Boilermakers, Local 204

National Labor Relations Board - Board Decisions

Sep 23, 1966

160 N.L.R.B. 1241 (N.L.R.B. 1966)

BOILERMAKERS, LOCAL 204 1241
AFL-CIO, Local No. 3, and who operate tractors which require main-
tenance or repair at the San Francisco Water Department Aqueduct
project jobsite, are entitled to assist employees of American Pipe and
Construction Company, who are represented by International Asso-
ciation of Machinists and Aerospace Workers, AFL-CIO, Local
Lodge No. 1546, in performing jobsite repairs and maintenance.
3. International Union of Operating Engineers, AFL-CIO, Local
No. 3, is not entitled, by means proscribed by Section 8(b) (4) (D),
to force or require American Pipe and Construction Company to
assign the work of performing jobsite repairs and maintenance on
tractors at the San Francisco Water Department Aqueduct project
to its members, except to the extent permitted above.
4. Within 10 days from the date of this Decision and Determi-
nation of Dispute, International Union of Operating Engineers,
AFL-CIO, Local No. 3, shall notify the Regional Director for Region
20, in writing, whether or not it will refrain from forcing or requir-
ing American Pipe and Construction Company, by means proscribed
by Section 8 (b) (4) (D) of the Act, to assign the work in dispute, and
not assigned to it in this Determination of Dispute, to its members
rather than to employees represented by International Association of
Machinists and Aerospace Workers, AFL-CIO, Local Lodge No.
1546.
International Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths , Forgers and Helpers, Local 204, AFL-CIO (Ha-
waiian Dredging & Construction Co., Ltd.) and International
Association of Machinists and Aerospace Workers, Lodge 1245,
AFL-CIO
International Association of Machinists and Aerospace Workers,
Lodge 1245, AFL-CIO ( Hawaiian Dredging & Construction Co.,
Ltd.) and International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths , Forgers and Helpers, Local 204,
AFL-CIO. Case 37-CD-9 and 10. September 23, 1966
DECISIONS AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following two charges alleging violations
of Section 8(b) (4) (D) of the Act. The first of these charges (Case
37-CD-9) was filed by the International Association of Machinists
and Aerospace Workers, Lodge 1245, AFL-CIO, hereinafter referred
to as LAM or Lodge 1245, and alleged that International Brother-
hood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and
160 NLRB No. 98.
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Helpers, Local 204, AFL-CIO, hereinafter referred to as Boiler-
makers, had violated Section 8(b) (4) (D).. The second charge (Case
37-CD-10) was filed by Boilermakers and alleged that IAM had vio-
lated the same section of the Act. Hawaiian Dredging & Construction
Co.,' Ltd., hereinafter referred to as the Company, is the employer
whose work assignments are involved in both charges.'
A hearing 2 'was held before Hearing Officer William F. Roache,
on March 15, 16, and 17, 1966, at which all parties were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to adduce evidence bearing on the issues. The rulings of the Hearing
Officer made at the hearing are free from prejudicial error and are
hereby affirmed. Thereafter briefs were filed by IAM, Boilermakers,
and the Company, all of which the National Labor Relations Board
has duly considered.3
Upon the entire record in these cases, the Board makes the follow-
ing findings :
1. THE BUSINESS OF THE COMPANY
The Company is a Hawaii corporation, engaged as a general con-
tractor in the building and construction industry throughout the
State of Hawaii. During the calendar year 1965, in the course and
conduct of its overall business operations, the Company purchased
materials and supplies valued in excess of $50,000 which were sold
and shipped to the Company in the State of Hawaii directly from
suppliers at points and places outside the State of Hawaii.
We find, accordingly, that-the Employer is engaged in commerce
within the meaning of the Act and that it will effectuate the policies
of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED -
The parties stipulated and we find that the International Associa-
tion of Machinists and Aerospace Workers, Lodge 1245, AFL-CIO,
and the International Brotherhood of Boilermakers, Iron Ship Build-
ers, Blacksmiths, Forgers and Helpers, Local 204, AFL-CIO, are
labor organizations within the meaning of Section 2(5) of the Act.
III. THE WORK IN DISPUTE
The notice of hearing specifies the work in issue as all millwright
and rigging work performed by the Company in the State of Hawaii.
'The name of the Company appears in the caption and the body of this Decision as
that name was amended at the hearing.
,
The notice of hearing was issued by the Regional Director for Region 20 of the Board.
$ Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with these cases to a three-member panel [Chairman McCulloch and
Members Jenkins and Zagoria].
BOILERMAKERS, LOCAL 204 1243
The scope of the work assignment dispute was, however, narrowed
at later stages of this proceeding. Thus, Carl Guntert,4 business rep-
resentative of the IAM, stated at the hearing that IAM claimed only
that rigging work which is performed in connection with millwright
work and, further, that JAM did not claim millwright work with
respect to vessels, tanks, and boilers, which he conceded belonged to
employees represented by Boilermakers. For its part Boilermakers
conceded in its brief that work on a certain type of conveyor to be
installed at the site of the dispute should be performed by employees
represented by IAM wherever jurisdiction thereover has been ceded
to JAM by the United Brotherhood of Carpenters and Joiners of
America.
Exhaustive definitions of rigging and millwright work were read
into the hearing record.' These work assignments may, however, be
more simply described. Thus, the millwright work in issue here is,
generally speaking, the function of assembling and setting machinery
or other plant' equipment in place. The rigging work in dispute here
is, in the main, the job of assembling slings and hoists, attaching
them to equipment to be moved, moving such equipment to the point
where it is to be emplaced and, finally, the removal and disassembly
of the hoisting gear.
IV. THE DISPUTE
A. Background
At the time the present dispute arose , the Company was a party to
a collective-bargaining agreement with IAM and another agreement
with Boilermakers both of which agreements , in general terms, deal
with the disputed work. The Company was also a party to an Asso-
ciated General Contractors (AGC) Agreement with the Honolulu
4 Based on the parties ' stipulation at the hearing , we find that Guntert is an agent of
the IAM within the meaning of Section '2 (13) of the Act.
5 This included the following description of "millwright " from the Dictionary of Oc-
cupational Titles-" Installation man ; machine erector ; maintenance mechanic ; plant
changer. Installs machinery and equipment according to layout plans , blueprints and other
drawings in an industrial establishment , using hoists , lift trucks , handtools and power
tools : Reads blueprints and schematic drawings to determine work procedures . Dismantles
machines , using hammers , wrenches , crowbars and other handtools . Moves machinery and
equipment using hoists , dollies, rollers , and trucks Assembles and installs equipment such
as shafting , conveyors and train rails using handtools and power tools. Constructs founda-
tion for machines using handtools and building materials , such as wood , cement and
steel. Alines [ sic] machines and equipment using hoists , jacks , handtools , squares, rules,
micrometers and plumb bobs , assembles machines and bolts , welds, rivets or otherwise
fastens them to foundation or other structures , using hand and power tools. May operate
engine lathe to grind , file and turn machine parts to dimensional specifications. May
repair and lubricate machines and equipment."
The parties stipulated to the following description of rigger ( construction )-"Worker
engaged in erecting and operating machines to hoist and convey equipment , such as struc-
tural beams , metal tanks and wall and floor slabs at construction site ; moves and erects
derrick hoists and cranes , using knowledge of various methods of sliding and lifting
equipment , splices ropes and metal cables to form hoisting slings,"
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Building and Construction Trades Council and other unions, includ-
ing United Brotherhood of Carpenters and Joiners of America, Local
745, AFL-CIO (hereinafter called Carpenters), which has a color-
able claim to the work here in issue.6 Although Carpenters, which
was served with the notice of hearing, has declined 7 to offer a claim
to the disputed work, its interests must be considered in view of an
oral agreement between it and Boilermakers, pursuant to which, Boil-
ermakers argues, Boilermakers is entitled to perform millwright and
rigging work falling within Carpenters' jurisdiction in Hawaii
whenever Carpenters has insufficient numbers to perform such work.
The Company is one of a number of subsidiaries of the Dillingham
Corporation. Through itself and its subsidiaries, Dillingham is
engaged in various enterprises in the State of Hawaii including land
development, ship repair, and construction. The Company is a general
contractor in: the building and construction industry. Its operations
and the operations of other subsidiaries of Dillingham, such as
Hawaiian Land Company and Kapalama Shipyard, Inc., sometimes
overlap. Dillingham's director of industrial relations, Riley, handles
the labor relations of its subsidiaries as well as those of the Company,
and he was concerned with the present dispute.
In 1952 the Company was principally engaged in the operation of
the Kapalama plant or shipyard in Honolulu. On April 4, 1952, the
International Association of Machinists was certified by the Board
as collective-bargaining representative of all the Company's employ-
ees employed at that shipyard excluding floating equipment opera-
tors, crews represented-by the Operating Engineers, office and clerical
employees and the usual statutory exclusions. Shortly thereafter, in
August 1952, Lodge 1245 of the IAM entered into a collective-
bargaining agreement with the Company 5 covering all the Com-
pany's employees employed in and working out of the Kapalama
plant. Since 1952, Lodge 1245 has represented these employees, some-
times in a single, unit and at other times in two separate units, one
consisting primarily of the Kapalama shipyard employees and the
other composed largely of construction employees.9 All of the IAM
6 See , e g, Ilfillwvrights , Local Union No. 1102 , United Brotherhood of Carpenters and
Joiners of America, AFL-CIO (Don Cartage Company), 154 NLRB 513 and 157 NLRB 10.
7 The attorney representing Boilermakers in this proceeding stated that he also repre-
sents Carpenteis. He averred on the record that Carpenters has elected in this case not
to assert a claim to the disputed work although it considers such work as falling within
its jurisdiction.
8 Under the name Hawaiian Dredging Company, Limited
I The unit was divided in this fashion for the first time in 1956 This continued until
1963 when the employees were again combined in a single unit. Both the 'Company and
Kapalama Shipyard , Inc., were parties to the 1963 agreement covering this single unit
In 1965 the IAM entered into a new agreement covering the employees of Kapalama Ship-
yard, Inc., leaving the Company 's construction and garage employees to be represented in
a separate unit under another JAM contract.
BOILERMAKERS, LOCAL 204 12455
construction contracts since 1960 have included the classifications of
"Machinist, Erection (Millwright)," "Rigger," and "Rigger, Work-
ing Foreman." -
On April 8, 1960, in Case 37-RC-582 the Board certified, as joint
collective-bargaining representatives of the employees of the Com-
pany and Hawaiian Land Company, the following labor organiza-
tions : Honolulu Building and Construction Trades Council, AFL-
CIO, and/or United Brotherhood of Carpenters and Joiners of
America, Local 745; Operators, Plasterers, and Cement Masons Inter-
national Union, Local 630; and Construction & General Laborers
Union, Local 368, AFL-CIO. The unit certified consisted of carpen-
ters; cement finishers; masons and their apprentices, and/or helpers;
laborers and/or tool operators. Excluded from this unit, inter alia,
were employees covered by the collective-bargaining agreement
between the Company and the I'AM and regular Kapalama Plant
employees temporarily assigned to construction jobs . Following this
certification the Company, in July 1960, entered into an AGC agree-
ment with the foregoing labor organizations. This agreement speci-
fically excluded from its coverage any employees of a signatory
employer who were already represented under a collective- bargaining
agreement with that employer regardless if their work classifications
might fall within claimed jurisdiction of the unions signatory to the
AGC agreement. Thus, construction employees of the Company rep-
resented'by the IAM were excluded from this unit both by the terms
of the certification and the subsequent AGC agreement.
In June 1963, following the filing of certain decertification 10 and
representation 11 petitions, the interested parties entered into a memo-
randum of understanding pursuant to which these petitions were
withdrawn. As part of this understanding the IAM relinquished rep-
resentation rights to Local Union No. 3 of the Operating Engineers
for all equipment operators, truckdrivers, crane helpers, and pile-
driver men which were included under the IAM's contract with the
Company covering the period August 16, 1960, through August 15,
1963.12 On their part, the Council and the Operating Engineers with-
drew any claim to representation of other classifications included
under the IAM contract. Since "Machinist, Erection (Millwright) ;"
"Rigger;" and "Rigger, Working Foreman" were among such other
Case 37-RD-35. Decertification petition filed by one Texeira , an individual
11 Case 37-RC-924 . Petition for representation filed by Honolulu Building and Construc-
tion Trades Council , AFL-CIO.
12 Inasmuch as the period from 1960 to 1963 was one of the periods , mentioned above,
during which the IAM unit was divided into a shipyard group and a construction group,
these were actually two collective -bargaining agreements which reflected the effective date
August 16 , 1960. The multiparty understanding of June 1963 , must, however , have refereed
to the conatructiou contract inasmuch as that was the only contract of the two which
coveied the claesifi-tio n "Pile Driver Man."
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
classifications it is manifest that by the terms of this understanding,
the Council, on behalf of itself and its member unions , which appar-
ently include Carpenters,13 thereby withdrew any claims to represent
these classifications.
On October 14,196 ' 3, the Company again signed an AGC agreement
with the Council. and three other unions including Carpenters. The
1963 contract did not contain a provision , as did the 1960 AGC agree-
ment, excluding the employees of a member employer already repre-
sented by a- labor organization which did not sign the AGC
.agreement . Insofar as the Company's remaining IAM-represented con-
struction employees were concerned,' however, it would appear that
the necessity for. such an -exclusionary provision were obviated by
virtue of the Council's aforementioned disclaimer in June of 1963 of
any rights to represent these construction employees.14
It is therefore, clear from the foregoing that, at least from the mid-
dle of 1963, to'the present time, IAM has represented the classifications
"Machinist; Erections (Millwright)," "Rigger," and-"Rigger, Work-
ing Foreman," without rival claim from the Carpenters. Not only is
this conclusion supported,by the disclaimer of the Council, which was
representing Carpenters' interest when the June 19,63 understanding
was' reached, but it is also consistent with the disclaimer of the attor-
ney for the Carpenters at the hearing. And, as will appear; this con-
clusion- is, likewise consistent, with the failure of a responsible agent
of Carpenters to, lay claim, to the work when the dispute herein arose.
Since Carpenters maintained no jurisdiction over the Company's
millwright, and rigging work,,under the 1963 AGC agreement, the
aforementioned oral agreement of Carpenters to cede its, jurisdictional
rights, to such -work under certain circumstances to Boilermakers has
no effect upon 'the present proceedings. That is, insofar. as the Com-
pany's:millwright and rigging work is concerned, Carpenters had no
work assignment' rights to pass to Boilermakers.
On January 14, 1965, while the classifications of "Machinist, Erec-
tion (,Millwright)," "Rigger,',' and "Rigger, Working Foreman" con-
tinued to, be .represented by the IAM pursuant to an agreement effec-
tive in 1963, the Company entered into a collective-bargaining
agreement with Boilermakers. The employees represented under this
is Boilermakers , in effect, contended that, since Carpenters did not directly participate
in reaching this understanding , Carpenters is not bound by the Council's disclaimer. We
reject this contention . The Council was obviously , representing the, Carpenters when It
became a party to this understanding , because, in another part of the same understanding,
provision was made for the further transfer of bargaining rights for piledriver men-
which Operating Engineers obtained from IAM pursuant to the understanding-from
Operating Engineers to Carpenters.
14 Further , although the 1963 agreement included "millwright" under its Carpenters-
represented classifications , It did not refer precisely to the work in dispute , nor did it
reflect the 'Carpenters ' classification of "rigger."
BOILERMAKERS , LOCAL 204 1247
agreement were those engaged in "field construction work (including
construction, erection, rigging, field fabrication, assembling, disman-
tling, and repairing performed in the field) coming under the juris-
diction" of Boilermakers of Hawaii. Boilermakers has never been
certified by the Board as bargaining agent for this unit.
At the time the present dispute arose on November 17, 1965, both
the IAM's 1963 agreement and the Boilermakers 1965 agreement con-
tinued in effect.
B. The assertion of rival claims
During the autumn of 1965 the Company was engaged in the con-
struction of a Schlitz brewery at Waimalo on the Island of Oahu.
By late October, work had progressed to the point where certain
equipment was ready to be installed at the project. The Company,
accordingly, transferred Trende, a "Rigger, Working Foreman," to
the site at that time, and on or about November 11, it hired Cheat-
wood, a millwright, to work with Trende. Both Trende and Cheat-
wood were members of IAM.
On or about November 17, 1965, while Cheatwood and Trende were
in the process of installing a so-called CO? tank at the brewery site,
they were visited by Yeatts, international representative of Boiler-
makers,',' who inquired as to their union affiliation. On learning that
they were members of IAM, Yeatts immediately went to the Com-
pany's project superintendent, Kowano, and claimed that the work
being performed by Trende and Cheatwood was Boilermakers' work.
Kowano then contacted Robertson, the Company's industrial relations
assistant, and a meeting was scheduled later that day to settle the
matter. The meeting was attended, inter alia, by Robertson, Yeatts,
Reynolds (an official of the Council), and Guntert, the business rep-
resentative of IAM.16 During the course of this meeting, Yeatts testi-
fied, he informed the Company's representative, Robertson, that, if
something couldn't be done about reassigning the work of Cheatwood
and Trende to members of the Boilermakers, he, Yeatts, "might have
to put up a picket line." After Yeatts made this threat, Guntert, the
JAM representative, countered with the threat that if Trende and
Cheatwood were removed, "the Machinists will put on pickets." Rob-
ertson did not attempt to settle the matter at that time, preferring to
wait until Riley, the Company's (and Dillingham's) manager of
15 The parties stipulated , and we find, that Yeatts was an agent of Boilermakers within
the meaning of Section 2(13) of the Act at all pertinent times herein.
16 Yanagi , business representative of the Carpenters was also present at one stage of
this meeting , but declined to assert 'a claim to the work in dispute . The record indicates
that he appeared briefly at the aforementioned meeting on November 17, authorized Yeatts
to assert any rights to millwright work and then left the meeting . The parties stipulated
that Yanagi was, at all times material hereto, an agent of Carpenters within the meaning
of Section 2(13) of the Act.
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
industrial relations, was available. Meanwhile, Cheatwood and Trende
were placed on a standby basis.
On or about November 23, 1965, Riley came to the brewery jobsite
and met with Guntert and Yeatts. After hearing the positions of
JAM and Boilermakers, Riley decided to accede to Boilermakers'
demand, voicing the opinion that a strike by the Boilermakers might
shut down the whole construction project, whereas a strike by IAM
would have a lesser effect. On the following day, Yeatts, at Riley's
request, referred a rigger and a millwright-both members of Boiler-
makers-to take over the work of Trende and Cheatwood. The latter
employees were then laid off or reassigned.
Thereafter, Section 8(b) (4) (D) charges were filed by IAM against
the Boilermakers, and charges alleging the same violation were filed
by the Boilermakers against IAM.
V. APPLICABILITY OF THE STATUTE
In every 10(k) proceeding it is necessary to determine whether
there is reasonable cause to believe that a violation of Section
8(b) (4) (D) has occurred.
Case 37-CD-9: Inasmuch as Yeatts, the agent of the Boilermakers,
admitted at the hearing that he threatened that Boilermakers would
picket the Company unless the disputed work was assigned to, mem-
bers of Boilermakers, we find that there is reasonable cause to believe
that Section 8(b) (4) (D) has been violated by the Boilermakers and
that this work assignment dispute is properly before us for deter-
mination pursuant to Section 10(k) of the Act.
Case 37-CD-10: Since, Guntert, the agent of the IAM admitted
at the hearing that he likewise threatened to picket the Company if
the disputed work was taken away from IAM members and reas-
signed to members of the Boilermakers, we find that there is reason-
able cause to believe that Section 8(b) (4) (D) has been violated by
the IAM and that for this reason also the work assignment dispute
herein is properly before us for determination pursuant to Section
10(k) of the Act.17
VI. CONTENTIONS OF THE PARTIES
The Company contends that the work remaining in dispute should
be awarded to employees represented by the IAM. It urges that such
an award is supported by its past practice and previous assignments
over its long history of bargaining with IAM. It contends that its
contract with Boilermakers was intended only to cover millwright
17 No pasty urges that there is an agreed -upon method for voluntary adjustment of the
dispute. Inasmuch as IA \I is not a member of the Building Trades Department of
AFL-CIO, the procedures of the National Joint Board for Settlement of Jurisdictional
Disputes are not applicable here.
BOILERMAKERS , LOCAL 204 1249
and rigging work on boilers, tanks, and vessels-work which IAM
has conceded to Boilermakers in this case. At the hearing it took the
position that the Board's determination in this proceeding should
cover all of the Employer's operations throughout the State of
Hawaii.
IAM urges that the work in dispute should be awarded to employ-
ees whom it represents. In support of its position it relies upon its
contract, the Company's past practice, the efficiency and economy of
the Company's operations, and IAM's claimed jurisdiction under its
international constitution.
Boilermakers urges that the Board should award the work in dis-
pute to employees whom it represents, and bases its claim upon its
collective-bargaining agreement with the Company, its agreements
with other labor organizations including its aforementioned oral
agreement with Carpenters in Hawaii, its traditional jurisdictional
claims , and the local area practice of other construction employers in
that same State. Boilermakers also requests that the Board limit its
award to the work in dispute at the Schlitz brewery project.
VII. MERITS OF THE DISPUTE
A. Certification
As previously noted, IAM is certified whereas Boilermakers is not.
IAM does not urge, however, that the Company, in reassigning the
work in dispute to Boilermakers, is failing to conform to the Board's
certification in Case 37-RC-121, which was issued to the International
Association of Machinists in 1954. Nor would such a conclusion be
warranted on the basis of an examination of the certification and
of the subsequent bargaining history between the Company and IAM.
For the certification, by its terms, does not deal specifically with
millwright or rigging work, and the contracts entered into over the
years between the Company and IAM have varied the certified unit
to the point where the Kapalama shipyard employees-the nucleus
of the certified unit-are now represented by IAM under a contract
with a separate corporation, Kapalama Shipyard, Inc.
B. Collective-bargaining agreement
Both IAM and Boilermakers have a collective -bargaining agree-
ment which deals in general terms with the disputed work. Neither
contract, however, covers the precise work in issue.
The IAM contract, which was current as of November 17, 1965,
describes its unit, in pertinent part, as including "all employees of
the Company, including working foremen, wherever employed in the
257-551-67-vol . 160-80
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
state of Hawaii, who install, maintain, repair and/or service equip-
ment at the construction jobsite, garage and/or shop employees."
Also, as previously pointed out, this contract lists the classifications
"Machinist Erection (Millwright)," "Rigger," and "Rigging, Work-
ing Foreman." However, even if we were to disregard the lack of
precision expressed by the general phraseology of this unit description
and these job classifications, we would be unable to conclude that the
Company and IAM intended them to cover "any" or "all" of the
Company's millwright and rigging work. For both these parties
themselves have conceded that the contract does not deal with mill-
wright or rigging work associated with the installation of any equip-
ment or machinery falling within the categories of "vessels, tanks,
or boilers."
As to Boilermakers' contract with the Company, it states that it
applies ". . . exclusively in the state of Hawaii and within such area
this agreement shall apply to all of the contractors field construction
work (including construction, erection, rigging, field fabrication,
assembling, dismantling, and repairing performed in the field) com-
ing under the jurisdiction of" Boilermakers. While this coverage uses
the general phrase "rigging," it does not mention "millwright" work
as such. Further, the "jurisdiction" of Boilermakers is not defined
or explained in the contract itself. Nor does the contract refer to the
classifications "millwright" or "rigger."
In view of the above, we are unable to find that either contract
expressly covers the disputed work.
C. Requisite skills and experience
It is clear that Cheatwood and Trende, the IAM-represented mill-
wright and rigger involved in the present proceeding, were each
qualified to perform his part of the disputed work,:"' and that they
were both performing in a manner satisfactory to the Company at
the time they were released. On the other side of the coin, it is not
disputed that the rigger and millwright referred by the Boilermakers
to replace Cheatwood and Trende subsequently carried out their work
assignments in a satisfactory manner.
Accordingly, we conclude that millwrights and riggers represented
by both of the competing labor organizations are qualified to perform
the work in issue.
D. Employer preference and practice; efficiency and economy
Riley, the Company's industrial relations manager, and Guntert,
the representative of IAM, both testified that the Company, has on a
18 Yeatts, the representative of Boilermakers, in fact, conceded that cheatwood and
Trende would have continued to work unchallenged by Boilermakers , if they had con-
sented to take out membership in Boilermakers.
BOILERMAKERS, LOCAL 204 1251
number of past occasions, assigned work similar to that now in dispute
to millwrights and riggers represented by IAM. Yeatts, the represen-
tative of Boilermakers, testified, on the other hand, that the Company
has in the past subcontracted millwright and rigger work to specialty
contractors whose employees were represented by Boilermakers.
Robertson, the Company's industrial relations assistant, testified
that the Company considers that it is more efficient and economical
to use millwrights and riggers represented by IAM for the work in
dispute than to use employees represented by Boilermakers-despite
the fact that the Boilermakers contract rates are somewhat lower than
the contract rates of IAM-because the IAM-represented group,
established over a long history of bargaining, provides the Company
ready access to a skilled pool of employees with skills applicable
to the work assignments in issue as well as others. In the present case
it is not apparent that this personnel policy was followed, however,
for, although Trende was already a company employee when he was
assigned to the Schlitz project, Cheatwood was not. Also Trende's
previous assignment with the Company had been an administrative
one.
In any event, it is clear that the Company prefers to assign work
such as that which remains in dispute to its IAM-represented
employees.
E. Local industry practice
The Company and Kapalama Shipyard, Inc., are, according to
Guntert, the representative of IAM, the only employers in the State
of Hawaii with which IAM has collective-bargaining agreements
covering the classifications of millwright and rigger.
Boilermakers, on the other hand, has entered into collective-
bargaining agreements with some seven construction firms in this
State since 1960, in addition to this Company. The record indicates
that a number of these firms have assigned millwright and rigging
work on construction projects to employees represented by Boiler-
makers, during this same period. Also, as previously noted, the
Company itself has at times subcontracted some millwright and
rigging work to contractors whose employees are represented by
Boilermakers.
F. Traditional union jurisdiction; union constitutional claims of
jurisdiction; inter-union jurisdictional agreements
Insofar as they may be related to the work here involved, the juris-
dictional claims set out in the respective constitutions of the inter-
nationals of the two disputing unions conflict. The constitution of
IAM's international, however, seems more closely to describe the
work in issue. Thus, that constitution asserts that the international
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union has jurisdiction over employees engaged in the work of
"... millwrights or general erectors of machinery." That constitu-
tion also lays particular claim to millwright work in a brewery, i.e.,
"The manufacture and installation of all brewery machinery, includ-
ing all soakers, pasteurizers, bottle washers, crowning machines,
bottle-filling devices and conveyers." While this enumeration of spe-
cific brewery assignments does not include installations of nonbrewing
or nonbottling equipment, the constitution elsewhere lays claim to
the installation of machinery such as "engines, motors, pumps, diesel
and all other metal power devices" and the assembly of "electrical
components and related accessories" which may be taken as relating
in general terms to some of the nonbrewing and nonbottling installa-
tions which appear to have been made at the brewery site herein.
The constitution of Boilermakers International on the other hand,
fails to speak in terms of the classification "millwright" and it does
not refer specifically to brewery installations. It does, however, speak
in terms of the work of a millwright inasmuch as it refers to
". . . laying out, aligning . . . erecting, assembling, installation" of
several types of machinery and equipment related largely to heaters,
boilers, and power units. It also asserts a claim to the "rigging,
unloading and handling" of such equipment.
A number of interunion agreements at the international level,
which deal broadly with the assignment of millwright and rigging
work, were introduced at the hearing. One such agreement was
between IAM and the Carpenters and another was between IAM and
the International Association of Bridge, Structural and Ornamental
Iron Workers. For its part, Boilermakers had three such agreements,
i.e. with Carpenters, with Plumbers, and with Sheet Metal Workers.
There was also testimony, as previously noted, that Boilermakers and
Carpenters have an oral agreement in Hawaii whereby members of
Boilermakers may perform work falling within Carpenters' claimed
jurisdiction in certain situations where Carpenters has insufficient
members to carry out such assignments.
In its brief, Boilermakers lays heavy stress upon these agreements
at the international level as supporting its contention that its inter-
national has consistently protected its jurisdiction over rigging and
other work in breweries, whereas IAM's international does not appear
to be concerned with rigging and has limited its claims over brewery
construction. We reject this contention. The obvious purpose of each
of these agreements is to deal only with the competing jurisdictional
claims of the two international unions which are parties to them.
These agreements do not attempt to, nor could they, establish the
final jurisdiction of one union over a specific area of work as against
BOILERMAKERS, LOCAL 204 1253
the claims of all other unions.19 These agreements, therefore, would
only be helpful here if they disposed of the competing claims, one
against the other, of the very labor organizations involved in this
case. Significantly, the record reflects no agreement, either at the
international or the local level, between IAM and Boilermakers.
Accordingly, we are unable to attach any meaning to these agree-
ments except that they support the conclusion that in fact a number
of labor organizations may make jurisdictional claims in the general
area of the work assignments disputed here.
Boilermakers also contends that its oral agreement with Carpenters
in Hawaii should be considered dispositive of the work in dispute.
We reject this contention. For, consistent with our previous holding
herein, since it does not appear that Carpenters has any contract right
to the disputed work, its agreement with Boilermakers adds nothing
to the claim of the Boilermakers in this case. Moreover, even if
Carpenters continued to have some such contract right, we would
not give controlling effect to its oral agreement with Boilermakers
because neither the Company nor IAM was a party to that oral
understanding.
G. Conclusions as to the merits of the dispute
As the Board stated in the J. A. Jones case,20 it will, pursuant to
the Supreme Court's CBS 21 decision, determine in each case presented
for resolution under Section 10(k) of the Act, the appropriate assign-
ment of disputed work only after taking into account and balancing
all relevant factors.
Following this approach in the present case, we believe that
employees represented by IAM are entitled to perform the work in
issue. For here, as noted, there is no real question as to the usually
crucial factors of the relative skills and experience of the competing
employee groups, whereas the balance of all other relevant factors in
our opinion, favor the claims of IAM over those of Boilermakers.
More precisely, the claims of IAM, supported as they are by its
16 It is interesting to note that Boilermakers itself seems to understand these agree-
ments as establishing only conditional or equivocal jurisdictional rights. For in its brief,
dealing with its claims to the specific work assignments here, Boilermakers asserts some
of these claims In a conditional manner, viz, "Boilermakers claim jurisdiction over the
installation of all equipment shown on certain exhibits except as follows; the pump in
Board Exhibit 22-1 if the Pipefitters claim it, otherwise Boilermakers . . . the piping
in Board Exhibit 22-3 if the Pipefitters claim it, otherwise Boilermakers . . the pump
in Board Exhibit 22-5 if the Pipefltters claim it, otherwise Boilermakers. . . ... [Emphasis
supplied.)
2DInternational Association of Machinists, Lodge No 1743, AFL-CIO (J. A. Jones
Construction Company), 135 NLRB 1402.
91N.L.R.B v. Radio & Television Broadcast Engineers Union, Local 1212, Electrical
Workers (Columbia Broadcasting System), 364 U.S. 573.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining agreement, the Company's past practice when
making- assignments to its own employees, the Company's preference,
and' the, relatively articulate jurisdictional declaration of IAM's
international constitution to the • work of installing machinery in
many areas, • particularly breweries, outweigh the claims of Boiler-
makers based'on its contract with the Company, local industry prac-
tice and the somewhat narrower jurisdictional declaration of its
international constitution.
In arriving at this conclusion on the merits, we have no intention,
however, of nullifying Boilermakers'. contract with the Company nor
work assignment rights thereunder. Of the greatest significance here,
in our view, is that IAM's ; and Boilermakers' respective contracts
with the Company do not directly conflict insofar as they relate to
work assignments. Against this background. and the further fact that
IAM and the Company have conceded to 'employees represented by
Boilermakers a substantial portion of the Company's rigging and
millwright work, our determination recognizes the vitality of work
assignment rights under both agreements. That is, employees of
Boilermakers have the conceded right to perform all nonmillwright
rigging work and all millwright and rigging work on boilers, tanks,
and vessels, pursuant to the terms of the Boilermakers contract-
whereas employees represented by IAM are, consistent with IAM's
contract, hereby awarded the right to perform rigging associated
with millwright work, and the millwright work itself, on the Com-
pany's, installation of machinery and equipment excluding boilers,
tanks, and vessels.
We wish to emphasize, however, that in making the letter award,
we are assigning this work to millwrights and riggers represented
by IAM, and not to that labor organization itself or its members.
H. Scope of the determination
As previously mentioned, the Company at one point, took the
position that our determination should include all of its operations
in the State of Hawaii. Boilermakers would have us limit our deter-
mination to the Company's Schlitz brewery project where the dispute
arose.
In the past it has been the Board's policy to make an award broad
enough to encompass the geographical area in which an employer
does business (wherever jurisdictions of the competing unions coin-
cide) in circumstances where there is an indication that the dispute
is likely to recur 22 We believe that there is a reasonable likelihood
22 Local Union No. 3, International Brotherhood of Electiical.Workers ,•AFL=CIO (West-
ern Electric Company, Incorporated ), 141 NLRB 888, 897, footnote 12; International
Union of Operating Engineers , Local 66, AFL-CIO (Frank P. Badolato & Son), 135 NLRB
1392, 1401.
BOILERMAKERS , LOCAL 204 1255
that this dispute will be repeated. For the collective- bargaining agree-
ments of both unions with the Company continue in effect, and
Yeatts, the representative of Boilermakers, admittedly stated during
the course of the dispute itself that he would not permit members of
Boilermakers to work for the Company alongside of members of
IAM.21 We shall broaden our determination accordingly.24 Otherwise
our determination is limited to the particular controversy which gave
rise to this proceeding.
DETERMINATION OF DISPUTE IN CASE 37-CD-9
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 this dispute :
1. Employees of Hawaiian Dredging & Construction Co., Ltd.,
represented by International Association of Machinists and Aero-
space Workers, Lodge 1245, AFL-CIO, are entitled to perform the
following work :
All millwright work and rigging work in connection therewith
performed by Hawaiian Dredging & Construction Co., Ltd., in
the State of Hawaii wherever the geographical jurisdictions of
International Association of Machinists and Aerospace Workers,
Lodge 1245, AFL-CIO and International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and
Helpers, Local 204, AFL-CIO, coincide, excluding all nonmill-
wright rigging work and millwright work on boilers, tanks, or
vessels.
2. International Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers, Local 204, AFL-CIO, is not
entitled to use means proscribed by Section 8(b) (4) (D) of the Act
to force or require Hawaiian Dredging & Construction Co., Ltd., to
assign the work described in paragraph "1," supra, to members of
said Local 204.
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute, International Brotherhood of Boilermakers, Iron
28 After making this admission at the hearing , Yeatts appeared to qualify his position
somewhat but not in it manner which would alleviate the possibility of a recurring dis-
pute. Thus , lie stated that he would permit members of Boilermakers to work alongside
of IAM members at a company project, but only at such time as the Company might not
be a party to a Boilermakers contract.
24Our determination Is not Intended to, nor does it, concern the assignment of any
millwright or rigging work on conveyors covered by agreement between the internationals
of JAM and Carpenters because , as previously noted herein , any such work assignment is
no longer in issue here by virtue of Boilermakers disclaimer in its brief
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ship Builders, Blacksmiths, Forgers and Helpers, Local 204, AFL-
CIO, shall notify the Regional Director for Region 20 or the Resi-
dent Attorney for Subregion 37, in writing, whether or not it will
refrain from forcing or requiring Hawaiian Dredging & Construction
Co., Ltd., by means proscribed by Section 8(b) (4) (D) of the Act,
to assign the work described in paragraph "1," supra, to members of
said Local 204, rather than to employees of Hawaiian Dredging &
Construction Co., Ltd., represented by International Association of
Machinists and Aerospace Workers, Lodge 1245, AFL-CIO.
DETERMINATION OF DISPUTE IN CASE 37-CD-10
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 this dispute :
1. Employees of Hawaiian Dredging & _ Construction Co., Ltd.,
represented by International Association of Machinists and Aero-
space Workers, Lodge 1245, AFL-CIO, are entitled to perform the
following work:
All millwright work and rigging work in connection therewith
performed by Hawaiian Dredging & Construction Co., Ltd., in
the State of Hawaii wherever the geographical jurisdictions of
-International Association of Machinists and Aerospace Workers,
Lodge 1245, AFL-CIO, and International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and
Helpers, Local 204, AFL-CIO, coincide, excluding all nonmill-
wright rigging work and millwright work on boilers, tanks, or
vessels.
Cumberland Shoe Company and Teamsters, Chauffeurs , Helpers
and Taxicab Drivers Local 327, Affiliated With International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America. Case 26-CA-208. September 23, 1966
DECISION AND ORDER
On June , 14, 1966, Trial Examiner Marion C. Ladwig issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that the Respondent had
160 NLRB No. 97.