International Union of Operating Engineers

National Labor Relations Board - Board Decisions

Nov 21, 1980

253 N.L.R.B. 441 (N.L.R.B. 1980)

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