Local 487, Operating Engineers

98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 487, International Union of Operating Engi- neers, AFL-CIO and Peoples Gas System, Inc. and Rob-El Construction Corp. Case 12-CD-163 April 26, 1971 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by Peoples Gas System, Inc., hereinafter called Peoples, alleging that Local 487, International Union of Operating Engineers, AFL-CIO, hereinafter called the IUOE, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring Peoples and/or Rob-El Construction Corp., hereinafter Rob-El or Employer, to assign the work in dispute to employees represented by the IUOE, rather than to a group of unrepresented employees employed by the Employer. Pursuant to no- tice, a hearing was held before Hearing Officer Howard 1. Grossman on February 2, 1971. The Employer, Peo- ples, and the IUOE appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bear- ing on the issues. The IUOE filed with the Board a petition to revoke subpena ' and a motion to quash notice of hearing.2 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 rulings of the Hearing Officer made at the hear- ing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYERS The parties stipulated, and the record shows, that Peoples is a Florida corporation which is licensed as a public utility and has its principal office and place of business in Miami, Florida, where it is engaged in the distribution and sale of natural gas and liquid pe- troleum products and the sale and installation of gas appliances. During the year preceding the hearing, Peoples purchased and received goods and materials valued in excess of $50,000 directly from points and places located outside the State of Florida and its gross volume of sales exceeded $250,000. The Employer is also a Florida corporation which entered into a subcontract with Peoples to lay gas mains and service lines to a condominium complex called Biscayne Village. The value of the subcontract was $6,000 or $7,000. As Peoples is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act, we find that it will effectuate the policies of the Act to assert jurisdic- tion herein.' II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that the IUOE is a labor organization within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute Biscayne Village Associates, hereinafter referred to as BVA,° at all times material herein was engaged in the construction of a condominium complex called Bis- cayne Village, located in the vicinity of North Miami Beach. The complex consists of six apartment build- ings, a shopping center, a golf course and clubhouse, and a medical building . Goodnor Construction Co., the operational counterpart of Arlen Operating Company (primarily a financial entity), is in charge of construc- tion of the shopping center . BVA contracted with Peo- ples to provide natural gas mains and gas service lines to the complex and to supply natural gas service there- after. Peoples subcontracted the work of laying the gas mains and service lines to the Employer whose em- ployees are not members of a union. On November 12, 1970,5 the Employer began work under the contract, moving a Ford backhoe machine on the jobsite . The Employer's job foreman, Jimmy Ayers, was approached by a steward , presumably from the IUOE, and told that his operator could not unload the backhoe machine because it was a union job. There- upon, Ayers and the other employees left the jobsite. When they returned the following day , November 13, the same steward repeated substantially the same thing. Later, William Martz, who identified himself as a busi- ness agent for the IUOE, told Ayers he could not run ' As the hearing is closed and the record is adequate without the tes- timony of William Martz, president of the IUOE, who failed to appear in response to a subpena requiring his presence, we find it unnecessary to pass upon IUOE's petition to revoke subpena. ' In view of our decision herein, we deny the IUOE's motion to quash notice of hearing. ' See Local 173, Wood, Wire and Metal Lathers' International Union. AFL-CIO (Newark & Essex Plastering Co.). 121 NLRB 1094, and cases cited therein at fn. 5. BVA is a joint venture composed of The Chase National Bank of New York, Arlen Operating Company (both New York corporations), and Do- narl, Inc., a Florida corporation. ' All dates indicated are in 1970. 190 NLRB No. 21 LOCAL 487, OPERATING ENGINEERS 99 the equipment on the job without union operators. Martz said the 175 to 250 operating engineers, who were working for other subcontractors on the job, would walk off and shut it down, adding that they would "come off the equipment mad because they would then lose a day's work." Again, the Employer's employees left the jobsite. After working without incident on the next Monday and Tuesday, November 16 and 17, the IUOE steward on the following day, Wednesday, November 18, ap- proached employee Leroy Brewer who operated the Employer's ditching machine and asked him if he had an Operating Engineers book. When Brewer answered negatively, the steward told him he had to get off the machine and could not run it unless he had a book. On arriving a short while later, Martz told Ayers that he thought Ayers understood that he could not work on the job unless men from the IUOE were run- ning the equipment. When Ayers protested that it was a public right-of-way, Martz replied, "We are going to have to shut the digging, shut the job down." During this discussion other operating engineers on the job had ceased working. It appears that Martz thereafter saw Armond J. Moore, Goodnor's construction superintendent, on the concourse at Biscayne Village and told him that Good- nor would have to get Rob-El's employees off the job and stop them from working or there would be nobody on the job. Martz then had a conversation with Edwin P. Champion, assistant gas engineer for Peoples, and John Zarli, Goodnor's project manager, in the latter's field office. It appears from the record that Moore was also present. Zarli introduced Martz to Champion as a business agent for the Operating Engineers, stating that there was trouble concerning the operation of the equipment. Martz said that "he would not have no [sic] man on the job if the contractor stayed on the job." Zarli suggested that the conflict be resolved by paying a member of the IUOE to operate Rob-El's equipment. Martz said that he did not care how it was worked out, as long as IUOE personnel operated the equipment. Later the same day, Moore told Ayers he would have to leave. Whereupon, Ayers, after checking with his office, took his crew and left. On the following day, Thursday, November 19, Ay- ers returned with a crew, Robert D. Hall, the Em- ployer's president, and Hugh Doran and a Mr. Bout- zilo of Peoples. While the Employer's employees were operating the backhoe and ditching machines, about 15 unidentified men came from a nearby bar and walked in front of the equipment. One of the men struck the ditching machine with a shovel, breaking the gas con- nection and cutting the electrical and sparkplug wires. After the men left, the Rob-El employees returned to work, using only the backhoe machine. On November 20, a BVA official sent a wire to Peo- ples requesting that it stop work at the jobsite and remove its contractor immediately. The wire indicated that BVA would install the gas line itself. On the same day, BVA telephoned Peoples specifically requesting the latter not to work at the project on Monday or Tuesday, November 23 and 24, in order that BVA might iron out difficulties between the IUOE and Rob- El. B. The Work in Dispute The Biscayne Village project involves the installation of an 8-inch natural gas line from Biscayne Boulevard about 2,000 feet down the concourse drive leading into Biscayne Village. The backhoe machine is used to un- load pipe and the Cleveland ditching machine digs a ditch.about 4-1/2 feet deep and 14 inches wide. The dispute involves the use of these machines in installing gas mains in the dedicated public street right-of-way. C. Contentions of the Parties The IUOE contends that it does not claim the work in dispute and, accordingly, no dispute exists as to the assignment of such work within the meaning of Sec- tions 8(b)(4)(D) and 10(k) of the Act. It therefore urges that the Board quash the notice of hearing issued in the instant case. The Employer and Peoples contend, on the other hand, that IUOE engaged in a course of conduct which was wholly inconsistent with that disclaimer. Accord- ingly, its disclaimer, which was made during the hear- ing, is ineffective to deprive the Board of jurisdiction to determine the dispute. It urges the Board to determine the dispute and award the work to the unrepresented employees of Rob-El. D. Applicability of the Statute Before the Board may proceed to a determination 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. The record is clear and uncontroverted that the IUOE threatened Rob-El, Goodnor, and Peoples with closing the job down if Rob-El 's unrepresented em- ployees continued to operate the backhoe and Cleve- land ditching machines. Disputing the IUOE's dis- claimer, the record shows further that the IUOE sought either to have Rob-El assign the work to mem- bers of the IUOE or to have Peoples reassign the work to a subcontractor who employed members of the IUOE. We therefore find, contrary to the IUOE's con- tentions, that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred, and the 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 that the Board make an affirmative award of disputed work after giv- ing due consideration to various relevant factors.' However, certain of the usual factors considered by the Board in these cases, such as Board certifications, in- dustry practice, arbitration or jurisdictional awards, and provisions of collective-bargaining agreements and International constitutions, are not developed in the record and therefore are not available for determining the instant dispute on such basis. construction work, he is not prone to cut underground utility lines because of his familiarity with the pull of the wheel when it hits such a line. An inexperienced operator on utility construction might not have the feel for such a pull nor recognize that the machine has struck a utility line. Doing damage to other under- ground utilities is a major concern of Rob-El. 4. Arbitration or jurisdictional awards Rob-El has never been involved in an arbitration before the National Joint Board for the Settlement of Jurisdictional Disputes of its right to assign the dis- puted work nor agreed to submit to the National Joint Board or any other arbitral body claims with regard to such work. 1. Company and area practice Rob-El's normal practice is to have its own em- ployees do all the work on a particular job. It also appears that most of the employers in the area who are engaged in utility construction work normally operate with unrepresented employees. 2. Efficiency, economy, and flexibility of operations The assignment made by Rob-El to its own em- ployees is the most economical. Rob-El specializes in utility construction work and its employees are ex- perienced in such work. Its employees are employed on a regular full-time basis and are available to switch back and forth on various jobs during the course of the day. Thus, when one of the machines is not operating, the employee performs other tasks. Moreover, the ma- chine operators perform field maintenance on the ma- chines, such as replacing fuel lines, hydraulic hoses, and sparkplugs. Consequently, an assignment other than as made by the Employer would severely affect the efficiency and flexibility of operations of the Employer by restricting its ability properly to allocate its present work force. 3. Skill of the employees The record shows that Rob-El's employees are as skillful as operating engineers observed operating such equipment and are better qualified to do such work than casual employees whom Rob-El may obtain thru the IUOE. Rob-El's employees are trained and do a good workmanlike job on the backhoe and Cleveland ditching machines. As Rob-El's ditching machine oper- ator, along with its other employees, is trained in utility 6 N.L.R.B. v. Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers (Columbia Broadcasting Systems), 364 U.S. 573; International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402, 1411. Conclusions Upon the record as a whole, and after full considera- tion of all relevant factors involved, we believe that the work in dispute was properly assigned to the unrepre- sented employees of Rob-El. However, it does not ap- pear from the evidence that similar disputes involving Local 487, IUOE, are likely to recur in the future, and, accordingly, we limit our determination and award to the particular construction project involved in this pro- ceeding. 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 proceed- ing, the National Labor Relations Board hereby makes the following determination of the dispute: 1. Employees employed by Rob-El Construction Corp. are entitled to perform the duties of operating the Employer's backhoe and Cleveland ditching machines in the installation of the 8-inch natural gas line from Biscayne Boulevard into Biscayne Village. 2. Local 487, International Union of Operating Engi- neers, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Rob-El Construction Corp. and/or Peoples Gas Sys- tem, Inc., to assign the above-described work to its members. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 487, International Union of Operating Engineers, AFL-CIO, shall notify the Regional Director for Region 12, in writing, whether or not it will refrain from forcing or requiring Rob-El Construction Corp. and/or Peoples Gas Sys- tem, Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to its members rather than to employees employed by Rob-El Con- struction Corp.