Int'l. Union of Operating Engineers

National Labor Relations Board - Board Decisions

May 16, 1967

164 N.L.R.B. 672 (N.L.R.B. 1967)

672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers,
Local 49, AFL-CIO and Egan-McKay
Electrical Contractors , Inc. and Inter-
national Brotherhood of Electrical Workers,
Local 292, AFL-CIO. Case 18-CD-59.
May 16, 1967
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
the filing of charges under Section 8(b)(4)(D) of the
Act by Egan-McKay Electrical Contractors, Inc.
(hereinafter called Egan-McKay), alleging that
International Union of Operating Engineers,
Local 49, AFL-CIO (herein called Operating
Engineers), induced or encouraged employees to
cease work in order to force or require Egan-McKay
to assign the work in dispute to members of
Operating Engineers. Pursuant to notice, a hearing
was held on December 6, 7, and 19, 1966, before
Hearing Officer R. J. Della Rocca of the National
Labor Relations Board. All parties were afforded full
opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing
upon the issues. The rulings of the hearing officer
made at the hearing are free from prejudicial error
and are hereby affirmed. Briefs were filed by
Operating Engineers and Egan-McKay and have
been duly considered.
Upon the entire record in this case, the Board
makes the following findings:'
1. THE BUSINESS OF THE EMPLOYER
Egan-McKay is engaged in the business of
electrical construction with its principal place of
business located at 7100 Medicine Lake Road,
Minneapolis, Minnesota. The parties stipulated, and
we find, that Egan-McKay is engaged in commerce
within the meaning of the Act, and that during the
past year it made sales of good and services in
excess of $50,000 outside the State of Minnesota.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the
Operating Engineers and the International
Brotherhood of Electrical Workers, AFL-CIO
(hereinafter called IBEW), are labor organizations
within the meaning of Section 2(5) of the Act. -
III. THE DISPUTE
A. The Basic Facts
The disputed work is the operation of a hydraulic
and backhoe trencher, which is used to dig trenches
for the laying and installation of electrical conduits
on the Nicollet Mall in Minneapolis, Minnesota.
Egan-McKay contracted with the City of
Minneapolis to perform all the electrical work on the
Nicollet Mall. Included in this work is the laying of
large banks of electrical conduits in ditches adjacent
to the curb for approximately 10 city blocks.
The record indicates that the trencher was
purchased and subsequently delivered by Egan-
McKay to the worksite on approximately
September 15, 1966, and since that time the
machine has been operated periodically by Egan-
McKay employees who are also members of or
represented by IBEW. On September 26, 1966,
Larkin McLellan, recording and corresponding
secretary of Operating Engineers, contacted the
superintendent for Egan-McKay and asked whether
or not the operation of trenchers was to be assigned
to members of Operating Engineers. The
superintendent replied that Egan-McKay was
required by the business manager of IBEW to
employ a member to operate the machine. McLellan
then called Joseph F. Krech, business manager of
IBEW, and informed him that if IBEW claimed
jurisdiction over the operation of the Trackmaster,
Operating Engineers would take the dispute to the
National Joint Board for Settlement of Jurisdictional
Disputes Within the Building and Construction
Industry (hereinafter called Joint Board). McLellan
then called Thomas J. McKay, president of Egan-
McKay. In response to McKay's assertion that the
trencher would be operated by a member of IBEW,
McLellan reiterated that the dispute would be
referred to the National Joint Board. Subsequently,
Operating Engineers did submit the dispute to the
Joint Board. On October 4, 1966, the Joint Board
sent Egan-McKay a telegram in which it requested
information regarding the dispute and the
participation of Egan-McKay in its work award. The
Joint Board was then informed by the Minneapolis
Chapter of the National Electrical Construction
Association (herein NECA), of which Egan-McKay is
a member,2 and IBEW, that because of the nature of
the work involved, consisting of "outside" work,
neither the NECA nor IBEW considered themselves
bound by a Joint Board award. On October 11, 1966,
the Joint Board rendered a decision in which it
awarded the operating of the trencher to Operating
Engineers.
Following the Joint Board decision, Operating
Engineers made further demands on the Employer
that the operation of the trencher be assigned to its
members, during which Operating Engineers
threatened to picket the work if the trencher
continued to be operated by an IBEW member.
Unsuccessful meetings took place among the various
I Pursuant to the provisions of Section 3(b) of the Act, the
Board has delegated its powers in connection with this case to a
three-member panel
As a member, Egan-McKay has designated NECA as its
collective-bargaining representative and is therefore subject to
the contract between its Minneapolis Chapter and IBEW
164 NLRB No. 94
INTL. UNION OF OPERATING ENGINEERS 673
parties in an attempt to settle the dispute , including
one on October 21, 1966 , with the State Labor
Conciliator . Then on October 24, 1966 , a picket from
Operating Engineers appeared on the jobsite
carrying a sign . The picket sign read as follows:
EGAN-McKAY
ELECTRICAL CONTRACTORS
UNFAIR
FOR REFUSING TO
ABIDE BY THE NATIONAL
JOINT BOARD DECISION
IUOE, LOCAL 49
The picket remained on the jobsite through
November 11, 1966.
B. Contentions of the Parties
Egan-McKay contends that Operating Engineers
by their picketing of the jobsite at Nicollet Mall
attempted to force it to assign the work in dispute to
Operating Engineers. As to the merits, Egan-McKay
and IBEW contend that neither of them are bound
by the award of the Joint Board in connection with
the work involved in this dispute. Further, they
contend that the work should be assigned to IBEW
on the basis of the NECA contract with the Union,
the efficiency of its operations, the relative skills
involved, and economy of operation.
Operating Engineers contends that it did not
violate Section 8(b)(4)(D), having done nothing more
than request for its members the work in dispute,
and that the sign carried by its picket at the jobsite
did not have the object of forcing Egan-McKay to
employ an operating engineer but its purpose was
to inform the public that Egan-McKay was unfair in
its refusal to abide by the Joint Board decision. As to
the merits, Operating Engineers contends that the
work in dispute should be assigned to its members
on the basis of the decision by the Joint Board
awarding it the work, and on the basis of skills
involved, area practice, and that traditionally the
work has been performed by its members, and more
particularly, with the exception of Egan-McKay, all
the contractors on the project at the time of the
dispute, including the city of Minneapolis, have
assigned the operation of the hydraulic trenching
machine and backhoes to members of Operating
Engineers.
C. Applicability of the Statute
Before the Board may proceed with a
determination of 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.
The record shows that Respondent threatened to
picket the Employer 's worksite unless the operation
of the trencher was assigned to one of its members
and that Respondent actually picketed the worksite
causing some interference with the Employer's
operation.
Operating Engineers contends that Egan-McKay
and IBEW promised to abide by the decision of the
Joint Board and that its picketing merely publicized
that fact . Whether Egan-McKay and IBEW -so
indicated is not clear , but they did advise the Joint
Board prior to issuance of its award that , since the
work in dispute was "outside work ," neither Egan-
McKay nor IBEW would participate in the hearing
nor be bound by the Joint Board 's jurisdiction. The
trench digging in dispute, performed as it is on a
public thoroughfare , we find to be outside work. See
Local Union No . 181, International Union of
Operating Engineers , AFL-CIO (Service Electric
Company), 146 NLRB 483. Accordingly, we find that
Egan-McKay and IBEW have not adjusted or agreed
upon methods for the voluntary adjustment of the
present dispute.
On the basis of the entire record , we find that
there is reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred , and that the
dispute is properly before the Board for
determination under Section 10(k) of the Act.
D. The Merits of the Dispute
Neither of the contending labor organizations is
the certified bargaining representative of Egan-
McKay's employees. Although Egan-McKay is a
member of the Minneapolis branch of the NECA and
as such abides by the contract NECA has with
IBEW, the contract provisions urged are not
described in terms which would include a project
such as Nicollet Mall. Members of both Unions
possess the skills necessary to operate the trencher,
and although McKay testified that in his opinion a
member of IBEW would be more efficient and
economical because the operation of the trencher is
not a full-time operation and he could do work when
not operating the trencher , we note that the wage
rate for members of Operating Engineers is
considerably lower than that of IBEW for this kind
of work and it is possible that a member of Operating
Engineers could perform other kinds of ditchwork
for the Employer if not needed on the trencher.
There was testimony that some members of NECA
who have their own ditchdigging equipment do
employ members of IBEW to operate the
equipment. However, the record indicates that, in
the Minneapolis area, this kind of work is generally
handled by members of the Operating Engineers.
The city of Minneapolis employs members of
Operating Engineers to operate its trenching
equipment in connection with the installation of
electrical conduits. Moreover , among Operating
Engineers ' collective-bargaining agreements with
employers in the construction industry , there are 34
with Minnesota employers who do trenching work
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the installation of electrical conduits. Employer
testified that on "inside jobs" it had subcontracted
trenching work to subcontractors who employed
members of Operating Engineers to operate the
trenching equipment. Further, with the exception of
Egan-McKay, all the contractors on the Nicollet
project have assigned the operation of the trenching
machines and backhoes to Operating Engineers.
Accordingly, on the basis of predominant area and
industry practice, we shall determine the existing
jurisdictional dispute by awarding the work in
dispute to employees represented by Operating
Engineers, rather than to employees represented by
IBEW . Our present determination is limited to the
particular controversy which gave rise to this
proceeding.
DETERMINATION OF DISPUTE
On the basis of the foregoing findings , and the
entire record in the case, the Board makes the
following Determination of Dispute pursuant to
Section 10(k) of the Act:
Employees engaged as operating engineers and
currently represented by International Brotherhood
of Operating Engineers , Local 49, AFL-CIO, are
entitled to the assignment of operating the hydraulic
and backhoe trencher being used by Egan-McKay
Electrical Contractors, Inc., on its project at Nicollet
Mall, Minneapolis , Minnesota.