International Union Of Operating Engineers, Local Union No. 150, Afl--Cio

National Labor Relations Board - Board Decisions

May 23, 1990

298 N.L.R.B. 650 (N.L.R.B. 1990)

650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers, Local
Union No . 150, AFL-CIO and R. J. Hankes
Plumbing and Heating and Construction and
General Laborers District of Chicago and Vicin-
ity Local Union No . 96, Laborers International
Union of North America , Party in Interest and
Plumbers Local 507, United Association of
Journeymen and Apprentices of the Plumbing
and Pipefitting Industry Party , in Interest. Case
13-CD-410
May 23, 1990
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
The charge and amended charge in this 10(k)
proceeding were filed on September 28, 1988, and
October 3, 1988,1 respectively, by R. J. Hankes
Plumbing and Heating, the Employer, alleging that
the Respondent, Operating Engineers Local 150,
violated Section 8(b)(4)(D) of the National Labor
Relations Act by engaging in proscribed activity
with an object of forcing the Employer to assign
certain work to employees it represents rather than
to employees represented by Laborers Local 96.
The hearing was held on December 6 and 14, 1988,
before Hearing Officer Michael Hupp.
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.
I. JURISDICTION
The Employer, an Illinois corporation, is en-
gaged in the business of plumbing and heating con-
tracting at its office in Glen Ellyn, Illinois, and at
various jobsites within a 50-mile radius of its office
in such counties as DuPage, Cook, Kane, Will, and
Lake, Illinois. During the 12 months preceding the
hearing, a representative period, the Employer pur-
chased and received goods and materials valued in
excess of $50,000 directly from points located out-
side the State of Illinois. The parties stipulate, and
we find, that the Employer is engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act and that Operating Engineers Local
150, Laborers Local 96, and Plumbers Local 507
are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
I All dates are in 1988 unless otherwise specified.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer is engaged in plumbing and heat-
ing contracting at jobsites within a 50-mile radius
of Glen Ellyn, Illinois. On September 25, 1984, the
Employer signed a collective-bargaining agreement
with the Construction and General Laborers' Dis-
trict Council of Chicago and Vicinity, which in-
cludes Laborers Local 96. The agreement subse-
quently was extended through May 1991. The Em-
ployer also has a collective-bargaining agreement
with Plumbers Local 507. The Employer does not
have an agreement with Operating Engineers
Local 150 or employ any employees represented by
Operating Engineers Local 150.
The Employer was engaged to do certain plumb-
ing work involved in the construction of a ware-
house in West Chicago, Illinois, referred to as the
Powis Road jobsite. This work included trenching
and laying three pipelines within the building foun-
dation. The Employer started work on this jobsite
on September 23, assigning William Gerdes, a
member of Laborers Local 96, to work on the site.
In his work as a laborer for the Employer,
Gerdes generally unloaded and removed materials,
set up for the day, got material for the plumbers,
handed pipe to plumbers who were installing pipe,
and cleaned up. Gerdes also ran a rubber tire back-
hoe to dig trenches no more than 4 feet deep for
pipes and ran a bobcat to fill trenches, do grading,
and remove spoil. He sometimes dug by hand in lo-
cations that the backhoe could not reach and also
shoveled dirt by hand into or out of the backhoe's
bucket. The backhoe had a bucket in front with a
capacity of about a yard and an extendable bucket
in the back with a capacity of about one-third of a
yard. It was steered with a steering wheel and had
two levers that operated the buckets. The bobcat
had four wheels with rubber tires. Its bucket held
about one-third of a yard and was operated by foot
pedals. It had no steering wheel but was steered by
two levers that turned it left or right.
At the Powis Road jobsite on September 23,
Gerdes dug trenches, backfilled the trenches after
the pipe was laid, and got fittings and pipe for the
plumbers. He spent about 3 hours using the back-
hoe and 2 hours using the bobcat. He got on and
off each machine a number of times. When he got
off the backhoe, he was involved in getting pipe
organized and painting lines on the ground indicat-
ing what needed to be dug.
At one point on September 23, as Gerdes was
getting ready to get on the bobcat, he was ap-
proached by an employee of another subcontractor
who was wearing an Operating Engineers Local
298 NLRB No. 85
OPERATING ENGINEERS LOCAL UNION 150 (HANKES PLUMBING)
150 pin on his hat. This employee had been operat-
ing a Caterpillar, described as a big track machine
with a big bucket on the front. He asked Gerdes if
Gerdes had a card on him. Gerdes replied, "No, I
don't have it on me." The employee turned and
walked away.
On the morning of September 26, the next work-
day, William Hankes, an owner of the Employer,
was notified by a Plumbers Local 507 business
agent that the agent had been advised by a repre-
sentative of Operating Engineers Local 150 that
Local 150 was going to set up picket signs on the
Powis Road jobsite. When Hankes arrived at the
jobsite, he was approached by Ed Windett, the
general contractor 's superintendent , who stated
that there was some difficulty with Gerdes running
the backhoe and if he continued to run the ma-
chine, pickets would be set up. Gerdes continued
to operate the machine.
Later that afternoon Hankes saw pickets at the
north entrance to the jobsite with signs identifying
Local 150 and stating "unfair wages" or "unfair
practices." A load of steel was scheduled to arrive
about 2:00 or 2:30 p.m. James Casey, the building
owner's representative , expressed concern to
Hankes that the job might be stopped because of
the pickets and that the truckdrivers might not
cross the picket line. Casey asked Hankes what he
was going to do . Hankes told both Casey and Win-
dett that he wanted to continue to work but, if nec-
essary, he would "pull out." Hankes then removed
the Employer 's machines from the jobsite. As
Gerdes left, he also saw the pickets. The pickets
left as soon as the machines were taken off the job.
At that point the Employer had completed less
than one-third of its work, according to Hankes.
When Hankes returned to his office that after-
noon, he received a mailgram from Bill Jansma, a
business representative for Local 150. The mail-
gram stated that Local 150 had attempted to inves-
tigate the Employer's payment of area standards to
its employees working at the Powis Road jobsite
and had determined that area standards for operat-
ing engineers were not being met. It asked to be in-
formed immediately if this information was incor-
rect. The mailgram further stated that Local 150
would take lawful action to preserve area standards
if the Employer continued not to comply with area
standards. The mailgram additionally stated that
Local 150 did not desire recognition or contend
that it represented that Employer's employees;
rather, Local 150's sole purpose was to protect
area standards.
Jansma testified that he sent the mailgram to the
Employer after a complaint had been received at
Local 150's hall that a laborer was operating the
651
Employer's backhoe at the Powis Road jobsite.
The complaint had been forwarded to Jansma by
the dispatcher at the office. He did not know who
had filed the complaint.
Hankes did not respond to the mailgram or have
any other communications with Local 150. The
Employer resumed work at the Powis Road jobsite
toward the end of October, and Gerdes performed
the same type of work that he had done previous-
ly. According to Hankes, it took 3 or 4 days to
finish the work, while Gerdes testified that it took
about a day to finish the work.
The Employer had had conflicts with Local 150
on two prior occasions. William Hankes' brother,
James, the other owner of the Employer, testified
that about 2 years earlier Local 150 Business Agent
Jansma instructed him by telephone to get an oper-
ating engineer instead of a laborer to operate the
Employer's machines at the Oakbrook - Terrace
project. After Hankes replied that the Employer
was going to continue using laborers , Jansma re-
sponded that he was going to have people picket
the job. Jansma denied that this conversation oc-
curred, but Jansma and Hankes agreed that Local
150 did picket the Employer for about half a day at
the Oakbrook Terrace jobsite. Local 150 also had
sent a mailgram to the Employer contending that it
had an area standards dispute with the Employer.
Additionally, a week before Local 150 picketed
the Powis Road jobsite, Local 150 Business Agent
Mark Nichols complained to James Hankes and to
the general contractor at the Four Winds jobsite
that the Employer had a laborer, rather than an op-
erating engineer , operating a backhoe . Nichols told
Hankes that the Union was going to shut down the
job. No picketing or shutdown occurred, however.
B. Work in Dispute
The disputed work involves the operation of the
rubber tire backhoe and the bobcat being used by
the Employer at a jobsite located on Powis Road
one-quarter mile south of Route 64 in West Chica-
go, Illinois.
C. Contentions of the Parties
The Employer contends that there is reasonable
cause to believe that Local 150 violated Section
8(b)(4)(D) of the Act. The Employer notes that the
parties stipulated that there is no agreed-on method
to voluntarily resolve this dispute. The Employer
argues that the Unions' joint motion to quash the
notice of hearing based on disclaimers filed by the
Unions should be denied. On the merits, the Em-
ployer contends that the work in dispute should be
awarded to employees represented by Local 96 on
the basis of the Employer 's collective-bargaining
652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agreement with Local 96 and the factors of em-
ployer preference and past practice, economy and
efficiency of operations, and Board precedent. Fi-
nally, the Employer requests a broad award cover-
ing all of its projects in the geographical jurisdic-
tion of Local 96.
The three Unions filed a joint brief. They con-
tend that there is no reasonable cause to believe
that Local 150 violated Section 8(b)(4)(D) of the
Act, because Local 150 engaged only in area stand-
ards picketing. They also contend that the notice of
hearing should be quashed because Local 150 has
disclaimed interest in operation of the Employer's
backhoe and bobcat at the Powis Road jobsite,
Local 96 has disclaimed interest in operation of the
Employer's backhoe at the Powis Road jobsite, and
Local 507 has disclaimed interest in operation of
the Employer's backhoe and bobcat.2 Alternative-
ly, the Unions contend that, if the Board fmds rea-
sonable cause to believe that Section 8(b)(4)(D) has
been violated, the operation of the Employer's
backhoe should be awarded to Local 150 on the
basis of area and industry practice, the Employer's
past practice, and specialized skill. Finally, the
Unions argue that if the Board determines that op-
eration of the Employer's backhoe should be
awarded to Local 96, an areawide award is not
warranted.
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 the parties have not agreed on a
method for the voluntary adjustment of the dis-
pute.
As set forth above, on September 23, Gerdes, a
member of Local 96, was performing work, includ-
ing the operation of a backhoe and a bobcat, for
the Employer at the Powis Road jobsite. As
Gerdes was about to get on the bobcat, an equip-
ment operator for another subcontractor on the site
who was wearing a Local 150 button asked Gerdes
if he had a card, and Gerdes did not produce one.
On the following workday, Windett, the general
contractor's superintendent, informed William
Hankes that there was some difficulty with Gerdes
running the backhoe and that, if he continued to do
so, pickets would be set up. Gerdes continued op-
erating the Employer's machinery, and that after-
2 The Unions contend that there is an understanding between Local 96
and Local 150 that laborers operate machinery to carry materials or
debris, while operating engineers run machinery to do excavating, grad-
ing, or backfilling. According to the Unions, it follows from this under-
standing that laborers operate bobcats, while operating engineers run
backhoes
noon Local 150 began picketing the Employer at
the Powis Road jobsite, carrying signs that said
"unfair wages" or "unfair practices." As soon as
the Employer and its employees and machinery left
the jobsite, the picketing stopped. When Hankes re-
turned to his office, he received a mailgram from
Local 150 Business Representative Jansma claiming
that the Employer was not meeting area standards
for operating engineers at the Powis Road jobsite.
We find that there is reasonable cause to believe
that one purpose of Local 150's picketing was to
force the Employer to assign operation of its back-
hoe and bobcat to employees represented by Local
150. It appears that Local 150's picketing resulted
from Gerdes' failure to produce an Operating En-
gineers card when asked by an equipment operator
on September 23 if he had a card. Indeed, Jansma
testified that his actions concerning the Employer
at the Powis Road jobsite were prompted by a
complaint made to Local 150's hall that a laborer
was operating the Employer's backhoe. In any
event, in the context of the dispute only a week
before between the Employer and Local 150 con-
cerning the Employer's use of laborers rather than
operating engineers to run the Employer's machin-
ery at the Four Winds project and a similar dispute
that led to picketing by Local 150 2 years earlier at
the Oakbrook Terrace jobsite, it is reasonable to
conclude that one purpose of Local 150's picketing
at the Powis Road jobsite was to obtain the Em-
ployer's backhoe and bobcat work for employees
represented by Local 150.
The Unions claim, based on Jansma's mailgram
to the Employer, that Local 150's picketing was in
support of an area standards dispute. The evidence
adduced at the hearing, however, does not estab-
lish that Local 150's picketing was in support of an
area standards objective. William Hankes testified
that he did not know exactly what Local 150's
picket signs said, but he thought they stated "unfair
practices" or "unfair wages," language which is
not necessarily indicative of an area standards ob-
jective. Moreover, there was no testimony by any
union witness regarding what the picket signs
stated.
Additionally, Jansma gave vague and conflicting
testimony about the investigation he carried out to
determine whether the Employer was paying area
standards wages to Gerdes. In this regard, he could
not recall why he had gone to the Powis Road job-
site. Additionally, he admitted that he was unfamil-
iar with the Employer and that, in his investiga-
tion, he did not talk to Gerdes, the general con-
tractor, or anyone from the Employer concerning
the wage rate Gerdes was receiving. Finally, he
variously attributed to Gene Kelley, a former em-
OPERATING ENGINEERS LOCAL UNION 150 (HANKES PLUMBING)
ployee of the Employer, Frank Reilly, a Local 96
business agent, and Gerdes himself his information
that the Employer was not adhering to area stand-
ards . Thus, Jansma's assertion of an area standards
objective for Local 150's picketing is not estab-
lished by the record.
In any event, it is of no consequence if one ob-
jective of the picketing was to maintain area stand-
ards. As long as one object of the picketing was to
force the Employer to assign particular work to
employees represented by a particular union, rather
than to employees represented by another union,
the picketing comes within the scope of Section
8(b)(4)(D). Carpenters Local 953 (T & P Iron
Works), 266 NLRB 617, 618 (1983); Electrical
Workers IBEW Local 701 (Argonne National Labo-
ratory), 255 NLRB 1157, 11161 (1981). As indicated
above, 'we have concluded that Local 150's picket-
ing had such an object.3
Finally, the parties stipulated at the hearing that
there is no agreed-on method for voluntary resolu-
tion of the dispute.
Based on the foregoing, we find reasonable cause
to believe that a violation of Section 8(b)(4)(D) has
occurred and that there exists no agreed method
for voluntary adjustment of the dispute within the
meaning of Section 10(k) of the Act. Accordingly,
we find that the dispute is properly before the
Board for determination.4
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
8 Member Cracraft agrees with her colleagues that if Local 150 's pick-
eting has as one object forcing the reassignment of the disputed work, the
picketing comes within Sec . 8(b)(4)(D). Because she agrees with the con-
clusion that the picketing had such an object , she finds it unnecessary to
rely on the discussion of whether Local 150 failed to establish that area
standards was also an object of its picketing.
4 We deny the Unions' joint motion to quash the notice of hearing.
The motion is based on the following disclaimers filed by the Unions. On
September 29, Local 96 disclaimed interest in operation of the Employ-
er's backhoe at the Powis Road jobsite On October 14, Local 150 dis-
claimed interest in operation of the Employer's bobcat at the Powis Road
jobsite and on October 28 disclaimed interest in operation of the Employ-
er's backhoe at the Powis Road jobsite. Additionally , on October 21,
Local 507 disclaimed interest in operation of the Employer's backhoe or
bobcat at the Powis Road jobsite.
Despite Local 96's disclaimer, Gerdes, a Local 96 member, continued
to operate the Employer's backhoe and was never told by Local 96 that
it was not claiming that work for him . His continued performance of the
work nullified Local 96's disclaimer of it. Operating Engineers Local 673
(Oliver B. Cannon), 256 NLRB 1228 , 1229 ( 1981); Bricklayers Local 2 (H
J. Harris), 254 NLRB 1003 , 1004 (1981). Local 150's disclaimers are simi-
larly ineffective , coming at a time when the Employer had little or no
work remaining at the Powis Road jobsite. Given the context of Local
150's prior disputes with the Employer concerning operation of the back-
hoe and bobcat, Local 150's disclaimers appear to have been presented
solely to avoid an adjudication of the instant dispute See Electrical Work-
ers IBEW Local 3 (Mike G. Electric), 279 NLRB 521, 522-523 (1986). Fi-
nally, Local 507's disclaimer is of no consequence , as there is no allega-
tion that it claimed the Employer's backhoe or bobcat work.
653
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 the dispute.
1. Collective-bargaining agreement
The Employer and Local 96 are parties to a col-
lective-bargaining agreement. Article ?£V of that
agreement is sufficiently broad to encompass the
work done by Gerdes on the bobcat and backhoe.5
The Employer has no contract with Local 150. We
find that the factor of the collective-bargaining
agreement tends to favor an award of the work in
dispute to employees represented by Local 96.6
2. Company preference and past practice
The Employer, prefers to use employees repre-
sented by Laborers Local 96 to operate its backhoe
and bobcat. William and James Hankes testified
that during the 8- or 9-year period that they have
been in , charge of the Employer's operations, they
have traditionally assigned bobcat and backhoe
work to laborers. They testified that there was
only one exception to this practice. The Employer
employed Robert Hawse, a member of Laborers
Local 96, during 1979-1983. Among other tasks,
Hawse operated a backhoe for the Employer. After
becoming tired of the "hassles" caused , by Local
150, the Employer accepted Local 150's offer of a
"permit card" for Hawse and made payments to
e Par. 4 of art . XV includes the following provision:
Employer hereby agrees to recognize the Umon as the exclusive rep-
resentative of all its Employees performing work within the jurisdic-
tion of the Union for the purpose of collective bargaining in respect
to rates of pay, wages, hours of employment, and also confirms the
jurisdiction of this Union over the branches of work covered herein,
and agrees not to enter into any agreement with other labor organi-
zations covering such branches of work.
Par. 4(a) is entitled "Branches of Work Covered Herein" and includes
descriptions of various work tasks. Par. 4(b), which is untitled , contains
the following introductory statement-
Although not included in this Agreement, the following outline
which appears in a publication of Laborers ' International Union of
North America , entitled "Manual of Jurisdiction," is claimed by the
Union as describing the work falling within its jurisdiction.
After this introductory statement are listings of work tasks grouped
under various headings . Work tasks listed under the headings "Tenders,"
"Excavations ," `"Trenches," and "General Excavation" encompass the
work done by Gerdes on the backhoe and bobcat. The tasks listed in par
4(b) as claimed by the Union to be within its jurisdiction arguably are
applicable to the first clause of par. 4, which, as noted above, states that
the Employer "agrees to recognize the Union as the exclusive representa-
tive of all its Employees performing work within the jurisdiction of the
Union...
s The record reflects no Board certification of either Local 96 or Local
150 as the collective-bargaining representative of the Employer 's employ-
ees Accordingly, this factor favors neither Umon.
654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Local 150's fringe benefit funds on his behalf.
During 1972 or 1973, when the Hankes' father was
running the Employer, the Employer similarly
made payments to Local 150's benefit funds on
behalf of Ernie Hoepner, a laborer who operated a
backhoe for the Employer.
Additionally, the record shows that in 1983 a
Local 150 joint grievance committee issued an
award against the Employer requiring payment of
$2433 because of the Employer's operation of a
backhoe "without a member of the bargaining
unit." The record also contains a Federal district
court decision enforcing the award and a copy of
an affidavit by Local 150 Business Representative
Paul Wood filed in that case, which states, among
other things, that the Employer had signed a
memorandum of agreement in 1972 adopting a col-
lective-bargaining agreement with Local 150. The
record further contains a copy of an affidavit by
James Hankes filed in that case, which states that
the Employer had employed only one operating
engineer and that individual's employment had
ended in November 1982; Local 150 had not pro-
vided employees but, rather, had issued "permits"
to the Employer's employees who were members
of the Laborers; and the Employer had openly not
complied with the prehire memorandum and be-
lieved that Local 150 had acquiesced in the cancel-
lation of the prehire memorandum.inally, the
record contains a letter dated August 2, 1984, from
the Employer to Local 150 repudiating the 1972
prehire agreement.
In sum, it appears that the Employer signed a
prehire agreement with Local 150 in 1972, and
from 1972 to 1983 two of the employees the Em-
ployer hired to run backhoes, although members of
the Laborers, also obtained "permit cards" from
Local 150 and the Employer made contributions to
Local 150 benefit funds on their behalf. In 1984,
however, the Employer explicitly repudiated the
prehire agreement, and there is no contention that
it used anyone but laborers during the period of
1984-1988 to operate its machinery or that these
employees were in any manner represented by
Local 150. Thus, although the Employer's practice
concerning use of laborers or operating engineers
to operate its machinery arguably may be charac-
terized as "mixed" during the period 1972-1983,
the Employer consistently used only employees
represented by Laborers Local 96 to operate its
machinery during the period of 1984-1988. We
therefore find that the factor of employer prefer-
ence and past practice favors an award to employ-
ees represented by Local 96.
3. Area and industry practice
James Hankes testified that, as third vice presi-
dent of the DuPage County Plumbing Contractors
Association, he was familiar with the practices of
other plumbing contractors in assigning the type of
work that is in dispute in this case and that, until
this year, they were all using laborers. He testified
that he observed Pierce Plumbing performing work
on a housing project in Westmont in October or
November 1987, and all the employees performing
the work were plumbers and laborers. He also tes-
tified that Professional Plumbing for the most part
used laborers to do digging and subcontracted out
the remainder of the work. He further testified that
Ceren Plumbing used laborers to put in under-
ground pipe sewers and dig trenches. He acknowl-
edged, however, that Professional Plumbing, Pierce
Plumbing, and Wagner Plumbing and Heating
were now using operating engineers to run their
power equipment, including backhoes.
Jansma testified that it is customary in the Chica-
go metropolitan area for plumbing contractors to
employ both operating engineers and laborers. He
testified that in 1978 or 1979 he worked as an oper-
ating engineer for Normal Plumbing in Cook,
DuPage, and Will Counties and operated a back-
hoe. He also testified that he operated a backhoe
for C. F. Bruckner Plumbing in Chicago. He fur-
ther testified that Professional Mechanical, Pierce
Plumbing, Ceren Plumbing, and Elliott Plumbing
all have collective-bargaining agreements with
Local 150, and that they, as well as Glow Plumb-
ing and Global Plumbing, assign backhoes to oper-
ating engineers and all work in DuPage County.
Jansma did not testify concerning which employees
normally operated bobcats for DuPage County
plumbing contractors.
Under these circumstances, we find that the area
and industry practice reflected by the record is
mixed . Thus, this factor does not favor an award of
the: disputed work to employees represented by
either Local 96 or Local 150.
4. Relative skills
The record shows that no special license is
needed to operate either the bobcat or the backhoe
and that both operating engineers and laborers such
as Gerdes possess the skills needed to operate these
machines. Gerdes testified that he learned to oper-
ate a bobcat while working for nonunion concrete
companies. William Hankes testified that Gerdes
had some general knowledge of how to run a back-
hoe and a bobcat before he came to work for the
Employer and that it took Hankes a couple of
weeks at most to check out Gerdes on these ma-
OPERATING ENGINEERS LOCAL UNION 150 (HANKES PLUMBING)
chines. He further testified that all the individuals
he had previously assigned to operate these ma-
chines were laborers.
Jansma testified that Local 150 offered thorough
training in the safe operation of these machines as
part of its apprenticeship program, but he admitted
that he had learned to operate the machines with-
out going through this training. While working as a
laborer, he had been told by a Local 150 business
agent that if he could acquire some skills in ma-
chinery operation, he could be referred to operat-
ing engineer jobs , as long as he could show the em-
ployer that he could run its machines . Jansma
learned how to operate machinery by doing non-
union construction work in Colorado for a year
and then obtained job referrals from Local 150 as
an operating engineer . He also acknowledged that
he had referred to operating engineer jobs laborers
who had previously learned to operate backhoes
and had not gone through Local 150's apprentice-
ship program, including the portion providing
training in machinery operation. Thus, it appears
that it is not uncommon for operating engineers to
operate machinery without having received Local
150's training program.
Under these circumstances , we find that the
factor of relative skills does not favor an award of
the disputed work to employees represented by
either Local 96 or Local 150.
5. Economy and efficiency of operations
The record shows that it is more efficient for the
Employer to use laborers to run its machines, be-
cause the Employer never has enough work to
keep its machines in operation for a full day. When
the 'machines are not in use,, the laborer does other
traditional laborer work, such as clean up and un-
loading and setting up materials. Additionally, the
laborer digs and backfills manually with a shovel
when the machine is not available or the machine
cannot reach the area that needs to be dug. The la-
borer also switches, between the bobcat and back-
hoe fairly often and is not limited in doing so by
any provision of the collective-bargaining agree-
ment between the Employer and Local 96. The
standard Local 150 contract, however, limits an
operating engineer to one change per shift from
one machine to another and back to the original
machine. Finally, the standard Local 150 contract
requires an operating engineer to be paid for 8
655
hours if he works for any length of time, while a
laborer who works for only part of a day is re-
quired to be paid only for the time worked. We
therefore fmd that the factor of economy and effi-
ciency of operations favors an award of the disput-
ed work to employees represented by Local 96.
CONCLUSIONS
After considering all the relevant factors, we
conclude that employees represented by Local 96
are entitled to perform the work in the dispute. We
reach this conclusion relying on the factors of the
collective-bargaining agreement between the Em-
ployer and Local 96, company preference and past
practice, and economy and efficiency of operations.
In making this determination , we are awarding the
work to employees represented by Local 96, not to
that Union or its members. ? The determination is
limited to the controversy that gave rise to this
proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. Employees of R. J. Hankes Plumbing and
Heating represented by Construction and General
Laborers District of Chicago and Vicinity, Local
Union No. 96, Laborers International Union of
North America, are entitled to perform the work
of operating the rubber tire backhoe and the bobcat
at the jobsite located on Powis Road one-quarter
mile south of Route 64 in West Chicago, Illinois.
2. International Union of Operating Engineers,
Local Union No. 150, AFL-CIO, is not entitled by
means proscribed by Section 8(b)(4)(D) of the Act
to force R. J. Hankes Plumbing and Heating to
assign the disputed work to employees represented
by it.
3. Within 10 days from this date, International
Union of Operating Engineers, Local Union No.
150, AFL-CIO, shall notify the Regional Director
for Region 13 in writing whether it will refrain
from forcing the Employer, by means proscribed
by Section 8(b)(4)(D), to assign the disputed work
in a manner inconsistent with this determination.
' We find that the issuance of a broad order sought here by the Em-
ployer is not warranted, and we hunt our present determination to the
particular controversy that gave rise to this proceeding. See generally
Laborers Local 151 (Otis Elevator), 272 NLRB 1102, 1104 (1984); Wood-
workers Local 3-90 (Crown Zellerbach), 261 NLRB 615 , 618 (1982).