Operating Engineers, Local 101

410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Local 101 and United Sprinkler and Sprinkler Fitters Local Union 669, United Association of Journey- men and Apprentices of the Plumbing & Pipe Fitting Industry of the United States and Canada, AFL-CIO. Case 17-CD-168 November 19, 1973 DECISION AND DETERMINATION OF DISPUTE 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 Local 101 and Sprinkler Fitters are labor organiza- tions within the meaning of Section 2(5) of the Act, as stipulated to by the parties. III. THE DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by United Sprinkler, herein called the Employer, alleging that International Union of Operating Engineers, Local 101, hereinafter referred to as Local 101, has violated Section 8(b)(4)(D) of the Act. A hearing was held before Hearing Officer Joseph M. Logan, on July 10, 1973. The Employer, Local 101, and Sprinkler Fitters Local Union 669, United Association of Journeymen and Apprentices of the Plumbing & Pipe Fitting Industry of the United States and Canada, AFL-CIO, hereinafter referred to as Sprinkler Fitters or Local 669, 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, a brief was filed by the Employer. 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 brief of the Employer, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER United Sprinkler is a Minnesota corporation with its principal place of business in Minneapolis, Minnesota. It is engaged in the business of installing overhead fire protection systems. During the past 12 months, a representative period, the Employer performed work valued in excess of $50,000 for customers outside the State of Minnesota. We find that the Employer, as stipulated by the parties, is i The Economobile is a specially constructed forklift with a cage or platform attached to the lift arm of the forklift. The cage platform is approximately 16 feet in length, 4 feet in width, with a guard rail type A. The Work in Dispute The Employer and Sprinkler Fitters do not dispute the right of the Engineers to unload and stockpile pipe and materials on the jobsite. The parties have stipulated that the work dispute in the instant case is confined to the following: The installation with the use of an Economobile, sometimes referred to as a forklift.' The installa- tion work in dispute involves the process by which the Economobile is used and operated to lift, into the air, men and materials to the upper working level where the installation work takes place, whether those materials are picked up by the Economobile [operator] in the area of the worksite immediately under the area where the pipe and materials [are] going to be installed in the air or whether the pipe and materials [are] loaded on to the Economobile at any stockpile of such pipe or material on the jobsite and taken directly from that stockpile to the area where it is to be installed in the system, when it is taken to that point it is lifted directly up for installation. While the dispute as stipulated to by the parties is not entirely clear, what is clear from the evidence adduced at the hearing is that the dispute is over whether an operating engineer or a sprinkler fitter should operate the Economobile from the original jobsite stockpile of the sprinkler system pipes and materials to the place of installation where the men and materials are then lifted directly up to perform the installation. B. Background and Facts of the Dispute Sprinkler Fitters has been certified by the Board as representative of employees employed by members of the National Automatic Sprinkler and Fire Control Association, Inc. (Association), of which the Employer is a member, and the Employer therefore recognizes Sprinkler Fitters as the collective-bargain- ing representative of its employees. The latest enclosure 3 feet in height. The cage is normally used to lift two or three sprinkler fitters, supplies, and material to a height of 33 feet from the floor giving the sprinkler fitters a 39-foot work height. 207 NLRB No. 62 OPERATING ENGINEERS, LOCAL 101 411 collective-bargaining agreement, dated April 1, 1973,2 to March 31, 1975, between Local 669 and the Association, provides inter alia as follows: Section 18: Jurisdiction of Work: The work of the sprinkler fitter and/or apprentice shall consist of the installation and maintenance 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... . Under the above-quoted language the Employer contends it has a contractual obligation to assign the disputed work to its employees represented by Local 669. In accordance with its past practice under the aforesaid agreement, the Employer contends that it assigned a three-man crew of sprinkler fitters on May 23, 1973, to the instant jobsite where it was to perform the installation of fire protection sprinkler systems in a plant under construction for the Hoerner Waldorf Container plant at St. Joseph, Missouri. On May 23, 1973, William L. Criger, Jr., a sprinkler fitter foreman, began using the Economobile to unload pipe and materials. On the same day, operating engineers employed by Lehr Construction Co., general contractor, approached Criger and told him that the operation of the Economobile was engineers' work and that they would inform their business agent. On May 24, Miller, the business agent for Local 101, after having previously talked to C. W. Sparks, the general contractor's superintend- ent, approached Criger and asked him if he would put an engineer on the Economobile. Criger de- clined. Thereupon, according to Criger, Miller told Criger that if he continued to operate the Economo- bile he (Miller) would pull his men (engineers) off the job and close the job down. Criger replied that he would continue to operate the Economobile, where- upon Miller walked over to the operating engineers, who stopped what they were doing and followed Miller. About this time Sparks appeared on the scene, talked to Criger, and asked Criger if he had enough materials to finish out the day without further use of the Economobile. Criger replied that he did have but would need to use the Economobile the next day, whereupon Criger states that Miller replied that if the Economobile was put in operation (by sprinkler fitters) he would pull the men out. The Economobile has not been used on the jobsite since May 24. collective-bargaining agreement with Local 669 covering the work in dispute, its assignment of such work to members of Local 669 was pursuant to its contract. The Employer further contends that the use and operation of the Economobile is an integral part of the installation work to be performed pursuant to its contract at the building project involved herein. The Employer has no bargaining agreement with the Engineers. The Engineers contends that the operation of all forklifts, including the Economobile comes within their jurisdiction. D. Applicability of the Statute Before the Board may proceed to a determination 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 the parties have not agreed upon a method for voluntary adjustment of the dispute. The record indicates that on May 23 Criger was informed by the engineers employed by the general contractor that operating the Economobile was their work. On May 24, Miller, the business representative for the Local 101, after talking to the general contractor's superintendent, Sparks, approached Criger and demanded that engineers be assigned to operate the Economobile. Further, Miller threatened to pull off all of the engineers on the job and shut the job down if a sprinkler fitter member of Local 669 was assigned to operate the Economobile . Immedi- ately following Miller's threat, Sparks appeared and asked Criger if he could finish the day's work without using the Economobile . Criger replied he could but would have to use it the next day. Miller stated he would pull his men (engineers) if the Economobile was put in operation. The Economobile has not been put in use since May 24. We are convinced that Miller's statements and actions, together with the nonuse by the Employer of the Economobile, show that the overall objective of Miller was to secure the work in dispute for employees represented by Local 101. In view of the foregoing, we find that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that the dispute is properly before the Board for determination pursuant to Section 10(k) of the Act. The parties do not contend that there is any other method for adjustment of the dispute. C. Contentions of the Parties The Employer contends that since Local 669 has been certified by the Board and since it has a E. Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work 2 All dates hereinafter are for calendar year 1973. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after giving due consideration to the relevant factors involved.3 1; Collective-bargaining agreements The record discloses that Local 669 has been certified by the Board as the representative of the employees employed by members of the National Automatic Sprinkler and Fire Controls Association, Inc., and that the Employer as a member of the Association recognizes Local 669 as the representa- tive of its employees. The Employer introduced into evidence its con- tract with Local 669 on which basis the Employer assigned the. disputed work to its own employees. The contract contains, in pertinent part, the follow- ing clause covering jurisdiction of the work: 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 . . Local 101 does not have a contract with the Employer, but claims that the work of operating forklifts, including Econorroblles, is within the jurisdiction of Local 101 in the area where the dispute arose. However, no contracts were intro- duced in evidence to support this claim. There was some testimony that members of Local 101 have operated forklifts in the area. We find, in the circumstances, that the Employer's collective-bargaining agreement, together with the Board's certification, favors awarding the disputed work to the sprinkler fitters employed by the Employer. 2. Employer, industry, and area practice It appears that the installation of automatic sprinkler systems at ceiling level, for most part in recent years, has been performed from cages (known in the trade as baskets). The cage is mounted at the top end of the lift arm of the forklift (Economobile). The sprinkler. fitters place the pipe, tubing, or other materials for each section to be installed in the cage. Usually two sprinkler fitters enter the cage with the material and are then lifted up and put in position to do the installation. It has been the Employer's practice to assign the operation of the Economobile to a sprinkler fitter. While the men in the cage are working, the sprinkler fitter operator locks the 3 International Association of Machinists, Lodge No. 1743, AFL-CIO (J A. Jones Construction Co), 135 NLRB 1402. 4 A witness for Local 101 testified that its members are not trained to read blueprints. 5 Testimony adduced at the hearing indicates the sprinkler fitter Economobile in position and then proceeds to lay out the materials for the next section to be installed. In performing this layout work it is incumbent that the layout sprinkler fitter operator perform such work from blueprints, which of necessity require training and experience to read and follow.4 These facts, on balance, favor an award consistent with the Employer's assignment. The evidence as to area practice as to the use of the Economobile by sprinkler fitters in the installation of sprinkler systems appears to favor the Sprinkler Fitters. On the other hand, the evidence as to the operation of forklifts generally appears to favor the Engineers. We deem this factor to be inconclusive. 3. Safety The Employer contends that assignment of the work to its members is essential to safe operations. Engineers, on the other hand, makes the same contention regarding the assignment of the work to its members. 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. 4. Skills, economy, and efficiency In most circumstances, the Employer normally uses a three-man crew. Two crewmembers perform the installation of the pipes, tubing, and sprinkler heads following blueprints designed for the job. The third crewmember operates the Economobile but often exchanges places with the men in the cage. When the two crewmembers in the cage or basket have been positioned at the ceiling level, the third crewmember shuts off the Economobile and locks it in position. The third sprinkler fitter' operator crewmember is fully conversant with all sprinkler fitters work and is required to anticipate the future needs of the overhead installers. In addition, he does layout work on the ground, working from blueprints, for the connecting installations which are subse- quently hoisted to the men in the cage as the work progresses. Accordingly, while the actual operation of the Economobile appears relatively uncomplicat- ed, from the view of the efficient and economical operation of the entire process, the facts favor an award to employees represented by the Sprinkler Fitters.5 Conclusions Having considered all the pertinent factors, we operating the Economobile spends only 1 hour out of an 8-hour day in raising and lowering the Economobile . The remainder of his time is devoted to layout work . On the other hand, if an engineer operated the Economobile he would spend only I hour a day performing his duties and spend the other 7 hours sitting on the machine. OPERATING ENGINEERS, LOCAL 101 413 conclude that employees of the Employer represent- ed by the Sprinkler Fitters are entitled to perform the work in dispute. Members of the Sprinkler Fitters are skilled in performing 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. According- ly, we conclude that the Employer's assignment of work to employees represented by the Sprinkler Fitters should not be disturbed and we shall determine the existing jurisdictional dispute by awarding the work to the employees employed by the Employer and represented by the Sprinkler Fitters, rather than to individuals represented by the Engi- neers. In making this determination, we are awarding the disputed work to employees represented by the Sprinkler Fitters but not to that Union or its members. Our present determination 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 hereby makes the following Determination of Dis- pute: 1. Employees represented by Sprinkler Fitters Local 669, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of theUnited States and Canada, AFL-CIO, are entitled to perform the disputed work of operating the forklift (Economobile) in the installa- tion of sprinkler systems at the Koerner Waldorf jobsite in St. Joseph, Missouri. 2. International Union of Operating Engineers, Local 101, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require United Sprinkler, to assign any such disputed work to employees represented by them rather than to employees represented by Local 669 and employed by United Sprinkler. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Union of Operating Engineers, Local 101, shall notify the Regional Director for Region 17, in writing, whether or not it will refrain from forcing or requiring United Sprinkler to assign the work in dispute in a manner inconsistent with this determination.