Intl. Union of Operating Engineers, Local 18

National Labor Relations Board - Board Decisions

Apr 9, 1970

181 N.L.R.B. 1037 (N.L.R.B. 1970)

INTL . UNION OF OPERATING ENGINEERS , LOCAL 18
International Union of Operating Engineers, Local
No. 18 , AFL-CIO and Laborers ' International
Union of North America , Local Union No. 83,
AFL-CIO and United Brotherhood of Carpenters
and Joiners of America , Local 650 and Ball
Electric Company and Bates and Rogers
Construction Company and Local No. 317,
International Brotherhood of Electrical Workers,
AFL-CIO. Cases 9-CD-183-1, 9-CD-183-2, and
9-CD-183-3'
April 9, 1970
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
grr. ,_
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 Ball Electric Company,
alleging that the International Union of Operating
Engineers, Local No. 18, AFL-CIO, Laborers'
International Union of North America, Local
Union No. 83, AFL-CIO, and United Brotherhood
of Carpenters and Joiners of America, Local 650,
AFL-CIO, induced or encouraged employees to
cease work in order to force or require Ball Electric
Company to assign the various types of work in
dispute to members of such unions rather than to
Ball's employees represented by Local No. 317,
International Brotherhood of Electrical Workers,
AFL-CIO. Pursuant to notice a hearing was held on
December 2, 1969, before Hearing Officer Stephen
S. Frockt of the National Labor Relations Board.
Although duly served with notice of the hearing,
neither the Operating Engineers nor the Laborers'
Union appeared at the hearing, or filed briefs with
the Board. They did, however, by telegram to the
Regional Director shortly before the hearing,
disclaim any interest in the work in dispute. All
other parties appeared at the hearing and 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. A brief was filed by
the Electrical Workers and has been duly
considered.
Upon the entire record in this case, the Board=
makes the following findings:
in Case 9-CD-183-3, the Regional Director , upon motion of the
Charging Party prior to the hearing, permitted withdrawal of the charge in
that case insofar as it named Tri-State District Council of Carpenters,
AFL-CIO, as a Respondent.
'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
1. THE BUSINESS OF THE EMPLOYER
1037
Ball Electric Company is engaged in the business
of electrical construction work with its principal
offices in Belpre, Ohio. During a recent,
representative 12-month period it performed services
exceeding $50,000 at points outside the State of
Ohio and during that period purchased over $50,000
worth of goods and supplies from outside the State
of Ohio. Accordingly, we find that Ball Electric
Company is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
it will effectuate the policies of the Act to assert
jurisdiction herein
II. THE LABOR ORGANIZATIONS INVOLVED
The parties appearing at the hearing stipulated,
and we find, that the Operating Engineers, the
Laborers' Union, the Carpenters and the IBEW are
all labor organizations within the meaning of
Section 2(5) of the Act.
Iti. THE DISPUTE
A. Background
Ball Electric held a subcontract from Bates and
Rogers Construction Company for the installation
of overhead lighting for the approaches for a new
bridge connecting Gallipolis, Ohio, and Point
Pleasant, West Virginia. The work involved, among
other jobs, (a) the operation of a line truck with an
auger for digging holes; (b) the excavation of and
pouring of concrete into the holes for footers or
foundations for the bases for the overhead lighting
standards; and (c) the building and installation of
forms to contain the poured concrete. Ball Electric
assigned all the work involved in installing the
overhead lighting, including that just listed, tc its
own employees who are represented by the IBEW.
Some preliminary work was done on the lighting job
by the Company in the early summer of 1969, with
the principal part of the work beginning about
September 5.
Around September 8, the digging of holes with
the auger-equipped truck began, and shortly
thereafter a job steward of the Operating Engineers
complained to the IBEW job steward on the
Company's job and to a company employee that
operation of the truck and -auger was engineers'
work, that operating engineers would operate the
equipment. Representatives of the IBEW, being
informed of the claim, told their job steward that
the work was properly assigned and to continue the
operations with Company employees represented by
the IBEW. He did so. Also, at this same time, a job
steward for the Laborers' Union claimed all "shovel
work" on the job, but was told by the IBEW
steward that the IBEW-represented employees
would do the work. A few days later a Carpenter's
181 NLRB No. 163
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
steward made a similar claim concerning certain
wooden forms being put in place on the job and
received a similar reply - the employees
represented by IBEW would do the work.
A day or so later, when the Company again
started boring holes, operating engineers employed
elsewhere on the bridge project by other companies
stopped work for a couple of hours. The next day an
officer of the prime contractor telephoned the
Company's job superintendent and stated that under
its contract with the Operating Engineers and under
the subcontracting agreement, the Engineers had to
operate the truck and auger The Company's
superintendent pulled the truck off the job, but
George Ball, the Company's owner and manager,
ordered the truck back in operation with the crew as
previously assigned. Also in the telephone
conversation, the prime contractor's officer told
Ball's superintendent that the Carpenters were
claiming the form work, and the Laborers the shovel
and concrete pouring work.
The following day around 2 p.m., the Company
began boring holes again with its IBEW-represented
employees. Thereupon the Operating Engineers' job
steward approached Ball's superintendent stating,
"You don't understand very good," and to the
superintendent's reply that Ball would continue with
the work as assigned, threatened either undefined
trouble or a work stoppage. In any event, in about
20 minutes, the employees represented by Operating
Engineers pulled their equipment off the job,
assertedly to watch Ball Electric employees bore
holes. At this time, the carpenters and laborers on
the project also quit work. There was also a work
stoppage the following day, begun by the carpenters,
who refused to start work because they thought the
Company was setting the wooden forms, with the
operating engineers and laborers joining later in the
stoppage. It does not appear from the record how
long the work stoppage lasted. However, at the time
of the hearing Ball had completed its work on the
bridge project. There was no picketing of the job at
any time by any union.
B Contentions of the Parties
The Company contends that the Operating
Engineers, Carpenters, and Laborers attempted
through their work assignment demands, and work
stoppages shortly thereafter, to force it to assign
work not to its own employees represented by the
IBEW, but to their members. The IBEW takes
essentially the same position as the Company. The
Carpenters' position was limited at the hearing
basically to the point that it does claim form work
such as that required on the overhead lighting job
involved in this case. It added, however, that it "has
no issue" with Ball. As stated above, neither the
Operating Engineers nor Laborers appeared at the
hearing However, shortly before the hearing they
filed telegraphic statements with the Regional
Director disclaiming interest in obtaining an
assignment of the work in dispute and requested
that the notice of hearing be quashed with respect to
them.'
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 the three claiming unions
- the Operating Engineers, Carpenters, and
Laborers - claimed various aspects of the work
assigned by Ball to its own employees represented
by the IBEW, and that members of the Respondent
Unions working on the bridge project where Ball
was installing the overhead lighting engaged in work
stoppages when Ball's employees performed, or
when they thought Ball's employees were
performing, work claimed by their Unions. As
noted, the Operating Engineers and Laborers filed
statements disclaiming any interest in' obtaining an
assignment at this time of the work in dispute. They
did not concede that they were not entitled to such
work or otherwise take the position that their claims
to the work were at the time made and while the
project was still underway without merit and
withdrawn. Finally there is no evidence that the
parties had all agreed to any voluntary resolution of
the disputes over the assignment of the work here
involved.
Accordingly, we find on the basis of the entire
record 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. Merits of the Dispute
The IBEW has been the recognized bargaining
agent of all Ball's employees for approximately 10
years, and during the period here involved Ball and
the IBEW were parties to a multi-employer
bargaining agreement effective through May 31,
1970. However, no provision of that agreement
clearly covering the work in dispute in this case has
been brought to our attention. The claiming Unions
have never represented any of Ball's employees and,
consequently, have no contracts with Ball covering
the disputed work. Although, the prime contractor
here stated in a telephone conversation with Ball
that under its subcontract Ball was obligated to
abide by "each and all of the terms and conditions
of such agreements applicable to" the subcontracted
work, there is no evidence, aside from certain vague
'in view of our conclusion herein and as a later disclaimer could not
dissipate such violation if it did occur, the motions of the Operating
Engineers and the Laborers to quash the notice of hearing as to them are
denied
INTL UNION OF OPERATING ENGINEERS, LOCAL 18 1039
hearsay statements, that the prime contractor had
any agreement with any of the Respondent unions
affecting any assignment of the work here in
dispute ° In any event, there is no specific
contractual provision which supports the claim of
any union to the particular work here in dispute.
There is, however, uncontradicted testimony
showing that the Company's employees have the
skills necessary to perform the disputed work, that
the Company has consistently assigned the disputed
work to its employees represented by the IBEW,
and that such assignment conforms to what appears
to be the common industry practice in the area
Further, there is evidence that it would be inefficient
to hire additional employees for the sole purpose of
performing the disputed work, as such work is
intermittent in nature and does not require the
continuous assignment of any employees for its
performance. Finally, there is no evidence in the
record even suggesting either a basis which would
support an award to any of the claiming unions,ior
that the Company's assignment of the work is, in
any manner improper. xyp
Consequently, on the basis of the Company's
usual practice and its particular assignment in the
present case, the predominant area practice, and
considerations of efficiency, we shall determine the
existing jurisdictional disputes by awarding the work
in dispute to the Company's employees represented
by the IBEW. In making this determination we are
assigning the work in dispute to employees of the
Company represented by IBEW, but not to such
Union or its members. Our determination is limited
to the disputes which gave rise to this proceeding 5
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
Dispute:
1. Employees of Ball Electric Company, who are
represented by Local No. 317, International
Brotherhood of Electrical Workers, AFL-CIO, are
entitled to the assignment of (a) the operation of the
line truck with an auger for digging holes for footers
or foundations for the overhead lighting standards
on the Ball Electric Company job on the approaches
to the new bridge connecting Gallipolis, Ohio, and
Point Pleasant, West Virginia, (b) the excavation of,
and pouring concrete into, such holes, and (c) the
building and installation of forms to contain such
concrete. .
2. International Union of Operating Engineers,
Local No 18, AFL-CIO, Laborers' International
Union of North America, Local Union No. 83,
.AFL-CIO, and United Brotherhood of Carpenters
and Joiners of America, Local 650, are not entitled
by means proscribed by Section 8(b)(4)(D) of the
Act, to force or require the Company to assign to
employees they represent, respectively, the work
described above in (a), (b), and (c), above.
3. Within 10 days from the date of this Decision
and Determination, the unions named in paragraph
2 above shall notify the Regional Director for the
Ninth Region, in writing, whether or not they will
refrain from forcing or requiring the Company, by
means proscribed by Section 8(b)(4)(D) of the Act,
to assign the work in dispute in a manner
inconsistent with the above determination.
'Cf Local 585 of the Brotherhood of Painters (Bishopric Products
Company), 140 NLRB 1304 , 1310-11 The Carpenters placed in evidence a
copy of one of its contracts containing broad jurisdictional language
Concededly , Ball was not a signatory , and Bates and Rogers ' relationship
to the agreement is on the record before us at best obscure
'Although the IBEW urges the Board to extend its determination to all
similar disputes occurring within the State of Ohio "wherever the
jurisdiction of the competing unions coincide ," we find no warrant in this
record for such a broad determination