Operating Engineers, Local 450

94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Local No. 450, AFL-CIO and Hydrocarbon Construction Company and International Brotherhood of Electri- cal Workers, Local 716. Case 23-CD-270 tion 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 April 26, 1971 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following a charge filed by Hydrocarbon Construction Company, herein called Hydrocarbon, alleging that International Union of Operating Engineers, Local No. 450, AFL- CIO, herein called Operating Engineers, had violated Section 8(b)(4)(D) of the Act. A duly scheduled hear- ing was held in Houston, Texas, before Hearing Officer Willard I. Boss on January 11 and 12, 1971, at which International Brotherhood of Electrical Workers, Lo- cal 716, AFL-CIO, herein called IBEW, intervened. 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, Hydrocarbon, IBEW, and the Operating Engineers filed briefs with the National La- bor 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 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. They are hereby affirmed. Upon the entire record in this case, including the briefs, the Board makes the following findings: 1. THE BUSINESS OF THE COMPANIES Hydrocarbon Construction Company is a Texas cor- poration engaged in general contracting work. During the past 12 months, a representative period, Hydrocar- bon purchased goods and materials from sources out- side the State of Texas of a value exceeding $50,000. Electrical Constructors, Inc., herein called ECI, is a Texas corporation engaged in the electrical contracting business. During the past year, ECI received at the Shell Chemical Company construction project in Deer Park, Texas, involved herein, goods and materials valued in excess of $50,000, which goods and materials were received from points outside the State of Texas. We find, in accordance with the foregoing, and the stipulation of the parties, that Hydrocarbon and ECI are engaged in commerce within the meaning of Sec- 190 NRLB No. 20 The parties stipulated, and we find, that t1re Operat- ing Engineers and the IBEW are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts On and prior to December 1, 1970, Hydrocarbon was engaged in the construction of a new chemical processing unit at the Shell Chemical Company plant in Deer Park, Texas. The unit under construction was being built to produce vinyl chloride monomer, and the Hydrocarbon construction project was popularly re- ferred to as the VCM-S Offsite Job. Hydrocarbon, on December 1, 1970, employed approximately 90 em- ployees engaged in the work of running various pipe- lines and installing other equipment necessary for the VCM-S job. On and prior to December 1, 1970, ECI was per- forming certain electrical construction work on the VCM-S job under a subcontract from Hydrocarbon. On December 1, 1970, ECI began a portion of its job involving the laying of groundwire to be attached to one of the metal vessels under construction on the VCM-S job. In order to lay this groundwire, it was necessary for ECI to dig a ditch approximately 2 feet deep and 6 inches wide, in which to run and splice the wire, and then cover the wire. ECI determined that this ditch would be dug with a piece of small ditching or trenching equipment, about the size of a power lawn mower, called a "Ditch-Witch," and that such ditching machine would be operated by its electricians, who were represented by IBEW. When, on December 1, 1970, the operating engineers employed by Hydrocarbon learned that the members of IBEW, employed by ECI, were operating the "Ditch- Witch," they left their equipment and engaged in a work stoppage, claiming that they were entitled, under their contract with Hydrocarbon, to perform the dig- ging or trenching work. On December 2, 1970, a meeting was held between representatives of the Unions, William Nicholson, Hy- drocarbon's general superintendent, and Ronald An- derson, ECI's project manager. The Operating Engi- neers asserted that they were entitled to the work of operating the trenching machine by virtue of their con- tract with Associated General Contractors (AGC), Houston Chapter, of which Hydrocarbon is a member. (ECI is not party to, nor otherwise bound by, any agreement with the Operating Engineers.) The IBEW, on the other hand, tendered letters from electrical con- OPERATING ENGINEERS, LOCAL 450 95 tractors, showing that such contractors had used elec- tricians, represented by IBEW , to operate the "Ditch- Witch." Nothing was resolved, and the Operating En- gineers again engaged in a work stoppage. On December 3, Hydrocarbon's general superin- tendent, William Nicholson , called the Operating Engi- neers hiring hall and requested a new crew of operating engineers, but was later advised by the Operating Engi- neers that although the jobs had been posted no one had applied therefor . On the evening of December 3, the work of operating the "Ditch-Witch" at the jobsite was completed, and on the next morning , December 4, a full crew of operating engineers returned to work. The representatives of the Operating Engineers and the IBEW met on January 6, 1971, at which .time they discussed matters of mutual interest , as discussed more fully infra. 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. The charge herein alleges a violation of Section 8(b)(4)(D) of the Act. The uncontroverted testimony establishes that on December 1, 2, and 3, 1970, the Operating Engineers engaged in a work stoppage at the Shell Chemical Company construction project in Deer Park, Texas, with an object of forcing assignment of the disputed work to employees it represented, rather than to employees represented by the IBEW. We conclude, under these circumstances, 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 pursuant to Section 10(k) of the Act.' B. The Work in Dispute The dispute in the proceeding involves the work of operating a trenching, or ditchdigging, machine known by the brand name of "Ditch-Witch" at the Shell Chemical Company construction project in Deer Park, Texas. C. The Contentions of the Parties The Operating Engineers claims that it is entitled to the disputed work on the basis, inter alia, of its contract with Hydrocarbon and other factors such as economy, safety, and skill required, as well as industry, area, and employer practice. Moreover, it is claimed that at the January 6, 1971, meeting the two Unions had agreed to set up machinery for the resolution of this dispute, namely, through the offices of their International repre- sentatives, and that, therefore, this matter is not prop- erly before the Board. IBEW, on the other hand, claims that ECI's assignment of the disputed work to it is proper by virtue of its contract with ECI, and that the relevant factors in determining this work dispute, such as skills, efficiency, and area and industry practice, militate in its favor. Hydrocarbon states that ECI prop- erly made the work assignment to its electricians, represented by the IBEW, and that the relevant factors favor such assignment, and that, in any event, the work has been satisfactorily completed by the electricians, in whose favor ECI made the assignment. The position of ECI, as stated at the hearing, is that it has always employed its electricians to perform the trenching work and to operate the "Ditch-Witch," and that this is in full conformity with area practice. E. Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of disputed work after giv- ing due consideration to various relevant factors. The following factors are relevant in making a determina- tion of the dispute before us: 1. Collective-bargaining agreements Hydrocarbon, the general contractor of the Shell Chemical Company project, is a member of Associated General Contractors (AGC), Houston Chapter, which has a contract with the Operating Engineers. Article II, section 2, of this contract states that "All work subcon- tracted by a party to this Agreement that may be per- formed by any of the classifications herein listed shall be paid for at the rates and performed in accordance with the terms and conditions set forth in this Agree- ment." In article VII, Wages and Classifications, under the heading of "Engineers-Heavy Equipment," there is listed "Trenching Machine (all sizes)." Hydrocarbon subcontracted the electrical work on the project to ' We find no merit in the contention of the Operating Engineers that the two Unions involved herein , at the January 6, 1971, meeting had agreed to set up machinery to resolve the instant dispute, and that, therefore, this matter is not properly before Board. In this connection , we note that Gra- ham Kemp, the IBEW business manager, testified without contradiction that the January 6 meeting was not called for any specific purpose, that the work of operating the "Ditch-Witch" was not specifically discussed, but only touched on , that the work assignment in dispute was not resolved , that the IBEW never surrendered its claim to operating the "Ditch-Witch," and that it still claimed the right to perform this work. On these facts , Plasterers Local Union 79[Southwestern Construction Co.] v. N.L.R.B., enforcement denied 440 F.2d 174 (C.A.D.C.), cert. granted 401 U.S. 973 relied on by Operating Engineers, is clearly distinguishable . In any event , as ECI at no time sig- nified its intent to be bound by the interunion discussions , and since we respectfully disagree with that court's views in the cited case, we would find the instant dispute cognizable under Section 10(k) even if both Unions had agreed to an alternate means of adjustment. 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Electrical Constructors, Inc. (ECI), a member of the National Electrical Contractors Association (NECA), Houston Chapter. NECA has a contract with IBEW, which, in pertinent part, defines the scope of work covered thereunder as "all electrical construction, al- teration-maintenance repair and extension of any and all electrical systems on plants, buildings, or properties, "including, inter alia, jobsite handling, erection, instal- lation, electrical connections, and all welding and cut- ting in connection with electrical work." As indicated above, ECI, the electrical subcontractor herein, assigned the work of operating the trenching machine known as the "Ditch-Witch" to its own em- ployees represented by IBEW. While the Operating Engineers bases its claim partly on its contract with Hydrocarbon, it is not the validity of Hydrocarbon's assignment that is here in issue.' Since ECI, the subcon- tractor, assigned the work to employees represented by the only labor organization with which it had a collec- tive-bargaining agreement, it appears that ECI's work assignment to its own employees was not improper and clearly was not in derogation of any obligation existing as between ECI and Operating Engineers. 2. Area and industry practice There was conflicting evidence as to area and indus- try practice. The IBEW submitted a number of letters from electrical contractors in the area, reflecting that they used members of the IBEW to operate the "Ditch- Witch" in connection with electrical jobs they had han- dled, while, on the other hand, the Operating Engineers presented evidence indicating that certain contractors used the Operating Engineers for such work. The record in its entirety supports the view that electrical contractors in the area generally use electricians, repre- sented by IBEW, to operate the "Ditch-Witch," whereas the general contractors use operating engi- neers to perform such work. 3. Employer assignment and preference The record is clear that, at least for the past 11 years, ECI has used its own electricians, represented by IBEW, to operate the "Ditch-Witch," not only at the present jobsite but also in all other places where ECI has engaged in electrical construction. 4. Skills The Operating Engineers urges the Board to con- sider the asserted greater skill and experience of its members as persuasive of its entitlement to the work assignment. However, the record clearly establishes ' The charge, though filed by Hydrocarbon, refers only to ECI's assign- ment, and the notice of hearing, likewise, names ECI as the "Employer." that no particular skill is required to operate the "Ditch-Witch." 5. Efficiency and economy The record indicates that the wage scales for mem- bers of the Operating Engineers and the IBEW are somewhat comparable. However, on this particular project, the record shows that ECI used the "Ditch- Witch" only intermittently. It therefore appears that it was more practical and economical for ECI to use one of its regularly employed electricians to operate the machine, rather than to hire an operating engineer and thus fragment a task more efficiently performed by a single craft. Conclusions as to the Merits of the Dispute Upon consideration of all the pertinent factors, we conclude that employees of ECI, represented by IBEW, are entitled to the work in dispute. Employees of ECI, represented by IBEW, are fully capable of performing the work in dispute, and it appears that both Hydrocar- bon and ECI, which assigned them the work, are sa- tisfied with the quality of their work and the efficiency gained through employing them. Moreover, the instant assignment of the disputed work to IBEW is consistent with the provisions of the collective-bargaining agree- ment between ECI and IBEW, and the past practice of ECI conforms to area and industry practice, and is not in derogation of any ECI obligation to the Operating Engineers . We conclude, therefore, that ECI' s assign- ment of the disputed work to employees represented by IBEW shall not be disturbed. We shall, accordingly, determine the existing jurisdictional dispute by decid- ing that electricians represented by IBEW, rather than operating engineers, are entitled to the work in dispute. In making this determination, we are assigning the disputed work to the employees of ECI, who are repre- sented by IBEW, but not to the IBEW or its members. The present determination is limited to the particular controversy which gave rise to this proceeding. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Re- lations Act, as amended , and upon the basis of the foregoing findings, and the entire record in this pro- ceeding, the National Labor Relations Board hereby makes the following determination of dispute: 1. Employees employed by Electrical Constructors, Inc., currently represented by International Brother- hood of Electrical Workers, Local 716, AFL-CIO, are entitled to the work of operating the trenching machine known by the brand name of "Ditch-Witch" at the Shell Chemical Company construction project at Deer Park, Texas. OPERATING ENGINEERS, LOCAL 450 97 2. International Union of Operating Engineers, Lo- cal No. 450, AFL-CIO, is not entitled, by means pro- scribed by Section 8(b)(4)(D) of the Act, to force or require Electrical Constructors, Inc., 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, International Union of Op- erating Engineers, Local No 450, AFL-CIO, shall notify the Regional Director for Region 23, in writing, whether or not it will refrain from forcing or requiring Electrical Constructors, Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to employees represented by it, rather than to employees represented by International Brotherhood of Electrical Workers, Local 716, AFL-CIO.