Intl. Union of Operating Engineers, Local 841

INTL. UNION OF OPERATING ENGINEERS, LOCAL 841 International Union of Operating Engineers, Local 841, AFL-CIO and Terlex Company, Incorporated and International Brotherhood of Electrical Work- ers, Local 702, AFL-CIO. Case 14-CD-461 1.g.i 1 1072 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS This is a proceeding under 10(k) of the National Labor Relations Act, as amended, following a charge filed by Terlex Company, Incorporated, herein called Employer, alleging that International Union of Oper- ating Engineers, Local 841, AFL-CIO, herein called Operating Engineers, had violated Section 8(b)(4)(D) of the Act. The charge alleges, in substance, that the Operating Engineers, by picketing the jobsite of the Employer, violated the Act, in that one of the purpos- es of the action was to force the Employer to assign certain work to its members rather than to members of International Brotherhood of Electrical Workers, Local 702, AFL-CIO, herein called Electricians. Pursuant to notice, a hearing was held in St. Louis, Missouri, before Hearing Officer Michael S. Maram on May 4, 1973. All parties were afforded full oppor- tunity to be heard, to examine and cross-examine wit- nesses, and to adduce evidence bearing on the issues.' Thereafter the Electricians filed a brief which has 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 parties stipulated that the Employer, an Illinois corporation with its principal office and place of busi- ness located in Carmi, Illinois, is a contractor primar- ily engaged in the construction of power lines in the State of Illinois and annually purchases materials va- lued in excess of $50,000 from suppliers located at points outside the State of Illinois, which materials are shipped directly to its construction site located at 1 The Operating Engineers did not appear at or participate in the hearing 575 points within the State of Illinois. 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 Operating Engineers and Electricians are labor organizations within the meaning of Section 2(5) of the Act. III THE DISPUTE A. Background The Employer is presently engaged in the construc- tion of an electric substation and the reconstruction and construction of some overhead power lines for the Texaco Company in Lawrenceville, Illinois. The work includes the operation of a grove crane, air com- pressor, winch truck, and digger truck. Shortly after the commencement of work in April 1973 the Em- ployer assigned employees represented by the Electri- cians to perform the work. In a meeting with the Electricians on March 30, 1973, Operating Engineers claimed the operation of the equipment cited above. When they could not agree on the assignment of the disputed work, Pirtle, Operating Engineers business representative, said "on this job I will cause you and the contractor all of the trouble I can possibly give you." On April 11, 1973, mass picketing occurred at all construction gates at the jobsite. Employer's Job Superintendent Miller and Foreman Higdon testified that in an April 12, 1973, meeting, attended by Operating Engineers Rep- resentatives Pirtle and Sheehorn, Electricians Repre- sentatives Moore and Darling, and employer representatives, Pirtle claimed the disputed work, stat- ing that picketing would continue and told Electri- cians Representative Moore, "okay, if you want a fight, we will give you one." Subsequent to the issuance of the notice of hearing, the Operating Engineers sent a letter dated May 1, 1973, to the Regional Director of Region 14 disclaim- ing any interest in the disputed work. B. The Work in Dispute As heretofore stated, the work in dispute is the operation of a grove crane, air compressor, winch truck, and digger truck employed in the electrical con- struction work at the construction site on the premises of Texaco, Inc., Refining Division in Lawrenceville, Illinois. 205 NLRB No. 83 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Positions of the Parties The Employer, Terlex Company, states that its em- ployees represented by the Electricians have always in the past, and pursuant to its continuous contracts with the Electricians, performed the same work without exception at all of its jobsites throughout the State of Illinois. The Employer further contends that because of the extra hazardous nature of his operation (use of high voltage lines) the members of the Electricians should be awarded the work due to their skill and experience. The Electricians contends that the work has histori- cally been assigned to its members, that the work was assigned to it by the Employer herein, that it has had continuous contracts with the Employer, and that it continues to claim the work on behalf of its members. Further, the Electricians states that, as the instant dis- pute is one in a series of longstanding contests be- tween these two labor organizations, award of the work to employees represented by Electricians should include the entire State of Illinois rather than be limit- ed to the specific jobsite at issue. D. Applicability of the Statute Before the Board may proceed with a determina- tion of 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 voluntary adjustment of the dispute. As it appears that the Operating Engineers picketed the j obsite of the Employer to force the reassignment of work from employees represented by the Electri- cians to those represented by the Operating Engi- neers, we find there is reasonable cause to believe a violation of the Act occurred and the dispute is prop- erly before us for determination. With respect to the disclaimer by the Operating Engineers, the Board has held, and we hold here, that such a disclaimer does not alter the nature of the jurisdictional dispute.2 Neither does it appear that there is any agreed-upon method for the settlement of the dispute. Therefore, since the record shows that there is an existing dispute, there is likelihood such a dispute might reoccur and since there is no agreement for voluntary adjustment of the dispute within the mean- ing of Section 10(k) of the Act, the Board is not pre- cluded from making a determination in this proceeding. E. Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to the various relevant fac- tors involved.' The following factors are relevant in making a determination of the dispute before us. 1. The collective-bargaining agreement The Employer and Electricians are bound by a con- tract between the American Line Builders Chapter of NECA and the International Brotherhood of Electn- cal Workers. The agreement covers utility and com- mercial and electrical underground outside power work including high voltage. At no time material here- in has the Employer been a party to a collective- bargaining agreement with Local 841 of the Operating Engineers. Upon consideration of the various provi- sions of the collective-bargaining agreement, we find that the foregoing agreement favors an award to the members of the Electricians. 2. Employer assignment and past practice For many years, the Employer has assigned the work involved in similar projects to employees repre- sented by the Electricians. Robert Ratayski, midwest power manager of Henkels & McCoy, William Thompson, an official of L. E. Myers Company, and Herman Scherer, superintendent for Miller Construc- tion Company, testified that their employees, repre- sented by the Electricians, operate grove cranes, digger trucks, air compressors, and winch trucks. Em- ployer and industry practice therefore favor an award to employees represented by the Electricians. 3. Relative skills and efficiency and economy of operations The employees represented by the Electricians have in the past worked on energized lines and are familiar with the techniques used in such operations. Addi- tionally, since the work in dispute requires working on or near high voltage lines, it is essential that the em- ployees be familiar with safety methods and artificial respiration in the event one receives an electrical shock, as the electricians are. The Employer strongly favors an award to its employees represented by the Electricians for these reasons as well as their demon- strated ability to perform the disputed work. Fur- thermore, employees represented by the Electricians perform dual tasks; not only do they operate the 2 Laborers ' International Union of North America Local 935, AFL-CIO 3 International Association of Machinists, Lodge 1743, AFL-CIO (J A (Interstate Drywall, Inc), 191 NLRB 467 Jones Construction Company), 135 NLRB 1402 INTL. UNION OF OPERATING ENGINEERS, LOCAL 841 577 equipment, but they also perform the specific tasks involved in electrical construction. Safety, skill, effi- ciency, and economy of operations thus favor the Employer's assignment to members of the Electri- cians. Conclusion Upon the entire record in this proceeding and after a full consideration of all of the relevant factors, in particular the contractual relationship between the Employer and the Electricians, the Employer's assign- ment, employer and industry practice, relative skills, and efficiency and economy of operations, we con- clude that the employees of the Employer who are represented by the Electricians are entitled to the work in question and we shall determine the dispute in their favor. Our present determination, awarding the work to the employees who are represented by the Electricians, but not to that Union or its members, is limited to the particular controversy which gave rise to this proceeding.' 4 The Employer and the Electricians urge that a broad order issue covering the entire State of Illinois However , as the record will not support an order of such scope , we shall limit our award to thejobsite where the instant dispute arose Laborers ' International Union of North America Local 935, AFL-CIO (Interstate Drywall, Inc), supra , In 4, and the cases cited therein 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. 1. Employees of the Terlex Company, who are rep- resented by the International Brotherhood of Electri- cal Workers, Local 702, AFL-CIO, are entitled to the work of the operation of the grove crane, air compres- sor, winch truck, and digger truck employed in the electrical construction work at the construction site on the premises of Texaco, Inc., Refining Division at Lawrenceville, Illinois. 2. International Union of Operating Engineers, Local 841, AFL-CIO, is not entitled, by means pro- scribed by Section 8(b)(4)(D), to force or require the Terlex Company to assign such work exclusively to individuals represented by the aforesaid labor organi- zation. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Union of Operating Engineers, Local 841, AFL-CIO, shall notify the Regional Director for Region 14, in writing, whether or not it will refrain from forcing the Terlex Company, by means proscribed in Section 8(b)(4)(D), to assign the work in dispute to employees represented by it rather than to employees represented by Interna- tional Brotherhood of Electrical Workers, Local 702, AFL-CIO.