Operating Engineers, Local 4

OPERATING ENGINEERS, LOCAL 4 International Union of Operating Engineers , Local 4 and Joseph Rugo, Inc. and International Brother- hood of Firemen, Oilers, Operators, Helpers and Maintenance Men, AFL-CIO, Local Union No. 3. Case 1-CD-286 August 15, 1972 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing the filing of charges by Joseph Rugo, Inc., hereinafter referred to as the Employer, alleging that International Union of Operating Engineers, Local 4, hereinafter referred to as Operating Engineers or Respondent, violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to Operating Engineers rather than to International Brotherhood of Firemen, Oilers, Oper- ators, Helpers and Maintenance Men, AFL-CIO, Local Union No. 3, hereinafter referred to as Firemen. Pursuant to notice, a hearing was held before Hearing Officer Robert C. Rosemere on March 21 and 22, 1972. 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, all parties filed briefs in support of their positions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the rulings made by the Hearing Officer at the hearing and finds that they are fi:ee from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: I.1 THE BUSINESS OF THE EMPLOYER Joseph Rugo, Inc., is a general contractor in the building and construction industry. The dispute herein involves work on construction of a public health facility for the Commonwealth of Massachu- setts in Forest Hills, Massachusetts. In the course of its operations, the Employer annually receives in Massachusetts directly from points outside Massa- chusetts materials having a value exceeding $50,000. The parties stipulated, and we find, that the 915 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. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Operating Engineers and Firemen are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Work in Dispute The instant dispute involves the operation of high pressure steam boilers constituting a part of the construction project's permanent heating system for the provision of temporary heat at the construction site. B. Background and Facts of the Dispute The Employer engaged M. J. Flaherty Co., herei- nafter referred to as Flaherty, as the heating subcontractor on the project. On December 13, 1971, Flaherty completed the installation of high pressure steam boilers on the site, and hired members of Operating En. ineers to test the boilers. Flaherty terminated these employees on December 17, 1971. On December 20, 1971, Flaherty hired a member of Firemen to complete the testing. When the testing was completed, the Employer notified Flaherty that it would take over the operation of the boilers for the provision of temporary heat. On December 21, 1971, the Employer hired members of Firemen to operate the boilers and sometime thereafter signed a contract with Firemen covering the work. Respondent Oper- ating Engineers protested the Employer's assignment of the work and began picketing on December 28, 1971, with signs stating that it was on strike against the Employer. Respondent subsequently submitted its dispute to the Boston Local Board for Adjustment of Jurisdictional Disputes, herein called the Boston Local Board, and obtained a determination from that Board that its claim was in accord with, trade and area practice. C. Contentions of the Parties 1. The Employer and Firemen contend that a jurisdictional dispute exists and that members of Firemen are entitled to the work in light of the Employer's assignment and the economy and effi- ciency of operation. 2. Respondent contends that no jurisdictional dispute exists because the picketing was for the purpose of obtaining the reinstatement of members 198 NLRB No. 124 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to jobs from which they had been terminated. Alternatively, it contends that, even if a jurisdictional dispute exists, its members are entitled to the work because of the clear area practice favoring such an assignment. D. Applicability of the Statute The charge alleges violation of Section 8(b)(4)(D) of the Act and the record furnishes reasonable cause to believe that Respondent's picketing described above, had as an object the Employer's reassignment to its members of work then being performed by members of Firemen, rather than merely requiring the Employer to reinstate the employees whom it represented to jobs previously provided them by Flaherty and from which Flaherty had terminated them.' Firemen continues to assert jurisdiction over the disputed work and the right of its members to continue to perform it in accord with the Employer's assignment. We find, accordingly, 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 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 giving due consideration to various relevant factors.2 The Board has held that its determination of a jurisdictional dispute is an act of judgment based on commonsense and experience, reached by balancing those factors involved in a particular case.3 The following factors are relevant in making a determina- tion of dispute before us. 1. Certifications and collective-bargaining agreements There is no Board certification determining the bargaining representative for the employees assigned to perform the work in dispute. Nor has either of the labor organizations here involved been certified by the Board as the collective-bargaining representative for a unit of the Employer's employees. At no time here material has the Employer been a party to a collective-bargaining agreement with Operating Engineers covering this work. Although the Employer now has a collective-bargaining agree- ment with Firemen, it entered into that agreement 1 Operating Engineers contends that its submission of the dispute to the Boston Local Board was pursuant to procedures agreed on by the Employer as a member of the Associated General Contractors. However, Respondent concedes that Firemen was not party to these procedures and that there is therefore no mutually "agreed upon method" for adjustment of the dispute within the meaning of Section 10(k) of the Act. sometime after the dispute over the work arose. That agreement does not therefore constitute an operative factor in our determination of the dispute. 2. Employer's assignment and past practice The Employer concedes that it has no past practice of assigning the disputed work because it had never before used high pressure steam boilers for the purpose of furnishing temporary heat. The Employer based the assignment of the work to members of Firemen on knowledge that such persons were experienced in operating boilers of the type here involved and had the necessary licenses. 3. Relative skills, efficiency, and economy of operations Both Firemen and Operating Engineers possess sufficient skills to perform the work in dispute, and members of both have had considerable experience in operating boilers of the type here involved. Both have members with the appropriate licenses ready to perform the work. 4. Area practice Respondent Operating Engineers is a building trades union involved exclusively in the construction industry. The record shows that, under uniform area practice, the operation of equipment for the provi- sion of temporary heat during the construction phase is performed by a building trades union. The jurisdiction of the various building trades unions is determined by the type of equipment used for this purpose. The operation of high pressure steam boilers is within Operating Engineers' jurisdiction according to this standard, and the Boston Local Board so found when Respondent submitted the dispute to it for determination. Firemen on the other hand is not a building trades union. Although it has operated equipment in the area for the provision c A heat during a construction phase, it has done so only where the construction involved additions to tenapt- ed buildings under the owner's or building manager's auspices. Firemen has never had a collective-bargain- ing agreement with a general contractor in 'the construction industry prior to this job, and; its predominant involvement in the operation of the kind of equipment here in issue has been confined to the provision of permanent heat in completed buildings. 2 N. L.R. B. v. Radio and Television Broadcast Engineers Union, Local 12/2, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting System ], 364 U.S. 573, 586. s International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402. a OPERATING ENGINEERS, LOCAL 4 We conclude that the area practice favors an award to Respondent. CONCLUSION Upon the entire record and in consideration of the foregoing findings, we conclude that the certification, collective-bargaining agreement, and skill and effi- ciency factors. are relatively neutral as between the disputing labor organizations. The Employer's as- signment to Firemen is in conflict with a well-defined area practice which strongly favors an assignment to Operating Engineers. In light of the volume and complexity of construction in the area we do not believe this well-defined practice with respect to disputed work should be disturbed absent some compelling reason.4 To hold otherwise, solely on the basis of the Employer's assignment, would invite controversy in an area where effective guidelines have already been established. Therefore, we con- clude that the employees represented by Respondent 917 are entitled to the work in question, and we shall determine the dispute in their favor. In making this determination, however, we are assigning the disput- ed work to employees represented by Operating Engineers and 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 hereby makes the following Determination of Dis- pute: Employees who are currently represented by the International Union of Operating Engineers , Local 4, AFL-CIO, are entitled to the operation of high pressure steam boilers for temporary heating purpos- es at the Public Health facility being erected for the Commonwealth of Massachusetts in Forest ' Hills, Massachusetts, by Joseph Rugo, Inc. 4 Cf. Local Union No. 6, International Association of Bridge, Structural & Ornamental Ironworkers (Spancrete Northeast, Inc.), 196 NLRB No. 178.