Local 132, Operating Engineers

National Labor Relations Board - Board Decisions

Nov 21, 1967

168 N.L.R.B. 374 (N.L.R.B. 1967)

374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 132, International Union of Operating En-
gineers, AFL-CIO and Pritchard Electric Co.,
Inc. and Local 317, International Brotherhood of
Electrical Workers, AFL-CIO. Case 9-CD-108
November 21, 1967
DECISION AND DETERMINATION OF
DISPUTE
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Pritchard Electric Co., Inc.,
herein called the Company or Pritchard, alleging
that Local 132, International Union of Operating
Engineers, AFL-CIO, herein called the Respond-
ent or Operating Engineers, violated Section
8(b)(4)(D) of the Act. A duly scheduled hearing was
held before Hearing Officer Cassius B. Gravitt, Jr.,
on August 3, 1967. All parties appearing were af-
forded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence
bearing upon the issues. Thereafter, the Company,
the Operating Engineers, and Local 317, Interna-
tional Brotherhood of Electrical Workers,
AFL-CIO, party to the dispute, herein called the
IBEW, filed briefs.
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 Hearing Officer's
rulings made 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 COMPANY
The parties stipulated that the Company is a
West Virginia corporation engaged in the electrical
contracting business; that during the past 12
months the Company performed services valued at
more than $50,000 outside the State of West Vir-
ginia; and that during that same period, it also
purchased directly from firms located outside the
State of West Virginia goods valued in excess of
$50,000. The parties further stipulated, and we find,
that the Company is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and
it will effectuate the policies 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 IBEW are labor or-
ganizations within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
Pritchard is an electrical contractor operating
mainly in West Virginia. It is a member of the
American Line Builders Chapter of the National
Electrical Contractor's Association, herein called
NECA, and therefore bound by the Commercial
Line agreement between NECA and the IBEW.
This agreement provides that NECA members will
utilize IBEW members in the performance of work
involving the construction of power distribution
systems and tramission lines, referred to herein as
"outside" work. In addition, Pritchard and the
IBEW are parties to an inside agreement which
covers "inside" or building construction work.
Pritchard has never employed a member of the
Operating Engineers on any of its jobs.
The contractual work involved in the instant
proceeding is the erection and wiring of a temporary
powerline distribution system for the Cabot Cor-
poration project at Waverly, West Virginia, under
a subcontract with Gorrell Electric Company. The
disputed work involves the operation of an A-frame
truck when it is used to drill post holes with an
auger attachment and to set the poles in place. On
behalf of its members, the Respondent claims the
disputed work. Pritchard and the IBEW insist that
the work may properly be performed by the Com-
pany's present complement of employees who are
represented by the IBEW and to whom Pritchard
has assigned the work. Whenever the holes are dug
and the poles erected by manual means on this pro-
ject the Respondent makes no claim to the work,
nor does it claim the work of driving the trucks or
stringing the wires.
A. The Contentions of the Parties
Respondent contends that the disputed work is
within its jurisdiction and that this work should
have been assigned to its members rather than to
members of the IBEW , on the basis of industry,
area , and employer practices . It points to numerous
awards of the National Joint Board for Settlement
of Jurisdictional Disputes , herein called the Joint
Board, one of the most recent dated February 28,
1967, involving a dispute between the same parties
at the DuPont plant at Washington Bottom, West
Virginia , where the Joint Board awarded the work
of operating an A-frame truck and power auger
used to dig post holes to Respondent.
The IBEW contends that the disputed work,
being outside electrical work under the Commercial
Line Agreement, is not subject to the Joint Board
jurisdiction , and, in fact , the present dispute is not
before the Joint Board for disposition. IBEW con-
cedes that it has agreed to be bound by Joint Board
decisions concerning inside electrical work.
168 NLRB No. 58
LOCAL 132, OPERATING ENGINEERS 375
Pritchard contends that it has always assigned
this work to members of the IBEW and that on the
entire record the Board can only determine the
dispute in favor of the Company 's established prac-
tice. Moreover , Pritchard maintains that it is not
bound by the Joint Board decision in the DuPont
case as that work fell under the Commercial Line
Agreement.
has with any union covering Pritchard's employees.
There is nothing in the record to show that
Pritchard has ever recognized or dealt with the
Respondent. Accordingly, the collective-bargaining
contract between NECA and the IBEW covering
outside electrical work is a factor favoring the as-
signment of the work to electricians represented by
the IBEW.
B. The Applicability of the Statute
Section 10(c) of the Act empowers the Board to
hear and determine a dispute out of which an
8(b)(4)(D ) charge has arisen . Before making a
determination of the dispute , the Board is required
to find there is reasonable cause to believe that Sec-
tion 8 (b)(4)(D) has been violated.
The facts show that Pritchard assigned the
disputed work to its employees . These are members
of the Electrical Workers. The Operating Engineers
claimed this work for its members and threatened
to walk off the job if the work was not assigned to
its members . 'When Pritchard refused to use an
operating engineer and proceeded with the work
using a member of IBEW , the Operating Engineers
called its members off the job . The operating en-
gineers did not return to work until the Pritchard
crew discontinued work and left the jobsite. On
Sunday , April 30, 1967, the Pritchard crew per-
formed the disputed work at the jobsite . The next
day the operating engineers refused to work and did
not return to work until later in the week. Ac-
cordingly , we find reasonable cause to believe that
Section 8 (b)(4)(D) of the Act has been violated, and
that the dispute is properly before the Board for
determination under Section 10(k) of the Act.
C. The Merits of the Dispute
As we stated in J.A. Jones Construction Com-
pany, 1 we will determine the appropriate assign-
ment of disputed work in each case presented for
resolution under Section 10(k) of the Act only after
taking into account and balancing all relevant fac-
tors.
1. Collective -bargaining agreements
As stated above , NECA has entered into a col-
lective -bargaining agreement , known as the Com-
mercial Line Agreement , with the IBEW, and
Pritchard , as a member of NECA, considers itself
bound by this contract . The agreement, which
covers commercial outside power work, and
another collective -bargaining contract between
NECA and the IBEW covering inside electrical
work , appear to be the only contracts that Pritchard
2. Determinations of the Joint Board
Respondent contends that the Joint Board has
heard and decided numerous jurisdictional disputes
involving local unions of the International Union of
Operating Engineers , AFL-CIO (IUOE herein),
and the International Brotherhood of Electrical
Workers , AFL-CIO, and has consistently awarded
the work of operating an A-frame truck to hoist
materials and equipment or to dig post holes with an
attachment to the truck to the IUOE locals. How-
ever , the evidence before us appears to disclose at
best only three instances wherein awards were
made to the IUOE locals involving the operation of
an A-frame truck and power auger used to dig post
holes. Insofar as the record discloses, the Joint
Board made no distinction between outside and in-
side electrical work . It appeared to base its award
on a 1907 decision of record , but did not otherwise
give any consideration to the relevant factors we
normally consider in making our determinations in
jurisdictional dispute cases.
Even assuming that these Joint Board awards
were intended to assign the operation of power-
driven equipment used in electrical pole line work
to IUOE locals , there is no indication that the
IBEW or the employers in interest joined in sub-
mitting any of those disputes to the Joint Board. On
the contrary , the IBEW takes the position that the
disputed work herein is outside work for which it
not only has not stipulated to be bound by Joint
Board decisions but has consistently protested Joint
Board action in such cases for many years. As a
matter of fact, the disputed work involved in this
case has not been submitted to the Joint Board for
decision . Accordingly , on the basis of the record as
a whole, we are not able to accord to the Joint
Board's awards in prior decisions sufficient weight
to offset the other relevant considerations appear-
ing in the record.
3. Company , area and industry practice
Other than the Joint Board decisions introduced
in evidence, there is nothing in the record on which
to base any finding of a broad national pattern in the
industry. Evidence was introduced , however,
respecting the practices in the State of West Vir-
' International Association of Machinists, Lodge No 1743
(J A Jones Construction Company), 135 NLRB 1402
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ginia, where the parties here involved generally
operate.
Respondent asserts that its members have
operated A-frame trucks and other similar equip-
ment in the area for several electrical contractors.
However, there is nothing in the record to indicate
whether operating engineers operated this equip-
ment in the performance of work similar to the work
in question herein.
On the other hand, representatives of Pritchard
and other electrical contractors testified that the
past practice of electrical contractors in the area has
traditionally been to assign members of IBEW to
operate the equipment in the performance of the
disputed work. As to the past practice of Pritchard,
its president's testimony is clear and uncon-
tradicted. He has been in the electrical industry in
West Virginia since about 1946, and head of his
own company for the past 5-1/2 years. He testified
that he has always assigned the operation of the line
truck to members of IBEW and has never seen an
operating engineer operating a line truck.
4. Safety of operation and skills needed
There is some testimony that safety requires that
an electrician operate the line truck in performing
the type of work involved here. Apparently, the
basis for this requirment is that on occasions the
work, including the setting of poles, is performed
when the electrical line being worked on is ener-
gized. However, as it appears that the actual
disputed work at the Cabot job did not involve any
"hot" wires, we do not find that the factor of safety
influences the assignment of the disputed work to
either job classification.
Pritchard and the IBEW contend that only elec-
tricians possess the necessary skills to perform the
disputed work, while the Operating Engineers as-
serts that the work does not require a high degree of
skill and that its members possess sufficient skill to
perform this work. It appears from the record that
the work in dispute does not require a high level of
skill, and also that engineers have operated similar
equipment on other jobs. Accordingly, we find that
members of the IBEW and Operating Engineers
possess sufficient skill to perform the disputed
work.
5. Efficiency and economy of operation
Pritchard and the I BEW contend that assignment
of the disputed work to a member of the IBEW
rather than to a member of the Operating Engineers
results in more efficient and economical per-
formance of this work. The truck used in this opera-
tion belongs to Pritchard and had been fitted with
the attachments used in performing the work in
question. The truck also serves as a storage place
for tools and equipment used by the linemei. in their
work. Pritchard's president testified that the truck
is in operation about 25 percent of the time, at most,
and serves only as a storage place for tools the
remainder of the time. During the time that the
truck is not in operation, the truck operator engages
in other lineman's work about the job. Thus, it
seems clear that a requirement for an additional em-
ployee operating the line truck would increase the
costs of operation without any increase in efficiency
or safety of operation. Thus, the factors of efficien-
cy and economy of operation favor the assignment
of the disputed work to electricians.
CONCLUSION
On the basis of the foregoing considerations, it is
clear that none of the relevant factors favor an as-
signment of work as claimed by the Operating En-
gineers. Such factors as the company and area prac-
tice, the collective-bargaining agreement, and effi-
ciency and economy of operation favor the present
assignment. Accordingly, we shall determine the
dispute by confirming the Company's present as-
signment to electricians represented by the IBEW,
but not to that Union or its members.
It appears from the record that the disputed work
has been completed at the Cabot jobsite. Pritchard
and Electrical Workers contend that because of the
Respondent's attempt to have similar work as-
signed to its members at the Du Pont jobsite, the
Board's determination in this case should include all
similar work within the jurisdiction of the Operating
Engineers. While the Board has made such broad
determinations in the past, the evidence in the
record in this case is not sufficient to warrant such
determination here. Accordingly, the determination
shall apply only to the disputed work at the Cabot
jobsite, Waverly, West Virginia.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the Act, and upon
the basis of the foregoing findings and the entire
record in this proceeding , the National Labor Rela-
tions Board makes the following Determination of
Dispute:
1. Employees of Pritchard Electric Co ., Inc.,
currently represented by Local Union No. 317, In-
ternational Brotherhood of Electrical Workers,
AFL-CIO , are entitled to operate A-frame line
trucks with diggers to provide post holes for instal-
lation of poles and to set the poles at the Cabot Cor-
poration construction site at Waverly , Pleasants
County, West Virginia.
2. Local Union No . 132, International Union of
Operating Engineers , AFL-CIO, is not entitled, by
means proscribed by Section 8(b)(4)(D ) of the Act,
LOCAL 132, OPERATING ENGINEERS 377
to force or require the Company to assign the above
work to its members.
3. Within 10 days from the date of this Decision
and Determination of Dispute , Local Union No.
132, International Union of Operating Engineers,
AFL-CIO, shall notify the Regional Director for
Region 9, in writing, whether it will refrain from
forcing or requiring the Company, by means
proscribed by Section 8(b)(4)(D), to assign the
work in dispute to Operating Engineers rather than
to the Company's employees represented by the
Electrical Workers Local Union No. 317.