Millwrights, Piledrivers, Divers, Highway Construction, AFL-CIO, Local Union No. 1026, affiliated with the International Brotherhood of Capenters and Journeymen of America, AFLCIO (McKinney Drilling Company)

MILLWRIGHTS. LOCAL 1026 Millwrights, Piledrivers, Divers, Highway Construc- tion, AFL-CIO, Local Union No. 1026, affili- ated with the International Brotherhood of Car- penters and Journeymen of America, AFL-CIO and McKinney Drilling Company and Interna- tional Union of Operating Engineers, Local 487, AFL-CIO and Laborers International Union of North America, Local 478, AFL-CIO Millwrights, Piledrivers, Divers, Highway Construc- tion, AFL-CIO, Local Union No. 1026, affili- ated with the International Brotherhood of Car- penters and Journeymen of America, AFL-CIO and McKinney Drilling Company and Local 767, Laborers International Union of North America, AFL-CIO International Union of Op- erating Engineers, Local 675, AFL-CIO. Cases 12-CD-281 and 12-CD-283 September 29, 1982 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, JI NKINS, AND ZIMMERMAN Case 12-CD-281 is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed on September 1, 1981, by McKinney Drilling Company (herein called the Employer), alleging that Millwrights, Piledrivers, Divers, Highway Construction, AFL- CIO, Local Union No. 1026, affiliated with the In- ternational Brotherhood of Carpenters and Jour- neymen of America, AFL-CIO (herein called the Piledrivers), violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work at its Miami. Florida, jobsite to its members rather than to employees represented by Laborers International Union of North Amer- ica, Local 478, and International Union of Operat- ing Engineers, Local 487, AFL-CIO. Case 12-CD-283 is a proceeding under Section 10(k) of the National I.abor Relations Act, as amended, following a charge filed on September 4, 1981, by the Employer alleging that the Piledrivers violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work at its West Palm Beach, Florida. worksite to its members rather than to employees represented by International Union of Operating Engineers, Local 675, AFL-CIO, and Local 767, Laborers In- ternational Union of North America, AFL-CIO.' t lIrcinafr ci idllll r cl l I hcu ! i :h1 i l llllecr designlations, the repectilN .loca., 1 of th ()prtlng l l I horcrs hall be re- fcrrcd io d, ()pcr;llln Flgm F :e i l I ;shlrci'l, 264 NLRB No. 42 Pursuant to an order consolidating cases, a hear- ing was held before Hearing Officer Marvin Jack- son on October 6, 13, 15, 16. 19, 28, and 29, 1981, and on November 16, 17, and 18, 1981. At the hearing, all parties, except Operating Engineers Local 675 appeared and were afforded full oppor- tunity to be heard, to examine witnesses, and to adduce evidence bearing on the issues. Thereafter, the Employer and the Piledrivers filed briefs. 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, a Texas corporation with its principal place of business in Nacagdoches, Texas, is engaged in the business of foundation construction. During the past year, a representative period of time, the Em- ployer derived gross revenues in excess of $500,000 and purchased and received goods and materials from outside the State valued in excess of $50,000. The parties also stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert ju- risdiction herein. 11. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the La- borers, Piledrivers, and Operating Engineers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute Foundation construction involves the installation of piling, which is the central support system for any type of building construction. The two jobs in- volved in this case, spotting the drill rig and oper- ation of the control panel on the vibratory hammer, are two functions necessary in foundation construction. The Employer specializes in the drilled shaft method of foundation construction, al- though there are several alternative methods of piledriving for foundation construction. The Employer has been involved in the founda- tion construction of two jobsites in south Florida: a 261 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Marriott Hotel in Miami (Case 12-CD-281) and the Courthouse in West Palm Beach (Case 12-CD- 283). On July 28, 1981, the Piledrivers picketed the Employer at its Miami jobsite.2 The picket signs indicated that the dispute was with Grove Marine, a nonunion piledriving company. Once the Em- ployer became aware of the picketing, it immedi- ately contacted the general contractor, Turner Construction, about the picketing. Although there is some controversy as to who initiated and ar- ranged it, the parties agreed to meet on August 3, 1981. On that date the Employer's district manager, C. H. McKewen, met with officials from Turner Con- struction and the Piledrivers. Present at the meet- ing were: William Trapani, business manager, and Andrew Wells, president of Local 1026; M. G. Shears, business agent for Operating Engineers Local 487; Mr. Aliva, representative of Carpenters District Council; and two Turner Construction of- ficials, John Digidio and Frank Vital. At the meet- ing, Trapani discussed the Piledrivers history of working for contractors like McKinney and asked McKinney to examine a copy of the Piledrivers agreement. McKewen asked Trapani what he wanted and Trapani replied that he wanted one piledriver assigned to each drill rig to spot the drill and that this employee would be paid foreman's wages. Trapani also said that if McKinney brought a vibro-unit on the jobsite there would have to be a separate piledriver assigned to operate that equip- ment. McKewen told Trapani that the vibro-unit was already on the jobsite and that he would like time to study the documents presented and report to his superiors before a decision could be made on Trapani's work demands. On August 19, Trapani called McKewen and, upon learning no final decision had been made, re- quested that one be made by August 28. By letter dated August 27, Art Sheffield, the Employer's vice president, denied Trapani's request to have a piledriver included in the work crew. On August 31, the Piledrivers picketed the Miami jobsite, car- rying signs which alleged that McKinney was paying substandard wages. On September 1, 1981, the Piledrivers began picketing the Employer's West Palm Beach jobsite, with similar signs. The picketing continued at both sites until September 11, 1981. On September I and 4, 1981, the Employer filed the aforementioned 8(b)(4)(D) charges which gave rise to the instant 10(k) proceeding. 2 1The picketilg resulted in the shutdownll of the jobsite for I day. B. The Work in Dispute There are two job functions in dispute, spotting the drill rig and operation of the control panel on the vibro-unit. The parties are in disagreement as to what is encompassed by the term "spotting the drill rig." The Employer contends that the work of spotting the drill rig consists solely of properly aligning and leveling the drill rig over the spot of ground in which the drilling is to take place. The Piledrivers has taken a more expansive view of the task and argues that the process of spotting the drill involves alignment of the drill rig in the proper location, the plumbing or leveling of the Kelly bar, signaling the operator when the Kelly bar is not plumb, and the continuous monitoring of the entire drilling process. On the basis of the record as a whole, we reject the expansive view of spotting the drill as contend- ed by the Piledrivers and conclude that the Em- ployer's narrower description more accurately re- flects the work in dispute. The Employer presented evidence that various employees carry out the monitoring process as they perform other tasks such as changing the tools at the end of the Kelly bar, clearing away accumulated soil from the drill- ing hole, and realigning power lines from various pieces of equipment. Piledrivers does not claim these jobs, but argues instead that monitoring the drill is a separate job. This argument is belied by the fact that the Employer already assigns the work of signaling and flagging of the drilling rig from one hole to another to employees represented by the Operating Engineers.3 Under an expansive view of spotting the drill, such work would pre- sumably be included. Yet Respondent does not contest the assignment of this work to operating engineers; consequently we do not accept the ex- pansive view of the work in dispute as described by the Piledrivers. The second area of work in dispute is operation of the control panel on the vibro-unit when the panel is separated from the crane and is a hand- held device.4 The vibro-unit is a large hammer-like mechanism used to vibrate casings and similar de- vices into the ground. In some cases, the control panel is built on the crane and in others it is sepa- rated from the crane. Piledrivers does not dispute that operating engineers should perform the work 3 In this regard we note that monlitoring oif Ihe drilling pricc'.s is an ongoing function carried out by many indii.dual, inclludinlg not only la- borers and operating engineers but oilers and the 'armiou' tfirenmcl hus, this is clearly not a separate function, rather it is rnitrel ;Tll vTgirilig proc- ess of the drilling itself 4 Always present at the Miami jobsite. tile Ihrir)-Ullit didl tnot arli.e at the West Palm Beach jobsite until 3 \secks befor the te ilstalt pricccding. well after picketing had ceased 262 MILLW.RIGHTS. LOCAL 1020 when the panel is attached to the crane; it only claims the work when the panel is separated from the crane. C. Contentions of the Parties The Employers contends that there is reasonable cause to believe that the Piledrivers violated Sec- tion 8(b)(4)(D) of the Act, and that the dispute is properly before the Board, since there is no agreed-upon method for voluntary adjustment of the dispute. It further contends that the work of spotting the drill rig should be awarded to employ- ees represented by the Laborers and the operation of the control panel of the vibro-unit should be awarded to employees represented by the Operat- ing Engineers based on its past practice in the southern half of the United States, economy and ef- ficiency of operation, safety, collective-bargaining agreements, and local and industrywide practice. With respect to spotting the drill rig, the Employer also points to lack of specialized skills required for the job, and its own preference that the work con- tinue to be assigned to employees represented by the Laborers. With respect to the operation of the control panel in the vibro-unit, the Employer points to the fact that, even if a piledriver were as- signed to operate the unit, an operating engineer would still be required to keep the unit in good repair and maintenance. Further, the Employer argues that in all prior Board cases involving a ju- risdictional dispute in the drilled shaft industry, the work has been awarded to a composite crew of la- borers and operating engineers performing spotting of the drill and operation of the vibro-unit, respec- tively. At the hearing, the Piledrivers moved to quash the notice of hearing on grounds that no jurisdic- tional dispute exists. Alternatively, the Piledrivers contends that work of spotting the drill rig should be assigned to employees represented by it on grounds that (1) the Employer has had limited past practice in the south Florida area and has regularly assigned the work to piledrivers in other States, (2) area practice supports assigning the disputed work to employees represented by the Piledrivers, and (3) such employees possess the requisite skills and training necessary to perform the job. With respect to the operation of the control panel on the vibra- tory hammer, Piledrivers contends that employees ' I ;horcr,' I cala Ih- Ib;tlld 478 ioncull red uilh the po,,ilion of the Em- ploye r at the hearing aild filed noe hrief after the hearing Al hou ii Operating l rigineors I.o)al 671 did not appear at Ihe hear- ilg. "AC Ciildi e Illlit. hb \irtue of it, ;tc. pil..i c of the Turk asign - nltill. 1t i, claiming the 'orkt SCc IL.ol 5i2. I ntirtd AIwcolutinlu if Jour- MI',aLt nlid IppfrJ , i; . / i l Ph .. i in g ald A'ftillg Imiun (iil of tei ' U'll i.'lt 81.1' i ,i 1 (li, di'a , i 1-la (1 (f) uCo/i' hL 't i ,crI ('tnCompav), 155 Ni RlH 695 (1t-,5) represented by it should be awarded the disputed work essentially for the very same reasons. In its brief, the Piledrivers renews its motion to quash and further argues that the dispute herein is not a jurisdictional dispute, but rather a dispute over the failure of the Employer to pay area stand- ard wages to employees spotting the drill rig at the Miami and West Palm Beach jobsites. 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 that: (I) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and (2) that there is no agreed-upon method for the voluntary adjustment of the dis- pute. As noted above, Piledrivers moved to quash the notice of hearing in this case on grounds that the dispute here involves the Employer's failure to pay area standard wages rather than a jurisdictional work dispute. To support its position, the Pile- drivers calls attention to a mailgram it sent to the Employer the day after picketing began which stated in pertinent part: We want to advise you that our picketing of your company is exclusively for the purpose of protesting a substandard wage package being paid to your employees. We do not seek a contract from you. We will immediately cease picketing if you can establish that the wage package you pay to employees, who perform the work coming under our agreement with other employers, equals that received by em- ployees we represent. You may select any neu- tral person to establish this fact. [Resp. Exh. 1.] The Piledrivers further contends that there is no connection between the August 3, 1981, meeting described earlier and the August 31 picketing at the Employer's jobsite. The Piledrivers denies that there was a demand or threat that McKinney assign the work to piledrivers. The record reveals, however, that an object of the picketing was to have the Employer assign the disputed work to its piledrivers. Thus, although the Piledrivers asserts it made no demand for work, its business manager, Trapani, testified that when they met on August 3, 1981, he asked the Employer to put a piledriver on each drill rig and that he wanted a man assigned to operate the power pack to the vibro-unit. Trapani further testified that the copy of the letter received from the Employer dated August 21 denying Trapani's request to in- clude an employee represented by the Piledrivers 263 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the Employer's work crews accurately sets forth Trapani's demand for work assignments. Such testi- mony goes against the Piledrivers assertion that it was engaged solely in lawful area standards picket- ing and establishes reasonable cause to believe that an object of its picketing was to get the disputed work assigned to employees represented by it in violation of Section 8(b)(4)(D). There is no contention and no evidence that there is an agreed-upon method for voluntary reso- lution of the dispute which is binding on the par- ties. Accordingly, we find that this dispute is prop- erly before the Board for determination under Sec- tion 10(k). E. 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.6 The Board has held that its determination in a jurisdic- tional dispute is an act of judgment based on com- monsense and experience reached by balancing those factors involved in a particular case.7 The following factors are relevant in making the determination of the dispute before us: i. Certification and collective-bargaining agreements There is no evidence that any of the labor orga- nizations involved herein has been certified by the Board as the collective-bargaining representative for a unit of the Employer's employees. This factor, therefore, favors no party to the dispute. The record establishes that the Employer signed collective-bargaining agreements with Locals 478 and 767 of the Laborers and Locals 487 and 675 of the Operating Engineers on July 6, 1981. These agreements, however, do not formally address any of the work in dispute. In particular, the Operating Engineers contract has no specific definition of work jurisdiction other than that it claims all work covered by the wage classifications set forth in the contract. Similarly, the Laborers contract flatly states that it covers all work that falls within the classification of employees in their agreement. There were no local agreements in existence at the time the Employer made the work assignment. After the work assignments had been made, the Employer became signatory to the national agree- ment negotiated between the Association of Drilled Shaft Contractors and the International Unions of the Operating Engineers and Laborers. This agree- 6 NLR.B. v Radio, & ll/evision Broadcasr Engineers Union, Local 1212. International Brotherhood of Electrical fWorker, .4FL-CIO [Colum- bia Broadcasting Se, 1nl] , 3h5 U .S. 573 (1961). ? Internatrionall .4s.ociation qof Muchinlivs. L.odge N'o. 1743. AFL-CIO (J .4. Jonel ( ontructionl C(onpany)i. 135 NI.RB 1402 (1962) ment clearly assigns the disputed work to a com- posite crew of laborers and operating engineers, al- though it does not set forth the jurisdiction of the individual unions over particular job functions such as spotting the drill and operating the control panel of the vibro-unit. Despite the fact that the Employer was party to collective-bargaining agreements with both the Op- erating Engineers and the Laborers, we do not deem those agreements dispositive of the issue herein since neither specifically governed the work in dispute. Similarly, we do not deem the national agreement signed by the Employer with the Labor- ers and Operating Engineers controlling inasmuch as said agreement was entered into after the assign- ment of the work leading to the instant dispute. 8 The Employer has no collective-bargaining agree- ment with the Piledrivers. Accordingly, we find that the factor of collec- tive-bargaining agreements does not favor an award to employees represented by the Laborers and Operating Engineers or the Piledrivers. 2. Employer past practice The Employer's policy with respect to the as- signment of spotting the drill rig and operation of the control panel of the vibro-unit has varied ac- cording to geographic location. Thus, in those areas of the country, particularly the northeastern section of the United States, where piledrivers have traditionally performed drilled shaft work, the Em- ployer assigned the work of spotting the drill to pi- ledrivers. In the southern half of the United States, including Florida, however, the Employer has as- signed the spotting of the drill to laborers and the operation of the control panel to operating engi- neers. Further, the Employer has worked in Flor- ida since 1955 and has never employed a piledriver in any of its work crews. Since the work in dispute is being performed in Florida, we conclude that the Employer's practice in the South outweighs its practices in the Northeast. We therefore find that the Employer's past practice in the southern States, and particularly in Florida, favors an award of spotting the drill to employees represented by the Laborers and of operating the control panel of the vibro-unit to employees represented by the Operat- ing Engineers. 3. Employer preference At the hearing and in its brief the Employer ex- pressed its preference that spotting the drill be as- signed to employees represented by the Laborers " See International inion ! Op() ruring I:nivw rI. ...ial 4 (Jieph Rugs. Inc.), 198 NL RB -15S (1972) 264 MILLWRIGH'IS. LOCAl. I02h and operating the control panel of the vibro-unit to employees represented by the Operating Engineers. While we do not afford controlling weight to this factor, we find that it tends to favor an award of the disputed work to employees represented by the Laborers and the Operating Engineers. 4. Relative skills The record reveals that employees represented by the Piledrivers and employees represented by the Laborers have spotted the drill for the Employ- er in different parts of the United States. While the record establishes that piledrivers receive special- ized training in all types of piledriving operations, there is no evidence that the work in dispute re- quires any specialized training that employees rep- resented by the Laborers do not possess. Further, there is no evidence that the disputed work re- quires any specialized licenses. Therefore, in view of the fact that both groups are equally capable of performing the work, this factor favors neither group. With respect to operation of the control panels on the vibro-unit, the record establishes that pile- drivers and operating engineers have extensive ex- perience in its operation. While operating engineers are primarily responsible for the control panel when it is mounted on the crane, they appear to be equally skilled to operate the control panel when it is mounted on a hand-held panel. Accordingly, in- asmuch as each group is equally capable of per- forming the work, this factor is given no weight in determining the award. 5. Economy, efficiency of operations, and safety The record reveals that currently the Employer employs a drilling crew composed of a laborer re- sponsible, inter alia, for spotting the drill and an operating engineer responsible, inter alia, for oper- ating the control panel on the vibro-unit. In the event the work was awarded to the employees rep- resented by the Piledrivers, the Employer would still be required to keep laborers on the drilling crew since they perform other functions in addition to tasks related to spotting the drill, such as chang- ing tools, shoveling debris, and participating in the pouring of concrete. Similarly, if the operation of the control panel of the vibratory hammer were awarded to employees represented by the Pile- drivers, the record indicates that operating engi- neers would still be needed to maintain and repair the power pack. Accordingly, inasmuch as employees represented by the Laborers and the Operating Engineers have demonstrated that they adequately can perform the work in dispute, and in view of the fact that the chances of on-the-job injury increase as more workers are involved, the factor of economy, effi- cency of operations, and safety favors an award of the disputed work to employees represented by the Laborers and the Operating Engineers. See Labor- ers' District Council of Washington. D.C. and Vicini- rv, affiliated with Laborers' International Union of .Vorth America, AFL-CIO ({Western Caissons, Inc.), 240 NLRB 1161, 1164 (1979). Conclusion Upon the record as a whole, and after full con- sideration of all relevant factors involved, we con- clude that employees represented by the Laborers and the Operating Engineering are entitled to con- tinue to perform the work in dispute. We reach this conclusion relying on the following factors: The Employer's present assignment and past practice, the Employer's preference, and economy, efficien- cy of operations, and safety. In making this deter- mination, we are awarding the work in question to employees who are represented by Laborers and Operating Engineers, but not to those Unions or their members. Our present determination is limited to the particular dispute which gave rise to this proceeding. 9 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 proceeding, the National Labor Relations Board makes the following Determination of Dispute: i. Employees of McKinney Drilling Company, who are represented by Laborers International Union of North America, Locals 478 and 767, are entitled to perform the spotting of the drill at the Employer's Miami, and West Palm Beach, Florida, jobsites, respectively. 2. Employees of McKinney Drilling Company, who are represented by International Union of Op- erating Engineers, AFL-CIO, Locals 487 and 675, are entitled to perform the work of operating the control panel of the vibratory unit when it is on the ground at the Employer's Miami and West Palm Beach, Florida, jobsites, respectively. 3. Millwrights, Piledrivers, Divers, Highway Construction, AFL-CIO, Local Union No. 1026, affiliated with the International Brotherhood of Carpenters and Journeymen of America, AFL- CIO, is not entitled by means proscribed by Sec- '' In thi, regard. e e-rjei l he Fn mplh ocr', requel for a broad order. a% the ecldene does not e'.l bll h h that the 'iledlrlers ha, a procli'ity to ,iolate Sec S(hl(4)(D) f the Act 265 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion 8(b)(4)(D) of the Act to force or require McKinney Drilling Company to assign the disput- ed work to employees represented by that labor or- ganization. 4. Within 10 days from the date of this Decision and Determination of Dispute, Millwrights, Pile- drivers, Divers, Highway Construction, AFL-CIO, Local Union No. 1026, affiliated with the Interna- tional Brotherhood of Carpenters and Journeymen of America, AFL-CIO, shall notify the Regional Director for Region 12, in writing, 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 disputed work in a manner inconsistent with the above determination. 266