Intl. Union of Operating Engineers, Local 701

National Labor Relations Board - Board Decisions

Apr 22, 1970

182 N.L.R.B. 77 (N.L.R.B. 1970)

INTL. UNION OF OPERATING ENGINEERS , LOCAL 701 77
International Union of Operating Engineers Local No.
'701, AFL-CIO' and Grinnell Company of Oregon and
Road Sprinkler Fitters Local Union No. 669 , United
Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada , AFL-CIO.' Case 36-CD-60
find that it will effectuate the policies of the Act to
assert jurisdiction herein
II. THE LABOR ORGANIZATIONS INVOLVED
We find that the Engineers and Sprinkler Fitters are
labor organizations within the meaning of Section 2(5)
of the Act.
April 22, 1970
DECISION AND DETERMINATION OF
DISPUTE'
By MEMBERS FANNING, BROWN, AND JENKINS
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended, following
a charge filed by Grinnell Company of Oregon, herein
called the Employer, alleging a violation of Section
8(b)(4)(D) of the Act by International Union of Operating
Engineers Local No. 701', AFL-CIO, herein called Engi-
neers or Respondent. The charge alleges, in substance,
that the Engineers induced and encouraged employees
to engage in a strike or refusal to work, and has threat-
ened, coerced, and restrained persons engaged in com-
merce, where in both cases an object thereof is to
force or require the Employer to assign particular work
to employees represented by Respondent rather than
to employees represented by Road Sprinkler Fitters
Local Union No. 669, United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting Indus-
try of the United States and Canada, AFL-CIO, herein
called Sprinkler Fitters. Pursuant to notice, a hearing
was held before Hearing Officer Richard V. Stratton
on December 3, 4, and 5, 1969. All parties appeared
at the hearing and were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and
to adduce evidence bearing on the issues. The Employer,
the Engineers, and the Sprinkler Fitters have filed briefs
which have been duly considered.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
The Board has reviewed the Hearing Officer's rulings
made at the hearing and finds that they are free from
prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board makes
the following findings:
1. THE BUSINESS OF THE EMPLOYER
Grinnell Company of Oregon is engaged in installing
automatic fire extinguishing equipment, as well as the
sale and installation of fixtures and other devices. During
the past 12 months, the Employer has purchased and
received goods and materials valued in excess of $50,000
at its Oregon operation directly from States in the United
States other than the State of Oregon. The parties stipu-
lated, and we find, that the Employer is engaged in
commerce within the meaning of the Act. We further
' The correct names of the two competing Unions involved herein
appear in the caption as amended at the hearing
III. THE DISPUTE
I A. The Work in Dispute
The disputed work involves the operation of forklift
trucks when used as mobile scaffolds in connection
with the installation of piping on fire sprinkler systems.
B. 'The Facts
The Grinnell Company of Oregon is a wholly owned
subsidiary of Grinnell Corporation, a company which
has its national headquarters in Rhode Island. The Grin-
nell Corporation has four separate and autonomous divi-
sions consisting of manufacturing, supply-sales, industri-
al piping, and fire protection. Grinnell Company of Ore-
gon has only two divisions: the supply-sales and the
fire protection divisions. The industrial piping division
of the parent Grinnell firm has a national agreement
with the International Union of Operating Engineers.
Neither the International Union nor Respondent Local
701 has any contract with Grinnell Company of Oregon.
The National Automatic Sprinkler and Fire Control Asso-
ciation, herein called NASFCA, is the collective-bargain-
ing representative for sprinkler fitters of the fire protec-
tion division of Grinnell Corporation, its subsidiaries,
including Grinnell Company of Oregon, and other
employers. NASFCA has had collective-bargaining
agreements with the Sprinkler Fitters for many years,
both prior to and since the Sprinkler Fitters certification
by the Board in 1954. As Grinnell Company of Oregon
was and is a member of NASFCA, it is a party to
and is bound by such agreements.
Grinnell Company of Oregon installs automatic sprink-
ler systems in the ceilings of buildings and warehouses
in Oregon, southern Washington, and southern Idaho.
The system is a series of sprinkler heads attached to
iron pipes strung below ceilings with feeder lines and
connecting water mains. Prior to 4 or 5 years ago,
the overhead work was done from scaffolds on wheels
which were constructed on the jobsite and rolled into
position on the floor. In recent years, the overhead
work has been done from a mobile scaffold which is
attached to the forks on a forklift truck. The forklift
hoists the mobile scaffold containing men and materials
into place where the men perform the piping work.
The use of a forklift truck has increased from a limited
use at first to an almost exclusive use, where possible,
in the last 4 or 5 years.2
In September 1969, Grinnell Company of Oregon
began installation of a sprinkler system at the addition
to the plant of the Duraflake Division of Willamette
2 The forklift truck is not used at all in the Detroit area. Additionally,
the forklift cannot be used where there are obstructions or where
it is impossible or inconvenient to enter, such as offices or powderrooms
182 NLRB No. 14
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Industries, Inc , near Albany, Oregon, using employees
represented by the Sprinkler Fitters Thereafter, James
Michaeltree, a field representative for Respondent Local
701, approached Grinnell's working foreman on the job
site and told him that if Grinnell "didn't stop then
and put an operator [engineer ] on, they would put a
banner up " Michaeltree then went to Duraflake's vice
president and told him that, if Grinnell did not use
operating engineers to operate the mobile scaffold, the
engineers "would have to put a picket at the plant
Later, Michaeltree again contacted Duraflake's vice pres
ident and stated he would place a picket on the job
so that the engineers "could have that type of work
of operating lift trucks " When Grinnell continued to
use sprinkler fitters to operate the mobile scaffolds,
Michaeltree established a picket line which was respected
by delivery trucks and arriving employees Duraflake's
representative then told Grinnell's employees to leave
the job Subsequently, Grinnell Company filed the charge
giving rise to this proceeding
The Duraflake job was not the only instance where
the Respondent attempted to force Grinnell to assign
the operation of the forklift trucks in mobile scaffold
work to its members In January 1969, Russ Joy, financial
secretary and chief executive officer of Engineers Local
701, and Clyde Johnson, business agent , caused a picket
to be placed at the Waterway Terminals (Crown Zeller
back) jobsite where Grinnell was in the process of
installing a fire sprinkler system When Grinnell employ
ees left the job, the picketing stopped After Grinnell
hired employees represented by Respondent to perform
the mobile scaffold work on that job, the job was
not again picketed In February 1969, Grinnell was using
sprinkler fitters to install ceiling sprinkler systems in
a plant for Libby, McNeill & Libby in Salem, Oregon,
when Johnson told Grinnell that the Engineers "would
take whatever steps again they deemed necessary to
get the sprinkler fitters off the lift trucks and operating
engineers on them " After Engineers Local 701 picketed
the Libby job, Grinnell hired operating engineers to
operate the mobile scaffolds on that job 3 Similarly,
in September 1969, Johnson threatened to picket the
Freight Liner Company job on Swann Island , Oregon,
where Grinnell was using sprinkler fitters to operate
the mobile scaffolds After the prime contractor on
the job advised Grinnell that it "cannot allow a work
stoppage caused by a jurisdictional dispute" and the
job "Must continue to go on," Grinnell assigned the
disputed work of operating the forklift trucks with their
mobile scaffolds to the engineers, making clear that
its assignment was "under duress " On two other jobs,
American Can in Halsey, Oregon, and Mainline Foods
in Brooks, Oregon, Grinnell assigned the disputed work
to employees represented by Engineers Local 701
because agents of Respondent had threatened to close
the jobs down if this was not done On the Agricultural
Exhibit Building in Salem, Oregon, and the Commodore
Trailers job in Lebanon, Oregon, Grinnell continued
J On February 18 1969 Grinnell filed a charge based on the picketing
at this job which charge was later withdrawn after assurances from
the Engineers that there would be no further pressures
to use its own employees represented by the Sprinkler
Fitters to do the disputed work although agents of
Respondent had threatened to picket if the work assign-
ment were not made to the Engineers
National pressure was brought to bear by the Interna
tional Union of Operating Engineers, when they threat
ened to cancel their national agreement with the industrial
piping division of Grinnell Company In order to maintain
some type of harmony, the industrial piping division
and the International set out an agreement in a letter
dated March 7, 1969, in which it was stated that "When
a fork lift is used as a working platform the I U 0 E
will use good common sense and will not exert complete
jurisdiction over this operation unless State ordinances
dictate otherwise " Following the setting of the hearing
in this proceeding, the International Union again threat-
ened to terminate the national agreement with the indus-
trial piping division since Grinnell was proceeding to
hearing in this dispute
C Contentions of the Parties
Grinnell Company of Oregon, the Employer and
Charging Party, contends that Respondent Engineers
Local 701, as well as the International Union of Operating
Engineers, has violated Section 8(b)(4)(D) of the Act
by exerting coercive pressures on the Employer to com
pel it to assign the disputed work to members of the
Engineers Although no charge was filed against the
International, Grinnell urges that inasmuch as the Inter
national has threatened to cancel its national agreement
with the industrial piping division of Grinnell Company,
in furtherance of their work claim, a determination
of this dispute should be nationwide in scope The
Employer further contends that, pursuant to a certifica-
tion and collective-bargaining agreement, the work was
awarded to the Sprinkler Fitters, and that such work
should properly be awarded to employees represented
by the Sprinkler Fitters in view of (a) area and industry
practice, (b) economy and efficiency, (c) the skills
involved, and (d) the Employer assignment and history
of the bargaining relationship between the Sprinkler
Fitters and the Employer The position of the Sprinkler
Fitters is consistent with the position taken by the
Employer
The Engineers claim that the National Labor Relations
Board is precluded from proceeding with a determination
of the dispute since the Employer has agreed upon
a method for voluntary adjustment of the dispute In
this regard, Respondent points out that the parent corpo-
ration's industrial piping division maintains a national
agreement with the International Union of Operating
Engineers which provides for submission of jurisdictional
disputes to the National Joint Board for Settlement
of Jurisdictional Disputes In support of this contention,
the Engineers submitted into evidence three awards
by the Joint Board Additionally, Respondent claims
that through a letter of understanding the Employer
has made a contractual assignment of the work in dispute
to the Engineers, and that no reasonable cause exists
for believing an unfair labor practice has been committed
Also, the Engineers would limit any determination of
INTL . UNION OF OPERATING ENGINEERS , LOCAL 701
work assignment toy the present dispute in the State
of Oregon ,
D. Applicability bf the Statute
Before the Board may proceed with the determination
of a 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.
As previously stated , Respondent ' s officials
approached Grinnell ' s foreman at the Duraflake job and
told him that , if the operation of the forklift used as
a mobile scaffold by sprinkler fitters was not assigned
to engineers represented by Engineers Local 701, the
Engineers would shut the job down with a picket line.
Respondent ' s official also stated essentially the same
thing to a Duraflake representative . When sprinkler fitters
continued to operate the forklift used as a mobile
scaffold , the Engineers established a picket line which
was respected by delivery trucks, and other employees
arriving on the job. It was only after all Grinnell employ-
ees were forced to leave the job that the picket line
was removed . The fact that the picket signs were phrased
in terms of publicizing that Grinnell had allegedly
breached a contract does not alter the nature of the
dispute, which , in fact , centers on the demand , apparent
from the Engineers ' entire course ' of conduct , that the
work of operating the forklift truck used as a mobile
scaffold be reassigned to members of the Respondent.
Accordingly , on the basis of the entire record, we find
there is reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred
Nor do we find merit in the contention by the Engi-„
neers that Grinnell agreed to . a voluntary settlement
of the dispute , either through the Joint Board or a '
letter of understanding . In this connection, the record
shows that Grinnell Company of. Oregon was not a
signatory to the agreement betweennthe parent company's
industrial piping division and the Respondent ' s Interna-
tional Union , and there is no showing that Grinnell
Company of Oregon ever participated in a Joint Board
proceeding . In fact, the Grinnell Company of Oregon
does not have an industrial piping division . Therefore,
the Grinnell Company of Oregon was not bound contrac-
tually, or by any letter of understanding , to submit
this dispute to the Joint Board . Moreover , the letter
of understanding appears ambiguous and lends no sup-
port to Respondent ' s claim for the disputed work.
IV. MERITS OF THE DISPUTE
Section 10 (k) of the Act requires the Board to make,
an affirmative award of the disputed work after giving
due consideration to various relevant factors , and the
Board has held that its determination in a jurisdictional
dispute case is an act of judgment based upon common
sense and experience in balancing such factors.
1. Past practice , assignment , and area practice
Installing automatic sprinkler systems requires a series
of sprinkler heads be attached to iron pipes which are
strung below ceilings. In past years, the ceiling work
was done from , scaffolds which were constructed on
79
the jobsite and rolled into position on the floor. The
scaffolding was made and positioned by sprinkler fitters.
In the past 5 years, the mobile scaffold attached to
forklift trucks has been used almost exclusively. It has
been the Employer ' s consistent practice to assign opera-
tion of the forklift trucks to its employees represented
by the Sprinkler Fitters . The record also supports the
contention that the practice of other employers in the
area, as well as nationwide , is to assign such work
to employees represented by Sprinkler Fitters.
2. Contract and certification
The Sprinkler Fitters introduced their 1954 certification
of representatives in the multiemployer association of
the National 'Automatic Sprinkler and Fire Control Asso-
ciation , Inc:, of which Grinnell is a member . Through
its membership in NASFCA, Grinnell Company of Ore-
gon has been ' a party to a labor agreement with the
Sprinkler Fitters for many years and is presently a
party to a current contract with the Sprinkler Fitters
In that contract, the Sprinkler Fitters jurisdiction is
set out in article XV to consist of "the installation
of all fire protection and fire control systems including
the unloading, handling by hand and power equipment
and installation of all piping or tubing . . . ... Neither
the International Union of Operating Engineers nor its
Local 701 has a collective -bargaining agreement with
this Employer , Grinnell Company of Oregon. As we
view the limited operation of the -forklift trucks as
an integral part of the installation of fire control systems
and more specifically the installation of the "piping
or tubing," we 'find that the contract with the Sprinkler
Fitters supports their claim for the disputed work
3.' Skills, economy, and efficiency
Part of the apprenticeship training for a sprinkler
fitter consists of learning the operation of the forklift
truck and the safety factors involved . As part of the
forklift operator ' s experience has been working on the
mobile scaffold while it is aloft, a sprinkler fitter is
able to anticipate the needs and problems of the men
in the air and, consequently, works as a team with
the two men on the scaffold . In addition , the sprinkler
fitter operating the forklift' truck uses time when the
lift is not in operation to lay out work , to make fittings,
fabrications, and lubrications, and to read plans . Testi-
mony shows , that such additional skills are available
only, to a sprinkler fitter and not to an operating engineer.
Furthermore , when an operating engineer operates the
forklift with the mobile scaffold , the Employer must
still use a sprinkler fitter on the ground as part of
the sprinkler fitter team , to lay out plans, etc., while
the operating engineer would only operate the forklift,
at most , 2-l hours per day. Some days the forklift
truck is not used at all and , if an ,operating engineer
were otherwise required , he would have to be laid
off on those days. The Employer ' s practice of assigning
three-man sprinkler fitter crews to each mobile scaffold
has become standard in the industry and, once the
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
team develops a degree of proficiency, they are kept
together
Conclusions as to the Merits of the Dispute
Upon consideration and appraisal of all the relevant
factors, including industry and employer assignment,
the economical and efficient operation of the work as
currently assigned, and the certification and collective
bargaining agreement, we shall determine the existing
jurisdictional dispute by awarding the work of operation
of forklift trucks used as mobile scaffolds in the installa-
tion of piping to the Employer's employees represented
by Sprinkler Fitters, rather than to employees represent-
ed by the Respondent As it appears from the record
that the Respondent has repeatedly demanded this type
of work assignment on jobsites other than the current
dispute and inasmuch as Respondent acknowledges that
it will do so in the future, it is apparent that similar
disputes are likely to occur in the future Therefore,
we hold that the determination in this case applies
not only to the specific job which gave rise to this
proceeding, but to all similar work disputes arising
between Respondent Local 701 and Grinnell Company
of Oregon 4 In making this determination, the Board
is assigning the disputed work to employees represented
by the Sprinkler Fitters, but not to that Union or its
members
and the entire record in this proceeding, the National
Labor Relations Board makes the following Determina
tion of Dispute
1 Employees of Grinnell Company of Oregon, cur
rently represented by Road Sprinkler Fitters Local Union
No 669, United Association of Journeymen and Appren-
tices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO, are entitled to
perform the work of operating the forklift truck when
used as a mobile scaffold in the installation of piping
for their Employer
2 International Union of Operating Engineers Local
No 701, AFL-CIO, is not entitled by means proscribed
by Section 8(b)(4)(D) of the Act to force or require,
directly or indirectly, Grinnell Company of Oregon,
its successors or assigns , to assign any of the above
work to employees represented by said Union
3 Within 10 days from the date of this Decision
and Determination of Dispute , International Union of
Operating Engineers Local No 701, AFL-CIO, shall
notify the Regional Director for Region 36, in writing,
whether it will or will not refrain from forcing or requir-
ing, directly or indirectly, Grinnell Company of Oregon,
its successors or assigns , by means proscribed by Section
8(b)(4)(D) of the Act, to assign the above-described
work to employees represented by said Union
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Rela
' Although we have considered the conduct of the International Union
of Operating Engineers and find that it was in furtherance of Local
701 s claim for the disputed work no remedial order has been specifically
directed to the International inasmuch as it was not named as a Respond
tions Act, as amended, and upon the foregoing findings ent herein