Int'l Union Operating Engineers, No. 428, Etc.

National Labor Relations Board - Board Decisions

Jun 25, 1965

153 N.L.R.B. 572 (N.L.R.B. 1965)

572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers , Local No. 428 of
Arizona, AFL-CIO and Ets-Hokin Corporation and Interna-
tional Brotherhood of Electrical Workers, Local 769, AFL-CIO,
Party to the Dispute
International Brotherhood of Electrical Workers , Local 769,
AFL-CIO and Ets-Hokin Corporation and International Union
of Operating Engineers, Local No. 428 of Arizona , AFL-CIO,
Party to the Dispute. Cases Nos. 28-CD-60 and f8-CD-61.
June 25,1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10(k) of the National
Labor Relations Act, as amended, following separate charges filed
October 12 and November 13, 1964, by Ets-Hokin Corporation, herein
called Ets-Hokin or the Employer, alleging that International Union
of Operating Engineers, Local No. 428 of Arizona, AFL-CIO, herein
called Operating Engineers, and International Brotherhood of Elec-
trical Workers, Local 769, AFL-CIO, herein called IBEW, had each
violated Section 8(b) (4) (D) of the Act by engaging in conduct to
force or require the Employer to assign certain disputed work to
employees represented by it. Pursuant to notice, a consolidated hear-
ing was held before Hearing Officer Samuel Slaff on December 17 and
18, 1964. 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 rulings of the Hearing
Officer made at the hearing are free from prejudicial error and are
hereby affirmed. The Employer, Operating Engineers, and IBEW
filed briefs with the National Labor Relations Board which have been
duly considered.
Pursuant to the provisions of Section 3(b) of the Act, as amended,
the Board has delegated its powers in connection with this proceeding
to a three-member panel [Chairman McCulloch and Members Fan-
ning and Brown].
Upon the entire record in these cases, the Board makes the following
findings :
1. The business of the Employer
All the parties stipulated that the Employer, a California corpora-
tion, is engaged as prime contractor in the construction and erecting of
a 345 kv. electric power transmission line from Glen Canyon Dam,
Arizona, to Flagstaff, Arizona, pursuant to a contract in excess of
$1 million between the Employer and the Bureau of Reclamation, an
agency of the United States Government. During 1964, the Employer,
153 NLRB No. 31.
INT'L UNION OF OPERATING ENGINEERS, NO. 428, ETC. 573
in performance of its work on this transmission line, purchased mate-
rial, supplies, and equipment from outside the State of Arizona costing
in excess of $50,000. The parties agree, and we find, that the Employer
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.
2. The labor organizations involved
The parties stipulated, and we find, that Operating Engineers and
IBEW are labor organizations within the meaning of Section 2(5) of
the Act.
3. The dispute
A. Background facts
Ets-Hokin, under contract from the United States Bureau of Recla-
mation, is engaged in the construction of a 345 kv. electrical transmis-
sion line between Glen Canyon Dam and Flagstaff, Arizona.' Con-
struction work on line 2 is carried out in four basic phases : (1) The
clearing of the right-of-way and building of access roads; (2) the
so-called "footings" operation, which involves excavating holes for
tower foundations, pouring the concrete tower foundations and foot-
ings, and backfill operations; (3) the erection of the steel towers; and
(4) the attachment of insulators to, and the stringing of wire from, the
towers. The instant dispute involves part of the work performed in
the footings operations. Specifically, it includes the drilling and exca-
vation of the holes for the tower footings prior to the pouring of the
concrete footings, and also the backfilling, tamping, and cleanup work
done after the footings have been poured. The work in dispute is per-
formed primarily by power-driven equipment; both Operating Engi-
neers and IBEW claim their members are entitled to operate and
maintain that equipment.
When Ets-Hokin began operations on line 2, it also was performing
work on two other major projects in the State of Arizona for the
United States Bureau of Reclamation, a powerhouse and switchyard at
Glen Canyon, Arizona, and a 345 kv. electrical transmission line from
Glen Canyon, Arizona, to Pinnacle Peak, Arizona .2 The latter proj-
ect, line 1, involves work virtually identical with the work being per-
formed on line 2.
The footings work in dispute on line 2 was performed by Operating
Engineers on line 1. Before the footings operation on line 2 was begun,
Operating Engineers, whose members had just completed this work
on line 1, and IBEW both notified the Employer that they expected
i Hereinafter referred to as line 2.
2 Hereinafter referred to as line 1.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assignment of the disputed work to their respective members. On
October 7, 1964, Operating Engineers informed Ets-Hokin, by letter,
that any assignment of the disputed work to members of another
union would be treated as a breach of contract and that it intended to
take such action as would be necessary to remedy the breach, including
picketing and striking of Ets-Hokin's operations. On October 30,
1964, Ets-Hokins was informed by Joseph Housley, business agent for
IBEW, that unless the disputed work was assigned to IBEW mem-
bers, it would not furnish any employees to the project. Thereafter,
in a 10 (1) injunction proceeding in the United States District Court
for the District of Arizona,3 Operating Engineers and IBEW entered
into a stipulation by which they agreed to refrain from engaging in
picketing, threats, restraint or coercion of Ets-Hokin with an object
of forcing Ets-Hokin to assign the disputed work to their respective
members, pending the issuance of a final Board Order disposing of the
issue. After this stipulation, the Employer assigned the work in ques-
tion to IBEW.
B. Contentions of the parties
Operating Engineers contends that the work in dispute is identical
with that which its members have traditionally performed in outside
construction work, and cannot be considered electrical work. It also
asserts that the disputed work is covered by its contract with
Ets-Hokin and that, as this agreement predated and was in effect at
the time Ets-Hokin contractually assigned the work to IBEW, Oper-
ating Engineers has a preemptive contractual right to the work in
dispute.
IBEW contends that the work in question is electrical in nature and
commonly performed by IBEW members. It cites such factors as
area practice, Employer practice, and assignment as overwhelmingly
favoring its claim. It also argues that other factors normally con-
sidered by the Board either favor IBEW or are inconclusive.
The Employer takes the position that the members of both Operat-
ing Engineers and IBEW are qualified to perform the disputed work
at approximately the same cost to the Company, but that for good and
sufficient business reasons, it assigned the disputed work to IBEW
members and, inasmuch as area practice, and contractual claims seem-
ingly favor IBEW, the assignment should not be disturbed.
C. Applicability of the statute
The -charges, which were duly investigated by the Regional Direc-
tor, allege violations of Section 8(b) (4) (D) of the Act by Operating
Engineers and IBEW, respectively. The Regional Director was satis-
.'Henderson, Regional Director v Local 769, (Civil No. 5347 Phx) Henderson,
Regional Director V. Operating Engineers, Local 428, (Civil No. 5343 Phx).
INT'L UNION OF OPERATING ENGINEERS, NO. 428, ETC. 575
fled upon the basis of such investigation that there was reasonable
cause to believe that the violations had been committed and directed
that a consolidated hearing be held in accordance with Section 10(k)
of the Act.
The undisputed record evidence establishes that Operating Engi-
neers threatened to picket and strike the Employer unless the disputed
work was assigned to its members. The record also establishes a threat
by IBEW to refuse to furnish employees to the project, if the disputed
work was not assigned to IBEW members. Accordingly, on the basis
of the entire record, we find there a reasonable cause to believe that
violations of the Act have occurred and that the dispute is properly
before the Board for determination.
D. Merits of the dispute
Section 10 (k) of the Act requires the Board to make an affirmative
award of disputed work after giving due consideration to the 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 and a balancing of such factors .4
1. Skills involved
The drilling and excavation of holes for tower footings and the back-
fill, tamping, and cleanup work performed in the footings operation is
done primarily by the use of various types of power equipment, which
require a certain degree of skill on the part of the operator. From the
record, it is evident that both Operating Engineers and IBEW have
members who are experienced in the operation of such equipment and
possess the requisite skill to perform the work in question.
2. Collective-bargaining agreements
Operating Engineers and IBEW both claim a contractual right to
the disputed work. In July 1962, Ets-Hokin received notice to proceed
on two separate projects located in the State of Arizona-the power-
house and switchyard at Glen Canyon and line 1. Thereafter, in con-
nection with the work on the Glen Canyon project, Ets-Hokin entered
into a collective-bargaining agreement with Operating Engineers on
September 27,1962, which by its terms was effective until May 31, 1965.
This agreement extends coverage to construction work on all electric
transmission line projects in the State of Arizona, and awards to
Operating Engineers jurisdiction over the various types of power
4 N.L.R B. v. Radio & Television Broadcast Engineers Union, Local 1212, International
Brotherhood of Electrical Workers (Columbia Broadcasting System), 364 U.S. 573 ; In-
ternational Association of Machinists, Lodge No 1743, AFL-CIO (J. A Jones Construc-
tion Company), 135 NLRB 1402
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equipment used in the preparation of footings. When Ets-Hokin
began work on line 1, it subcontracted the preparation of the footings
to Pratt, a contractor who employed Operating Engineers to do the
work.5 In July 1963, when the footings work on line 1 was 50 percent
complete, Ets-Hokin dismissed Pratt and completed the footings
work itself observing all the terms and conditions of its agreement
with Operating Engineers. The footings on line 1 were completed
on September 28, 1964.
Meanwhile, on April 9, 1963, Ets-Hokin entered into a collective-
bargaining agreement with IBEW which was effective until June 20,
1964. This agreement covered, inter alia, the "digging and backfilling
of holes for poles, anchors, and transmission tower foundations (by
hand or mechanical equipment) . . . ." At the expiration of this con-
tract, the parties agreed to extend the contract by mutual consent and
this condition prevailed until November 30, 1964, when the parties
entered into a new agreement and a supplementary agreement with a
termination date of June 20, 1965, which also provides that the work
here in dispute is to be performed by IBEW members. Pursuant to
this agreement, the work in dispute on line 2 was assigned to IBEW
members in early December 1964.
It appears that both Operating Engineers and IBEW have con-
tractual bases for their respective claims to the disputed work.
Accordingly, we find that this factor favors neither.
3. Area practice
Electric transmission or distribution lines are of two basic types:
those using steel towers, such as lines 1 and 2, and the more common
pole line variety on which a wooden or metal pole is used. The foot-
ings operation on both types is similar.
The record establishes that there have been approximately 15 steel
tower lines constructed in the State of Arizona. On all but three of
these projects, the footings work in dispute was performed by IBEW
members; on the remaining three, including line 1, Operating Engi-
neers' members did the work. With respect to the pole line variety,
the testimony indicates that several thousand such lines have been
constructed in the State of Arizona and that the footings work on such
projects has been performed almost exclusively by IBEW members.
4. Company practice
The record shows that Ets-Hokin regularly performs contracts for
the construction of various types of electric transmission and distribu-
tion lines, and that its past practice has been to employ IBEW mem-
s Under the terms of the agreement between Ets-Hokin and Operating Engineers, Ets-
Hokin was required to see that its subcontractors observe the agreement.
INT'L UNION OF OPERATING ENGINEERS, NO. 428, ETC . 577
bers for the footings work in dispute. So far as the record indicates,
the sole exception to this practice was in connection with the work
performed on line 1.
5. Efficiency of operation
The evidence is undisputed that the members of both Operating
Engineers and IBEW are capable of performing the disputed work
in a satisfactory manner, and at about the same cost to the Employer.
6. Employer assignment
When called upon to make its assignment of the disputed work, the
Employer found that the usual business reasons for making a selection
were not present. Both unions were asserting contractual claims to
the work, each possessed members having the requisite skills, and the
cost to the Company was approximately the same in either case. In
view of this, the Employer decided to make its assignment based upon
the effect an award to either union would have on employee morale.
On this basis, Ets-Hokin concluded that inasmuch as 80 percent of the
total work on line 2 was to be performed by IBEW employees, the
assignment of the disputed work should be made in favor of the
employees represented by the union.
CONCLUSIONS AS TO THE MERITS OF THE DISPUTE
Upon consideration of all pertinent factors in this case, we shall
assign the disputed work to employees represented by the IBEW. We
have given weight to the evidence that the predominant area and com-
pany practice has been to assign such work to electricians and that
the Employer's assignment was consistent with these practices, while
such factors as skills, efficiency of operation, and contractual rights
can be said to have equally supported the claims of both unions. In
making this determination, which is limited to the particular contro-
versy which gave rise to this proceeding, we arc- assigning the disputed
work to employees of the Employer who are represented by IBEW
but not to that Union or its members.
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 currently represented by International Brotherhood
of Electrical Workers, Local 769, AFL-CIO, are entitled to perform
the drilling and excavation, backfilling, tamping, and cleanup work
796-027-66-vol. 15 3- 3 8
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in connection with the preparation of tower footings on Ets-Hokin's
electric transmission line 2, located between Glen Canyon Dam and
Flagstaff, Arizona.
2. International Union of Operating Engineers, Local No. 428 of
Arizona, AFL-CIO, is not entitled, by means proscribed by Section
8(b) (4) (D) of the Act, to force or require Ets-Hokin Corporation,
to assign the aforementioned work to its members,
3. Within 10 days from the date of this Decision and Determination
of Dispute, International Union of Operating Engineers, Local No.
428 of Arizona, AFL-CIO, shall notify the Regional Director for
Region 28, in writing, whether or not it will refrain from forcing or
requiring Ets-Hokin Corporation, by means proscribed by Section
8(b) (4) (D), to assign the work in dispute to employees represented
by Operating Engineers rather than to employees represented by
IBEW.
Chrysler Corporation (Lyons Trim Plant ) 1 and International
Union, United Automobile, Aerospace and Agricultural Im-
plement Workers of America (UAW) AFL-CIO, Petitioner
Chrysler Corporation (Lyons Trim Plant ) and Employees of
Chrysler Corporation , Lyons Trim Plant, Petitioner and Uphol-
sterers' International Union of North America, AFL-CIO
(through its agent , Upholstering Spring and Bedding Workers
Union, Local 600) 2 and Chrysler Trim Division Workers Inde-
pendent Union: Cases Nos. 7-RC-67464 and 7-RD-611.
June 25,1965
DECISION AND ORDER
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, a hearing was held before Hearing Officer
Milton Fischer. The Hearing Officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
i The name of the Employer appears in the caption as amended at the hearing.
2 Upholsterers ' International Union of North America , AFL-CIO ( through its agent,
Upholstering Spring and Bedding Workers Union, Local 600), hereinafter called Local 600,
intervened at the hearing in Case No . 7-RD-611 on the basis of its contractual interest
with the Employer . The name of Local 600 appears in the caption as amended at the
hearing.
3 Chrysler Trim Division Workers Independent Union , hereinafter called the Independent
Union , is composed of substantially the same employees on whose behalf the petition in
Case No. 7-RD-611 was filed , and was permitted to intervene at the hearing in that
case on the basis of an adequate showing of interest in furtherance of its desire to appear
on the ballot should an election be scheduled.
4 During the hearing, the Employer and Petitioner in Case No . 7-RC-6746 agreed to
enter into a stipulation for certification for consent election in an agreed -upon appropriate
unit and all other parties stipulated the appropriateness of, and disclaimed any interest
in, this unit . Thereafter , in the absence of any objection thereto, the Hearing Officer
granted a motion to sever Case No. 7-RC-6746 from Case No. 7-RD-611, and the hearing
then proceeded with respect to the issues raised in Case No . 7-RD-611.
153 NLRB No. 48.