Piledrivers Local No. 2416, Carpenters

PILEDRIVERS LOC NO. 2416, CARPENTERS Piledrivers Local No. 2416, United Brotherhood of Carpenters and Joiners of America , AFL-CIO and Western-Pacific Piledriving Corp. and International Union of Operating Engineers , Local No. 701, AFL- CIO. Case 36-CD-99 August 8, 1973 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, based upon a charge filed by Western-Pacific Piledriving Corp., herein called the Employer or Western, alleg- ing that Piledrivers Local No. 2416, United Brother- hood of Carpenters and Joiners of America, AFL-CIO, herein called Piledrivers, has violated Sec- tion 8(b)(4)(D) of the Act. The charge alleges, in sub- stance, that Piledrivers has threatened economic action in order to prevent the Employer from assign- ing the work of operating the "air tugger" or "double drum hoist" to members of International Union of Operating Engineers, Local 701, AFL-CIO, herein called Engineers, rather than to members of Piledriv- ers. Pursuant to notice, a hearing was held in Port- land, Oregon, before Hearing Officer Richard V. Stratton, on February 21, 1973. All parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to present evidence bearing on the issues.' Thereafter, the Em- ployer and Engineers filed briefs. The briefs have been duly considered by the Board. 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 rul- ings 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 Employer, an Oregon corporation with its prin- cipal office and place of business in Portland, Oregon, is engaged in the construction industry in several ' Piledrivers Local No 1036 was permitted to intervene as a Joint Respon- dent on the ground that it has actual territorial jurisdiction over the jobsite on the Trojan project near Rainier, Oregon, although all Western employees on the job are members of Piledrivers Local No 2416 379 western States. It annually provides services valued in excess of $50,000 to employers outside the State of Oregon. 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. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Piledrivers and Engineers are labor organizations within the meaning of Section 2(5) of the Act. III THE DISPUTE A. Background and Facts of the Dispute The Employer was engaged as a subcontractor to pour and erect underground 80 concrete reinforced pilings 16 inches in diameter and 135 to 140 feet long on the site of the Trojan Nuclear Power Plant being erected for Portland General Electric Company. The project is located near Rainier, Oregon, about 40 miles northwest of Portland, Oregon. The Employer decided that the pilings would have to be constructed with a "tremie pour," because of the structural requirements of the specifications. A tremie concrete pour is a procedure whereby wet concrete is forced from the top through a tremie pipe into the bottom of the piling form. The bottom of the tremie pipe is kept immersed just below the level of the sur- face of the concrete as it is being poured, so that the concrete flows upward eliminating concrete separa- tions which occur when concrete is dropped through the air from a bucket, which is the customary means used for pouring concrete. It is the operation of the air tugger or hoist, by which the tremie pipe is raised or lowered in the pile form, that is in dispute in this proceeding. One cable lowers and raises the tremie pipe; the second cable runs to the bottom of the pipe and is a safety line to be used in case of failure in the pipe or in the other cable. The hoist itself consists of two air tuggers which rest on a platform, two separate drums, one attached to each air tugger, on which cable is wound, and a pulley block positioned on the gallows frame placed over the pile form. By use of air compressed through a valve each cable can be reeled in or out. Each air tugger is operated by a hand lever that moves to a forward position, a neutral position, and a reverse position. As the pumped concrete fills the casing pile form, the air tugger hoist is used to raise the tremie pipe, as noted above. Total pumping time of the air tugger on this project was about 20 minutes of each 205 NLRB No. 72 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hour. On the Trojan job, several different types of work- men participated in the tremie pour phase of the oper- ation. A piledriver foreman operated the hoist; a journeyman piledriver under his supervision also op- erated the hoist on occasion and performed other aux- iliary functions. In addition to the two piledrivers, an engineer operated the hydraulic crane used to place and move the gallows frame. There was also the con- crete pump operator. The Employer is a member of Oregon-Columbia Chapter, Associated General Contractors of America, Inc., herein called AGC, the bargaining representa- tive of the construction contractors in the area. Pile- drivers Locals 2416 and 1036 are both constituent locals of Carpenters and as such are parties to the current Carpenter-Oregon-Columbia Chapter, AGC, master labor agreement, which covers the piledrivers in the area, including the piledrivers assigned by the Employer to the tremie pour operation. The local AGC also has a current master labor agreement with Engineers, the other Union party to the present dis- pute. When the Employer began its pour at the construc- tion site, Engineers informed the Employer by letter of October 26, 1972, that there existed a dispute be- tween the Employer and Engineers in that a nondis- patched person was operating a double drum hoist placing concrete in contravention of article XV, sec- tion B, Operating Conditions, subsection 15, of the agreement between the AGC and Engineers, which provides, Section 15. It is understood and agreed by the parties to this Agreement that hoisting is the craft work of the Operating Engineers and as such comes under the terms and conditions of this Agreement. The Employer replied by letter of October 31, denying any violation of this provision of the agreement on the ground that in past performances the Employer had assigned the work of operating the hoist at a tremie pour to a piledriver, and cited several past projects in support of its position. Thereupon, Engineers filed a grievance against the Employer pursuant to the griev- ance provisions of the Engineers-AGC agreement and the dispute was referred, as provided therein, to the Board of Adjustment for hearing and decision. The Employer, but not Piledrivers, was represented at the hearing. On November 16, 1972, the Board of Adjust- ment ruled that the hoist being used in the handling of the tremie pipe on the project should be manned by an engineer. The ruling was based primarily on an interpretation of the above -quoted provision of sub- section 15 of article XV of the AGC-Engineers agree- ment. In the light of the ruling of the Board of Adjust- ment, Roy Coles, executive secretary of the local Ore- gon Council of Carpenters , on behalf of Piledrivers, threatened to strike the Employer if the Employer reassigned the work to engineers. B. The Work in Dispute The work in dispute is the operation of the air tug- ger hoist being used in the handling of the tremie pipe in the concrete pipe pour at the Trojan Nuclear Power Plant project located near Portland, Oregon. C. Contentions of the Parties The Employer and Piledrivers contend that the dis- puted work should be assigned to piledrivers on the basis of the local master labor agreement between Piledrivers and the AGC, the Employer's past prac- tice, area practice, relative skills of the disputing em- ployees, and economy and efficiency of operations. Engineers contends that the disputed work should be assigned to its members in light of the provisions of the AGC-Engineers local master labor agreement and the determination of the Board of Adjustment made thereunder that members of Engineers were en- titled to the disputed work. D. Applicability of the Statute The parties stipulated, and we find, that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated by Piledrivers threat to strike the Employer if the Employer reassigned the work to en- gineers. The parties have not agreed upon a method for settling this jurisdictional dispute. Although the Board of Adjustment under the AGC-Engineers mas- ter labor agreement determined that a member of Engineers was entitled to operate the air tugger hoist, Piledrivers was not a party to that proceeding. Ac- cordingly, the determination is not dispositive of the jurisdictional dispute. In view of the foregoing, we find that the matter 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 all relevant factors. We find the PILEDRIVERS LOC. NO. 2416, CARPENTERS following factors are relevant to making a determina- tion of the dispute before us. 1. Certifications and collective- bargaining agreements Neither labor organization has been certified as the collective-bargaining representative of employees performing the disputed work . However, each Union has a master labor agreement with the AGC to which the Employer is bound by virtue of its membership in the AGC. Each such contract purports to cover the operators of air tugger hoists at construction sites. The Engineers contract covers such operators in article XV, subsection 15, as noted above . The Piledrivers contract covers such operators in schedule A, Pile- drivers-Character of Work, section 2(g), which pro- vides, All labor (excepting operating and hoisting en- gineers) employed in the actual operation of pile- driving rigs, derricks, and other piledriving and construction equipment used in the performance of work set forth above, and rigging and signal- ling connected therewith. Under these circumstances, the factors of certifica- tions and collective-bargaining agreements favor nei- ther party, although the provision in the Engineers contract is perhaps a bit more explicit and clear. 2. Company and area practice In the present case, the piledriver foreman assigned the operation of the air tugger to himself. The Em- ployer has always assigned the operation of air tug- gers to piledrivers when such equipment is used in tremie pours. This assignment has been consistent and uninterrupted since the Employer has been pour- ing concrete in this manner. The Employer has never assigned this work to engineers. Until recently Engi- neers had always acquiesced in the assignment of this work to piledrivers. The Employer's practice of as- signing the operation of the air tugger to piledrivers is also consistent with the industry practice in the area. The Employer, industry, and area practice thus favor a determination in favor of the piledrivers. 3. Relative skills, efficiency, and economy of operation The Employer strongly favors an award of the dis- puted work to piledrivers because of their experience in performing the work and the resulting efficiency and economy of operation. Piledrivers have per- 381 formed the disputed work for the Employer for the past 20 years. Moreover, the present piledriver em- ployees of the Employer have had several years' expe- rience performing it. Although training is gained generally by experience on the job, Piledrivers also has an apprenticeship training program, which covers the operation of air tuggers and tremie pour work. There are presently 20 persons enrolled in the appren- ticeship program and Piledrivers Local 2416 presently has about 25 members, each with several years' expe- rience in performing tremie pour work. Hence, the Employer would be forced to lay off experienced, trained piledrivers in order to hire and train engineers inexperienced in the operation of air tuggers and the performance of tremie pour work. Moreover, since the air tuggers were in operation only about 20 min- utes out of every hour, the assignment of the opera- tion of the air tugger to piledrivers is efficient in that when the equipment is not in operation, the piledri- vers will perform a variety of other functions, such as connecting up hoses, leveling the gallows frame, and moving pipe where needed. While one piledriver oper- ates the levers on the air tugger, the second piledriver connects up and disconnects the 10-foot sections of tremie pipe, as it is lowered into the pile form and again raised out of the form as the concrete is being pumped into the form. On the other hand, if an engi- neer were assigned to the sole and narrow function of operating the air tugger, the operator would be idle two-thirds of every hour. We are, therefore, persuaded that the factors of experience, training, efficiency, and economy of operation favor an award of the disputed work to the employees of the Employer who are repre- sented by Piledrivers. Conclusion Upon the entire record in this proceeding and after full consideration of all the relevant factors, in partic- ular the practice of the Employer and other employers in similar situations in the area, the experience of the members of Piledrivers in performing the disputed work, and the efficiency and economy of operation, we conclude that the employees of the Employer who are represented by Piledrivers are entitled to the work in question and we shall determine the dispute in their favor. In making this determination, we award the work to the employees of the Employer who are repre- sented by Piledrivers but not to that labor organiza- tion or its members.2 2 See International Association of Bridge, Structural and Ornamental Iron Workers, Local 29, AFL-CIO (Fabindustries, Inc), 199 NLRB No 34; and Industrial Manufacturing and Maintenance Employees ' Union Local No 124, Continued 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Scope of the Award As Piledrivers contends, the dispute between the two Unions extends beyond the Trojan jobsite and the award should be as extensive as the dispute. The Engineers claim to the disputed work rests on the language of the AGC-Engineers master labor agree- ment as well as on the Board of Adjustment determi- nation made thereunder. On the other hand, the Piledrivers claim to the work is based on its master labor agreement with the AGC. The dispute at Trojan is thus merely an incident in the basic disagreement between the parties. Unless our jurisdictional deter- mination is coextensive with the area of dispute, it is likely to recur at other jobsites. Accordingly, our de- termination will be coextensive with the jurisdictional areas of the contending labor organizations.' Laborers' International Union of North America (Ross Island Sand and Gravel Co), 202 NLRB No 126 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 pro- ceeding, the National Labor Relations Board hereby makes the following Determination of Dispute: Employees employed by Western-Pacific Piledriv- ing Corp. who are represented by Piledrivers Local No. 2416, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are entitled to per- form the work in dispute which consists of the opera- tion of air tuggers at the Trojan Nuclear Power Plant jobsite located near Rainier, Oregon, and any simi- larly disputed work performed by Western-Pacific Piledriving Corp., wherever the territorial jurisdiction of Piledrivers Local Nos. 2416 and 1036, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and of International Union of Operating Engineers, Local No. 701, AFL-CIO, coincides. l International Association of Bridge, Structural and Ornamental Iron Work- ers, Local 29, AFL-CIO (Fabmdustries, Inc), supra