Operating Engineers, Local #571

162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Local II. THE LABOR ORGANIZATIONS INVOLVED No. 571 and The L. E. Myers Company and Ne- braska Public Power District and International Brotherhood of Electrical Workers, Local 1525. Case 17-CD-151 January 27, 1972 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Following the filing of a charge by the L. E. Myers Company, hereinafter referred to as the Employer, and Nebraska Public Power District, on September 2, 1971, alleging a violation of Section 8(b)(4)(D) of the Na- tional Labor Relations Act, as amended, by Interna- tional Union of Operating Engineers, Local No. 571, herein called Operating Engineers, a hearing pursuant to Section 10(k) of the Act was held before Hearing Officer Ward Summerville on November 2, 3, and 4, 1971. All parties 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. Thereafter, briefs were filed by the Employer, the Operating Engineers and the Interna- tional Brotherhood of Electrical Workers, Local 1525, herein called Electrical Workers. 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 au- thority in this proceeding 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, the Board makes the following findings: I THE BUSINESS OF THE EMPLOYER The L. E. Myers Company, a Delaware corporation with headquarters in Chicago, Illinois, is engaged in electrical contracting. During the past year its gross volume of business exceeded $500,000 and its pur- chases from outside the State of Illinois exceeded $50,000. The parties stipulate, and we find, that the Employer is 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. The parties stipulated , and we find, that the Operat- ing Engineers and the Electrical Workers are labor organizations within the meaning of Section 2 (5) of the Act. III THE DISPUTE A. Background and Facts The parties stipulated, and we find, that the work in dispute is the operation of a crane in the erection of electrical power (dead end) towers located at the con- struction site of the Cooper Nuclear Power Station at Brownville, Nebraska. In erecting the structures, the Employer uses a crew of three or four employees. The Crew is composed of one crane operator and two or three electricians work- ing either on the tower or on the ground. The work of the electricians is not in dispute. The Employer has a prime contract with the Ne- braska Public District for the construction of certain electrical structures at the Cooper Nuclear Power Sta- tion. The Employer is a member of the National Elec- trical Contractors Association for purposes of collec- tive bargaining. The Employer's employees working at the Brownville site are covered by a collective-bargain- ing agreement between the Employer as a member of the Association and the IBEW. Accordingly, the Em- ployer assigned the disputed work to its employees represented by the Electrical Workers. The record shows that approximately 53 power transmission structures have been erected at the con- struction site by the Employer's employees. The erec- tion of each structure involved the use of a crane. In each instance, the crane was operated by an employee represented by the Electrical Workers. On August 20, 23, and 26, 1971, individuals represented by the Oper- ating Engineers participated in a work stoppage, pre- venting the Employer from erecting dead end towers. On at least 2 of those days Operating Engineers Stew- ard Don J. Smith stated, "The cranes are our equip- ment." B. Positions of the Parties The Employer contends that the work in dispute was properly assigned to its own employees represented by the Electrical Workers in view of (a) its collective- bargaining agreement with IBEW; (b) area, company, and industry practice; (c) efficiency and economy; and (d) safety . Electrical Workers takes the same position as the Employer. The Operating Engineers contends that its members have operated cranes in the erection of electrical power towers in the proximity of high-voltage power lines for 195 NLRB No. 43 OPERATING ENGINEERS , LOCAL # 571 163 many years in this and other areas. The Operating Engineers also contends that its collective-bargaining agreement with Omaha Building Contractors Associa- tion covers the classification of crane operator and op- erators of other heavy equipment and that its constitu- tion gives it jurisdiction over this work, which it asserts is an indication that operation of all heavy equipment such as cranes is usually assigned to its members. It also claims the work on the basis of skills, efficiency, and safety.[ C. Applicability of the Statute Before the Board may proceed with a determination of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. The parties have stipulated , and we find, that there is rea- sonable cause to believe that the Operating Engineers has violated Section 8(b)(4)(D) of the Act. D. Merits of the Dispute' 1. The collective-bargaining agreements The record shows that the Employer's collective- bargaining history has been exclusively with the IBEW in all of the 35 States in which it is engaged in business, and that the Employer's current agreement with the Electrical Workers covers all work within the jurisdic- tion of that Union. It includes a classification "equip- ment operator" and a wage rate therefor. The employer pays its crane operators that rate. The Operating Engi- neers, on the other hand, has no contractual relation- ship with the Employer, which is not a member of Omaha Building Contractors Association. 2. Area and company practice The Employer has always assigned work of the kind in dispute to the Electrical Workers. The Employer introduced into evidence a list of approximately 10 projects in the Nebraska area on which it has assigned the disputed work to the Electrical Workers. There is widence that the Operating Engineers has performed work of this or a similar type for other employers in )ther areas. ' We find no merit in the Operating Engineers ' contention that the Board annot properly make an award involving Nebraska Public Power District, 'hich is not an employer as defined in the Act Nebraska Public Power hstrict is not the entity whose work assignment is here in dispute See )istrict Lodge No 123, International Association of Machinists and Aero- )ace Workers, AFL-CIO (Pacific Crane & Rigging Company), 167 NLRB 77, 978, fn 3 Neither of the Unions has a certification covering the work in dispute, id the parties stipulated that the Electrical Workers is neither a party to )r bound by awards of the National Joint Board 3. Efficiency and economy Under the agreement between the Employer and the Electrical Workers, the Employer is entitled to assign a variety of kinds of work to its employees. It is com- mon for employees in the course of a single day to operate a crane, dig ditches, install underground ducts, erect supports, wire a transmission line, check out transformers, or drive a truck. The crane involved in the dispute is not normally operated for a full day. Hence, the electrical worker who operates the crane can be reassigned to other work whenever there is no crane work to perform. In contrast, the Operating Engineers collective-bar- gaining agreement with Building Contractors prohibits reassignment of the crane operator to other work. The Employer anticipates therefore that it would be re- quired to pay "stand-in" time pursuant to the provi- sions of the Operating Engineers collective-bargaining agreement when the crane is idle. Moreover, the Oper- ating Engineers agreement requires that an "oiler" be employed on the job while the crane is in operation, while the Electrical Workers contract does not. 4. Safety The record shows that the Employer has an appren- ticeship program under which its employees have been trained as both crane operators and linemen, and each is familiar with every phase of the erection of the elec- trical towers. They receive instruction in the operation of cranes in the proximity of highly energized power lines during apprenticeship training. The electrical workers are schooled to maintain the proper clearances between the crane and the tower, which are variable depending on the amount of voltage in the power line and weather conditions. Additionally, the electrical workers are trained in rescue operations. No compara- ble evidence was presented by the Operating Engineers. CONCLUSIONS Upon consideration of all pertinent factors in the entire record, we conclude that the Employer's em- ployees are entitled to perform the disputed work. The award of the work to the electrical workers is consistent with the Employer's collective-bargaining agreement, its area and past practice, and will result in safer, more efficient, and more economical operations. We shall, therefore, determine the existing jurisdictional dispute by awarding the operation of the crane to the em- ployees employed by the Employer and represented by the Electrical Workers, rather than to individuals represented by the Operating Engineers. In making this determination the Board is awarding the disputed work to employees represented by Local 1525 but not to that Union or its members. 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, the National Labor Relations Board hereby makes the following Determination of Dispute: 1. Employees of the Employer represented by Inter- national Brotherhood of Electrical Workers, Local 1525, are entitled to perform crane work in the erection of structures at the Cooper Nuclear Power Station Project located at or near Brownville, Nebraska. 2. International Union of Operating Engineers, Lo- cal No. 571, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the L. E. Myers Company, Chicago, Illinois , to assign such work to individuals represented by the aforesaid labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute , International Union of Op- erating Engineers , Local No. 571, shall notify the Re- gional Director for Region 17, in writing , whether or not it will refrain from forcing or requiring The L. E. Myers Company, by means proscribed by Section 8(b)(4)(D), to assign the work in dispute in a manner inconsistent with the above determination.