gave rise to the instant dispute has already been completed. We find persuasive the Employer's suggestion that our award in this case should be applicable to all similar future disputes which may arise in the Cleveland metropolitan area. The award will, of course, apply to such fu- ture disputes only if no substantial changes occur in the factors, discussed above, which have led us to our conclusion that the disputed work should be performed by individuals represented by Local 310.9 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 hereby makes the following determination of dispute: 1. Assuming the substantial continuation of the factors discussed in the above decision, individuals employed by the Employer and represented by Building Laborers' Local 310, Laborers' Interna- tional Union of North America, AFL-CIO, rather than those represented by International Union of Operating Engineers, Local No 18, AFL-CIO, are entitled to perform the work of operating the modified forklift buggy in building construction in the metropolitan area of Cleveland, Ohio. 2. International Union of Operating Engineers, Local No. 18, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Mayer Corporation, Cleveland, Ohio, to assign such work to individuals s Member Jenkins would not grant the Employer 's request to make a broader award in this case The forklift, as purchased , was substantially modified to perform the work of lifting and transporting precast concrete panels, and after an unsuccessful attempt to use the machine, the Employer found it necessary to modify the forklift further through the installation of large concrete counterweights In Member Jenkins' view, the evidence reveals a substantial likelihood that the forklift will undergo further modifi- cation or refinement, both in structure and employment Such considera- tions make an award beyond the instant dispute inappropriate at this time 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD represented by the aforesaid labor organization. writing, whether or not it will refrain from forcing 3. Within 10 days from the date of this Decision or requiring the Mayer Corporation by means and Determination of Dispute, International Union proscribed by Section 8(b)(4)(D) to assign the of Operating Engineers, Local No. 18, AFL-CIO, work in dispute in a manner inconsistent with the shall notify the Regional Director for Region 8, in above determination.