International Union of Operating Engineers, Local 450

National Labor Relations Board - Board Decisions

Feb 21, 1968

169 N.L.R.B. 1026 (N.L.R.B. 1968)

1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers, Local
450 and The Rust Engineering Company
International Brotherhood of Electrical Workers,
Local 390 and The Rust Engineering Company.
Cases 23-CD-136 and 23-CD-144
February 21, 1968
DECISION AND DETERMINATION OF
DISPUTES
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by The Rust Engineering Com-
pany, herein called Rust, against International
Union of Operating Engineers, Local 450, herein
called Operating Engineers, and International
Brotherhood of Electrical Workers, Local 390,
herein called Electrical Workers. The charges al-
leged that Operating Engineers and Electrical Work-
ers had threatened a strike and had caused a work
stoppage with an object of forcing or requiring Rust
and Allegheny Industrial Electric Company, Inc.,
herein called Allegheny, a subcontractor of Rust, to
assign certain work to its members rather than to
members of the other Union. A hearing was held at
Orange, Texas, on May 31 and June 1, 1967, be-
fore Hearing Officer Terry S. Bickerton. All parties
participated in the hearing and were afforded full
opportunity to be heard, to examine and cross-ex-
amine witnesses , and to adduce evidence bearing on
the issues. Operating Engineers and Electrical
Workers filed briefs in support of their positions,
and they have been given due consideration.
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
powers in connection with this case to a three-
member panel.
The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in this case, the Board
makes the following findings:
I. THE EMPLOYERS INVOLVED
The Rust Engineering Company is a corporation
engaged in the general construction business and is
currently the general contractor for the construc-
tion of the Owens-Illinois Paper Mill in Orange,
Texas, the site of the dispute.
Allegheny Industrial Electrical Co., Inc., is a cor-
poration, a majority of whose stock is owned by the
persons who own Rust's stock. Allegheny is en-
gaged in the electrical contracting business in
several States, and at the present time has the elec-
trical subcontract from Rust relative to the con-
struction of the paper mill.
Upon the basis of the facts stipulated to by the
parties, we find that Rust and Allegheny are en-
gaged in commerce within the meaning of the Act
and that it will effectuate the policies of the Act to
assert jurisdiction in this proceeding.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find , that Interna-
tional Union of Operating Engineers , Local 450,
and International Brotherhood of Electrical
Workers, Local 390, are labor organizations within
the meaning of the Act.
III. THE DISPUTE
A. The Work at Issue
This proceeding arises out of a dispute over work
assignments involving the operation of a Brown
trencher used to dig ditches for the purpose of lay-
ing outside conduit at the Owens-Illinois Paper Mill
construction site in Orange, Texas, and the opera-
tion of an A-frame winch truck used to unload and
transport electrical equipment referred to as cubi-
cles or substations at the same site in connection
with the outside conduit.
B. Background and Basic Facts of the Dispute
In November 1966 Allegheny brought a Brown
trencher on the jobsite for use in the digging of
ditches in which electrical conduit was to be run
outside the mill. From the start, representatives of
both Operating Engineers and Electrical Workers
claimed the right to operate the Brown trencher on
the outside work. Rust and Allegheny were neutral
in the dispute. A number of meetings were held
between representatives of both unions and em-
ployers with no solution reached. On March 8,
1967, Allegheny assigned the work to its own em-
ployees, whereupon Operating Engineers caused
Rust's employees to walk out, placed a picket on
the job, and shut down the whole operation.
Shortly thereafter Rust agreed with Operating
Engineers to submit the dispute to the National
Joint Board and agreed to abide by its decision. On
March 16 the picket was removed, and Rust's em-
ployees returned to work; but to date the operation
of the Brown trencher has not been resumed not-
withstanding the NJB's award of the work to
Operating Engineers.
In May 1967, several truckloads of electrical
equipment called cubicles arrived on the jobsite.
About May 19, 1967, Allegheny instructed its em-
ployees, represented by Electrical Workers, to un-
load and transport these cubicles. These cubicles
were handled by an A-frame winch truck. After the
assignment, the steward for Operating Engineers
169 NLRB No. 149
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 450 1027
protested to Allegheny and Rust, claiming the work
for its members. As a result Rust interceded and
made a written assignment of the work to Operating
Engineers. Thereupon Electrical Workers engaged
in a work stoppage by the Allegheny employees.
C. Contentions of the Parties
Operating Engineers moves the Board to quash
the Notice of Hearing as to the trencher dispute on
the ground that a method of resolving the dispute,
namely the National Joint Board, was agreed to by
all the parties. Alternatively Operating Engineers
bases its claim for the trencher work primarily on
the NJB's award. It further claims the work on the
basis of its contract with the Sabine Area Construc-
tion Committee, area practice, and job skills.
Electrical Workers takes the position that it was
not a signatory to the Joint Board and therefore was
not bound by its decisions. It affirmatively contends
that it is entitled to both jobs on the basis of its col-
lective-bargaining agreement with the Sabine Divi-
sion National Electrical Contractors' Association
to which Allegheny agreed to be bound. Electrical
Workers further claims the work on the basis of
area practice, skills, efficiency, and safety.
Rust takes the position, on the record, that it does
not care to whom either one of the jobs in dispute is
awarded. Allegheny has taken a similar position.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the disputes 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.
The record establishes that-on March 9, 1967,
Operating Engineers threatened a strike and caused
a work stoppage with an object of forcing or requir-
ing the reassignment of the Brown trencher work to
employees it represented rather than to employees
represented by the Electrical Workers. On or about
May 18, 1967, Electrical Workers did the same in
order to secure the reassignment of the A-frame
winch truck work to employees it represented
rather than to employees represented by Operating
Engineers.
We find that there is reasonable cause to believe
that violations of Section 8(b)(4)(D) have occurred,
and that the disputes are properly before us for
determination pursuant to Section 10(k) of the Act.
Operating Engineers contends that an agreed-
upon method for settling the dispute relating to the
trencher exists; namely, the NJB. An agreement
upon methods for the adjustment of a dispute bars
a Board determination in Section 10(k) cases only
if all parties to the dispute are parties to the agree-
ment. Where any party to the dispute is not a signa-
tory thereto, such agreement is ineffective to bar
B oard jurisdiction.1
In this case the evidence is clear that at least one
of the parties has not agreed to any adjustment of
disputes by the National Joint Board. Although
other IBEW locals, representing the inside
wiremen, have so agreed, the present Electrical
Workers (IBEW Local 390) has consistently
refused participation in the NJB, and we have in the
past recognized this refusal.2 Moreover, evidence
was adduced to show that Electrical Workers
(IBEW Local 390) pays no dues to the Building
Trades Council, whose members comprise the
NJB, is not a member of the Council, and has con-
sistently refused to be bound by NJB decisions af-
fecting it. There thus appears to be no agreed-upon
method for settling this dispute. Further, we are not
convinced that Allegheny has ever agreed to be
subject to the Joint Board with regard to the outside
linemen here involved.
E. Merits of the Disputes
Section 10 (k) of the Act requires that the Board
make an affirmative award of the disputed work
after giving due consideration to various relevant
factors. As the Board has stated , its determination
in a jurisdictional dispute case is an act of judgment
based upon commonsense and experience in the
weighing of these factors .3 The following factors are
relevant in making a determination of the disputes
before us.
1. The collective-bargaining agreements
Operating Engineers does not have a contract
with Allegheny. It does, however, have a contract
with Rust. This is the so-called Sabine Area Con-
struction Committee contract, to which Rust is a
signatory. It contains wage scales for both
trenchers, and winch truck and cherry picker opera-
tors. Rust normally assigns these jobs to its em-
ployees in accordance with the contract. For some
reason, not appearing in the record, Rust in this in-
stance subcontracted the electrical work to Al-
legheny. Operating Engineers also has an agree-
ment with Electrical Workers which, while not ex-
pressly including Texas, has nevertheless been used
occasionally to assign work in the Orange, Texas,
area, and this agreement gives both jobs to the
former.
Electrical Workers has a contract with the Sabine
Division N.E.C.A., which contract has been as-
' Plumbers, Local 761 (Matt J. Zaich Construction Co ), 144 NLRB
133
2 Local Union 825, I UOE, AFL-CIO (Nichols Electric Co.), 137
NLRB 1425
3 International Association of Machinists, Lodge No 1743, AFL-CIO
(J-4. Jones Construction Company), 135 NLRB 1402, 1410
350-212 0-70-66
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sented to by Allegheny. It grants substation con-
struction work to the linemen (including operation
of the A-frame winch truck), and also grants to em-
ployees represented by Electrical Workers the
operation of power equipment (including operation
of the Brown trencher).
In order to determine which collective-bargaining
agreement should take precedence, it is first neces-
sary to understand the precise relationship between
Rust and Allegheny. As indicated earlier, a majority
of Allegheny stock is owned by stockholders of
Rust . Further, a number of officers of Rust are also
officers of Allegheny. The two companies have
common offices in the same building in Pittsburgh
and even share a common telephone. Whenever
Rust has need of an electrical subcontractor on a
project it uses Allegheny. In short, we find that
Rust and Allegheny are virtually indistinguishable,
and in fact we find Allegheny to be controlled by
Rust in every meaningful sense.
That Rust actually exercises such control is
evident from the fact that when Operating En-
gineers protested Allegheny's assignment of the A-
frame winch truck operation, Rust interceded and
reassigned the work to its employees, represented
by Operating Engineers. Allegheny made no com-
plaints about this reassignment.
Nor does Rust act in this manner only when Al-
legheny is the subcontractor. A Rust official
testified that whenever there is a potential jurisdic-
tional dispute of which Rust is aware, it steps in and
assigns the work itself.
Although Rust controls work assignments vis-a-
vis Allegheny and other subcontractors when it
chooses, this is only one factor which we consider
in determining which collective-bargaining agree-
ment to weigh more heavily. Equally important is
the fact that the work in dispute is not really electri-
cal work. Although the work is incidental to other
electrical work, it does not require a knowledge of
the intricacies of electrical circuitry. Operating En-
gineers often perform the ground work for electrical
and other crafts. Operating Engineers on this pro-
ject do all the trenching of ditches for laying electri-
cal conduit, other than the outside trenching in
dispute. They also operate trucks (called cherry
pickers) to unload and transport cubicles for the in-
side electrical work. Thus Rust's employees on this
very job have done, and were doing, the same type
of work now in dispute whenever this work was
required by inside electrical workers or wiremen.
We are therefore of the opinion that the work in
dispute is work which Rust would normally assign
to its own employees. To the extent that we deem
collective-bargaining agreements of importance in
deciding this case , we consider the contract
between Rust and Operating Engineers to be of
great weight.
2. Skills and area practices
The record indicates that members of both unions
possess the skills necessary for the work involved
here. The operation of the Brown trencher is quite
simple and requires no vast amount of training.
Members of both unions have, in the past, per-
formed trenching work for other employers.
As noted above, it appears from the record that
Rust's employees do all the trenching on this job
with the exception of the outside trenching here in
dispute. This trenching had been performed by Al-
legheny's employees, represented by the Electrical
Workers, before the work stoppage by the Operat-
ing Engineers.
Insofar as the area practice is concerned, it ap-
pears clear that the electrical subcontractors in the
Orange, Texas, area generally use linemen for the
trenching necessary for laying outside electrical
conduit, and that trenching done by Operating En-
gineers has been for general contractors rather than
electrical subcontractors. As this dispute involves
nonelectrical work of the type normally performed
on this project by employees of the general contrac-
tor, Rust, we deem the area practice of general con-
tractors to be of greater weight than that of electri-
cal subcontractors.
With regard to the A-frame winch truck, it
likewise appears that both unions possess the
necessary skill to do the work, although the winch
truck is a more complex machine than the trencher.
Operating Engineers and Electrical Workers both
admit that the unloading of cubicles for inside work
belongs to Rust's employees, represented by
Operating Engineers. This dispute involves the out-
side work, which is essentially similar in all substan-
tive respects.
As with the trencher, the operative area practice
on outside winch truck work as assigned by general
contractors appears to favor the claims of Operat-
ing Engineers . There is abundant evidence in the
record to support the conclusion that, when a
general contractor unloads cubicles by either an A-
frame winch truck, or a cherry picker, this work is
normally assigned to employees represented by
Operating Engineers, with whom the general con-
tractors have collective-bargaining agreements.
This is true with respect to both inside and outside
work. In each case the work is nonelectrical in na-
ture and is the type normally performed by em-
ployees represented by Operating Engineers.
3. Efficiency and safety
It does not appear that efficiency is a real factor
in this case. Neither Allegheny nor Rust claimed
that it would be more efficient to use employees
represented by one union rather than the other.
There is no evidence in the record which would
support a finding in favor of either union, although
INTERNATIONAL UNION OF OPERATING ENGINEERS , LOCAL 450 1029
it appears that the wage rate for employees
represented by Operating Engineers is somewhat
less than that of those represented by Electrical
Workers.
As regards the safety factor, Electrical Workers
contends that use of Operating Engineers to unload
cubicles and transport substations by means of the
A-frame winch truck is dangerous. They argue that
these substations contain high voltage wiring with
which only electrical workers may competently and
safely work. We do not agree. Operating Engineers
have performed this type of work on other projects
for general contractors with no evidence of ill ef-
fects. The record is clear that Operating Engineers
often work around high voltage wires. Further,
Electrical Workers does not make this argument
with respect to this type of work when performed,
by Operating Engineers, for the inside wiremen. It
is difficult to perceive any distinction merely
because the work in dispute here is done on the out-
side rather than inside a building.
Conclusion
Based upon the entire record and after full con-
sideration of all relevant factors, we conclude that
the employees represented by Operating Engineers
are entitled to both of the jobs in dispute. Our
present determination is limited to the particular
jobsite where this dispute arose.
DETERMINATION OF DISPUTES
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
Disputes.
1. Employees of the Rust Engineering Company,
who are represented by International Union of
Operating Engineers, Local 450, are entitled to
operate the Brown trencher to dig ditches for laying
outside conduit, and they are also entitled to unload
and transport cubicles by means of the A-frame
winch truck at the Owen-Illinois Paper Mill site in
Orange, Texas.
2. International Brotherhood of Electrical Work-
ers, Local 390, is not entitled, by means proscribed
by Section 8(b)(4)(D), to force or require The
Rust Engineering Company or Allegheny Industrial
Electrical Co., Inc., to assign the above-described
work to employees represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, International
Brotherhood of Electrical Workers, Local 390,
shall notify the Regional Director for Region 23, in
writing, whether or not it will refrain from forcing
The Rust Engineering Company or Allegheny In-
dustrial Electric Co., Inc., 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 employees represented by International Union
of Operating Engineers, Local 450.