Local 542, Operating Engineers

National Labor Relations Board - Board Decisions

Aug 30, 1974

213 N.L.R.B. 124 (N.L.R.B. 1974)

124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 542, International Union of Operating Engi-
neers, AFL-CIO and W. V. Pangborne & Co., Inc.
and Local Union No. 126, International Brotherhood
of Electrical Workers, AFL-CIO. Case 4-CD-345
August 30, 1974
DECISION AND DETERMINATION OF
DISPUTE
purposes of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the Operat-
ing Engineers and the Electrical Workers are labor
organizations within the meaning of Section 2(5) of
the Act.
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
charges filed by W. V. Pangborne & Co., Inc. (herein-
after called Pangborne), alleging that Local 542, In-
ternational Union of Operating Engineers , AFL-CIO
(hereinafter called the Operating Engineers), has vio-
lated Section 8(b)(4)(D) of the Act by engaging in
certain proscribed activity with an object of forcing or
requiring Pangborne to assign certain work to em-
ployees represented by the Operating Engineers rath-
er than to employees represented by Local Union No.
126, International Brotherhood of Electrical Workers,
AFL-CIO (hereinafter called the Electrical Workers).
Pursuant to notice, a hearing was held before Hear-
ing Officer Joseph C. Kelly on April 30 and May 1,
1974. 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. Thereafter, Pangborne and the
Operating Engineers 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 au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer 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
The parties stipulated that Pangborne, a Delaware
corporation with its principal place of business at 150
Rock Hill Road, Bala Cynwyd, Pennsylvania, is en-
gaged in all phases of the electrical installation busi-
ness , and during the 6 months preceding the hearing
received materials valued in excess of $50,000 directly
from suppliers located outside the Commonwealth of
Pennsylvania. Accordingly, we find that Pangborne is
engaged in commerce within the meaning of Section
2(6) and (7) of the Act and that it will effectuate the
III. THE DISPUTE
A. The Work in Dispute
The work in dispute is the operation of pole line
trucks, including winches and diggers, by Pangborne
at the Sohio Petroleum Company construction site in
Trainer Borough, Pennsylvania.
B. Background
In November 1973, Fluor Engineers and Construc-
tors, Inc. (hereinafter called Fluor), a general Con-
tractor at the Sohio refinery construction site, entered
into a subcontract requiring Pangborne to run electri-
cal wires from substation to substation at the refinery.
In turn, Pangborne assigned the field work involved,
including operation of the pole line truck used for
erecting wooden poles to carry the wires, to employees
represented by the Electrical Workers. A pole line
truck such as Pangborne owns has a digger to drill
holes into the ground and a winch to set tall poles into
those holes. According to the uncontradicted testimo-
ny of Pangborne's president, Richard Conly, opera-
tion of Pangborne's pole line truck on previous jobs
had always been assigned to employees represented
by the Electrical Workers, and had never even been
claimed by employees represented by the Operating
Engineers . Furthermore, according to Conly, Pang-
borne for the last several years has not assigned work
of any sort to employees represented by the Operating
Engineers. I
As of Thursday, March 14, 1974, Pangborne had
stationed its pole line truck at a site within the refi-
nery. Pangborne employees represented by the Elec-
trical Workers had begun preliminary work at the
Pangborne site , but had not yet begun to operate the
'The Operating Engineers , relying on pension contribution and dues
checkoff statements signed by Pangborne , contended that over the last sever-
al years Pangborne has hired as many as six operating engineers at a time.
However, the Operating Engineers evidence did not indicate that any of
those men were hired to operate Pangborne 's pole line truck. The evidence
also indicated that since May 1, 1973, the effective date of the contract under
which the Operating Engineers claims Pangborne is bound to assign its men
the work in dispute (see fn . 4, infra), only one operating engineer has been
hired by Pangborne , according to the pension contribution and dues check-
off statements , and he did only 8 hours of work.
LOCAL 542, OPERATING ENGINEERS
truck. Adjacent to the Pangborne site was the site of
the Sordoni Company (hereinafter called Sordoni), a
subcontractor of the Philadelphia Electric Company.
At the site, Sordoni had present and used several
pieces of equipment2 to perform high wire work.
About 8 a.m. on Thursday, March 14, Fluor em-
ployees represented by the Operating Engineers be-
gan a work stoppage to protest alleged violation of
their jurisdictional rights over the high wire work un-
der a collective-bargaining contract with Sordoni. At
Fluor's invitation, the Operating Engineers district
representative, Joseph O'Donoghue, and its area busi-
ness agent, Pat Convery, went to inspect the Sordoni
site with Pangborne's labor relations director, Tom
Guthrie, and his assistant, Jack MacMahon. O'Dono-
ghue approached a Sordoni superintendent and
claimed that the high wire work belonged to employ-
ees represented by the Operating Engineers. O'Dono-
ghue also saw the pole line truck at the adjacent
Pangborne site and asked who was operating it, but
the Fluor officials replied that they did not know.
O'Donoghue threatened to picket the refinery's Booth
Street gate, used by both Pangborne's and Sordoni's
employees, if the dispute was not resolved to the satis-
faction of the Operating Engineers.
Around noon on Thursday, March 14, O'Dono-
ghue and Joseph Jacovini, master mechanic for Fluor
and member of the Operating Engineers charged with
reporting job conditions to that union every day, told
the idle Fluor employees to return to work. Instead,
the Fluor employees stayed out of work until the fol-
lowing morning. Additionally, about 60 Fluor em-
ployees, many of them wearing clearly identifiable
Operating Engineers insignia, marched en masse to
the Sordoni site. Once there, according to the uncon-
tradicted testimony of Pangborne employees William
Kryder and Reed Lucas, one man, who was leading
the group, told the Sordoni employees to get off the
site. After the Sordoni employees left their work, the
leader of the operating engineers marched with about
20 members of his group to the Pangborne site, asked
who was operating Pangborne's truck, and ordered
the 4 Pangborne employees present to quit their work
as well. When Kryder replied that the operation of the
pole line truck belonged to employees represented by
the Electrical Workers, he and the other Pangborne
employees were punched, knocked to the ground, and
kicked. Kryder was beaten so severely that he lost six
teeth and required eight or nine stitches in his mouth?
The Pangborne employees were unable to work for
2 According to the Operating Engineers district representative , Joseph
O'Donoghue, Sordoni's pieces of equipment were "a back hoe , a big drill, a
Pipspin type hoe, and a truck crane."
Operating Engineers member Jacovini admitted that he saw the entire
sequence of events at the Pangborne site from a distance of only 30 ro 40
125
the rest of the day.
About 8 a.m. the next day, Friday, March 15, ac-
cording to both Pangborne employee Lucas and Op-
erating Engineers Representative O'Donoghue,
reports circulated that Fluor employees represented
by the Operating Engineers were picketing the Booth
Street gate. Additionally, about 30 of the operating
engineers were gathered at a diner within walking
distance of the Booth Street gate.
Also during the morning of Friday, March 15,
Pangborne's president, Richard Conly, complained to
the Operating Engineers business agent, Robert
Walsh, about the previous day's violence. According
to Conly's uncontradicted testimony, Walsh's only
response was that 1,500 of his men were out of work,
that they were getting hard to control, that they want-
ed the Pangborne truck work, and that they intended
to get it. Conly further testified that when he later
called O'Donoghue about the violence, O'Donoghue
reiterated that the Operating Engineers intended to
get the work in dispute.
O'Donoghue and Jacovini each testified that he
questioned a number of operating engineers about the
violence at the Pangborne site. O'Donoghue claimed,
however, that he received stories so contradictory and
ambiguous as to make further action futile. Jacovini
made a similar claim, notwithstanding his admission
that he personally witnessed the violence and could
identify every operating engineer present. Conse-
quently, the Operating Engineers claims, it was un-
able to discipline any instigators of the violence. The
Operating Engineers never denounced the violence or
renounced its purposes, either to its own men or to
Pangborne's officials and employees.
Fearing a recurrence of the violence against its em-
ployees, Pangborne stopped work at its site in the
refinery after the beatings of Thursday, March 14.
Pangborne ordered its employees to return to work
only on Tuesday, March 19, after receiving from the
Operating Engineers attorney an oral assurance (fol-
lowed later by a written assurance) that the violence
would not recur.
C. Contentions of the Parties
Operating Engineers contends that the present dis-
pute is not properly before the Board for determina-
tion under Section 10(k) of the Act because (1) no
reasonable cause exists to believe a violation of Sec-
tion 8(b)(4)(D) has occurred, and (2) an agreed-upon
method binding on all parties exist for the voluntary
adjustment of the dispute. The Operating Engineers
feet and could identify every operating engineer present . It should be noted
that, according to Kryder, one man continuously and clearly acted as leader
of the operating engineers.
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further contends that, even if the dispute is properly
before the Board for determination, the work in dis-
pute should be assigned to employees represented by
it because (1) there is an Operating Engineers-General
Building Contractors Association (hereinafter called
GBCA) collective-bargaining contract to which Pang-
borne is party and which covers the work; and (2)
there are individuals represented by the Operating
Engineers who are qualified to do the work.
Pangborne, on the other hand, contends that the
present dispute is properly before the Board for deter-
mination under Section 10(k) of the Act because (1)
reasonable cause exists to believe a violation of Sec-
tion 8(b)(4)(D) has occurred, and (2) no agreed-upon
method binding on all parties exists for the voluntary
adjustment of the dispute. Pangborne further con-
tends that the work in dispute should be assigned to
its employees represented by the Electrical Workers
because (1) Pangborne is party to an Electrical Work-
ers-National Electrical Contractors Association
(hereinafter called NECA) collective-bargaining con-
tract which clearly covers the work, and is not party
to the Operating Engineers-GBCA collective-bargain-
ing contract which allegedly covers the work; (2)
Pangbome chose to assign the work to the Electrical
Workers on this job, and has always done so on simi-
lar jobs; (3) industry practice within the geographical
jurisdiction of the rival locals is to assign similar work
to the Electrical Workers, and has always been so; (4)
the superior training of individuals represented by the
Electrical Workers, and the absence in the Electrical
Workers-NECA contract of certain restrictive provi-
sions present in the Operating Engineers-GBCA con-
tract, make assignment of the work to the Electrical
Workers more efficient and economical for Pang-
borne; and (5) the superior training of individuals
represented by the Electrical Workers makes assign-
ment of the work to the Electrical Workers safer for
all employees on the job.
The Electrical Workers contends that the work in
dispute should be assigned to it for the same reasons
as Pangborne advances.
Pangborne work be assigned to their men, and threat-
ened to picket the Booth Street site if the dispute was
not resolved in their favor. That same day, about 20
operating engineers demanded that Pangborne's elec-
trical workers quit their work, and beat them severely
when they refused to do so. The next day there was
a gathering of about 30 operating engineers within
walking distance of the Booth Street gate, and also
reports of actual picketing at the gate. The Operating
Engineers completely failed to denounce the March
14 violence itself, to renounce its purpose, or to disci-
pline its instigators, although their identity apparently
could have been ascertained through Jacovini, who
testified he witnessed the violence and knew which
men were involved. Indeed, there is evidence that Op-
erating Engineers representatives explicitly adopted
the stated purpose of the violence. When complaints
about the violence were voiced, according to
Pangborne's president, Conly, Business Agent
Walsh's only response was that 1,500 of his men were
out of work, that they were getting hard to control,
that they wanted the Pangborne pole line truck work,
and that they intended to get it; and District Repre-
sentative O'Donoghue's response was to reiterate that
the Operating Engineers intended to get the work in
dispute. We find, therefore, that reasonable cause ex-
ists to believe a violation of Section 8(b)(4)(D) by the
Operating Engineers has occurred.
As to the existence of an agreed-upon method, the
Operating Engineers contends that Pangborne is par-
ty to the Operating Engineers-GBCA contract and is
thus bound, under article VI, section 1, of that con-
tract, by the decisions of the Impartial Jurisdictional
Disputes Board (hereinafter called the IJDB). We
deem it unnecessary to pass on this contention,4 how-
ever, for we find that the IJDB's decisions even if
assumed to be binding on Pangborne and the Operat-
ing Engineers, are not binding on the Electrical Work-
ers here. The Electrical Workers local here involved
must be deemed, under the terms of article 28, section
4, of the International Brotherhood of Electrical
D. Applicability of the Statute
Before the Board may proceed to the determination
of a dispute pursuant to Section 10(k) of the Act, it
must be satisfied (1) that reasonable cause exists to
believe a violation of Section 8(b)(4)(D) has occurred,
and (2) that an agreed-upon method binding on all
parties does not exist for the voluntary adjustment of
the dispute.
As to the existence of reasonable cause, the evi-
dence indicates that on March 14 Operating Engi-
neers representatives demanded that the Sordoni and
4 While finding no need to pass on the Operating Engineers contention that
its GBCA contract binds Pangborne, we note that that contention is strongly
opposed by Pangborne. By letter dated January 30, 1973 , the Operating
Engineers expressed to Pangborne a desire to negotiate a "new Collective-
Bargaining Agreement," and by letter dated February 8, 1973, Pangborne
replied that it would be "governed by any settlement reached between [the
Operating Engineers) and [the GBCA). " (It is undisputed that Pangborne was
not a member of the GBCA.) However, when the Operating Engineers subse-
quently negotiated the contract in question with the GBCA and sent copies
to Pangborne , Pangborne ignored an accompanying request to sign and
return the copies. Pangborne contends that its expressed intent was only to
sign the contract if and when it later decided to employ operating engineers,
and that it never made such a decision . The record contains no evidence that
the contract here in question, or other contracts concerning which the Oper-
ating Engineers claims Pangborne sent similar "letters of assent" in past
years, was ever honored in practice by Pangborne.
LOCAL 542, OPERATING ENGINEERS 127
Workers Constitution, to be an "outside" local;s and
we have in the past recognized6 that such IBEW "out-
side" locals are not members of the AFL-CIO Build-
ing Trades Council and are not, therefore, bound by
the IJDB's decisions.' We therefore find that an
agreed-upon method binding on all parties does not
exist for the voluntary adjustment of this dispute.
Accordingly, the dispute is properly before us for
determination pursuant to Section 10(k) of the Act.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the work in dispute after giv-
ing due consideration to various relevant factors, in-
cluding the following:'
1. Certification and collective-bargaining contracts
Neither the Electrical Workers nor the Operating
Engineers has been certified by the Board as the bar-
gaining representative of Pangborne's employees for
the work in dispute.
The Electrical Workers and the Operating Engi-
neers each contends that it has a current collective-
bargaining contract to which Pangborne is party and
which covers the work in dispute. We deem it unnec-
essary to pass on these contentions,9 however, for we
find sufficient basis for awarding the work among the
following factors.
5 Art. 28, sec. 4, of the International 's constitution defines as "outside
workers" employees with jurisdiction over all "line work consisting of wood
. poles ... including wires, cables , or other apparatus supported there-
from ." The Operating Engineers, while pointing out that art . 28, sec. 5,
defines workers with jurisdiction over "construction of all electrical work
. within property lines of any given property" as "inside workers," ne-
glects to mention that sec. 5 also explicitly excludes from its definition
workers with jurisdiction over the line work discussed in sec. 4.
6 International Union of Operating Engineers, Local 450 (The Rust Engineer-
ing Company), 169 NLRB 1026, 1027 (1968); see also Local 478, International
Union of Operating Engineers, AFL-CIO (Utility Service Corporation), 172
NLRB 1877, 1879 (1968).
7 Under the terms of art . II, 2: 7-9 of the Electrical Workers-NECA
contract, the Electrical Workers is merely bound, in "all grievances and
questions in dispute " arising with Pangborne , by the decisions of the Council
on Industrial Relations for the Electrical Contracting Industry.
9 International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A.
Jones Construction Company), 135 NLRB 1402, 1410-I1 (1962).
9 While finding no need to pass on the rival locals' competing contract
claims, we note that the binding effect on Pangborne of the Operating Engi-
neers-GBEA contract is strongly contested, while the binding effect on Pang-
borne of the Electrical Workers-NECA contract is not . See In . 4, supra. It
may also be noted in passing that, assuming both contracts bind Pangborne,
the work in dispute would seem covered more explicitly by the language of
the Electrical Workers-NECA contract than by the language of the Operat-
ing Engineers -GBCA contract. Art. 1, 1:2 of the Electrical Workers-NECA
contract (by reference to art. 28, sec. 4, of the International 's constitution)
covers all "line work consisting of wood ... poles . . . including wires,
cables or other apparatus supported therefrom ," while art . I, sec. 3, of the
Operating Engineers-GBCA contract covers operation of "drilling ma-
chines." On its face, the former provision would seem to cover operation of
both the digger for drilling holes and the winch for setting up poles, while
the latter provision would seem to cover operation only of the digger for
drilling holes.
2. The Employer's assignment and past practice
It is undisputed that Pangborne assigned the work
in dispute to its employees who are represented by the
Electrical Workers. Additionally, Pangborne 's assis-
tant general manager, Henry Roberti, testified that
Pangborne has always assigned such work to its elec-
trical workers on other jobs; Pangborne's electrical
line superintendent, Harry Smith, listed by name six
other jobs where Pangborne has assigned this work to
electrical workers; and, Pangborne's president, Rich-
ard Conly, testified that Pangborne has assigned the
work exclusively to electrical workers on other jobs
for the last 29 years. The foregoing testimony stands
uncontradicted.10 Indeed, the Operating Engineers
district representative, Joseph O'Donoghue, admitted
having no evidence or personal knowledge that Pang-
borne has ever assigned the work in dispute to em-
ployees represented by the Operating Engineers. We
therefore find that Pangborne's consistent past prac-
tice favors awarding the work to employees repre-
sented by the Electrical Workers.
3. Area practice
The Electrical Workers business manager , Howard
Grybert, testified that of the approximately 35 em-
ployers within his local's geographical jurisdiction
doing work similar to that in dispute, all assign this
work exclusively to electrical workers. Furthermore,
the Electrical Workers assistant business manager,
Jack Roland , testified that on every area job he knew
of in the past 15 years, the work has been assigned to
electrical workers. He listed by name about 12 such
jobs in the last 2 years. In contrast, Operating Engi-
neers Representative O'Donoghue was able to list
only four area jobs where the work had been assigned
to employees represented by the Operating Engineers,
and these jobs were performed 3 or 4 years ago. We
therefore find that the prevailing area practice favors
awarding the work to employees represented by the
Electrical Workers.
4. Efficiency and economy of operation
According to Pangborne's officials, the job at the
refinery is an integrated procedure which entails not
only performing the work in dispute but also climbing
the poles, connecting live wires, installing transform-
ers, and putting on insulators. The employee operat-
ing the truck is needed less than half of the time for
that function, and is expected the rest of the time to
10 As already noted above, Conly also testified that for the last several
years Pangborne has not assigned work of any sort to employees represented
by the Operating Engineers . However, the Operating Engineers presented
some documentary evidence (fn. I, supra), in rebuttal of Conly's testimony.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
help the work crew with the other related job func-
tions. While employees represented by the Electrical
Workers are capable of performing those functions,
the employees represented by the Operating Engi-
neers, according to their own representative, O'Dono-
ghue, are not. Consequently, Pangborne's officials
testified, assigning the work in dispute to employees
represented by the Operating Engineers would result
in the operator of the truck having nothing to do on
the job more than half of the time, and would result
also in Pangborne having to hire at least one extra
employee simply to help with all the related job func-
tions for which the operator of the truck would not be
qualified." We therefore find that the factors of effi-
ciency and economy of operation favor awarding the
work in dispute to employees represented by the Elec-
trical Workers.
5. Safety
According to Pangborne's electrical line superin-
tendent, Smith, the operator of the truck in dispute
often has to drill holes in an area of underground
wires and set up poles in an area of overhead wires.
The operator must be able to judge when the wires are
high-voltage and live, lest he touch them with his
equipment and seriously endanger himself and his
fellow workers. Additionally, if a worker suffers elec-
trical shock atop a pole, the operator of the truck may
have to climb the pole and bring him down while
administering mouth-to-mouth resuscitation. While
individuals represented by the Electrical Workers are
qualified, by virtue of a 5-year training program, to
perform all these safety functions, the individuals rep-
resented by the Operating Engineers, according to
their own representative, O'Donoghue, know little
about electricity and could not as a matter of course
rescue a worker hurt atop a pole. We therefore find
that the factor of safety favors awarding the work to
employees represented by the Electrical Workers.
IV. CONCLUSION
Based upon the entire record, and after full consid-
eration of all relevant factors, including Pangborne's
assignment of the work in dispute, Pangborne's past
practice, the area practice, and the relative efficiency,
economy, and safety of operation, we conclude that
the work in dispute should be awarded to employees
tt Moreover, even if an individual represented by the Operating Engineers
were technically qualified for all the functions the job entails, he might still
be kept idle a significant part of the time by art. IV, sec . 9, of the Operating
Engineers-GBCA contract . That section provides that an employee , once he
is shifted away from a certain task during a day, may not be shifted back to
that task during the same day.
represented by the Electrical Workers.
Pangborne has requested that we award to employ-
ees represented by the Electrical Workers the disput-
ed work on all jobs throughout the geographical area
covered by the Electrical Workers-NECA contract.
However, there is no evidence that since the incidents
of March 14 and 15, 1974, the Operating Engineers
has engaged in any conduct arguably violative of Sec-
tion 8(b)(4)(D), either at the Sohio refinery or else-
where. Moreover, in a letter from its attorney dated
April 11, 1974, the Operating Engineers formally as-
sured Pangborne's attorney that the Operating Engi-
neers would engage in no future violence, harassment,
or other conduct violative of Section 8(b)(4)(D).12 We
therefore conclude that there is no reason to believe
that the Operating Engineers 8(b)(4)(D) violations of
March 14 and 15, 1974, will recur, and we find that
the purposes of the Act will be fully effectuated by an
award limited to the work at the Sohio refinery where
the dispute arose.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and on the basis of the
foregoing findings and the entire record in this case,
the National Labor Relations Board hereby makes
the following Determination of Dispute:
1. Employees of W. V. Pangborne & Co., Inc.,
who are represented by Local Union No. 126, Inter-
national Brotherhood of Electrical Workers, AFL-
CIO, are entitled to perform the work consisting of
operation of pole line trucks, including winches and
diggers, by Pangborne at the Sohio Petroleum Com-
pany construction site in Trainer Borough, Pennsyl-
vania.
2. Local 542, International Union of Operating En-
gineers , AFL-CIO, is not entitled, by means pro-
scribed by Section 8(b)(4)(D) of the Act, to force or
require W. V. Pangborne & Co., Inc., to assign the
above work to individuals represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local 542, Interna-
tional Union of Operating Engineers, AFL-CIO,
shall notify the Regional Director for Region 4, in
writing, whether or not it will refrain from forcing or
requiring W. V. Pangborne & Co., Inc., 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.
12 The April 11, 1974, letter apparently confirmed a similar but more
informal assurance given Pangborne by the Operating Engineers ' attorney
several days after the incidents of March 14 and 15, 1974. It may be noted
that Pangborne itself deemed recurrence of the 8(bx4XD) violations so un-
likely as to obviate the need for keeping its employees away from the site after
March 18, 1974.