International Union of Operating Engineers

INTERNATIONAL UNION OF OPFRATING ENGINEERS International Union of Operating Engineers, AFL- CIO, Local 542 and Power Systems, Inc. and International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, AFL-CIO, Local 193. Cases 5-CD- 251 and 5-CD-254 November 21, 1980 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MEMBRS PENEI.I.O AND TRU. SDALE.:. This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Power Systems. Inc. (herein called Employer), on November 1 and 8, 1979,' al- leging that International Union of Operating Engi- neers, AFL-CIO, Local 542 (herein called Operat- ing Engineers), violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activities with an object of forcing or requiring the Employ- er to assign certain work to employees represented by Operating Engineers rather than employees rep- resented by International Brotherhood of Boiler- makers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, AFL-CIO, Local 193 (herein called Boi- lermakers). 2 Pursuant to an order consolidating cases and notice of hearing, a hearing was held before Hear- ing Officer Nelson A. Levin, on December 4, 1979,' at Baltimore, Maryland. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine wit- nesses, and to adduce evidence bearing on the issues. The Employer and Boilermakers 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 rulings of the Hear- ing Officer made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. The Board has considered the entire record in this case and hereby makes the fol- lowing findings: 1. THE BUSINESS OF THE IMPI.OYER It is not contested, and we find, that the Em- ployer is a Delaware corporation, with its principal office in Schaumberg, Illinois. It is engaged in the business of repairing and maintaining power gener- I All dates herein are in 1979 z This party was permitted to inlttrvene in this matter. 3 The hearing In Case 5 CD-251 Initially convened on November 2. was postponed. and. foillowig consolidation llth Case 5 CD- 24. sas reconvened at this lalter date. ating systems at various locations throughout the United States, including Delmarva Power and Light Company's Indian River Power Station lo- cated at Millsboro, Delaware. In the operation of its business at the Indian River Power Station, Power Systems purchases merchandise and supplies valued in excess of S50,000 directly from outside the State of Delaware. Accordingly, we find the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. II. TH I LABOR ORGANIZATION INVOI Vi) It is not contested, and we find, that Operating Engineers and Boilermakers arc labor organizations within the meaning of Section 2(5) of the Act. Ill. 1TlH I)ISI't It A. he W'ork in Dispule The work in dispute consists of the operation of a 2-ton portable electric hoist4 and operation of a three-quarter inch hand valve for transmission of plant air" as "tools of the trade" in the perform- ance of boiler repair and maintenance work at the Indian River Power Station. ' B. Background On October 15, 1979, the Employer commenced repairing and replacing parts on the Number 2 power generating unit at the Delmarva Power and Light Company's Indian River plant. This work pertained primarily to a multistory boiler of that unit, and specifically consisted of scaffold building, the replacement of such boiler parts as the air heater, economizer elements, and boiler tubes, repair work on other boiler parts including the condenser and reheat elements, and tube and plate welding. The Employer employed approximately 54 persons at the Indian River jobsite. About 50 employees were represented by Boilermakers and about 4 employees were represented by the Labor- ers union. A subcontractor employed two persons represented by Operating Engineers. There were a total of some 700 employees of various employers at the Indian River jobsite. The Employer is a party to collective-bargaining agreements with Boilermakers and Operating Engi- neers. Both agreements, which were extended to the work performed at the Indian River jobsite, 4 Httereitafter ia lso referred to a prtahle electric hoist or hlist H lercinalftcr also referred to .i plant air .ileCs ; Although notl so defined In lit noIIot et' hearling ir h tili t hearing Officer, It is apparent fron the record and the briefs of the prtic th t Ihe Ilst lilt dispute is limited to the assignment of such work 253 NLRB No. 38 441 DIECISIONS ()F NA'II()NAL IAB()R REL.ATIONS H()OAk) contain recognition clauses which state that the re- spective parties agree, inter alia, that the agreement is applicable to maintenance, repair, and renovation work that is primarily within the recognized and traditional jurisdiction of the Union. Neither agree- ment specifically mentions any of the disputed work. The portable electric hoist has a maximum lifting capacity of 2 tons and is pushbutton operated. It consists primarily of a tube or drum 12 inches in diameter and about 30 inches long. A small electric box about 8 x 8 x 16 inches is attached to the drum, and a cable and hook are wrapped around the drum. The hoist may be moved by a small dolly or can be carried by two or three men. It can be lifted and hung in one stationary position or it call be mounted on a monorail. At the Indian River jobsitc, the Employer has used a portable electric hoist to perform a variety of functions. Mounted on a temporary I-beam monorail, the hoist is used by boilermtakers to remove arid replace basket elements (internal baf- fles) of the boiler. The baskets, located about 12 feet below the hoist. are hooked to the hoist which then lifts thcnl about 6 or 8 feet. moves thenl along the monorail, and then lowers them onto a dolly. This process requires three employees one to stand in the "hole" to hook the basket to the hoist and give the lift signal; another to press the button to lift the basket; and a third to guide the basket so that it does not catch or jam as it is lifted. Boiler- makers also use tile hoist to remove and replace dampers, and to locate and weld the boiler duct plate into place. Laborers use the hoist to lower trash canls into and out of the boiler. The hoist is not operated all of the time, but is in use from 4 to 5 hours per shift. Plant air refers to air produced by a permanent compressor, 7 and delivered throughout the plant via some 150 to 2(X) air valves which are turned on and off with a round faucet-like valve. The air is used by various crafts to power a wide assortment of hand tools and portable equipment, including pneumatic hammers, air guns, welding tools, and chipping guns. It is also used for ventilation and cleanup. Two or three pieces of equipment may be run off of one valve. Hoses which deliver air to this equipment are attached to the air valves with metal twist lock fittings, or quick fits, that are locked into place with a twist of the wrist. On the Indian River job, the Employer uses from four to seven valves which are not constantly turned on and off, but rather may remain on all day or for a week at a time. The operation of these valves is This cilmnprcss,ir is Illainltaired by I)cltnarva I'oer an d ight ('one pany and is operaled by )elmarva cmployees. part of the work in dispute. According to the Em- ployer, most of the air tools hooked up to these valves are operated by Boilermakers; thus, they are the ones who usually turn on the valves, but other craftsmen might perform this function when using air tools. During the week of October 15, Al Spanich, business agent for Operating Engineers, met with Harry Sosnowski, project superintendent for the employer, at the jobsite and informed Sosnowski that the operation of the plant air valves should be assigned to operating engineers. On October 25, during a telephone conversation initiated by Sos- nowski, Spanich asked whether the Employer was using portable electric hoists on the job. When Sos- nowski replied that such a hoist was being used and being operated by boilermakers, Spanich indi- cated that the Employer should use operating engi- neers on the portable electric hoists.' ()n October 29, Spanich came to Sosnowski's office at the jobsite and told Sosnowski that he was breaking Operating Engineers rules, that the Em- ployer should put an operating engineer on the portable electric hoist, and that, if it did not do so, "we are not going to do any business." Spanich also asked Sosnowski to assign an operating engi- neer to plant air. O)d October 31, Spanich met with .ou Takovich, an assistant business agent for Boi- lermakers. The two agreed that boilermakers would not operate certain equipment on the job and they asked Sosnowski to stop using boiler- makers on the portable electric hoist until the fol- lowing Monday when they thought they could re- solve the matter. Sosnowski expressed concern that these changes would slow tile job and refused to remove boilermakers from the portable electric hoist because this would stop the Employer's job altogether. When Sosnowski indicated that some- one would have to operate the portable electric hoist, Takovich said he would not slow the job any more and would not remove the boilermakers. In response, Spanich said there was no further busi- ness to take care of and he left. That evening, when Sosnowski left the plant, there were between 30 to 40 unidentified individuals along with vehi- cles congregated at a gate often used by boiler- makers to leave the site. Several boilermakers who worked for the Employer told Sosnowski that the gate was blocked. Spaiwch then asked 1i speak to Barine Younger, (Operating Fngi- icer stewsraid on Ihe job. and Sorl ~wski turlned 1hC tlephone over to Yoiliiger who had just walked ito his office When Younger hung up the phone, he smiled at Somsowskl and told him that he was "going home sick" According ti Slsliwski, Younger did llt ook ill anrd had not cirtiplaieid to hite of aly illness 442 INTERNATIONAl UNION OF OPERATING EN(;INEERS On November I, operating Engineers blocked all three entrances to the plant, preventing any em- ployees from reporting to work. The next day Spanich informed Takovich that the strike was not against Boilermakers, but against Power Systems, Inc., and concerned the assignment of the oper- ation of the portable electric hoist and the plant air valves, as well as other equipment, to operating en- gineers. The strike continued until November 9 when it was enjoined by the U.S. District Court for the District of Delaware pursuant to a petition filed under Section 10(b) of the Act.9 C. The Contentions of the Parties Employer and Boilermakers assert that the porta- ble electric hoist and the plant air valves are "tools of the trade" and that the disputed work should therefore be awarded to members of the craft re- quired to use or operate the equipment, in this case boilermakers. They contend that awarding the dis- puted work to the boilermakers is economical, effi- cient, and safe, and that it is consistent with the Employer's practice and preference, as well as with industry and area practice. Operating Engineers contends, inter alia, that be- cause its collective-bargaining agreement with the Employer provides that the operation of the plant air valves be performed by operating engineers, the Board lacks jurisdiction to resolve that aspect of the instant dispute,t0 and that, pursuant to "AFL- CIO jurisdiction," all hoisting mechanical work, in- cluding that of the portable electric hoist, " be- longs to employees represented by it. Operating Engineers further contends, with respect to all of the work in dispute, that operating engineers pos- sess the skills necessary to perform the work and that such work has "traditionally and continually" been performed by operating engineers on jobs where boilermakers have also been employed. D. Applicability of the Statute Before the Board may proceed to the determina- tion of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that (1) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and (2) the parties have not agreed upon a 9 Civil Action No. 79-519. 1' While the terms of a collective-bargaining agreement are a signifi- cant factor in aIwarding disputed work. jurisdiction is not proscribed, as Respondent suggests, by contract language awarding work to a particular labor organllatlon 'Ihus, een if the operative contract made an award ~of the disputed work, it w\oidd not he an impediment to the oard's jurls- diction herein " Specifically, Operating I1ngineers contends that the nlechanical work done by the portable electric hoit' is the same work performed hb a I(X)-ton crane, Ihe ilperalion of w hich concededly belongi ti o emnpltyees represented h Operating Enlgineers method for the voluntary adjustment of the dis- pute. As to (I) above, the parties stipulated, inter alia, that the order of the U.S. District Court for the District of Delaware granting an injunction pursu- ant to Section 10(1) of the Act, establishes that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated by Operat- ing Engineers with regard to the assignment of the operation of the portable electric hoist to boiler- makers by Power Systems, Inc., at the Indian River jobsite. Further, the uncontradicted evidence establishes that Operating Engineers threatened and caused a work stoppage at the Indian River Power Station to force a change in the assignment by Power Systems, Inc., of the operation of the porta- ble electric hoist as well as the plant air valves to employees represented by Operating Engineers. We find, therefore, that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated by Operating Engineers work stoppage. As to (2), the record reflects that there is no in- dependent method for voluntary resolution of dis- putes binding on all the parties here. 2 According- ly, we shall proceed to determine the instant dis- pute. 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.l' The following factors are relevant in making a determi- nation of the dispute before us: I. Economy and efficiency The Employer presented uncontradicted evi- dence demonstrating that economy and efficiency are enhanced by assigning the operation of the portable electric hoist and plant air valves to boi- lermakers when they are required to use the hoist or plant air in the course of their performing main- tenance and repair work at the Indian River job- site. 4 As noted, the activation of plant air consists of turning on and off a water faucet-like valve, as needed, to run air-powered hand tools. The plant 12 Both contracts provide for referral of disputes arising from work assignments to the respective Union's "General President" for resolution At the hearing. counsel for the Employer and counsel for Boilermakers indicated that resolution efforts of the general presidents of the instant Unions had not been fruitful and that neither Power Systems nor Boiler- makers was willing to agree to any other voluntary means of adjustment 'a International .4ssocarion of M.Wahinisr Lodge No. 741 (J . Jones Construction Co.) 15 NL RH 1402. 1410-11 (1962) " It should hbe noted that the asignment would not apply to boiler- makers. howeser, when other trades, such as laborers, would he required hby their irk tasks to use the hoist (or plant air ) 443 DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD air valves used by boilermakers are scattered throughout the plant. Once turned on, these valves may be left on for an entire day or for a week or more at a time. In these circumstances, exclusive assignment of the valves to an operating engineer would be considerably less efficient than assigning their operation to the boilermakers who use the plant air in the performance of their work. With respect to the portable electric hoist, the record establishes that it is not used constantly by boilermakers, but at times is used by other crafts and at other times sits idle. Thus, operating engi- neers assigned to operate the hoist would not always have work to perform. Further, operation of the portable electric hoist involves pushing but- tons to operate it, and hooking it up and guiding it along. These are tasks which efficiency and econo- my reasonably dictate should not be separated from the trade using the hoist, in this case, the boiler- makers, in the performance of their maintenance and repair work on the boilers. In addition, letters in evidence prepared by sev- eral employers, not involved in this proceeding, but engaged in work similar to that of the Employer, state in essence that employment of additional man- power to operate either the plant air valves or the portable electric hoist required for performance of work of another craft would cause confusion on the job, be an inefficient utilization of labor, and es- calate job costs. Accordingly, we find that the fac- tors of economy and efficiency favor an award of the disputed work to employees represented by Boilermakers when the hoist and plant air used by them in the course of their work. 2. Relative skills and safety considerations Both boilermakers and operating engineers can operate the valves regulating the flow of plant air, a task which requires no special skills. The oper- ation of the plant air valves, however, can cause a safety problem in that, if the plant air is premature- ly turned on, the unattended connecting hose can unexpectedly whip around, possibly injuring some- one. This hazard is minimized by limiting the turn- ing on and off of the valves to those who are going to use the tools attached to the hose. No evidence of specific safety problems related to the operation of the portable electric hoist was elicited at the hearing. With respect to skill, the Employer and Boilermakers presented evidence that boilermakers are familiar with and possess the skills necessary for the operation of the portable electric hoist in connection with the maintenance and repair of boilers, and frequently perform such work. Operating Engineers presented evidence es- tablishing that during the course of their appren- ticeship, operating engineers are trained in the op- eration of small hoisting equipment, including the portable electric hoist, and that on occasion em- ployees represented by Operating Engineers have operated the portable electric hoist. As both groups seeking to operate the plant air valves and the portable electric hoist seem to pos- sess the skills necessary to perform this work, we find this factor favors neither group with respect to any of the disputed work. Similarly, since safety has not been demonstrated to be a factor in assign- ing the operation of the portable electric hoist, we find this factor favors neither group concerning that piece of equipment. We find, however, that safety considerations favor assigning the operation of the plant air valves to employees represented by Boilermakers when such employees are using plant air in the course of their work. 3. Industry practice Boilermakers presented letters from 17 employ- ers representing a broad geographic spread indicat- ing, inter alia, that operation of the plant air valves and the portable electric hoist have traditionally been considered "tools of the trade" and assigned to each craft in the performance of its work, and specifically to boilermakers on all boiler-related maintenance and repair. Boilermakers also present- ed several jurisdictional dispute reports evidencing that disputes arising primarily in 1979 between Boi- lermakers and Operating Engineers, over the oper- ation of a portable electric hoist, ended with the disputed work being performed by boilermakers. Two employer witnesses, Harry Sosnowski and Henry Gertz, additionally testified that, in their cu- mulative experience of 58 years as boilermakers, they had never seen operating engineers operating either the portable electric hoist or the plant air valves for another trade. Operating Engineers of- fered no evidence concerning industry practice. Accordingly, we find that this factor favors the as- signment of the disputed work to employees repre- sented by Boilermakers. 4. Area practice Boilermakers presented letters from five employ- ers (including Babcock and Wilcox) regularly un- dertaking power house maintenance work in the Delaware area. Each letter indicates that company practice is to assign the operation of the plant air valves and the portable electric hoist to the craft utilizing the hoist or plant air as tools of the trade. Similarly, Employer witnesses Sosnowski and Gertz testified that, in their experience in the area, the disputed work has not been assigned other than as a tool of the trade. On the other hand, Operat- 444 INTERNATIONAL UNION ()OF OPERATING N(GINFEkS ing Engineers presented welfare, pension and ap- prenticeship fund reports which indicate that, on several occasions in 1977, Babcock and Wilcox and East Coast Management, at the time they were en- gaged in boiler repair work at the Indian River jobsite, utilized operating engineers to operate plant air valves and an electric hoist. 5 On the forego- ing, we find that since both boilermakers and oper- ating engineers have to varying degrees performed the work in disptue in the area at issue, this factor favors neither group of employees to the dispute. 5. Employer's assignment and past practice The Employer assigned the disputed work to employees represented by Boilermakers because it views the portable electric hoist and plant air valves as tools of the trade, the operation of which, for reasons of efficiency, economy, and safety, should be assigned to employees of the craft re- quired to use the hoist or plant air in the course of performing their duties. The Employer contends it has always assigned the disputed work on this basis and prefers to continue to do so. Accordingly, this factor favors an award of the disputed work to em- ployees represented by Boilermakers. 6. The collective-bargaining agreements As noted above, Operating Engineers contends that pursuant to its collective-bargaining agreement the operation of the plant air valves belongs to op- erating engineers and that pursuant to "the AFL- CIO jurisdiction," hoisting mechanical work has traditionally belonged to employees represented by it. The operative collective-bargaining agreements cover work within the recognized traditional juris- diction of the respective Unions and state that work assignment disputes shall be resolved in ac- cordance with "Agreements and Decisions of Record, established trade practice, or prevailing area practice." These contracts define the general types of work covered, but make no specific refer- ence to any of the disputed work. Accordingly, we find this factor to be of no consequence in our de- terminiation of which group of employees should be awarded the disputed work. 7. Arbitration award There is no arbitration award in evidence relat- ing to the operation of the portable electric hoist. Operating Engineers introduced an arbitration lb There is, howeser, conflictng testimony as to whether at that tim the operation of the portable electric hoist b operating engineers fir East Coast Management was in conjunction with repair ork being per formed by boilermakers award which it contends supports its claim that employees it represents should be assigned the op- eration of plant air valves. That award interpreted a contract clause not present in the Operating En- gineers contract with the Employer, and the issue there was whether the clause required a subcon- tractor to hire an operating engineer to man an air line tapped into a compressor operated by an oper- ating engineer employed by the general contractor. We find such award to be of no precedential value herein since the plant air valve dispute arises in a totally different context and the applicable contract does not contain the provision which is the subject of the arbitration award. We therefore find this factor favors neither party to the dispute. Conclusion Upon the record as a whole, and after full con- sideration of all relevant factors involved, we con- clude that employees represented by Boilermakers are entitled to operate the 2-ton portable electric hoist and three-quarter inch hand valve for trans- mission of plant air as tools of the trade in the per- formance of boiler repair and maintenance work at the Indian River Power Station. We reach this conclusion relying on the fact that such assignment will result in greater efficiency and economy, is consistent with industry practice, the Employer's assignment and past practice, and, in the case of the plant air valves, enhances the safe use of plant air. In making this determination, we are awarding all of the work in dispute to employees represented by Boilermakers, but not to that Union or its mem- bers. The present determination is limited to the particular controversy which gave rise to this pro- ceeding. 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 hereby makes the following Determination of Dis- pute: 1. Employees of Power Systems, Inc., who are represented by International Brotherhood of Boi- lermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, AFL-CIO, Local 193, are entitled to perform the operation of the 2-ton portable electric hoist and the operation of a three-quarter inch hand valve for transmission of plant air as tools of the trade in the performance of boiler repair and maintenance work at the Indian River Power Sta- tion. 2. International Union of Operating Engineers, AFL-CIO, Local 542, is not entitled by means pro- 445 DECISIONS OF NATIONAL LABOR RELATIONS BOARD scribed by Section 8(b)(4)(D) of the Act to force or require Power Systems, Inc., to assign the above-described work to employees represented by it. 3. Within 10 days from the date of Decision and Determination of Dispute, International Union of Operating Engineers, AFL-CIO, Local 542, shall notify the Regional Director for Region 5 whether or not it will refrain from forcing or requiring the Employer by means proscribed by Section 8(b)(4)(D) of the Act to assign the work in dispute to employees represented by it rather than to em- ployees represented by Boilermakers. 446