Intl. Union of Operating Engineers, Loc. 158

National Labor Relations Board - Board Decisions

Aug 21, 1968

172 N.L.R.B. 1667 (N.L.R.B. 1968)

INTL. UNION OF OPERATING ENGINEERS, LOC. 158
International Union of Operating Engineers, Local
Union No. 158 , AFL-CIO and E. C. Ernst, Inc.,
and International Brotherhood of Electrical Work-
ers, Local No. 637, AFL-CIO. Case 5-CD-123
August 21, 1968
DECISION AND DETERMINATION OF
DISPUTE
By CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended, fol-
lowing the filing of charges by E. C. Ernst, Inc.
(hereinafter called Ernst), alleging that Interna-
tional Union of Operating Engineers, Local Union
No. 158, AFL-CIO (hereinafter called Operating
Engineers), violated Section 8(b)(4)(D) of the Act.
Pursuant to notice, a hearing was held before Hear-
ing Officer Charles B. Slaughter on May 22, 1968.
All parties appearing were afforded full opportunity
to be heard, to examine and cross-examine wit-
nesses, and to adduce evidence bearing on the is-
sues.
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 Board has reviewed the rulings made by the
Hearing Officer at the hearing and finds that they
are free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
E. C. Ernst, Inc. (Ernst), is a District of Colum-
bia corporation engaged in the building and con-
struction industry as an electrical contractor. Dur-
ing the past 12 months Ernst's gross revenues ex-
ceeded $1 million, and during that time it received
material and supplies valued in excess of $50,000
from firms outside the District of Columbia. Ac-
cordingly, we find that the Employer is engaged in
commerce within the meaning of the Act and that it
will effectuate the purposes of the Act to assert ju-
risdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the
Operating Engineers and the International Brother-
1667
hood of Electrical Workers, Local I o. 637,
AFL-CIO (hereinafter called IBEW), are labor or-
ganizations within the meaning of the Act.
III. THE DISPUTE
The dispute centers about the assignment of cer-
tain work operations required in connection with
the construction of the continuous TNT facility
being built for the Army at Radford, Virginia. On
this project, J. A. Jones Construction Company
(hereinafter called Jones) is the general contractor
and Ernst is the electrical subcontractor. The latter
is a member of the Virginia chapter of the National
Electrical Contractors Association (NECA), which
has a collective-bargaining agreement with IBEW
providing, inter alia, that electricians represented
by the IBEW are to perform work of the kind here
in dispute. As the electrical subcontractor, Ernst is
responsible for erecting the overhead power lines
that lead into the arsenal. To accomplish this, Ernst
uses power-driven drilling and hoisting equipment
to dig post holes, to set the poles, and to string the
overhead power lines. It is the operation of this
equipment that has given rise to the instant dispute.
Before work on the Radford arsenal began, a
prejob conference was held at the request of Jones
Co. and was attended by representatives of the vari-
ous subcontractors and building trades unions who
were to be involved in the construction project.
Ernst, the IBEW, and the Operating Engineers were
among those represented. The minutes of this con-
ference reflect that all of the union representatives
agreed that if jurisdictional disputes arose on the
project, such disputes would be submitted for set-
tlement to the National Joint Board for the Settle-
ment of Jurisdictional Disputes. The conference
minutes do not reflect, however, that any of the
employer representatives agreed to such submis-
sion.
About mid-February, when the equipment was
being unloaded at the project, a shop steward of
Operating Engineers employed by Jones ap-
proached Ernst's general superintendent and
claimed operation of the equipment to be the work
of members of his Union. Ernst's general superin-
tendent declined to accede. Subsequently, the
Operating Engineers' business agent visited Jones'
representative at the project, and also IBEW's busi-
ness manager, and unsuccessfully claimed the work
on behalf of Operating Engineer's members. The
IBEW took the position that it was entitled to the
work by virtue of its contract with the Employer
through the National Electrical Contractors As-
sociation. It also asserted that since the work was
"outside work" neither it nor Ernst was bound to
172 NLRB No. 192
1668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Joint Board.' Nevertheless, the Operating En-
gineers did submit the dispute to the Joint Board.
Neither the IBEW nor Ernst appeared before the
Joint Board or became a party to the Joint Board
proceeding. On March 19, 1968, the Joint Board is-
sued a decision awarding most of the disputed work
to operating engineers.'
Both Ernst and IBEW declined to comply with
the Joint Board's award and the equipment con-
tinued to be operated by electricians. On April 17,
1968, a shop steward of the Operating Engineers
told Jones' project manager that the Operating En-
gineers would strike if electricians continued to
operate the disputed equipment. On April 22, the
Operating Engineers engaged in a strike, as a result
of which Jones' project manager ordered that the
disputed equipment be taken off the job pending
resolution of the dispute. On May 9, pursuant to a
commitment by Operating Engineers not to engage
in a strike, picketing, or other conduct in
furtherance of its demand for the disputed work
pending resolution of the dispute by the Board, the
equipment was returned to the project and has
been continuously operated by electricians em-
ployed by Ernst who are members of, or
represented by, IBEW.
A. Contentions of the Parties
Operating Engineers contends that at the prejob
conference all parties involved herein agreed that
there would be no jurisdictional disputes and that
any such dispute would be resolved by the Joint
Board . It therefore argues that as there was a previ-
ously adopted method of adjustment of the dispute
herein , the IBEW and Ernst are estopped to deny
the power of the Joint Board to resolve that
dispute . The Operating Engineers , however, does
not rely solely on the Joint Board award to support
its jurisdictional claim . Although conceding that
when linework is performed in the open field by a
line crew working as a self-contained unit , work of
the kind here in dispute is properly assignable to
electricians , it contends that when the same work is
being performed on a construction site, where the
linemen are working side by side with members of
other crafts , traditional jurisdictional lines should
be respected and electricians should be confined to
electrical work . Additionally , relying on the Board's
reasoning in Millwrights Local Union No. 1102
i As a matter of national policy, IBEW does not recogmce the Joint
Board 's jurisdiction over "outside " disputes
' The Joint Board 's decision stated that "operation of the A-frame winch
truck on construction project site when used to hoist materials and equip-
ment shall be assigned to operating engineer .. The operation of the A-
Frame winch truck when used to pull cables and handle reels shall be as-
(Don Cartage Co. ),3 it contends that the Board
should give controlling weight to what it asserts to
be an agreement between the Unions herein in-
volved to submit jurisdictional disputes to the Joint
Board.
IBEW denies that at the prejob conference it
agreed to submit a dispute of the kind here in-
volved to the Joint Board for settlement. It affirma-
tively contends that because the disputed work is
"outside" work, it is not subject to the Joint
Board's jurisdiction. It also contends that Board
precedent,4 area practice, and considerations of
economy, efficiency, and safety require an award to
the electricians.
Ernst denies that there was any prejob agreement
binding it or IBEW to submit the instant dispute to
the Joint Board. Ernst further contends that it has
always assigned the disputed work to electricians
and that an assignment to operating engineers
would increase costs, impair efficiency, and create
significant safety hazards.
B. The Applicability of the Statute
Before the Board may proceed with a determina-
tion 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. In this case, the disputed equipment was
being operated by electricians. The facts and cir-
cumstances surrounding the strike engaged in by
the Operating Engineers on April 22 indicate
clearly that the Operating Engineers struck because
it objected to this assignment and wanted the
disputed work to be assigned to its own members,
rather than to members of IBEW.
We find no merit in the Operating Engineers con-
tention that the Board is precluded from making a
determination of the dispute because as it claims,
the Joint Board award constituted a voluntary ad-
justment of the dispute within the meaning of Sec-
tion 10(k) made pursuant to a method of adjust-
ment agreed upon by all parties at the prejob con-
ference. Operating Engineers, to support its posi-
tion, introduced into evidence a sheet of paper con-
taining the signatures of persons , including the em-
ployer representatives who participated in the
prejob conference. It contends that this paper was,
in fact, a list of persons who, by signing, had agreed
to submit all project work disputes to the Joint
signed to electrical workers - The Joint Board's decision did not set forth
the reasons upon which this award was based
' 160 NLRB 1061
4 Local 132, operating Lnguieerc (Pritchard Electric Co , 168 NLRB
374, Local 825, operating Lngineerc (Nnholc Electric Co , 137 NLRB
1425
INTL. UNION OF OPERATING ENGINEERS, LOC. 158
Board.' This interpretation, however, is con-
tradicted both by the minutes of the meeting and
much of the oral testimony describing that meet-
ing.' The record evidence does not substantially
support a finding that Ernst was a party to the
agreement reached at the prejob conference. As
Ernst, a necessary party to the adjustment of
dispute, neither agreed to Joint Board submission
nor participated in the Joint Board proceeding, we
conclude that there was no voluntary adjustment of
the dispute within the meaning of Section 10(k).
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 determina-
tion.
C. Merits of the Dispute
Section 10 ( k) of the Act requires that the Board
make an affirmative award of the disputed work
after giving due consideration to all relevant fac-
tors . In International Association of Machinists,
Lodge No. 1743 (J. A. Jones Construction Co. ),7 the
Board set forth the criteria to be considered in the
making of an affirmative award in a Section 10(k)
proceeding:
The Board will consider all relevant factors in
determining who is entitled to the work in
dispute , e.g., the skills and work involved, cer-
tifications by the Board , company and industry
practice , agreements between unions and
between employers and unions , awards of ar-
bitrators , joint boards and the AFL-CIO in the
same or related cases , the assignments made by
the employer and the efficient operation of the
employers ' business.'
In our judgment, the following factors are rele-
vant here.'
1. Company and area practice
IBEW, Ernst, and other employer-parties to the
IBEW-NECA agreement have consistently regarded
electrical work performed outside of a building as
electrical work falling within the jurisdictional
scope of that contract, notwithstanding the fact that
it was to be performed on a construction site. For
this reason , and as such work in the Radford area is
" IBEW contends that the Iist is simply an attendance record of the meet-
mg"The minutes state that the "10-Point Statement of Policy," which con-
tained the provision for submission of disputes to the Joint Board, was "ac-
cepted unanimously by the labor repreieniallses ' (emphasis supplied) One
witness, L D Eckhard, stated that the sheet contained "a list of people that
attended the pre-job conference " Even the witness, L B Leonard, who
testified that an agreement had been signed at the prejob conference,
stated that the agreement had been made and signed only by union
1669
most usually contracted out to electrical subcon-
tractors, it has customarily been assigned by them
to electricians. It is true that area practice has not
been entirely uniform and unvarying. Thus,
testimony adduced by the Operating Engineers
shows that operating engineers have performed this
kind of work on certain construction projects.
Nonetheless, it does appear that in the large majori-
ty of cases the work of the kind being contested
here is performed in the area around Radford by
electricians, rather than by engineers. In any event,
it is clear that such work has always been awarded
by Ernst to electricians. Both area and employer
practice, therefore, favor an award to electricians.
2. Contracts between the parties
As has been noted above, Ernst, as a member of
NECA, is a party to the contract between that as-
sociation and IBEW. Under the terms of this agree-
ment, the contested work is to be performed by
electricians. This agreement is one factor favoring
an award to electricians.
The Operating Engineers submitted into evidence
an agreement between it and "Employers in the
Roanoke, Virginia area," which, according to the
Operating Engineers, indicates that the kind of
work here involved is customarily performed by
operating engineers. The signatories to this contract
are general contractors who work in the Roanoke
area. Neither Jones nor Ernst is a party to this
agreement. For this reason, we do not believe that
this contract can be regarded as a significant factor
favoring an award to operating engineers.
3. Employer's preference
Jones has not filed a brief in this proceeding and
does not appear to have a preference in this
dispute. Ernst, on the other hand, strongly favors an
award to electricians. Ernst's preference is another
factor which supports an assignment to electricians.
4. Efficiency, safety, and economy
Ernst and IBEW both argue that considerations
of efficiency and safety require an award to electri-
cians . Lesley D. Eckhard, a general superintendent
for Ernst, plausibly testified that in some instances
the equipment operator is required to install "hot"
or "energized lines ." He further testified that an
operator who is not familiar with the electrical
problems involved in such work would create a
representatives
' 135 NLRB 1402
"id at 1410-1411
"Other factors normally considered as relevant, such as skills involved
and certifications, are of no aid in the resolution of the instant dispute So
far as appears, IBEW and Operating Engineers members are equally skilled
in the performance of the cork, and neither union supports its claim in
whole or in part on any Board certification
1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"considerable hazard" to himself, to other workers,
and to the equipment itself. As further appears
from Eckhard's testimony, the equipment in
question is operated for approximately 2 hours per
day. Thus, if Ernst were required to hire an operat-
ing engineer for the job, that engineer might remain
idle for several hours each day, thereby impairing
efficiency and increasing costs significantly. On the
basis of these considerations, efficiency, safety, and
economy appear to favor an award to electricians.
5. Agreement to submit disputes to Joint Board
Operating Engineers , relying on the Board's Don
Cartage decision, supra, contends that the prejob
agreement to submit disputes to the Joint Board is a
"compelling consideration" favoring an award to
operating engineers. As found above, that agree-
ment was not binding on Ernst, which was not a
party thereto. Therefore, the Joint Board award,
even if assumed to have been rendered pursuant to
the prejob agreement, cannot be regarded as deter-
minative of this dispute. This does not mean, of
course, that the prejob agreement, since it con-
stituted an interunion commitment , and the Joint
Board award pursuant thereto, are considerations
to be ignored . However , in assessing the weight to
be accorded the Joint Board award, we take into
account that the award consisted simply of a letter
setting forth its ultimate terms , but did not ex-
plicate the factors relied upon , the reasoning fol-
lowed, or other supporting data in a manner that
might enable us to evaluate the award in the light of
our own standards to determine the degree of
deference that should properly be accorded to it. In
this regard, we view the Joint Board's award in this
case as substantially distinguishable from the one in
the Don Cartage case, and we do not therefore as-
sign it the same significant weight.10
6. Conclusions as to the merits of the dispute
In balancing all relevant factors, we conclude
that the disputed work should be awarded to the
10 Member Jenkins agrees that the Joint Board award in this case is not
sufficient to outweigh the considerations which favor an award to the elec-
tricians Hasing reached a similar stew in his dissent in Don Carnage he now
finds it unnecessary to distinguish carefully the Joint Board award in this
electricians. Company and area practice, employer
preference, safety, efficiency, and economy of
operation all favor such an award." Balanced
against these considerations is the Joint Board
award rendered pursuant to the agreement reached
at the prejob conference. Although the Joint Board
award is a factor favoring an award to operating en-
gineers , we do not believe for reasons stated above,
that it is sufficient to outweigh the considerations
which favor an award to electricians.
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
case, the National Labor Relations Board hereby
makes the following determination of dispute.
1. Employees employed by E. C. Ernst, Inc., as
electricians and currently represented by Interna-
tional Brotherhood of Electrical Workers, Local No.
637, AFL-CIO, are entitled to operate power-
driven drilling and hoisting equipment used to dig
post holes, set the poles, and string the overhead
power lines in connection with the installation of
overhead power lines at the construction site of the
continuous TNT facility at the Radford, Virginia,
arsenal.
2. International Union of Operating Engineers,
Local Union No. 158, AFL-CIO, is not entitled, by
means proscribed by Section 8(b)(4)(D) of the
Act, to force or require the Employer to assign the
above work to operating engineers who are
represented by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, International Union
of Operating Engineers , Local Union No. 158,
AFL-CIO, shall notify the Regional Director for
Region 5 , in writing , whether it will refrain from
forcing or requiring the Employer, by means
proscribed in Section 8(b)(4)(D), to assign the
work in dispute to employees represented by
Operating Engineers, Local 158 rather than to those
represented by Electricians Local 637.
case from the award in the earlier case, although he recognizes that some
differences may exist
'iPr,uhardLleunc (o, 165 NLRB 374 , No hod,LlectraCo,137NLRB
1425