United Brotherhood of Carpenters and Joiners

868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Locals 542 and 393, United Brotherhood of Carpenters and Joiners of America , AFL-CIO, and Carpenters District Council of South Jersey, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and United Engineers & Constructors, Inc. and Public Service Electric & Gas Company and System Council , Utility Employees-2, Local 1335, International Brotherhood of Electrical Workers, AFL-CIO. Case 4-CD-200 June 30, 1969 DECISION AND DETERMINATION OF DISPUTE By CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed on February 25, 1969, by United Engineers & Constructors, Inc.,' under Section 8(b)(4)(D) of the Act. The charges allege, in substance, that Locals 542 and 393, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and Carpenters District Council of South Jersey, United Brotherhood of Carpenters and Joiners of America, AFL-CIO,' violated Section 8(b)(4)(D) by striking and picketing to force or require United Engineers to assign part of the work of calibrating the scales at the Public Service Electric & Gas Company' concrete batch plant located at Hancock's Bridge, New Jersey, to individuals employed by United Engineers, and/or its subcontractors, represented by Carpenters, rather than to employees of Public Service Electric, represented by System Council, Utility Employees-2, Local 1335, International Brotherhood of Electrical Workers, AFL-CIO.' Pursuant to notice, a hearing was held before Alfred Vitarelli, Hearing Officer, on April 7, 8, and 9, 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 National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Briefs were filed by United Engineers, Carpenters, and IBEW, which have been duly considered. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE COMPANIES The parties stipulated, and we find, as follows: United Engineers, a Delaware Corporation, is engaged in the building and construction business, operating in the various States of the United States and in foreign countries. Its gross volume of business annually exceeds $1,000,000 and it does business in interstate commerce in excess of $50,000 annually. It is presently engaged in building a nuclear generating plant in Hancock's Bridge, Salem County, New Jersey, the cost of which approximates $350,000,000. In the construction of this plant, for Public Service Electric, United Engineers purchased materials outside the State of New Jersey valued in excess of $50,000. Public Service Electric, a New Jersey corporation, is engaged in the manufacture and distribution of gas and electric energy. Its gross volume of business annually exceeds $250,000. We find, in accordance with the stipulation of the parties, that United Engineers and Public Service Electric are employers 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. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated , and we find, that Carpenters and IBEW are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Dispute The disputed work which gave rise to this proceeding concerns the moving, lifting, and handling of weights in connection with the calibration of scales at the concrete batch plant at the nuclear generating facility construction site located at Hancock's Bridge, New Jersey. B. The Facts The record indicates that United Engineers is the general contractor building a nuclear generating station at Hancock's Bridge, New Jersey, primarily for Public Service Electric. United Engineers employs a work force of about 950 employees at the worksite. In the process of building the station, a batch plant was erected on the jobsite for the mixing of concrete.' This batch plant serves the function of receiving, storing, and mixing the various aggregate ' Hereinafter referred to as United Engineers. 'Hereinafter referred to as Carpenters 'Hereinafter referred to as Public Service Electric 'Hereinafter referred to as IBEW 'The record reflects that Public Service Electric owns the concrete batch plant. 177 NLRB No. 90 UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 869 materials which make up concrete. In connection therewith, scales are used to measure the proper amount of ingredients necessary to mix the concrete according to the specifications required by the Atomic Energy Commission. Two scales are involved in this dispute. In order to insure the proper mixture of ingredients, these scales are calibrated once a month, utilizing 50 pound weights, and, at times, lighter weights. The initial calibration of scales at the concrete batch plant occurred on October 31, 1968. Public Service Electric assigned six of its laboratory employees, represented by IBEW, to perform the calibration, and they were assisted by five employees of United Engineers and/or its subcontractors, who are members of the Building Trades; namely, two carpenters, one carpenter foreman, and two ironworkers." The Building Trades members handled, primarily, the heavy work, such as setting up the scales, lifting, and rigging the weights. At the second calibration, which took place on November 24, 1968, Public Service Electric assigned 11 of its laboratory employees to perform the calibration, and they were assisted by approximately the same number of carpenters and ironworkers, as were present in the first calibration. Subsequent calibrations occurred on December 29, 1968, February 23, 1969, and March 30, 1969, but these calibrations were performed exclusively by the laboratory employees of Public Service Electric, represented by IBEW. Shortly after the fourth calibration, namely, on February 24, 1969, Carpenters began picketing the jobsite, the picket sign legends reading "We are picketing United Engineers for violation of agreement, Carpenters Locals 542 and 393." The picketing lasted 1 week, and during this week, on February 25, 1969, the instant charges were filed by United Engineers. C. Contentions of the Parties Public Service Electric. Carpenters, while disclaiming any entitlement to the work of actually calibrating or adjusting the scales themselves, contends that the initial assignment of the disputed work, insofar as it pertains to the moving of weights, the placing of weights on pans, and the removal of them during calibration, was properly made to it; that subsequently the work was improperly removed to IBEW; and that, upon consideration of all pertinent factors, it should be awarded such work. D. Applicability of the Statute Before the Board proceeds with a determination 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. As stated above, the uncontroverted record testimony establishes that Carpenters picketed and struck United Engineers, the prime contractor, at the jobsite. It is further established that an object of this picketing, as evidenced by the picket sign legend, and other facts in the record, was to force or require United Engineers, and/or Public Service Electric, to assign particular work to members of Carpenters, rather than to members of IBEW. Accordingly, we find, on the basis of the entire record, that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) of the Act has occurred, and that the dispute is properly before the Board for determination under Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after due consideration of the various relevant factors.' The following factors are relevant in determining the claims of the parties herein: Public Service Electric argues that it is the owner of the nuclear generating plant, and that it designated United Engineers to be the prime contractor in the construction thereof; that it made the assignment of the disputed work to its own laboratory employees because it felt it had a right to do so, and because it believed such assignment to be the most efficient and economical way to operate. United Engineers takes the position that this case is properly before the Board as a means of resolving a jurisdictional dispute, and that it will be satisfied with any award of the disputed work the Board may wish to make . IBEW contends that Public Service Electric made a valid assignment of work to its own employees, represented by a certified union (IBEW), and that it and Public Service Electric are operating under a current collective-bargaining agreement, and that the Carpenters has no standing herein since Carpenters is not privy to any such relationship with 1. Certification and collective-bargaining agreements The record reflects that there is no Board certification specifically relating to the disputed work. It also appears that in 1943 or 1944, IBEW was certified by the Board as bargaining representative of certain employees of Public Service Electric, including the laboratory employees involved herein, and the parties are presently operating under a collective-bargaining agreement. 'It appears that the subcontractors had been assigned to the first calibration by one Bob Harris, a United Engineers supervisor in charge of the batch plant The record is not clear as to the circumstances under which Harris permitted these individuals to work , and it otherwise appears that Harris' employment with United Engineers was terminated shortly after the incident . Harris was not called as a witness in this proceeding. 'international Association of Machinists, Lodge No 1743. AFL-CIO (J A Jones Construction Company), 135 NLRB 1402. 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The job classifications of the various laboratory employees used by Public Service Electric, such as test engineer , technician, laboratory tester A, and laboratory tester B, are described in the contract, but no specific reference is made therein to the work of performing the calibration of scales. United Engineers and Carpenters are parties to national and local agreements. Such contracts contain no specific reference to calibration of scales at a concrete batch plant , although "millwrights" are given general jurisdiction over the installation of "scales." As described previously , Public Service Electric awarded the contract for building a nuclear generating station to United Engineers, and in connection therewith , the Atomic Energy Commission laid down certain specifications for the mixing of the concrete . Under the agreements between Public Service Electric and United Engineers, it appears that the primary responsibility for the calibration of scales at the concrete batch plant rests with Public Service Electric, although United Engineers may furnish support personnel. There is no evidence in the record of any agreement which precludes Public Service Electric, the owner of the concrete batch plant, from assigning this work to its own employees. 2. Employer, area, and industry practice Public Service Electric has erected five generating stations in the State of New Jersey over the past 20 years. At three of these plants, ready-mix concrete was used, thus requiring no calibration of scales. At the remaining two plants, namely, at Sewaren and Linden, which were also built by United Engineers, concrete batch plants were used , and the calibration of scales, and the work incident thereto, were performed by Public Service Electric laboratory personnel, represented by IBEW. Testimony was adduced to the effect that members of Carpenters and other unions worked in the vicinity of these two batch plants, but made no claim to the work. Carpenters introduced testimony to the effect that millwrights have done maintenance and repair work in concrete batch plants , after initial calibration, and that scales are worked on by millwrights in refineries, truck weighing areas, vessels, or hoppers. However, Carpenters conceded that it was not aware of any instance, in the last 20 years, where millwrights placed weights on scales or participated in the calibration of scales on a repetitive basis, once the initial calibration of scales was accomplished. 3. Relative skills and efficiency of operation IBEW contends that its members have traditionally performed the work of calibrating scales at a concrete batch plant, and that this work requires a certain degree of skill in placing the weights on the scales . Moreover, it argues that the lifting and moving of weights and the actual testing of the scales is one integrated operation , and that when millwrights and ironworkers assisted in the calibrations, the work took longer because they did not know the exact nature of the work . On the other hand, Carpenters argues that United Engineers made the initial assignment of lifting and moving the weights to its members , and moreover, contends that the handling of weights requires no special skill. 4. Action of the National Joint Board for settlement of jurisdictional disputes The record reflects that in February 1969, Carpenters brought this dispute to the attention of the National Joint Board for settlement of jurisdictional disputes , and that on February 27, 1969, the National Joint Board advised United Engineers that the work assignment should be resolved in favor of the Carpenters , whose members were initially assigned the disputed work . However, neither the IBEW nor Public Service Electric is a party to the National Joint Board plan for settling jurisdictional disputes nationally and locally, nor did they otherwise consent to the submission of the dispute to the National Joint Board . Moreover, the record reveals that in making its award, the National Joint Board considered only its procedural rules and did not base its award upon substantive factors such as we normally rely upon in determining the merits of the jurisdictional dispute. Conclusions as to the Merits of the Dispute Upon consideration of all perinent factors, we conclude that employees of Public Service Electric, represented by IBEW, are entitled to perform the work in dispute . Control over the assignment of the work in dispute is lodged in Public Service Electric. Employees of Public Service Electric, represented by IBEW, are fully capable of performing the whole of the calibration work in question , and it appears that Public Service Electric, which assigned them the work, is satisfied with the quality of their work and the cost of employing them . Moreover , the instant assignment of the disputed work to IBEW is not inconsistent with any Board certification or contractual assignment, or with the past practice of Public Service Electric, nor is it inconsistent with area or industry practice. Public Service Electric owns the concrete batch plant, and has the primary responsibility for the calibration of scales in accordance with specifications laid down by the Atomic Energy Commission . Moreover, we find that the calibration of scales, and the work incident thereto, is essentially an integrated operation, and that it is economically sound and feasible for the employees of Public Service Electric, represented by IBEW, to perform the entire operation. We conclude, therefore, that Public Service Electric's UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 871 assignment of the disputed work to employees represented by IBEW should not be disturbed. We shall, accordingly, determine the existing jurisdictional dispute by deciding that IBEW, rather than Carpenters, is entitled to the work in dispute. In making this determination , we are assigning the disputed work to the employees of Public Service Electric, who are represented by IBEW, but not to that Union or its members. 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 proceeding, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees employed by Public Service Electric & Gas Company, who are represented by System Council, Utility Employees-2, Local 1335, International Brotherhood of Electrical Workers, AFL-CIO, are entitled to the work of moving, lifting, and handling of weights in connection with the calibration of scales at the concrete batch plant at the nuclear generating facility construction site located at Hancock' s Bridge , New Jersey. 2. Locals 542 and 393, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and Carpenters District Council of South Jersey, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require United Engineers and Constructors, Inc., and/or Public Service Electric & Gas Company, to assign the above-described work to employees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Locals 542 and 393, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and Carpenters District Council of South Jersey, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, shall notify the Regional Director for Region 4, in writing, whether or not it will refrain from forcing or requiring Public Service Electric & Gas Company, and/or United Engineers and Constructors, Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to employees represented by Carpenters, rather than to employees of Public Service Electric & Gas Company, represented by IBEW.