Millwrights Local Union No. 1862

MILLWRIGHTS LOCAL UNION NO. 1862 Millwrights Local Union No . 1862 and' Spokane District Council of Carpenters, United Brother- hood of Carpenters and Joiners of America, AFL-CIO and International Association of Bridge, Structural &2 Ornamental Iron Workers, Local Union No. 14, AFL-CIO and Jelco, Inc.3 Case 19-CD-154 July 15, 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 the Iron Workers, alleging a violation of Section 8(b)(4)(D) by the Millwrights. Pursuant to notice, a hearing was held on January 21 and 22, 1970, at Walla Walla, Washington, be- fore Hearing Officer Jerome F. McCarthy. The Em- ployer, the Millwrights, and the Iron Workers ap- peared at the hearing and were afforded full oppor- tunity to be heard, to examine and to cross-examine witnesses, and to adduce evidence bearing on the issues. The Iron Workers and the Millwrights filed briefs with the Board. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connec- tion 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 EMPLOYER The Employer is a Utah corporation with its prin- cipal place of business at Salt Lake City, Utah, and is engaged in heavy construction . It annually per- forms services for customers located outside the State of Utah valued in excess of $1 million, and is currently engaged at the Little Goose Dam Power Plant Project near Starbuck , Washington , in the in- stallation of turbines and electrical generators manufactured by the General Electric Company. The Employer 's contract is with the Walla Walla District Corps of Army Engineers and has an ap- proximate value of $3 million . The parties stipu- lated , and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and ' Herein called the Millwrights s Herein called the Iron Workers 184 NLRB No. 58 547 (7) of the Act, and that it will effectuate the poli- cies of the Act to assert jurisdiction herein. ii. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Mill- wrights and the Iron Workers are labor organiza- tions within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Controversy The work in dispute involves the installation and final placement of generators and turbines in the powerhouse at Little Goose Dam. There is no dispute as to the work involved preparatory to the final placement. B. The Basic Facts As noted above, the Employer has the labor con- tract for installing turbines and generators in the powerhouse at Little Goose Dam. The assembly of the generators and turbines involves the handling of some extremely heavy parts such as turbine head covers which weigh approximately 139,000 pounds. Work with these parts involves the use of power rigging. The final assembly of parts of the turbines and the placing of them in the turbine pit in the powerhouse is done with a 600-ton bridge crane. The job involved here was the installing of three special turbines. When the dispute in question arose, the members of the Iron Workers had completed the assembly of the outer head covers on two of the turbines and were preparing to make the final assembly of the outer head cover on the third turbine. This last step, the work in dispute, requires skill and experience because of the fact that the heavy head cover must be fitted into place within a tolerance of around 5/1000ths of an inch. In lowering the outer head cover on the first two turbines, the Employer had assigned members of the Iron Workers to do the rigging and signaling and placed them in control and responsible for the lift. In preparing to lower the outer head cover on the third turbine, the Employer also made the as- signment to the Iron Workers. As preparations were being made to lower the outer head cover in its location in the powerhouse, the Millwrights ob- jected to the Iron Workers using "the machinists levels," a tool necessary for a proper fitting, since such tool was considered a Millwrights tool. When the Employer refused to assign this last stage ' Herein called the Employer 427-835 0 - 74 - 36 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rigging work to the Millwrights, the Millwrights in- formed the Employer that it was applying to the National Joint Board for Settlement of Jurisdic- tional Disputes, hereinafter referred to as the Na- tional Joint Board. The National Joint Board issued its award by letters dated September 26, 1969, to the Millwrights, the Iron Workers, and the Em- ployer in which it awarded the final installation work in dispute to the Millwrights. C. The Contention of the Parties The Millwrights contends that it did not violate Section 8(b)(4)(ii)(D) of the Act and thus that the Board is precluded from making a work determina- tion within the meaning of Section 10(k) of the Act. The Millwrights further contends that the work should be awarded to employees represented by it due to: (1) the contractual obligations of the Iron Workers and the Employer to be bound by decision of the National Joint Board when such disputes arise; (2) the National Joint Board's award in its favor; (3) past practices and awards in the in- dustry; and (4) the training, skills, and experience of its members. The Iron Workers contends that the Millwrights did violate the Act; that the Millwrights requested the National Joint Board to rule in the Millwrights favor without any discussion or notice to the Iron Workers; shortly after the award was made the Na- tional Joint Board ceased hearing such disputes and the Iron Workers had no opportunity to seek appel- late review; only the Iron Workers has the necessa- ry skill and experience to perform such work; Em- ployer, area, and industry practice support the as- signment of the work in question to the Iron Work- ers. Additionally, the Iron Workers contends that the U.S. Army Corps of Engineers specified that only qualified riggers are permitted to do power- house rigging and object to Millwrights doing any rigging, a necessary part of the work. The Employer did not file a brief to the Board, but it appears from the record that it supports the contentions of the Iron Workers. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the dispute pursuant to Section 10(k) of the Jefferson County, Alabama and Vicinity Carpenters District Council (S & W Masonry, Inc ), 173 NLRB 1241, and cases cited in In 4 5 N L R B v Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting System], 364 U.S 573; International Association of Ma- chinists , Lodge No 1743, AFL-CIO (J. A Jones Construction Com- pany), 135 NLRB 1402, 1411. ' Member Brown deems it noteworthy that Sec 10(k) of the Act requires the Board to withhold determination of a jurisdictional dispute Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. The testimony of the Employer supporting such a finding was refuted by the Millwrights. Neverthe- less, the Board is not charged with a finding that a violation did in fact occur, but only that reasonable cause exists to find such a violation. Without ruling on the credibility of the testimony in issue , we find such reasonable cause exists, and that the dispute is properly before the Board for determination under Section 10(k) of the Act.4 E. The Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various relevant fac- tors.5 The determination of who is entitled to the disputed work in a case such as this must rest on an assessment of all the relevant factors. Certain of the usual factors normally considered by the Board, such as arbitration awards, Board certification, and collective-bargaining agreements , in our opinion, provide little basis for determining the instant dispute. The most important factor favoring the Millwrights would appear to be the award of the National Joint Board. From the record it appears that all the parties in- volved in the instant proceeding at one time agreed to be bound by awards made by the National Joint Board. However, the Iron Workers did not par- ticipate in the Joint Board proceedings which resulted in the award to the Millwrights herein and, before any Joint Board decision or the filing of charges, it manifested an intention not to be bound by any Joint Board award.6 Additionally, shortly after the award was made, and presumably before the Iron Workers could seek appellate review con- testing the issuance of any award against it, the Na- tional Joint Board ceased hearing such disputes and was no longer a viable organization in a position to administer or police the award. In these circum- stances, we do not view the Joint Board award as determinative. As indicated above, the Employer had assigned the work to the Iron Workers and the work had been satisfactorily performed by it. The Employer testified that the most efficient and economical case where, as of the time the charge was filed or within 10 days thereafter, the parties have an agreed-upon method for the voluntary adjustment of the dispute During this critical period , as the dissent acknowledges, the Iron Workers had no desire or intention to utilize or pursue the voluntary procedures by which it had agreed to be bound Compare the cases discussed in the dissent where the renunciation of a previously agreed-upon method for adjustment occurred after charges were filed and following the Joint Board's award MILLWRIGHTS LOCAL UNION NO. 1862 method was to have the rigging performed by the Iron Workers. When the Mllwrights helped on the third turbine the time factor was adversely affected. The evidence reflects that the crane needed to per- form the rigging work is under the control of the Iron Workers prior to the installation and final placement of the turbine in the powerhouse which is a major part of the man-hours of the total job. Ef- ficiency and economy, it appears, would result by having all the crane work done by one person. After October 7, 1969, when the change in as- signment was made by the Employer pursuant to the National Joint Board award, it appears that the U.S. Army Corps of Engineers objected to the then available Millwrights doing any rigging, and there is some question raised as to whether the Employer was able at the time to obtain a Millwrights rigger who was qualified to assume the responsibility for the rigging. There is nothing in the record, how- ever, that would demonstrate that Iron Workers, as a craft, is more proficient in the rigging of the type herein involved than other crafts, and the record in- dicates that other crafts perform rigging for the Employer. Although it appears that several National Joint Board awards have awarded the work performed in the final installation of turbines in the powerhouse to Millwiights, the record demonstrates that the usual practice of the Employer has been to assign the work to the Iron Workers. The Millwrights does not appear to question the evidence set forth by the Iron Workers that area custom and practice favors the Iron Workers rather than the Millwrights. In view of the above and, most particularly, the enhanced efficiency and economy effectuated by utilizing employees represented by the Iron Work- ers for the complete job, the presence of em- ployees with the required skills and training who are members of the Iron Workers, the evidence of Employer and area practice, and the Employer's original assignment and apparent desire to adhere to that assignment, we shall determine this dispute in favor of the Employer's employees represented by the Iron Workers.-However, our present deter- mination is limited to,the controversy which gave rise to this proceeding. In making this determina- tion, we are awarding the controverted work to the Employer's employees represented by the Iron Workers and not to the Iron Workers. Accordingly, we find that the Respondent was not, and is not, entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or to require the Employer to assign the disputed work to ' United Brotherhood of Carpenters and Joiners of America, Local 943, A F of L ( Manhattan Construction Company), 96 NLRB 1045 See also 549 Millwrights rather than to employees represented by the Iron Workers. 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. A. Employees of the Employer who are represented by the Iron Workers are entitled to perform the following work: The installation and the final placement of generators and turbines in the powerhouse at Little Goose Dam Power Plant Project, near Starbuck, Washington. B. Millwrights is not entitled by means proscribed by Section 8(b)(4)(i) or (ii)(D) of the Act to force or require the Employer to assign the above-described work to individuals who are represented by it. C. Within 10 days from the date of this Decision and Determination of Dispute, the Millwrights shall notify the Regional Director for Region 19, in writ- ing, whether or not it will refrain from forcing or requiring the Employer to assign the work in dispute to Millwrights, rather than to employees of the above-named Employer represented by the Iron Workers. MEMBER FANNING, dissenting: Contrary to my colleagues, I would quash the notice of hearing in this case. It is undisputed that all parties here, including the Employer, were and are contractually bound to submit jurisdictional disputes to the National Joint Board for Settlement of Jurisdictional Disputes. The provisions of Section 10(k) have consistently been construed by the Board as withholding from it authority to determine jurisdictional disputes where at the time the dispute arose the parites thereto are contractually bound to submit the dispute to the Joint Board.' The procedures agreed on were fol- lowed and after all parties had an opportunity to be heard the National Joint Board awarded the work in issue to the Millwrights. Copies of the award were delivered to all parties. The award fully sets forth the issues involved and the bases for its decision and is relevant to the instant work dispute. The Employer was agreeable to, and, indeed, ac- cepted the award. My colleagues attempt to distinguish the instant case from the above precedents on the ground: (1) cases cited in fn 8, infra 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Iron Workers question whether they received proper notice of the hearing held by the Joint Board; (2) the Iron Workers did not par- ticipate in that proceeding and have indicated they are not bound by the award; and (3) after the award was made the Joint Board ceased hearing such disputes and appellate review was not availa- ble. I do not believe that these are adequate reasons to depart from this Board's long-established procedures in dealing with jurisdictional disputes. The Iron Workers have clearly taken the position that they have refused to participate in any Joint Board proceeding and will continue to refuse to be bound by the results of any determination made by that Board. It is settled law that a party, such as the Iron Workers, which has voluntarily agreed to abide by the procedures of the Joint Board, cannot refuse to comply with an award of that agency and invoke this Board's determination of the dispute." "See, e g Millwrights Local 1102, United Brotherhood of Carpenters, 121 NLRB 101, 106-107, Meyer Furnace Co, 114 NLRB 924, 930, A W Lee, Inc , 113 NLRB 947, 951, International Brotherhood of Teamsters, While appellate review may not have been available to the Iron Workers for a time due to a hiatus in the operation of the Joint Board, there is no indication that the Iron Workers had any intention or desire to avail itself of such review procedures. Moreover, no evidence has been adduced that Joint Board review of the original award is not now available to the Iron Workers. In view of the clear Congressional policy to encourage the voluntary adjustment of ju- risdictional disputes I would adhere to this Board's policy of insisting that parties who have such an agreed-upon method be required to resolve their disputes through that method. Accordingly, I would quash this notice of hearing and remand this case to the Regional Director with instructions to proceed in accordance with the provisions of Section 102.93 of the Board's Rules and Regulations under which a complaint alleging a violation of Section 8(b)(4)(D) may, if ap- propriate, issue and be litigated. Chauffeurs, Warehousemen and Helpers of America, Local #236 (William F Taylor), 97 NLRB 1003,1006