Operating Engineers Local 825 (Gpu Nuclear)

OPERATING ENGINEERS LOCAL 825 (GPU NUCLEAR) International Union of Operating , Engineers, Local 825 and GPU Nuclear Corporation and Jersey Central Power and Light Company and Cata- lyic, Inc. and System Council U-3, International Brotherhood of Electrical Workers. Case 4- CD-691 25 November 1986 DECISION AND DETERMINATION OF DISPUTE By CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS The charge in this Section 10(k) proceeding was filed 13 June 1986 and amended 7 July 1986 by GPU Nuclear Corporation (GPU),' alleging that the Respondent, International Union of Operating Engineers, Local 825 (Operating Engineers), violat- ed Section 8(b)(4)(D) of the National Labor Rela- tions Act by engaging in proscribed activity with an object of forcing the Employer, Jersey Central, to assign certain work to employees it represents rather than to employees represented by System Council U-3, International Brotherhood of Electri- cal Workers (Electrical Workers). The hearing was held 28 July 1986 before Hearing Officer Peter C. Verrochi. Thereafter, GPU, Jersey ' Central, and Electrical Workers filed posthearing briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board affirms the hearing officer 's rulings, finding them free from prejudicial error. On the entire record, the Board makes the following find- ings. 1. JURISDICTION GPU and Jersey Central are New Jersey corpo- rations and wholly owned subsidiaries of GPU In- corporated. Jersey Central is engaged in the gen- eration, transmission, and distribution of electricity to various areas within the State of New Jersey. Jersey Central also owns the Oyster Creek Nuclear Generating Station (Oyster Creek) in Forked River, New Jersey, which is managed by GPU. Jersey Central annually derives gross revenues in excess of $500,000, and annually purchases goods and services in excess of $50,000 directly from sup- pliers located outside the State of New Jersey. Ac- cordingly, we find that Jersey Central is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Operating Engineers and Electrical Workers are labor organizations within the meaning of Section 2(5) of the Act. 1 The charge was amended to include Jersey Central Power and Light Company (Jersey Central) as a Charging Party. IL THE DISPUTE 267 A. Background and Facts'of Dispute The Oyster Creek Nuclear facility is regulated by the Nuclear Regulatory Commission (NRC). NRC regulations require that nuclear reactors be shut down for periodic maintenance and refueling and for necessary modification work. One such "scheduled outage" began at Oyster Creek in April 1986 and was expected to continue until the fol- lowing October. Catalytic, Inc. (Catalytic), a general maintenance contractor, has performed construction, mainte- nance, and repair work at Oyster Creek since 1983, mostly during scheduled outages. Jersey Central retained Catalytic to perform maintenance and modification work during the 1986 outage. For this work, Catalytic maintained a continuous operation at Oyster Creek, employing between 400 and 600 workers represented by various building trades unions; the workers involved in the present dispute are represented by Operating Engineers. Catalytic's entire work force is covered by the General Presi- dents' Project Maintenance Agreement, a standard national contractor agreement to which various building trades unions, including Operating Engi- neers, are signatory. In its contract with Catalytic, Jersey Central re- served the right to perform certain maintenance work, using its own employees. During the 1986 outage, Jersey Central assigned to its own employ- ees, who are represented by Electrical Workers, all mobile crane work in support of Catalytic's mainte- nance function. Mobile cranes are used to support outdoor maintenance or modification activities that require lifting and can be driven under their own power. Although' mobile cranes are used when the Oyster Creek facility is operating, their usage be- comes heavier during outages when more mainte- nance work is done. A significant amount of mobile crane work at Oyster Creek is performed with rental cranes. Beginning at approximately 6 a.m. on 20 May 1986 and continuing throughout that day, Operat- ing Engineers 'picketed at each of the five en- trances to the Oyster Creek facility. The picket signs stated that GPU was "unfair" to Operating Engineers. Business Agent for Operating Engineers Robert Potts stated to a GPU representative that the dispute concerned the operation of a mobile crane at Oyster Creek and that workers were oper- ating the cranes who should not be doing so. As a result of the picketing, none of the 400-600 Cata- lytic employees who were scheduled to perform maintenance functions reported for work that day. 282 NLRB No. 39 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD That evening a reserve gate system was estab- lished. The following day, 21 May, Operating En- gineers resumed picketing at the gates reserved for GPU and Jersey Central employees, but not at the gates reserved for contractors. Once again the Catalytic employees did not report for work as a result of the picketing. The picketing ended about 6 p.m., after Jersey Central agreed to meet with Operating Engineers to discuss the dispute. At the meeting, which was held on 27 May 1986, Operating Engineers asserted that mobile crane work in support of Catalytic's maintenance func- tion should be assigned to the employees it repre- sents rather than to Jersey Central employees rep- resented by ,Electrical Workers. There was no reso- lution of the dispute at the meeting, but Jersey Central subsequently informed Operating Engineers that it would continue to assign the mobile crane work to its own employees. Thereafter, on 13 June 1986, representatives of Operating Engineers reappeared at Oyster Creek and, although the reserve gate system was still intact, distributed handbills at each of the five en- trances to the facility. The handbills, entitled "In- formation to the Public," stated that GPU and Jersey Central deprived Operating Engineers of work traditionally performed by its members by as- signing "a non-building trades employee" to oper- ate a rental crane. The handbilling was concentrat- ed at the times of shift changes and, like the prior picketing, caused the Catalytic employees to fail to report for work. That same day GPU filed the present charges. By letter' dated 21 July 1986 Operating Engi- neers moved to quash the notice of hearing, con- tending that the dispute had become moot because the work was completed and submitting what pur- ported to be a disclaimer of the disputed work. The disclaimer states: [B]y this letter Local 825 affirmatively repre- sents that it will not engage in any conduct violative of Section 8(b)4(i)(ii)(D) [sic] which in any way relates to the assignment of operat- ing the mobile crane. Local 825 further repre- sents that it will not handbill at or near the en- trance 'to the job site which may be reserved for the use of neutrals, their employees and/or suppliers. Local 825 reserves the right to con- tinue to handbill at any other location. B. Work in Dispute The disputed work involves the operation of a mobile crane being used in support of maintenance and modification work being performed by Cata- lytic, Inc. at the Oyster Creek Nuclear Generating , Station on Route 9 in Forked River, New Jersey. tentions pertaining to the assignment of the mobile crane work C. Contentions of Parties GPU and Jersey Central contend that the Oper- ating Engineers' picketing and handbilling consti- tute violations of Section 8(b)(4)(i) and (ii)(D) of the Act. They further contend that Operating En- gineers did not effectively disclaim an interest in the disputed work in its 21 July 1986 letter, but simply disavowed any further unlawful conduct and asserted that it would not handbill at neutral entrances to the site. GPU and Jersey Central maintain that the work in dispute should be award- ed to Jersey Central's employees who are repre- sented by Electrical Workers based on provisions of the applicable collective-bargaining agreements; employer preference and past practice; industry and area practice; relative skills and safety; and economy and efficiency of operations. The Em- ployers also request that the Board enter a broad order awarding the general category of mobile crane work to Jersey Central employees in order to cover similar disputes that may arise in the future at Oyster Creek. Electrical Workers contends, in agreement with GPU and Jersey Central, that the disputed work should be awarded to Jersey Central employees it represents based on the above factors. Operating Engineers did not appear at the hear- ing or submit a statement of position regarding the assignment of the disputed work.2 D. Applicability of the Statute Before the Board may proceed with a determina- tion of the 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 on a method for the voluntary adjustment of the dis- pute. The record clearly shows that on 20 and 21 May 1986 Operating Engineers picketed the Oyster Creek facility carrying signs that accused GPU of being "unfair" to Operating Engineers, and that a representative for the Union stated at that time that the dispute concerned the operation of a mobile crane. Further, at a meeting held on 27 May ' 1986, Operating Engineers asserted to Jersey Central that the mobile crane work should be assigned to the employees it represents rather than to Jersey Cen- tral employees' who are represented by Electrical Workers. After Jersey Central indicated that it would continue to assign the crane work to its own employees, Operating Engineers reappeared at Oyster Creek and distributed handbills, which but made no con- 2 Counsel for Catalytic was present at the heanng OPERATING ENGINEERS LOCAL 825 (GPU NUCLEAR) 269 stated that GPU and Jersey Central wrongfully as- signed a nonbuilding trades employee to operate a rental crane. None of the 400-600 Catalytic em- ployees reported for work at Oyster Creek on the days that the Operating Engineers engaged in the picketing and handbilling activities. On the basis of the foregoing, we find that an object of the Operating Engineers' picketing was to force Jersey Central to reassign the disputed work to its members. Accordingly, we find that reasona- ble cause exists to believe that Operating Engineers violated Section 8(b)(4)(D) of the Act. Further, the record contains no evidence show- ing that an agreed-upon method for the voluntary adjustment of this dispute exists to which all'parties are bound.3 Regarding the purported disclaimer by Operat- ing Engineers, it is well established that when a party to a jurisdictional dispute effectively re- nounces its claim to the work in question, the Board considers the dispute to be at' an end and quashes the notice of hearing. Operating Engineers Local 369 (Austin Co.), 255 NLRB 476, 478 fn. 1 (1981). Operating Engineers did not, however, dis- claim an interest in the disputed mobile crane work in its 21 July 1986 letter. Rather, Operating Engi- neers merely stated that it would not engage in un- lawful conduct in regard to the assignment of oper- ating the mobile crane and that, while reserving the right to handbill, it would not do so at en- trances to the jobsite reserved for neutrals. Operating Engineers also maintained in its 21 July 1986 letter that the, jurisdictional dispute is moot because the crane work has been completed. The Board frequently has held that the completion of the work involved does not render a jurisdic- tional dispute moot when there is evidence of simi- lar disputes between the parties in the past or noth- ing to indicate that such disputes will not occur in the future. E.g., Plumbers Local 201 (Shaker, Travis), 271 NLRB 650, 652 (1985). Here the record indicates that Catalytic has performed main- tenance work at Jersey Central since 1983,.and that maintenance work and mobile crane support oper- ations are especially heavy during scheduled out- ages, which are required by the NRC. Therefore, we conclude that there is nothing to indicate that such disputes will not occur in the future. In light of the above and Operating Engineers' ineffective a By letter dated 9 July 1986 Operating Engineers moved to quash the notice of hearing, contending that a pending arbitration proceeding in- volving Catalytic and Operating Engineers was an alternative method of dispute resolution. The Regional Director denied the motion to quash, finding that the arbitration proceeding did not satisfy the statutory re- quirements for deferral of the 10(k) proceeding because it would not be binding on GPU and Electrical Workers disclaimer, we find that the instant case is not moot. We find reasonable cause to believe that a viola- tion of Section 8(b)(4)(D) has occurred and that there exists no agreed method for voluntary adjust- ment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dis- pute is properly before the Board for determina- tion. E. Merits of the Dispute Section 10(k) requires the' Board to make an'af- firmative award of disputed work after considering various factors. NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U.S. 573 (1961). The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by bal- ancing the factors involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the determination of this dispute. 1. Certifications and collective-bargaining agreements Neither Union has been certified by the Board as the collective-bargaining representative of any of the employees involved here . Accordingly, this factor is not helpful in determining the dispute. The collective-bargaining agreement between Jersey Central and Electrical Workers provides that the Union is the exclusive representative of a unit of Jersey Central workers that includes all reg- ular operating, production, and maintenance em- ployees. The operation of cranes is included under "Duties" in the job descriptions of the following classifications : Mechanical Maintenance "B"-Nu- clear; Mechanical Maintenance "A"-Nuclear; Heavy Equipment Operator (Special); and Heavy Equipment Operator. There is no collective-bar- gaining agreement between Jersey Central and Op- erating Engineers. The General Presidents' Project Maintenance Agreement, which covers Catalytic employees and to which Operating Engineers is signatory, states the following under "Article V: Scope of Work": The Unions and the Contractor understand that the owner may choose ' to perform or di- rectly subcontract or purchase any part or parts of the work necessary on his project with due consideration given to achieving the highest maintenance standards and harmonious working conditions herein. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The above agreement is modified by Building Trades Labor Agreement "A," which reflects con- tractual changes that have been negotiated between Catalytic and the building trades. These modifica- tions are reflected in an addendum letter provided by Catalytic to Operating Engineers which states, in pertinent part, that the owner's specialty shops, including crane services, will support building trades crafts by providing the required support services. Based on the above, we find that the factor of collective-bargaining agreements favors an award of the work in dispute to Jersey Central's employ- ees who are represented by Electrical Workers. 2. Company preference and past practice Through the testimony of Robert J. Streisel, Jersey Central's manager of labor relations at Oyster Creek, Jersey Central expressed its prefer- ence for assigning the disputed work to its own employees. There was consistent testimony that Jersey Cen- tral's past practice at Oyster Creek has been to assign to its employees, including those from Oyster Creek as well as from its other facilities, the operation of owned and rented mobile cranes in support of both contractor work and its own in- plant maintenance work.4 More specifically, the testimony established that since 1983, when Cata- lytic first performed work at Oyster Creek, crane work in support of Catalytic's maintenance func- tion has been provided by Jersey Central employ- ees. Accordingly, we find that this factor favors an award to Jersey Central's employees who are rep- resented by Electrical Workers. 3. Area and industry practice Streisel testified that Jersey Central's practice re- garding the operation of mobile cranes conforms to industry practice in New Jersey. He stated that the two other major electric utilities in the State, At- lantic City Electric and Public Service Gas and Electric, assign their own personnel to operate mobile cranes in support of contract work. Ac- cordingly, we find that this factor favors an award to Jersey Central's employees who are represented by Electrical Workers. 4. Relative skills and safety William Muehleisen, Jersey Central's supervisor of shops, tools, and equipment at Oyster Creek, tes- tified that Jersey Central employees have an advan- tage over outsiders regarding the operation of mobile cranes because they have worked with the company-owned cranes and know their peculiar operating characteristics, and because they are fa- miliar with the roadways within the facility and the safety considerations involved when moving mobile cranes about the property. Kenneth Leighton, a Jersey Central group super- visor in charge of heavy equipment,5 testified re- garding the nature of the training that Jersey Cen- tral employees receive in order to operate mobile cranes. Leighton explained that the initial ' training to become a heavy machine operator is extensive and closely supervised and can last anywhere from 2 months to 2 years, depending on the abilities of the individual involved. Heavy equipment opera- tors with crane experience are eligible to become "specials," a classification which allows them to operate cranes with booms in excess of 99 feet. In order to become a special, a worker must have 90 days' experience operating a long boom under su- pervision and must then pass a state examination in order to be licensed. Leighton stated that his office conducts monthly safety and training meetings for Farmingdale crane operators to review operating procedures and keep employees abreast of changes in equipment. He stated that the meetings consist of hour-long, discussions and approximately 3 hours of hands-on experience. Leighton further testified that there are 30-40 people at Oyster Creek who operate cranes, with an average time in grade ranging from 3.8 years for "B" mechanics to 9.6 years in the "A" grade, which is the higher classification. Leighton's testimony indicates that the mobile crane work requires considerable training and that operation of the cranes at Oyster Creek involves significant safety considerations. It is undisputed that Jersey Central's employees possess the requi- site skills to perform the disputed work and that they have performed this work in a satisfactory manner in the past. As noted above, Operating En- gineers presented no evidence on the merits; there- fore, it has not shown that employees it represents possess the requisite skills to perform the disputed work. Accordingly, we find that this factor favors an award to Jersey Central's employees represent- ed by Electrical Workers. 5. Economy and efficiency of operations Streisel testified that NRC regulations require that an individual complete a training program to become familiar with a nuclear facility's layout and 4 Streisel testified that in its arrangement with Catalytic to perform certain maintenance work Jersey Central reserved the right to assign cer- tam work to its own employees. 5 Leighton's office is at Jersey Central's Farmingdale facility. The heavy equipment operators under his immediate supervision occasionally run the smaller cranes and the rental cranes at Oyster Creek. OPERATING ENGINEERS LOCAL 825 (GPU NUCLEAR) 271 safety concerns. before being -authorized to.'gain unescorted access to the premises., Oyster Creek's training program last for 3 days. Streisel stated that contract workers with short-term assignments, such as the Catalytic workers who seek to operate mobile cranes, are assigned a personal escort rather than enrolled in the 3-day training program. Thus, Streisel concluded that the assignment of mobile crane work to employees represented by Operating Engineers would be inefficient because a Jersey Central escort would be needed for each Catalytic employee. Muehleisen testified that inefficiency would also result because Catalytic employees rep- resented by Operating Engineers, unlike Jersey Central employees represented by Electrical Work- ers, do not perform the oiling, cleaning; and me- chanical maintenance on the cranes they operate. Muehleisen also stated that employees represented by Operating Engineers are less efficient because they must be paid for a minimum of 4 hours of work per day regardless of the work actually per- formed, and because they cannot be assigned to op- erate more than two pieces of equipment daily. On the other hand, as an example of the greater effi- ciency of employees represented by Electrical Workers, Muehleisen described a situation when a single, Jersey Central employee alternatively oper- ated two cranes to complete a project at Oyster Creek. Since Operating Engineers presented no evi- dence showing that it would be as efficient or eco- nomical to utilize employees represented by it to perform the disputed work, we find that this factor favors an award to Jersey Central's employees rep- resented by Electrical Workers. Conclusions' After considering all the relevant factors, we conclude that employees represented by Electrical Workers are entitled to perform the work in dis- pute. We reach this conclusion relying on the fac- tors of collective-bargaining agreements; company preference and, past practice; area and industry practice; relative skills and safety; and economy and efficiency of operations. In making this deter- mination, we are awarding the work to employees represented by Electrical Workers, not to that Union or its members. siruction phase -of "the Oyster Creek project "6 and that Operating Engineers has continued to be the "aggressor" in other jurisdictional disputes.? GPU and Jersey Central therefore contend that Operat- ing Engineers' history of misconduct, together with the ineffective disclaimer in this case, portend fur- ther unlawful activity. The Board will award a broad order where the dispute is likely to recur and where there is evi- dence that the charged union will engage in, further unlawful conduct in order to obtain work similar to that in dispute. See Electrical Workers IBEW Local 104 (Standard Sign), 248 NLRB 1144, 1147- 1148 (1980); Operating Engineers Local 926 (Oliver B. Cannon), 258 NLRB 1101, 1104 (1981). Here there is insufficient evidence indicating a proclivity on the part of Operating Engineers to engage in further unlawful conduct at Oyster Creek. The in- cidents surrounding the construction of the Oyster Creek facility are remote in time, and the other cases cited involved other parties. Moreover, the request for a broad order is inconsistent with Oper- ating Engineers' 21 July 1986 letter which, al- though ineffective as a disclaimer, expressly states that Operating Engineers will not engage in future unlawful conduct with regard to, the mobile crane work. Accordingly, we conclude that the issuance of a broad order is inappropriate in this proceed- ing. The determination is limited to the controver- sy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Employees of Jersey Central Power and Light Company represented by System Council U-3, International Brotherhood of Electrical Workers are entitled to operate the mobile crane used to support maintenance and modification work being performed by Catalytic, Inc. at the Oyster Creek Nuclear Generating Station on Route 9 in Forked River, New Jersey. 2. International Union of Operating Engineers, Local 825 is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Jersey Cen- tral Power and Light Company to assign the dis- puted work to employees represented by it. 3. Within 10 days from this date, International Union of Operating Engineers, Local 825 shall Scope of the Award GPU and Jersey Central request that the Board issue a broad work award covering similar disputes that may occur in the future at Oyster Creek. In this regard, they note that a broad order was en- tered against Operating Engineers during the con- 6 Operating Engineers Local 825 (Burns & Roe), 162 NLRB 1617, 1622 (1967), enfd. in relevant part 410 F.2d 5 (3d Cit. 1969), in which the Board found violations of Sec. 8(b)(4)(D) and ordered Local 825 to cease and desist from engaging in such conduct until all building and construc- tion at the Oyster Creek project was completed. 7 Operating Engineers Local 825 (Harms Construction), 273 NLRB 833 (1984); Operating Engineers Local 825A (Humble Oil), 195 NLRB 322 (1972). 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notify the Regional Director for Region 4 in writ- scribed by Section 8(b)(4)(D), to assign the disput- ing whether it will refrain from forcing Jersey ed work in a manner inconsistent with this determi- Central Power and Light Company, by means pro- nation.