Operating Engineers Local 17, 17A, 17B

OPERATING ENGINEERS, LOCAL 17, 17A, 17B International Union of Operating Engineers, Local 17, 17A, 17B and Sullivan and Humes and Painters District Council No. 4. Case 3-CD- 518 January 13, 1981 DECISION AND ORDER QUASHING NOTICE OF HEARING BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Sullivan and Humes, herein called the Employer, alleging that International Union of Operating Engineers, Local 17, 17A, 17B, herein called the Respondent or Operating Engi- neers, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object or forcing or requiring the Employer to assign certain work to its members rather than to employees represented by Painters District Council No. 4, herein called Intervenor or Painters. Pursuant to notice, a hearing was held before Hearing Officer Yona Rozen on May 27 and June 4, 1980. All parties appeared and were afforded full opportunity to be heard, to examine and cross-ex- amine witnesses, and to adduce evidence bearing on the issues. 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 rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this proceeding, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Em- ployer is a New York corporation with its princi- pal place of business in Buffalo, New York, and having a worksite at the Waterfront Hotel where it is the painting subcontractor for the John W. Cowper Company, Inc. During the past 12 months, Sullivan and Humes has furnished services within New York State to Cowper, valued in excess of $300,000. John W. Cowper Company, Inc., is a New York State corporation engaged in general construction contracting and having its principal place of business in Tonawanda, New York. During the past 12 months John W. Cowper Com- pany, Inc., has purchased and received at its Wa- terfront Hotel site goods and materials valued in 254 NLRB No. 9 excess of $50,000 directly from points outside the State of New York. The parties also stipulated, and we find, that the Employer is engaged in com- merce within the meaning of Sectin 2(6) and (7) of the Act. Accordingly, we find it will effectuate the purposes of the Act to assert jurisdiction herein. 11. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Op- erating Engineers and Painters are labor organiza- tions within the meaning of Section 2(5) of the Act. 111. THE DISPUTE A. Background and Facts of the Dispute In 1979 Sullivan and Humes was awarded a sub- contract to paint the Waterfront Hotel in Buffalo, New York, by John W. Cowper Company, Inc., the general contractor. The subcontract between Sullivan and Humes and John W. Cowper required Sullivan and Humes to furnish all labor, material, and equipment; install the Aristex ceilings; patch the concrete walls; caulk the concrete walls; prime and seal any walls throughout the building; and furnish or install the vinyl wall covering where shown on the drawings. To this end, it was necessary for Sullivan and Humes to use an air compressor to spray the Aris- tex ceiling. The work involving the compressor was approximately 12 percent of the total time spent on performing the required work. The only work involved in attending to the compressor was to turn it on and off, approximately once and "pos- sibly twice" a day and, on a rare occasion, to make some repairs. Sullivan and Humes has a collective-bargaining agreement with the Painters, and it employs mem- bers of the Painters. It does not have a collective- bargaining agreement with any other union. Pursu- ant to its collective-bargaining agreement with the Painters, Sullivan and Humes assigned the work of turning the compressor on and off to one of its em- ployees, a member of the Painters. Sometime after Sullivan and Humes commenced its painting subcontract and work on the compres- sor, Patrick Harrigan, a business agent for the Op- erating Engineers, approached Frederick McAvinn, Cowper's superintendent at the Waterfront Hotel. Harrigan claimed the work of operating the com- pressor on behalf of the Operating Engineers and demanded that an operating engineer be assigned to the compressor.' According to McAvinn, Harrigan I Cowper is a member of the Construction Industry Employers' Asso- ciation (CIEA) and, therefore, bound by the Operating Engineers' collec- Continued 71 DECISIONS OF NATIONAL LABOR RELATIONS BOARD insisted that it was an Operating Engineer's job and he inferred that if we didn't put an Operating Engineer on it, there might possibly be, well, walking the street, as he put it. Harrigan then spoke with James Maloney, the labor relations manager and project manager of Cowper. According to Maloney, Harrigan again demanded the work and stated that if we did not have an Operator on the com- pressor, that they would be out on the street on Monday. After these statements were made, Cowper as- signed an operating engineer to the compressor. Harrigan testified that he did not threaten to strike immediately, but that he told McAvinn that if Cowper did not assign an operating engineer this would be a strike issue in the next contract negotia- tions. B. The Work in Dispute The work in dispute involves the operation of the air compressor to spray the Aristex ceiling at the Waterfront Hotel project. C. The Contentions of the Parties The Employer contends that the work in dispute should be awarded to the employees represented by the Painters because of the collective-bargaining agreement between the Employer and the Painters, employer preference and past practice, relative effi- ciency, and prior Board decisions. The Employer also contends that the Operating Engineers' business agent threatened to call a strike if an operating engineer was not assigned the work and that there is no agreed-upon method for the voluntary adjustment of the dispute. Thus, while it is undisputed that all parties have agreed in their respective collective-bargaining agreements and in- terunion agreements to be bound by an award of the Impartial Jurisdictional Dispute Board (IJDB), when the Painters submitted the dispute to the IJDB, the Operating Engineers refused to partici- pate. In any event, according to the Employer, the IJDB is no longer available to resolve the dispute, since the project has been completed, and the IJDB does not decide disputes on completed pro- jects. Finally, because of the asserted frequency of disputes about operation of the compressor, the Employer requests a broad order encompassing all compressor work within the Operating Engineers' geographical jurisdiction. tive-bargaining agreement with the CIEA. Sec. 3 of this agreement pro- vides in relevant part: The operation of compressors on sandblasting and gunniting on old or new work is the work of the Operating Engineer. The Painters, like the Employer, argues that the jurisdictional factors weigh in favor of an award to the employees it represents. It reiterates that it sub- mitted the dispute to the IJDB, but the Operating Engineers refused to participate. The Operating Engineers contends that the dis- pute is not jurisdictional, but rather a contractual one between Cowper and the Operating Engineers. It also argues, as the other parties concede, that the parties have agreed upon a method for the volun- tary adjustment of the dispute, and that therefore the Board is without authority to proceed with the dispute. 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 both that there is reason- able cause to believe that Section 8(b)(4)(D) has been violated and that the parties have not agreed upon a method for the voluntary adjustment of the dispute. The Operating Engineers contends that an agreed-upon method for the voluntary resolution of the dispute exists, and that the failure or refusal of the parties to submit the dispute does not satisfy the requirements of Section 10(k). We agree. First, there is no issue here as to whether all of the parties have agreed to submit jurisdictional dis- putes to the IJDB, since, at the hearing, the parties all stated that, under their respective collective-bar- gaining agreements and contracts, they had agreed to use the IJDB. Accordingly, we find that an agreed-upon method exists for the voluntary ad- justment of the dispute. Second, this finding is not affected by the failure and/or refusal of the parties to use the IJDB pro- cedure. In United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Indus- try of the United States and Canada, Local Union No. 447, AFL-CIO (Capitol Air Conditioning, Inc.), 224 NLRB 985 (1976), we held that the Board did not have authority to resolve the dispute where the parties had agreed to submit jurisdictional disputes to the IJDB, but had not done so. Here, the record shows that, although the Painters made a prelimi- nary submission to the IJDB, the parties have made no effort to obtain a final resolution before the IDJB of the dispute on its merits. Thus, the parties still have available to them a voluntary method for resolution of the dispute. Accordingly, we refuse to decide the dispute. The Employer also contends that the require- ments of Section 10(k) are met since the project in- volving the disputed work has been completed, and under IJDB rules, the IJDB will not resolve dis- 72 OPERATING ENGINEERS, LOCAL 17, 17A, 17B putes on completed projects. Without passing on this contention, we note that there has been no IJDB ruling to this effect. Under Capitol Air Condi- tioning, 224 NLRB at 988, the Employer is there- fore without standing to raise this claim. Accord- ingly, since all parties are bound to submit this dis- pute to the IJDB, we shall quash the notice of hearing issued herein. ORDER It is hereby ordered that the notice of hearing issued in this proceeding be, and it hereby is, quashed. MEMBER JENKINS, dissenting: For the reasons fully set forth in my dissent in Capitol Air Conditioning, Inc., supra, the decision relied on by my colleagues in the majority, I would proceed to determine the dispute. Here, as in Cap- itol Air Conditioning, the quashing of the notice of hearing leaves the Employer trapped without re- course between the disputing unions. In my view, this result is contrary to the purpose of Sections 10(k) and 8(b)(4)(D) of the Act. I, therefore, re- spectfully dissent. 73