Operating Engineers, Local No.18

OPERATING ENGINEERS, LOCAL NO. 18 International Union of Operating Engineers Local No. 18, AFL-CIO' and Fire Protection and Sprinkler Associates, Inc. and Local 669, United Association of Journeymen and Apprentices of the Plumbing & Pipefitting Industry of the United States & Cana- da, AFL-CIO. Case 9-CD-266 April 12, 1973 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing the filing of charges on August 28, 1972, by Fire Protection and 'Sprinkler Associates, Inc., herein called Employer, alleging that International Union of Operating Engineers Local No. 18, AFL-CIO, herein called Engineers, has violated Section 8(b)(4)(D) of the Act by threatening, coercing, and restraining the Employer with an object of forcing the Employer to assign certain work to employees represented by the Engineers rather than to employ- ees represented by Local 669, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Cana- da, AFL-CIO, herein called Sprinkler Fitters. Pursuant to notice, a hearing was held before Hearing Officer James E. Horner on December 7 and 21, 1972. The Engineers, the Employer, and the Sprinkler Fitters 2 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, the Employer and the Engineers filed briefs in support of their respective 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 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 of the parties, the Board makes the following findings: I. THE BUSINESS OF THE COMPANY Fire Protection and Sprinkler Associates, Inc., is an Ohio corporation engaged in the fabrication and The name of the party appears as amended at the hearing s A representative of the Sprinkler Fitters appeared only on the second day of the hearing 1113 installation of fire protection systems within and without the State of Ohio. In the past year, a representative period, the Employer purchased mate- rials valued in excess of $50,000 directly from outside the State of Ohio. In accord with the stipulation of the parties, we find that the Employer is engaged in interstate 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 the Engineers and the Sprinkler Fitters are labor organi- zations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Work in Dispute The disputed work consists of the operation of a forklift used to position men and parts for the installation of a sprinkler system at the Rubbermaid Corporation building jobsite at Chillicothe, Ohio. B. Background The Employer, under a direct contract with the owner, began installing an overhead sprinkler system at the new Rubbermaid Corporation plant in Chillicothe, Ohio, in mid-August 1972. The installa- tion of the sprinkler equipment requires the use of a forklift to position men and materials. The forklift used by the Employer has a specially built cage in which the employees stand while they are installing the sprinkler pipes high above the plant floor and has a 6,000-pound capacity with a capability of lifting to a height of 32 feet. On August 21, 1972, the forklift arrived at the jobsite and the Employer's foreman, Harvey Hender- shot, a member of the Sprinkler Fitters, began operating the machine. On August 23, Gordon R. Hartman, a business representative of the Engineers, went to the Rubbermaid plant, then under construc- tion. Hartman was told by an employee of the general contractor that a Sprinkler Fitters member was operating the forklift in question and the Engineers wanted "to pull a work stoppage." Hartman asked Hendershot if the Employer was going to put an engineer on the forklift. Hendershot said he would have to contact the office and showed Hartman a news story about jurisdictional disputes. Hendershot, at Hartman's request, shut down the forklift so Hartman could contact his superiors. That same day William Christian, the Engineers district representative, called the Employer to talk to 1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its owner George Hoffman. Hoffman was out, and Christian talked to Keith McFann, the company engineer. According to McFann's testimony, Chris- tian said the engineers on the job were upset and the Employer would have to put an engineer on the machines or "he would banner the job." The next day, August 24, 1972, Hartman again told Hendershot that the Employer would have to hire an engineer. Hendershot testified that Hartman said, "I'm afraid we're going to have to put a picket on this job." Hartman denied making such a statement and denied having any conversation with Hendershot that day. No work stoppage or picketing occurred. C. Contention of the Parties The Employer contends that the Engineers has violated Section 8(b)(4)(D) of the Act by threatening the Employer to compel it to assign the disputed work to members of the Engineers. The Employer further contends that the work should be awarded to its own employees who are represented by the Sprinkler Fitters because the Employer assigned the work to them in accord with its past practice and its collective-bargaining agreement with the Sprinkler Fitters and by reasons of economy, efficiency, safety, and area and industry practice. The Engineers contends first that there is no jurisdictional dispute properly before the Board because there is no reasonable cause to believe a violation of Section 8(b)(4)(D) of the Act occurred and because the work in dispute has been completed. On the merits, the Engineers argues that the work should be assigned to its members based on skills involved, area and industry practice, agreements with the Employer, and economy of operation. D. Applicability of the Statute Before the Board may proceed with a determina- tion 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 and that there is no agreed-upon method for voluntarily settling the dispute. The Engineers introduced its 1968-69 industry contract for the Toledo area which the Employer had signed. The contract contains a provision that the parties agree to be bound by decisions of the National Joint Board for the Settlement of Jurisdic- tional Disputes. We find, however, that the contract is no longer in effect. Although it contained no cutoff date, its cover page indicates it was to expire in 1969. In addition, the contract coverage extends to a different geographical area. Accordingly, we find that there is no agreed-upon method for settlement of the dispute. The Engineers contends that the dispute is moot because the work in question is finished. The Board has long held that a jurisdictional dispute is not moot, despite the completion of the work involved, where there is evidence of similar disputes between the parties in the past or nothing to indicate that such disputes will not arise in the future.3 The record herein indicates that the Employer will continue to install the type of work involved within the geo- graphical jurisdiction of the Engineers Local No. 18, and there is no evidence in the record indicating that disputes of the nature herein will not occur in the future. Accordingly, we find that the dispute is not moot. The Engineers also argues that the dispute is not properly before us because no threats were made and its agents had no conversations with a, managerial official of the Employer who had authority to make work assignments. The record, however, contains evidence that an Engineers business representative threatened the Employer's foreman on the job with picketing and that an Engineers district representa- tive threatened the Employer's engineer with "ban- nering" the job. There is also evidence that the business representative, through an earlier conversa- tion, was aware that the foreman would get in touch with the Employer's president and that the district representative talked to the Employer's engineer because he was the person taking phone calls for the Employer's president, who at that time was absent. Accordingly, and without resolving the issues of credibility raised by the Engineers, we are satisfied 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 us for determination. 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.4' 1. Collective-bargaining agreements The record does not indicate a Board certification relative to the disputed work. The Employer introduced into evidence its con- tract with the Sprinkler Fitters on which basis the Employer assigned the disputed work to its own employees. The contract contains, in pertinent part, the following clause covering jurisdiction of work: 3 International Union of Operating Engineers, Local 66, AFL-CIO (Frank International Brotherhood of Electrical Workers, AFL-CIO (Columbia P Badolato & Son), 135 NLRB 1392, 1401 Broadcasting System), 364 U S 573. 4 N L R B v Radio & Television Broadcast Engineers Union, Local 1212, OPERATING ENGINEERS, LOCAL NO. 18 The work of the Sprinkler Fitter and/or appren- tice shall consist of the installation of all fire protection and fire control systems including the unloading handling by hand, power equipment and installation of all piping or tubing, appurte- nances and equipment pertaining thereto... . The Engineers claims its Toledo area contract for 1968-69 preserves the jurisdiction of the work in dispute for its members. As previously indicated, that contract covers a different geographical area and is not current. In addition the work jurisdiction provision contains the following disclaimer: The Employer, by consenting to the inclusion of the Union's jurisdictional representations within this contract, neither assented thereto nor waived any of its rights by reason of the inclusions of such representations, and, further, the Employer reserves all of his rights under the Labor Management Relations Act of 1947, as they relate to jurisdictional strikes and disputes. Accordingly, we find that the Employer's collec- tive-bargaining agreement with the Sprinkler Fitters favors awarding the disputed work to the sprinkler fitters employed by the Employer. 2. Employer, industry, and area practice The installation of automatic sprinkler systems requires a series of sprinkler heads which are attached to piping which is suspended from the ceiling. Traditionally, ceiling work has been done from scaffolds. More recently, however, ceiling work has been done almost exclusively, where the building size and state of completion has permitted, from cages mounted on forklifts. The Employer's consist- ent practice has been to assign the operation of the forklift on which the cage is mounted to its own employees who are represented by the Sprinkler Fitters. These facts, on balance, favor an award consistent with the Employer's assignment. Evidence as to area and industry practice is inconclusive as the record indicates a mixed use of both engineers and sprinkler fitters to perform work similar to that in dispute. 3. Safety The Engineers contends that assignment of the work to its members is essential to safe operations. The Employer, on the other hand, makes the same contention regarding the assignment of the work to its employees. The record, however, does not favor an assignment to one group of employees as opposed to the other as being more conducive to safe operations. 1115 4. Skills, economy, and efficiency Normally, the Employer uses, as is the case for the work giving rise to the instant dispute, a three-man crew. Two crew members perform the installation of the pipes and sprinkler heads, and the third crew member, the foreman in the instant proceeding, operates the forklift. When the two crew members and materials have been positioned, the third crew member shuts off the forklift. Since he has normally performed overhead work and can, therefore, antici- pate the needs of the installers, he can do layout work following the blueprints for the job when not actually operating the forklift. Accordingly, while the actual operation of the machine appears relatively uncomplicated and can be done effectively by members of the Engineers or the Sprinkler Fitters, from the view of the efficient and economical operation of the entire process, the facts favor an award to the employees represented by the Sprinkler Fitters. Conclusions Having considered all pertinent factors we con- clude that employees of the Employer represented by the Sprinkler Fitters are entitled to perform the work in dispute. Members of the Sprinkler Fitters are at least as skilled as engineers to perform the disputed work and the Employer has been satisfied with the quality of their work and resulting efficiency. The assignment of the work to sprinkler fitters is consistent with the Employer's contract with the Sprinkler Fitters and its past practice and is not inconsistent with any area or industry practice. Such assignment results in a more efficient operation of the disputed work. Accordingly, we conclude that the Employer's assignment of work to employees repre- sented by the Sprinkler Fitters should not be disturbed and shall determine the existing jurisdic- tional dispute by awarding the work to the employees employed by the Employer and represented by the Sprinkler Fitters, rather than to individuals repre- sented by the Engineers. In making this determina- tion, we are awarding the disputed work to employ- ees represented by the Sprinkler Fitters but not to that Union or, its members. Our present deternuna- tion is limited to the particular controversy which gave rise to this proceeding. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and on the basis of the foregoing findings and the entire record in this proceeding, the National Labor Relations Board 1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hereby makes the following Determination of Dis- pute: 1. Employees represented by Local 669, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, are entitled to perform the disputed work of operating the forklift in the installation of sprinkler systems at the Rubber- maid Corporation jobsite at Chillicothe, Ohio. 2. International Union of Operating Engineers Local No. 18, AFL-CIO, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Fire Protection and Sprinkler Associates, Inc., to assign any such disputed work to employees represented by them rather than to employees represented by Local 669 and employed by Fire Protection and Sprinkler Associates, Inc. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Union of Operating Engineers Local No. 18, AFL-CIO, shall notify the Regional Director for Region 9, in writing, whether or not it will refrain from forcing or requiring Fire Protection and Sprinkler Associates, Inc., to assign the work in dispute in a manner inconsistent with this determination.