Laborers, Local 423

National Labor Relations Board - Board Decisions

Jun 22, 1970

183 N.L.R.B. 895 (N.L.R.B. 1970)

LABORERS , LOCAL 423 895
Laborers ' International Union of North America,
Local 423, AFL-CIO and International Union of
Operating Engineers , Local 18 , 18A, 18B,
AFL-CIO and Electrical Constructors and Inter-
national Brotherhood of Electrical Workers, Local
71, AFL-CIO
International Union of Operating Engineers, Local
18, 18A , 18B, 18C, 18RA , AFL-CIO and
Laborers' International Union of North America,
Local No. 265 , AFL-CIO and Electrical Con-
structors and International Brotherhood of Elec-
trical Workers , Local 71, AFL-CIO. Cases
9-CD-159-1, 9-CD-159-2, 9-CD-186-1, and
9-CD-186-2
June 22, 1970
DECISION, DETERMINATION OF DISPUTE,
AND ORDER
powers in connection with these cases to a three-
member panel.
The Board has reviewed the Hearing Officers'
rulings made at the hearings and finds that they are
free from prejudicial error. They are hereby af-
firmed. Upon the entire record in these cases, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated that Electrical Construc-
tors is engaged in electrical construction work in
the several States of the United States, with its prin-
cipal offices in Columbus, Ohio. During a recent,
representative 12-month period it purchased in ex-
cess of $50,000 worth of goods and supplies from
outside the State of Ohio. Accordingly, we find that
Electrical Constructors 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.
BY MEMBERS MCCULLOCH, BROWN, AND JENKINS
This is a consolidated proceeding under Section
10(k) of the National Labor Relations Act, as
amended, following charges filed by Electrical Con-
structors alleging violations of Section 8(b)(4)(D)
by International Union of Operating Engineers,
Local 18, 18A, 18B, 18C, 18RA, AFL-CIO, herein
called Operating Engineers, and by Laborers' Inter-
national Union of North America, Locals 423 and
265, herein called Laborers Local 423 and
Laborers Local 265, respectively. Pursuant to
notice, a hearing was held in Columbus, Ohio, in
Cases 9-CD-159-1 and 9-CD-159-2 on July 1,
1969, before Hearing Officer James E. Murphy and
on October 13, 1969, before Hearing Officer Mark
Fox. After these cases were consolidated, and pur-
suant to notice, a hearing was held on December 9,
10, and 11, 1969, in Cincinnati, Ohio, before Hear-
ing Officer Mark Fox. Operating Engineers, Electri-
cal Constructors, and International Brotherhood of
Electrical Workers, Local 71, AFL-CIO, herein
called Electrical Workers, appeared at the hearing'
and were afforded full opportunity to be heard„to
examine and cross-examine witnesses, and to ad-
duce evidence bearing on the issues. Electrical
Workers and Operating Engineers have filed briefs
with the National Labor Relations Board.
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
' Laborers Locals 423 and 265 disclaimed any interest in the work in
dispute and declined to appear or participate in the hearing They have
moved to dismiss all charges filed against them
II. THE LABOR ORGANIZATIONS INVOLVED
The parties appearing at the hearing stipulated,
and we find, that Operating Engineers, Laborers
Locals 423 and 265, and Electrical Workers are all
labor organizations within the meaning of Section
2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
Electrical Constructors is an Ohio partnership,
the partners being T. W. Eisenman ( an individual),
Concor Construction Company, Electro Construc-
tion Company , and ECCO. Concor and Electro are
investment companies and have not been engaged
in the construction industry for some time. Their
principal stockholders are T. W. Eisenman and his
wife . ECCO, an Ohio partnership , is a contractor
engaged in excavation and general laboring work.
The children of T. W. Eisenman and their spouses
share a partnership interest in ECCO. Electrical
Constructors is managed by T. W . Eisenman, while
his son , Richard L. Eisenman , is ECCO's managing
partner . Electrical Constructors and ECCO share a
common address and telephone number . There is
total interchange of equipment and mangerial and
supervisory personnel between Electrical Construc-
tors and ECCO. Richard Eisenman testified that
183 NLRB No. 91
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from 1964 and continuously through the project
completed immediately prior to the project in-
volved in Cases 9-CD-159, et al ., Electrical Con-
structors has subcontracted 'all excavation and
laboring work , including operation of the hydraulic
crane or "cherry picker" and the horizontal boring
machine, to ECCO. During the'same period, ECCO
has performed no work for anyone other than Elec-
trical Constructors.
It has been ECCO's practice , whenever it has
been a subcontractor of Electrical Constructors, to
employ individuals represented by an appropriate
local of International Union of Operating Engineers
and to assign to them all work within their jurisdic-
tion . Pursuant to area collective-bargaining agree-
ments, operation of the cherry picker and bor-
ing machine has been assigned to individuals
represented by the I.U.O.E. Electrical Constructors
has been a party by means of letters of assent to a
series of collective -bargaining agreements between
International Brotherhood of Electrical Workers
and American Line Builders Chapter, NECA. Elec-
trical Constructors has signed these letters of assent
continuously since 1950 and alleges that it has no
collective-bargaining agreements with any other
labor organization. A purported contract and letter
of assent , which were signed by John McCaulley on
behalf of ECCO , between ECCO and Operating
Engineers , was signed in September 1968 on a prior
job being performed for Cincinnati Gas and Elec-
tric Company in Cincinnati , Ohio . It was claimed
that McCaulley had no authority to bind ECCO to
any contract , although ECCO admittedly did give
force and effect to the contract , including payment
to the pension fund of the Operating Engineers.
The events leading to the filing of charges in
Cases 9-CD-159-1 and 9-CD-159-2 began to
develop in late 1968 when Electrical Constructors
obtained a contract for the installation of un-
derground cable in the Columbus , Ohio, area. In
January 1969, Project Manager Richard Eisenman,
acting on the behalf of Electrical Constructors, ad-
vised Woodell , business manager of Electrical
Workers, that it would need a crew of Electrical
Workers' members for cable installation . At a sec-
ond conference in February, Woodell demanded
that Eisenman assign the operation of all equipment
on the project to employees represented by Electri-
cal Workers . Eisenman refused the demand, but
"informally" assigned operation of the cherry picker
to Electrical Workers . All other employees (opera-
tors and laborers) were nonunion . Eisenman
testified that he did so because he feared that em-
ployees represented by Electrical Workers would
not work under the cherry picker unless it was
manned by a member of Electrical Workers. In
March , prior to the start of construction , Eisenman
met with Kimberly , an agent of Operating En-
gineers, and Laborers Local 423 agent , Wood, and
discussed Electrical Constructors ' intentions re-
garding the manning of equipment on the Colum-
bus job , particularly the cherry picker . Eisenman
asked if there had been any resolution of the
dispute between the Internationals of Operating
Engineers and Electrical Workers over the opera-
tions of the cherry picker, and inquired as to what
would happen if no agreement was reached. Kim-
berly replied, "I 'll just have to take my best hold
and you 'll have to take yours , and we 'll see what
happens...."
On March 26, after the job had begun , a group of
apprximately 35 men ( not employees ) lined up
along the trench , preventing further work.
Representatives of both Operating Engineers and
Laborers Local 423 were present . Operating En-
gineers announced to Eisenman that it had a con-
tract with Electrical Constructors and the men were
there to claim their work . Eisenman denied the
claim, but his attempt to put his employees back to
work was frustrated by the pickets . The project was
closed on March 26, 27, 30, and 31 because of
mass picketing . A state court injunction was ob-
tained against the mass picketing on April 1, and
thereafter the project was peacefully picketed by
individuals wearing Operating Engineers and
Laborers buttons . This job is now complete.
Cases 9-CD-186- 1 and 9-CD-186-2 developed
from a similar project in Cincinnati , Ohio, in Au-
gust 1969 . Electrical Constructors assigned the
operation of the cherry picker and the boring
machine to employees represented by Electrical
Workers, with the balance of the labor again being
nonunion . Farwell, a representative of Operating
Engineers , visited the jobsite on September 17,19,
and 22. On the latter occasion he was accompanied
by Jackson, a representative of Laborers Local 265.
They sought and obtained authorization cards from
all nonunion operators and laborers at the jobsite.
No attempt was made to solicit cards from the
Electrical Workers operators of the cherry picker
and boring machine.
On September 22, Farwell and Jackson met with
the two Eisenmans and demanded a bargaining
contract . The membership authorization cards were
presented and examined by Electrical Constructors'
representatives . Majority status was not questioned,
but T. W. Eisenman refused to extend recognition
and to bargain with the unions . Instead , he offered
to subcontract the operation of all equipment ex-
cept the cherry picker and boring machine to
LABORERS , LOCAL 423
ECCO, where Operating Engineers and Laborers
Local 265's existing contracts would apply, if
Operating Engineers would waive any jurisdictional
claim that it might have to operate the cherry
picker and horizontal boring machine . Farwell
refused to do this , claiming lack of authority to
make such a waiver , and reiterating that the pur-
pose of the meeting was to gain recognition and a
contract for employees whose authorization cards
had been presented . Farwell for the Operating En-
gineers and Woodell for the Electrical Workers met
on September 23 in an unsuccessful attempt to
resolve their jurisdictional dispute involving opera-
tion of the cherry and boring machine . There is
conflicting testimony as to whether Operating En-
gineers claimed operation of the cherry picker and
boring machine at that meeting . There is no
evidence that it specifically asserted such a claim to
Electrical Constructors at any of the representation
meetings.
Pickets from Operating Engineers appeared at
the jobsite on September 24 carrying signs charging
Electrical Constructors with refusal to bargain,
later modified to include a claim of unfair labor
practice. A petition for an election was filed by
Operating Engineers on September 26, 1969, seek-
ing a unit of all equipment operators , excluding
those employees represented by any other labor or-
ganization.
B. The Work in Dispute
The dispute in Cases 9-CD-159-1 and
9-CD-159-2 involves the assignment of the opera-
tion of the hydraulic crane or cherry picker , and re-
lated mechanized construction equipment used in
laying a 138,000 volt pipe-type underground elec-
tric transmission line at the Columbus and Southern
Ohio Electric Company project sites of Electrical
Constructors in Columbus, Ohio.
The dispute in Cases 9-CD-186-1 and
9-CD-186-2 concerns the work of operating cher-
ry pickers and a horizontal boring machine used in
laying a 130,000 volt pipe-type underground elec-
tric transmission line at the Cincinnati Gas and
Electric Company' construction sites of Electrical
Constructors in Cincinnati, Ohio.
C. Contentions of the Parties
Electrical Constructors has assigned the work in
dispute to employees represented by Electrical
Workers. In support of this assignment, both Elec-
trical Constructors and Electrical Workers argue
that Electrical Constructors has performed nu-
merous jobs identical to the instant ones, and that
897
in all cases where Electrical Constructors has
reserved the work in dispute for itself , it has always
assigned that work to individuals represented by In-
ternational Brotherhood of Electrical Workers.
This practice , they contend , is in conformity with
area and industry practice . In addition , they con-
tend that the applicable contract clauses, con-
siderations of efficiency and economy , and Electri-
cal Constructors ' preference for and satisfaction
with the performance of employees represented by
Electrical Workers all favor an assignment to Elec-
trical Workers.
Operating Engineers contends that Cases
9-CD-159-1 and 9-CD-159-2 are moot, and it has
disclaimed any interest in the work in dispute in-
volved therein . It also contends that a jurisdictional
dispute does not exist in Cases 9-CD-186-1 and
9-CD-186-2, alleging that a demand for the work
in dispute was never made and that the picketing
was to protest Electrical Constructors ' failure to
recognize Operating Engineers as the collective-
bargaining representative for certain of its em-
ployees, and to protest certain unfair labor prac-
tices . Operating Engineers further contends that
should the Board reach the merits of these cases,
the work should be assigned to its members. It ar-
gues that Electrical Constructors and ECCO are a
single employer and that Electrical Constructors is
thereby bound to the collective -bargaining agree-
ments between ECCO and Operating Engineers.
Operating Engineers also contends that only it pos-
sesses sufficient skilled employees to perform the
work , and that considerations of efficiency, econo-
my, the Employer's (Electrical Constructors-
ECCO) past practice, and area practice all favor
Operating Engineers.
D. Applicability of the Statute
Section 10(k) of the Act provides , in part, that
the Board is empowered and directed to hear and
determine a so-called jurisdictional dispute only
when the Board has reasonable cause to believe
that the party against whom the charge has been
filed has engaged in an unfair labor practice within
the meaning of Section 8(b)(4)(D). The record in
Cases 9-CD-159-1 and 9-CD-159-2 indicates that
on or about March 10, 1969 , Operating Engineers
told R . Eisenman that if individuals represented by
Electrical Workers performed the work in dispute,
Operating Engineers would "take its best hold" in
furtherance of its demand for the work. Individuals
representing Operating Engineers and Laborers
Local 423 thereafter picketed Electrical Construc-
tors'jobsites on March 26, 27, 30, and 31.
In view of the conduct described above, we find
that there is reasonable cause to believe that a viola-
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of Section 8(b)(4)(D) has occurred in Cases
9-CD-159-1 and 9-CD-159-2, and that the
dispute is properly before the Board for determina-
tion under Section 10(k) of the Act.
Section 8(b)(4)(D) provides, in part, that it is an
unfair labor practice for a labor organization to en-
gage in coercive action where an object is:
... forcing or requiring any employer to assign
particular work to employees in a particular
labor organization or in a particular trade,
craft, or class rather than to employees in
another labor organization or in another trade,
craft, or class ....
The evidence in Cases 9-CD-186-1 and
9-CD-186-2 does not give us cause to believe that
Operating Engineers and Laborers Local 265 had
any object proscribed by Section 8(b)(4)(D). On
the contrary, the record clearly shows that Operat-
ing Engineers and Laborers Local 265 did not seek
to force or require Electrical Constructors to assign
the work involved to one group of employees
"rather than" to the group of employees then per-
forming the work. The record further shows that
Operating Engineers has filed a petition for an elec-
tion with Region 9, seeking a unit of all heavy
equipment operators employed by Electrical Con-
structors, excluding employees represented by
other labor organizations.2
We have long held that a dispute within the
meaning of Section 8(b)(4)(D) requires a choice
between two groups.
There must be either an attempt to take a work
assignment away from another group, or to ob-
tain the assignment rather than have it given to
another group .... A demand for recognition
as bargaining representative for employees
doing a particular job ... does not to the
slightest degree connote a demand for the as-
signment of work to particular employees
rather than to others.'
Upon the basis of the foregoing, we are satisfied
and conclude that the dispute in Cases
9-CD-186-1 and 9-CD-186-2 is not over the as-
signment of work within the meaning of Section
8(b)(4)(D). Thus, the dispute in Cases
9-CD-186-1 and 9-CD-186-2 is not a dispute
within the meaning of Section 10(k). Accordingly,
we shall quash the notice of hearing.
E. Merits of the Dispute in Cases 9-CD-159-1 and
9-CD-159-2
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, AFL -CIO (J. A. Jones Construc-
tion Co.),' the Board set forth the following criteria
to be considered in the making of an affirmative
award in a 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-
tification 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 assignment made by
the employer, and the efficient operation of
the employer's business.6
1. Certification and bargaining agreements
The record does not indicate that any of the
labor organizations herein have been certified by
the Board. As noted above, Electrical Constructors
has assented to the International Brotherhood of
Electrical Workers contract. That agreement makes
no specific grant of the work involved in the opera-
tion of lowering conduit into a trench, although it
does cover pipe installation. The agreement also in-
cludes a wage schedule for "operators," without
defining what an "operator" is. ECCO signed and
honered a letter of assent to the collective-bargain-
ing agreement between Operating Engineers and
the Ohio Contractors Association, A.G.C., on Au-
gust 19, 1968. This agreement will terminate on
May 1, 1972. Article I, Geographic and Industrial
Scope of Agreement, grants heavy construction
work, including utility transmission lines and con-
struction, to employees represented by Operating
Engineers. Specifically included in the agreement
are wage classification and rate of pay schedules for
operation of the cherry picker, the work in dispute
in Cases 9-CD-159-1 and 9-CD-159-2.
Operating Engineers contends that Electrical
Constructors and ECCO are a single employer, and
' We need not , and do not, pass upon the validity of the authorization
cards relied on by Operating Engineers and Laborers Local 265 , nor do we
consider whether or not the demands for recognition are appropriate
within the meaning of Section 9.
s Communications Workers of America, AFL-CIO (Mountain States
Telephone & Telegraph Co ), 1 18 NLRB 1104,1107,1108
' N L.R B v Radio and Television Broadcast Engineers Union, Local
1212, International Brotherhood of Electrical Workers [Columbia Broad-
casting System], 363 U S 573
" 135 NLRB 1402
"Id at 1410,1411
LABORERS , LOCAL 423
that Electrical Constructors is thus bound to EC-
CO's collective -bargaining agreement with Operat-
ing Engineers . Implicit in this contention is the ar-
gument that the agreement with Operating En-
gineers should be given precedence . The Board has
long held that separate corporations would be
treated as a single employer if they were highly in-
tegrated with respect to ownership and operations.7
We are persuaded that the record , as set forth fully
above , including the fact that there is a common of-
fice , complete interchange of equipment and
managerial and supervisory personnel , interlocking
ownership of the two companies , and the fact that
ECCO has been Electrical Constructors ' exclusive
subcontractor for the work in dispute for an im-
mediately prior 5 -years period , establishes a sub-
stantial degree of integration of ownership and
operations between Electrical Constructors and EC-
CO.8 We find that Electrical Constructors and
ECCO constitute a single, functionally integrated
firm and, therefore , that ECCO's collective-bar-
gaining agreements with Operating Engineers are
also those of Electrical Constructors.
Another equally important factor we consider in
determining which collective -bargaining agreement
to weigh more heavily is that the work in dispute is
not really electrical work. "Although the work is in-
cidental to other electrical work , it does not require
a knowledge of the intricacies of electrical cir-
cuitry ."' Indeed , ECCO 's operating engineer em-
ployees have long performed the same type of work
in dispute in coordination with Electrical Construc-
tors ' electrical employees. In the above circum-
stances, we find that the contracts favor Operating
Engineers and consider the contract between Elec-
trical Constructors-ECCO and Operating Engineers
to be of great weight.
2. Employer , area, and industry practice
Sam Jones, chapter member of National Electri-
cal Constructors Association (NECA), testified that
there are four major companies in the United States
engaged in the installation of pipe-type cable, of
which Electrical Constructors is one. Jones testified
that the other three major companies in the indus-
try have assigned the operation of equipment
identical to that in dispute herein to employees
represented by International Brotherhood of Elec-
trical Workers. All three other major companies
are members of NECA, while Electrical Construc-
tors is not.
r International Union of Operating Engineers , Local 428, AFL-CIO (See
Bee Slurry Matic, Inc ), 169 NLRB 184, illustrates factors the Board con-
siders relevant in determining whether a sufficient degree of integration of
operations exist See also Twenty -first Annual Report , pp 14-15, and cases
cited therein
899
Richard Eisenman testified that Electrical Con-
structors' practice prior to 1964 was to retain all
work for itself and assign the work in dispute to em-
ployees represented by International Brotherhood
of Electrical Workers. He also stated that, in 1964,
Electrical Constructors began the practice of sub-
contracting the work in dispute to ECCO. Electri-
cal Workers did not protest Electrical Constructors'
practice until early 1969, when it demanded and
received assignment of the work in dispute in Cases
9-CD-159-1 and 9-CD-159-2. As to area prac-
tice, Eisenman testified that Electrical Constructors
assigned operation of the cherry picker to Electri-
cal Workers in Columbus, Ohio, in 1959, 1960, and
1963. Electrical Constructors, through ECCO, as-
signed operation of the cherry picker to Operating
Engineers in Cincinnati, Ohio, in 1968. There is no
evidence in the record of any of the other three
major companies performing this type of work in
the Ohio area. It is apparent, therefore, that both
the Employer's practice since 1964 and the recent
area practice favor awarding the work to Operating
Engineers.
3. Skills, efficiency, and economy
The record indicates that members of both
unions possess sufficient skills to operate the cherry
picker satisfactorily. Eisenman testified that effi-
ciency and economy of operation are substantially
increased by assigning the work in dispute to an em-
ployee represented by Electrical Workers. The
operation of the cherry picker is not a full-time job,
Eisenman stated, and when not thus occupied, an
Electrical Worker operator can work in the ditch
with other Electrical Workers employees. It ap-
pears, however, that Electrical Constructors em-
ploys both equipment operators and electricians
continuously, and an operator who is a member of
Operating Engineers could work with another
machine when not working on the cherry picker.
Indeed, there is no showing that such utilization of
operators was not feasible or in fact used in the past
when operating engineers were assigned to the
cherry picker under the ECCO subcontract
procedure or that the Employer was dissatisfied
with such arrangement. These factors, therefore,
favor neither union.
4. Conclusion
Upon consideraion of all pertinent factors, we
shall assign the work in dispute in Cases
s See Journeymen Plasterers ' Protective and Benevolent Society of
Chicago, Loc 5, AFL-CIO ( Royal-Rin Builders ), 158 NLRB 1608
9 International Union of Operating Engineers , Local 450 (Rust Engineer-
ing Company ), 169 NLRB 1026
427-258 O-LT - 74 - 58
900 DECISIONS OF NATIONAL
9-CD-159-1 and 9-CD-159-2 to individuals
represented by Operating Engineers . Therefore, we
find that Operating Engineers was entitled to de-
mand the work in dispute , since such work should
properly be assigned to employees who are
represented by Operating Engineers.
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
Cases 9-CD-159-1 and 9-CD-159-2, the National
Labor Relations Board makes the following deter-
mination of dispute.
LABOR RELATIONS BOARD
Employers and individuals represented by Inter-
national Union of Operating Engineers , Local 18,
18A, 18B , AFL-CIO, are entitled to the assignment
of operating the hydraulic crane , or cherry picker,
and related mechanized construction equipment
used in laying a 138,000 volt pipe-type un-
derground electric transmission line at the Colum-
bus and Southern Ohio Electric Company project
sites of Electrical Constructors in Columbus, Ohio.
ORDER
It is hereby ordered that the notice of hearing is-
sued in Cases 9-CD-186-1 and 9-CD-186-2 be,
and it hereby is , quashed.