Local 825A, Operating Engineers

322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 825A, 825B, 825C, 825D, International Union of Operating Engineers, AFL-CIO and Humble Oil & Refining Company' and Local 877, a/w Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 22-CD- 180-2 February 4, 1972 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following a charge filed by Humble Oil & Refining Company' alleg- ing that Local 825A, 825B, 825C, 825D, International Union of Operating Engineers, AFL-CIO,' had vi- olated Section 8(b)(4)(D) of the National Labor Rela- tions Act, as amended. A hearing was duly held before Hearing Officer Paul M. Meehan on September 8 and 10, 1971. Humble and Operating Engineers 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, Humble filed a brief, which has been duly considered. 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: 1. THE BUSINESS OF HUMBLE The parties stipulated that Humble, a Delaware cor- poration which has its principal offices and places of business in Houston, Texas, and a refinery at Park and Brunswick Avenues, Linden, New Jersey,4 is engaged in the manufacture, sale, and distribution of gasoline, fuel oil, and related petrochemical products. During the 12 months preceding the hearing, Humble pur- chased, transferred, and delivered to its Bayway re- finery petroleum and other goods and materials valued in excess of $50,000 which were transported to said refinery in interstate commerce directly from States of the United States other than the State of New Jersey. As amended at the hearing ' Hereinafter referred to as Humble ' Hereinafter referred to as Operating Engineers Hereinafter referred to as the Bayway refinery 195 NLRB No. 44 We find that Humble is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert juris- diction herein. H. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Operating Engineers is a labor organization within the meaning of Section 2(5) of the Act. The record shows that Local 877, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,' is a party to a collective-bargaining contract with Hum- ble covering operating, mechanical, and maintenance employees at the Bayway refinery. Accordingly, we find that Teamsters is a labor organization within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute Following an explosion at its Bayway refinery in December 1970, Humble entered into a contract with Clayburn Contracting Company6 for the performance of certain repair and maintenance work, specifically on the number two preheat furnace at the catalytic crack- ing unit. This contract required that Clayburn perform the necessary work on a time-and-material basis as opposed to a contract calling for a lump sum payment for services. Under this agreement, Humble retained final authority to approve or disapprove Clayburn ex- penditures on a daily basis. Clayburn could incur greater expenses than those approved by Humble, but Humble would pay for only those costs which it ap- proved. Humble and Clayburn also entered into an oral agreement that required Clayburn to notify Humble when a crane was needed on the job, so that Humble could supply its own cranes and operators if available. Humble's 10 cranes were operated by employees repre- sented by the Teamsters who were employed by Hum- ble. In January 1971, Clayburn began work on the num- ber two preheat furnace. Thereafter, Stone, Humble's construction manager, met with Campbell and Knobb, representatives of Operating Engineers. At this meeting Campbell and Knobb informed Stone that Operating Engineers had a contract with Clayburn and that they felt that Humble should agree to require Clayburn to honor its contract with it and use an operating engineer on the Humble crane, or there would be trouble. Stone replied that since Humble never contracted the operation of its cranes to Clayburn, Humble would not Hereinafter referred to as Teamsters Hereinafter referred to as Clayburn LOCAL 825A, OPERATING ENGINEERS agree that operating engineers should be used on the cranes. Humble, on several occasions, attempted to utilize its Teamster-operated cranes to make lifts for Clayburn. Operating Engineers told a Clayburn foreman not to work with such cranes if Teamsters were operating them. Clayburn employees accordingly refused to work with such cranes and insisted on making the lifts by hand or by block and tackle. On February 9, Operating Engineers again demanded that any Humble cranes used by Clayburn must have operating engineers on them; thereupon approximately 60 Operating Engi- neers employed by various contractors at the Bayway refinery did not return to work and remained off their jobs until February 12. B. The Work in Dispute The work in dispute involves the assignment of work tasks in the setup, operation, and maintenance of cranes used in conjunction with work being performed by contractors within the Bayway refinery of Humble. C. Contentions of the Parties Humble contends that its assignment of the disputed work should be upheld because of the following factors: collective-bargaining agreements , company preference and practice , and safety and efficiency of operations. Operating Engineers contends that it never made a demand that Humble employ members of Operating Engineers rather than members of Teamsters . Operat- ing Engineers requests that the notice of hearing be quashed because no jurisdictional dispute exists, since its only demand was made on Clayburn with whom it had a contract. Finally, if the Board finds that Operat- ing Engineers made a demand on Humble, Operating Engineers withdraws any such demand. D. Applicability of the Statute Before the Board proceeds with a determination of a dispute it must first be satisfied that there is reasona- ble cause to believe that Section 8(b)(4)(D) has been violated. The record in this proceeding indicates that from mid-January to early February Operating Engineers threatened to cause and caused work slowdowns and stoppages because Humble did not agree that operating engineers should operate the Humble cranes. Operating Engineers contends that no jurisdictional dispute exists within the meaning of Section 8(b)(4)(D), since it never demanded that Humble employ operating engineers rather than teamsters to operate the cranes supplied to Clayburn. According to Engineers, they demanded only that Clayburn hire as many operating engineers as equalled the number of Humble-employed 323 teamsters who operated the cranes. It is clear to us, however, that such a demand would, as a practical matter, have resulted in the replacement of teamsters with operating engineers. Indeed Operating Engineers specifically told a Clayburn foreman not to work with cranes operated by teamsters. Accordingly, we find no merit in this contention. We conclude 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 us for determination pursuant to 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 giving due consideration to all relevant factors. Since the par- ties stipulated that there is no Board certification or award as to the disputed work involved herein, neither union is favored by this factor. 1. Collective-bargaining agreements On February 2, 1969, Teamsters entered into a col- lective-bargaining agreement with Humble which cov- ers crane operators. The record also shows that Clay- burn entered into a collective-bargaining agreement with Operating Engineers in February 1971, which covered the classification of crane operators. Since Humble never contracted out the operation of cranes it supplied to Clayburn, we find that the collective-bar- gaining agreement between Humble and Teamsters fa- vors the assignment to teamsters. 2. Company preference and practice The record shows that Humble makes it a practice on time-and-material jobs to supply outside contractors with cranes owned and operated by Humble em- ployees. On several occasions in the past, Humble sup- plied contractors with cranes operated by its teamsters on jobs where operating engineers were also working. Therefore, we find that this factor favors assignment of the work to teamsters. 3. Safety and efficiency of operations Humble contends that it uses its own cranes and employees rather than cranes operated by its contrac- tors' employees because the latter may be unfamiliar with the premises, which contain pipes carrying highly explosive substances. The efficient operation of Rum- ble's business also requires that it use its own cranes on the type of job Clayburn was performing, since cranes were required only for short periods, rather than for a full day. Under these circumstances, we find that these factors favor assignment of the work to teamsters. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. Scope of the Assignment Since the work in the instant case has been com- pleted, Humble requests that the Board issue an award assigning this general category of disputed work to teamsters, on the grounds that a similar dispute is likely to recur at the Bayway refinery in the future. We find merit in this contention and, accordingly , our deter- mination will include any similar disputed work to be performed in the future at the Bayway refinery. CONCLUSIONS Based upon the entire record and after full considera- tion of all relevant factors, particularly the collective- bargaining agreements, company preference and prac- tice, and the safety and efficiency of operations, we conclude that on this record there is no compelling reason for disturbing Humble's assignment of the dis- puted work to its employees represented by Teamsters. Accordingly, we shall award the work in question to employees represented by Teamsters, but not to that union or its members. The present determination cov- ers the existing jurisdictional dispute and any similar disputes which may occur in the future at the Bayway refinery. 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 makes the following Determination of Dispute: Employees of Humble Oil & Refining Company, who are currently represented by Local 877, a/w Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, are entitled to per- form the work involved in the setup, operation, and maintenance of cranes used in conjunction with work being performed by contractors within the Bayway re- finery. Local 825A, 825B, 825C, 825D, International Union of Operating Engineers, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Humble Oil & Refining Company to assign the above work to its members or employees whom it represents. Within 10 days from the date of this Decision and Determination of Dispute, the labor organization designated in the immediately preceding paragraph shall notify the Regional Director for Region 22, in writing, whether or not it will refrain from forcing or requiring Humble Oil & Refining Company, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to its members or employees who it represents rather than to employees of Humble Oil & Refining Company represented by Local 877, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen.and Helpers of America.