Operating Engineers, Local 701

126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Local 701, AFL-CIO and L. K. Comstock & Company, Inc. and International Brotherhood of Electrical Workers, Local No. 125, AFL-CIO. Case 36- CD-119 II THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that the Operat- ing Engineers and the Electrical Workers are labor organizations within the meaning of the Act. June 27, 1974 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, KENNEDY. AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed January 24, 1974, by L. K. Comstock & Company, Inc., hereinafter called the Employer, alleging that the International Union of Operating Engineers, Local 701, AFL-CIO, hereinafter called the Operating Engineers, has violated Section 8(b)(4)(D) of the Act by engaging in certain pro- scribed activity with an object of forcing or requiring the Employer to assign certain work to employees represented by the Operating Engineers, rather than to employees represented by the International Broth- erhood of Electrical Workers, Local No. 125, AFL- CIO, hereinafter called the Electrical Workers. A hearing was held before Hearing Officer Dale B. Cubbison on March 5, 6, 7, and 8, 1974, at Portland, Oregon. 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 issue. 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 rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: I THE BUSINESS OF THE COMPANY The parties stipulated that the Employer is engaged in the construction business in the State of Oregon, and during the past year received goods and materials in excess of $50,000 in value which was shipped to it from points directly outside the State of Oregon. We find, therefore, that the Employer is engaged in com- merce 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. III THE DISPUTE The work in dispute is the operation of a Pittman boom truck with attachments, a Grove crane, and a skidder l used in the installation of temporary lighting on Interstate 5 between the Tualatin interchange and the Tigard interchange. A. Applicability of the Statute The Operating Engineers began picketing in De- cember 1973, asserting that the Employer, by failing to hire employees represented by the Operating Engi- neers to perform the work in dispute, had failed to adhere to a short-form agreement binding the Em- ployer to an agreement with the Association of Gener- al Contractors. The Employer contended that the disputed work properly belonged to employees repre- sented by the Electrical Workers and refused to reas- sign the work. As we interpret the purpose of the picketing to be to compel the Employer to discontinue its present assignment and reassign the work to em- ployees represented by the Operating Engineers, we find that reasonable cause exists to believe that the picketing violated Section 8(b)(4)(D) of the Act. Although the Operating Engineers allege that the Employer is contractually bound through the short- form agreement to past decisions of the Joint Board (apparently now succeeded by the Impartial Jurisdic- tional Dispute Board), it does not contend that the Electrical Workers currently is a party to any such Joint Board agreements. Accordingly, we find that the parties have not agreed upon a method for the voluntary adjustment of the dispute. B. Background and Facts of the Dispute The Employer utilizes a crew of three to four em- ployees, currently represented by the Electrical Work- ers, to erect the temporary lighting which consists of wooden poles with illuminating arms attached. These employees accomplish their work tasks by operating a Pittman boom truck (which is used in all phases of the work and may have attached to it a hydrocrane, a man-lift bucket, an auger, a power tamper, and a wire drum), a Grove crane (used only where the Pitt- 1 The charge was amended at the hearing to include the operation of a skidder as part of the work in dispute 212 NLRB No. 17 OPERATING ENGINEERS, LOCAL 701 127 man boom truck does not possess a sufficiently long boom to perform the work), and a skidder (a rubber- tired tractor used to skid wood poles into position for installation, to pull the Pittman boom truck into posi- tion to work if the terrain is difficult, and, with the addition of a drum at the rear of the skidder, to string line). The only work that is disputed is "outside line work," which involves the installation of temporary lighting with overhead lines as the source of power. C. The Contentions of the Parties The Employer and Electrical Workers assert that the work in dispute is covered by an outstanding Board certification of the Electrical Workers, that the work has been performed regularly by employees rep- resented by the Electrical Workers pursuant to collec- tive-bargaining agreements with the Northwest Line Constructors, and that for reasons of safety and econ- omy the work in dispute should continue to be per- formed by employees represented by the Electrical Workers. The Operating Engineers demands the work pur- suant to the short-form AGC agreement and assert that the certification should not be determinative. They further assert that employees represented by the Operating Engineers have traditionally operated the equipment in dispute, that the members possess the necessary skill and training, and that the existing four- man crew could include at least one employee repre- sented by the Operating Engineers to operate the heavy equipment involved. D. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various factors. The following factors are relevant in making a determination of the dispute before us: 1. Certification In 1953, the Electrical Workers was certified by the Board in Case 36-RC-815 to represent, inter alia, line equipment men (which included cable splicers, jour- neymen linemen, the head ground man, ground men, power men, jack-hammer men, compressor men, and hole diggers). Parties to the controversy resulting in the certification were the Operating Engineers, Local 370 and 371 ; Northwest Line Constructors , Chapter of the National Electrical Contractors Association; and the Electrical Workers, Locals 77, 125, 483, and 659. Notwithstanding the argument of the Operating Engineers that Local 701 was not a party to the 1953 certifications, that the work is different than heavy highway construction projects, and that 'a determina- tion over 20 years old cannot take into account cur- rent area practice, we find that the certification is a factor favoring the awarding of the work to employees represented by the Electrical Workers. 2. Employer's assignment and past practice The Employer asserts that it prefers to assign the work to members of outside Locals 125, 659, 77, and 483 of the Electrical Workers for reasons of efficiency, and safety. The evidence indicates that the usual past practice of the Employer has been to assign tempo- rary lighting work to employees represented by the Electrical Workers. 3. Area practice The evidence indicated that area employers have more frequently used employees represented by the Electrical Workers than employees represented by the Operating Engineers to perform temporary lighting work. Apparently, the use of composite crews has been largely limited to inside or permanent lighting projects. 4. The collective-bargaining agreements On January 20, 1972, the Employer and the Operat- ing Engineers entered into an agreement which incor- porated by reference the master labor agreement between the Operating Engineers and the Association of General Contractors (AGC), as well as all succes- sive agreements. On June 1, 1973, the Operating Engi- neers and the AGC entered into a master labor agreement which provided certain manning provi- sions specifying that the Operating Engineers would operate certain types of heavy equipment, including grave cranes, rubber-tired skidders, and hydraulic cranes. The Employer is a member of the Northwest Line Constructors (NWLC) and, pursuant to a letter of assent, is a signatory to an agreement negotiated be- tween the Electrical Workers and the NWLC which provides that it will cover all production and mainte- nance work in accord with the NLRB certification in Case 36-RC-815, including pole line construction work and highway lighting systems. As each Union appears to be a signatory to an agreement providing that the Employer will assign the disputed work to that Union, we find that neither union is favored by this factor. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. Relative skills and safety Although there is testimony indicating that employ- ees represented by both Unions possess the skill to perform the disputed work, the evidence indicates that the employees represented by the Electrical Workers have had greater training and experience enabling them to deal with emergencies unique to electical construction. The Electrical Workers has a 3-1/2-year apprentice period during which time its members receive specialized training in pole-top re- suscitation and procedures for clearing a man away from an energized line. The problems of operating the equipment in dispute in close proximity to high-volt- age lines is obvious; the factor of safety is clearly important and favors the claim of the Electrical Workers. 6. Economy and efficiency Since the Operating Engineers does not claim any wiring or electrical work, but claims only the opera- tion of the equipment, it appears that permitting em- ployees represented by the Electrical Workers to perform the work will result in greater efficiency than if a composite crew performs the work. Although the Operating Engineers asserts that the present opera- tion could be rescheduled to permit maximum use of the equipment operated if an employee represented by the Operating Engineers would be constantly oper- ating the equipment in dispute, it seems clear that the work can be more efficiently performed when all the employees are multiskilled and can easily switch from one job function to another. 7. Joint Board determinations The Operating Engineers introduced into evidence decisions of the National Joint Board for the Settle- ment of Jurisdictional Disputes and assert that these decisions all suppport their claim that the disputed work should be assigned to employees represented by the Operating Engineers. However, there is no indica- tion in the brief decisions that the work was outside electrical work. Accordingly, we are unable to give any weight to these Joint Board awards in deciding this case.' 2 Pitchard Electric Co, Inc, 168 NLRB 374 Conclusion Based upon the entire record, and after full consid- eration of all relevant factors, we conclude that the employees who are represented by the Electrical Workers are entitled to perform the work in dispute rather than employees represented by the Operating Engineers. We reach the conclusion based primarily upon the Employer's preference, the training and ex- perience of employees represented by the Electrical Workers in dealing with electrical hazards and emer- gencies unique to outside or temporary lighting, and factors of economy and efficiency in maintaining a crew capable of the flexibility of performing all as- pects of the operation. Accordingly, we shall de- termine the dispute before us by awarding the work in dispute to those employees represented by the Elec- trical Workers, but not to that Union, or its members. The present determination is limited to the particular controversy which gave rise to the proceeding. 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 L. K. Comstock & Company, Inc., who are represented by the International Broth- erhood of Electrical Workers, Local No. 125, AFL- CIO, are entitled to perform the work of operating the Pittman boom truck, Grove crane, and skidder. 2. International Union of Operating Engineers, Local 701, AFL-CIO, is not entitled by means pro- scribed by Section 8(b)(4)(D) of the Act to force or require L. K. Comstock & Company, Inc., to assign the above work to employees represented by it. 3. Within 10 days from the date of the Decision and Determination of Dispute, International Union of Operating Engineers, Local 701, AFL-CIO, shall notify the Regional Director for Region 36 whether or not it will refrain from forcing or requiring the Em- ployer by means proscribed by Section 8(b)(4)(D) of the Act to assign the work in dispute to employees represented by Operating Engineers rather than to employees represented by Electrical Workers.