Local 926, Operating Engineers

National Labor Relations Board - Board Decisions

Jun 28, 1971

191 N.L.R.B. 603 (N.L.R.B. 1971)

LOCAL 926, OPERATING ENGINEERS
Local 926, International Union of Operating Engineers
and High Point Sprinkler Company of Atlanta and
Local 669 , United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Indus-
try of the United States and Canada . Case 10-CD-
233
June 28, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND KENNEDY
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following the
filing of charges by High Point Sprinkler Company of
Atlanta, herein called the Employer, alleging that Lo-
cal 926, International Union of Operating Engineers,
herein called Engineers or Respondent, had violated
Section 8(b)(4)(D) of the Act. The charge alleges in
substance that the Respondent induced and en-
couraged employees to engage in a strike or refusal to
work and has threatened, coerced, and restrained per-
sons engaged in commerce, where in both instances an
object thereof is to force the Employer to assign certain
work to employees represented by Respondent rather
than to employees of the Employer who are represented
by Local 669, United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry
of the United States and Canada, herein called Sprin-
kler Fitters, or Local 669.
Pursuant to notice, a hearing was held before Hear-
ing Officer George L. Card on January 5, 6, and 7,
1971. All parties appearing at the hearing were afforded
full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing on
the issues. I Thereafter, the Employer and the Respond-
ent filed briefs in support of their respective positions.
Also the Respondent filed a motion to reopen the
record and quash the notice of hearing, to which the
Employer filed a response. Additionally the Employer
filed a motion to expedite and the Respondent filed a
response thereto.
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 rulings made by the
Hearing Officer at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed. The Board has considered the briefs, motions,
' Although Local 669 was served with a copy of the charge and notice
of hearing, it made no appearance at the hearing.
603
and responses of the parties, and the entire record in
this case and hereby makes the following findings:
1. THE BUSINESS OF THE COMPANY
High Point Sprinkler Company of Atlanta is a
Georgia corporation engaged in the manufacture, sale,
and installation of automatic sprinkler systems. The
parties stipulated, and we find, that the High Point
Sprinkler Company of Atlanta is engaged in interstate
commerce within the meaning of the Act. Accordingly,
we find that it will effectuate the purposes of the Act
to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Local 926,
International Union of Operating Engineers, and Local
669, International Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada are labor organizations
within the meaning of the Act.
III. THE DISPUTE
A. The Work in Dispute
The disputed work involves the operation of the Em-
ployer's Lull 40-foot end lift at the Western Electric
jobsite at Tucker, Georgia.
B. The Background Facts
Sometime prior to November 8, 1970,2 the J. A.
Jones Company began construction of a building for
Western Electric Company at Tucker, Georgia. It let a
contract to Economy Mechanical Industries, herein
called Economy, as prime mechanical contractor.
Economy subcontracted the design, fabrication, and
installation of the interior fire protection Carolina,
herein called High Point North Carolina.
Thereafter, High Point North Carolina contracted
with the Employer, High Point of Atlanta, for the on-
site installation of the sprinkler system. J. A. Jones,
through its membership in the Association of General
Contractors, has a collective-bargaining agreement
with Respondent. The Employer, on the other hand, is
a member of the National Automatic Sprinkler and
Fire Control Association and is thereby party to that
Association's collective-bargaining agreement with Lo-
cal 669.
The installation of overhead sprinkler equipment re-
quires the use of a Lull 40-foot end lift machine, here-
inafter referred to as Lull or machine. The Lull is a
hydraulically operated machine on which a platform
2 All dates are 1970 unless stated differently.
191 NLRB No. 52
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and racks have been installed, which is used to elevate
men and materials in installing the sprinkler system on
the ceiling joists.
On or about November 8, the Employer placed three
Lull machines on the jobsite. On the following day, as
the Employer's foreman, James C. Russell, was having
sprinkler equipment unloaded, he was approached by
H. G. Donnelly, Economy's general foreman, and Wil-
liam Jones, Economy's master mechanic, who also is a
member of Respondent. Russell testified that Jones and
Donnelly inquired whether Russell wanted them to
obtain operating engineers to operate the machines and
that when he answered in the negative and stated that
the Employer's own employees would operate them,
Jones replied, "No, if you operate the machines we will
shut the job down, we need to go fishing anyway."
Thereafter, at the instance of Economy's superinten-
dent, Allen, who stated he needed time to work the
problem out, the Employer did not operate the ma-
chines immediately. It appears that Allen tried, with-
out success, to have the Employer use engineers for the
operation of the Lull.
On November 18, however, the Employer for the
first time started up the Lull machines and used its own
employees to operate them. At that point Jones ap-
proached the operator and asked him if he had a
"card." When the operator replied he did not, Jones,
according to Russell, stated to the operator, "You can-
not operate the machine." Jones admits saying, "To
hell with it, I'm going home." At that point he returned
to his machine, made a circular motion with his right
arm above his head, and followed with another motion
with the same hand with the palm downward, where-
upon Jones then left the jobsite and shortly thereafter
the other operating engineers parked their machines
and walked off the job.
On the following day, T. D. Archer, Respondent's
business agent, met with the employees who had
walked off the job. He persuaded them to abandon the
work stoppage, telling them that the Union neither
authorized nor wanted a work stoppage since he was
submitting the matter to the National Joint Board for
the Settlement of Jurisdictional Disputes in the Build-
ing and Construction Industry. On that understanding
the operators returned to work.
On November 30, the Joint Board handed down a
decision which assigned the work in dispute to the
members of Respondent. The Employer, however,
refused to comply with the Joint Board directive and
continued to assign the disputed work to its own em-
ployees. Economy thereupon attempted to get the Em-
ployer to comply with the Joint Board directive. On
December 3, in response to a request from Economy,
the Employer, while reserving its position, permitted
Economy to use its engineer employees for perform-
ance of the disputed work at Economy's expense. This
arrangement lasted until December 23, when the job
was temporarily shut down. Although the record does
not indicate that Local 669 formally claimed the dis-
puted work during the interval, W. L. Honeycutt, the
Employer's vice president and general manager, tes-
tified that through that period of time several of the
Employer's employees objected to the disputed work
being done by members of Respondent.
On January 4, 1971, the Employer upon learning it
was being backcharged by Economy for the work being
performed by Economy's engineer employees informed
Economy that it would no longer agree to having the
machine operated by an operating engineer and that the
machine would be manned by its own employees.
When the Employer's employees resumed the opera-
tion of the machine on January 6, 1971, Respondent's
members again walked off the job.
C. Contentions of the Parties
High Point Sprinkler Company of Atlanta, the Em-
ployer and Charging Party , contends that Respondent
has violated Section 8(b)(4)(D ) of the Act by exerting
coercive pressures on the Employer to compel it to
assign the disputed work to members of the Engineers.
The Employer further contends that the work is prop-
erly assigned to its own employees who are represented
by Local 669 in view of (a) area and industry practice;
(b) economy and efficiency ; and (c) contract and certifi-
cation.
The Respondent contends that the Board is pre-
cluded from proceeding with a determination of the
dispute since the parties have agreed upon a method for
voluntary adjustment of the dispute . In this connection,
Respondent contends that J. A. Jones, the general con-
tractor, through its membership in Associated General
Contractors which has a contract with Respondent, has
agreed to abide by awards made by the National Joint
Board. Respondent further contends that J . A. Jones
has required that its subcontractors adhere to J. A.
Jones' labor policies which include honoring Joint
Board awards . In support of this contention, Respond-
ent introduced in evidence a Joint Board decision
awarding the disputed work to its members and argues
that J. A. Jones and Economy have honored the award
by attempting to have the Employer do likewise. Addi-
tionally , Respondent maintains that Local 669 has
agreed to be bound by the Joint Board determination
in that, as a result of the Joint Board's November 24,
1970, decision awarding the disputed work to members
of Respondent, Local 669 's parent organization sub-
mitted a letter to the Board's Regional Director, dated
January 4, 1971, renouncing jurisdiction over the dis-
puted work. Finally, Respondent contends the facts
herein do not make out a prima facie case for reasona-
ble cause to believe Section 8 (b)(4)(D) has been vi-
LOCAL 926, OPERATING ENGINEERS
olated. In this connection, the Respondent contends
the evidence falls short of showing that Respondent or
any of its agents were responsible for either of the work
stoppages which occurred.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated.
Although Respondent denies it was responsible for
any work stoppage, or for that matter that there was
any concerted work stoppage by its members, we be-
lieve the evidence is sufficient to establish at least rea-
sonable cause to believe that Respondent violated Sec-
tion 8(b)(4)(D) of the Act.
The evidence, on the basis of Jones' own testimony,
establishes that it was Jones' responsibility to check
with Respondent whenever a problem arose on the job
which affected Respondent's interests.' The act of the
employees in walking off the job on November 18 fol-
lowing Jones' acknowledged gesture of disapproval
over the work assignment and departure from the job-
site is some evidence that the employees involved
recognized Jones' apparent authority to act on Re-
spondent's behalf and that the gesture was a signal to
quit work. Moreover, the walkout by Respondent's
members on January 6, 1971, following the reassign-
ment of the disputed work to the Employer's own em-
ployees was consistent with the actions of Respondent's
members on November 18 in supporting Respondent's
established policy of claiming the disputed work for its
members.
Furthermore, we do not find merit in Respondent's
contention that all parties have agreed to a voluntary
settlement of the dispute, either through the Joint
Board or by Local 669's parent organization's pur-
ported disclaimer of the disputed work. Whatever obli-
gations J. A. Jones' contract with Economy imposed on
that Company and whatever obligation Economy's
contract with High Point of North Carolina imposed
on the latter, there is no evidence that the Employer
agreed to be or was bound by any of J. A. Jones' labor
policies or by an award of the Joint Board.4 The Em-
' Jones testified, "if I'm in doubt about anything, whether its a job or if
a man's been done wrong, if a company has been done wrong or if anybody's
ill over something either way, I call the [union] hall and ask them about it
and ask them what I should do "
4 Subsequent to the hearing , Respondent renewed its motion to dismiss
and moved to quash the notice of hearing Alternatively, it moved that the
record be reopened for the introduction of evidence which, according to
Respondent, would show that High Point and the Employer are engaging
in a joint venture and that the latter has agreed to follow the labor policies
of J A. Jones, the general contractor, and is thereby bound to follow the
directives of the Joint Board. However, neither the record nor the evidence
now proffered by Respondent would establish these contentions, and there
is no substantial showing that the Employer expressly agreed to be bound
by Joint Board determinations See, e g , Sheet Metal Workers Local 80
605
ployer specifically denies any such obligation. In the
circumstances, we find that the Employer is not party
to any agreement providing for the voluntary adjust-
ment of this dispute.
Nor do we find merit in Respondent's contention
that the dispute is now moot since the parent organiza-
tion of Local 669 has disclaimed jurisdiction over the
operation of the Lull as a result of the Joint Board
assignment of such work to the engineers. We find that
the dispute is not moot since there is evidence showing
that the Employer's employees had earlier protested
the transfer of the work to engineers, and members of
Local 669 continued to perform the work without ob-
jection.'
Thus in these circumstances, the disclaimer of the
International Union is not effective to vitiate an other-
wise viable jurisdictional dispute especially when, as
here, members of the alleged disclaiming union have
continued to perform the work.6 Accordingly, on the
basis of the entire record, we find that the dispute is
properly before the Board for determination.7
E. 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 various relevant factors.'
1. Certification and bargaining agreements
The evidence does not indicate a Board certification
relative to the disputed work.
The record shows that the Employer has a collective-
bargaining agreement with Local 669, and that the
Employer's interpretation of this contract is the basis
on which the Employer assigned the disputed work to
its own employees. Neither Respondent nor its parent
(N.L.L Laboratory Furniture, Inc.), 191 NLRB No. 87
On June 15, 1971, Respondent filed a supplemental motion to reopen
the record and dismiss , asserting that the subcontract of High Point of
Atlanta had been modified to exclude the operation of Lull High Lift ma-
chines, and that since January 11, 1971 , the disputed work has been per-
formed by Operating Engineers who are employed by Economy. Thus,
Respondent contends , the dispute, if one ever existed, is settled and the
proceeding should be dismissed for mootness . There is, however, no proff-
ered evidence which, if admitted, would show that the underlying dispute
which gave rise to this proceeding has been settled . Accordingly, Respond-
ent's motion is denied as lacking in merit.
4 See Charles J. Dorfman and Underground Engineering Contractors
Association, 172 NLRB No. 208, International Union of Operating Engi-
neers Local 520 (Biebel Bros., Inc), 170 NLRB No. 38.
' In the motion to quash, Respondent further contends that since January
25, 1971, the disputed work has been assigned to its members pursuant to
Jones' and Economy's directives that High Point (the Employer) comply
with the Joint Board award . While it appears that the Employer has allowed
Respondent's members to perform the disputed work since that time, it is
also clear that the Employer considered this acquiescence necessary only to
prevent additional work stoppages and has reserved its original position
pending ultimate determination of the dispute
e N.L.R.B. v Radio & Television Broadcast Engineers Union, Local
1212, International Brotherhood of Electrical Workers, AFL-CIO (Co-
lumbia Broadcasting System), 364 U.S. 573
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International has any such agreement with the Em-
ployer. Accordingly, we find that this factor tends to
favor awarding the disputed work to the employees of
the Employer.
2. Joint Board award
Respondent contends that its members should be
assigned the disputed work on the basis of a decision
of the Joint Board awarding the disputed work to its
members. As heretofore stated, however, the Employer
was not a party to the Joint Board proceedings and
maintains it neither considers itself bound thereby nor
intends to comply therewith. In these circumstances we
do not find that the Joint Board decision conclusively
favors awarding the work to members of Respondent.
3. Past practice, assignment, and area practice
The installation of automatic sprinkler systems re-
quires a series of sprinkler heads which are attached to
piping which is suspended from ceilings. Traditionally,
ceiling work has been done from scaffolds. During the
past 5 years, however, ceiling work has been done from
a mobile scaffold which has been mounted on forklift
trucks. Where the building size has permitted, the mo-
bile scaffold has been used almost exclusively. The Em-
ployer's consistent practice has been to assign the oper-
ation of the machine on which the scaffold is mounted
to its own employees who are represented by the Sprin-
kler Fitters. These facts, on balance, tend to militate
against an award inconsistent with the Employer's as-
signment.
Evidence as to industry and area practice is inconclu-
sive as the record indicates a mixed use of both Sprin-
kler Fitters and members of Respondent to perform
work similar to that in dispute.
4. Skills, economy and efficiency of operation
Part of the apprenticeship training for a sprinkler
fitter consists of learning the operation of the forklift
truck, the safety factors involved, and training in blue-
print reading. Thus, when the Employer's own em-
ployees have performed the disputed work, a three-man
crew has been assigned to each machine. Two crew-
members perform the installation of the pipes and
sprinkler heads. Because the third crewmember nor-
mally has worked on the elevated scaffold, and because
he is able to read blueprints, he is able to anticipate the
needs of the men on the scaffold and thus while not
actually operating the machine, he is able to do layout
work. Furthermore, when the disputed work has been
performed by a member of Respondent, the Employer
still has found it necessary to use a sprinkler fitter on
the ground to perform layout work, since members of
Respondent are either unable or unwilling to read blue-
prints. Moreover, it appears that when a member of
Respondent has done the disputed work, only about 10
to 25 percent of his compensated time is spent in the
actual operation of the machine. The Employer con-
tends it has been satisfied with its own employees oper-
ating the machine, but has been dissatisfied with overall
performance while the disputed work was done by a
member of Respondent. Thus while the actual opera-
tion of the machine appears relatively simple and it can
be operated effectively either by members of Respond-
ent or by the employees of the Employer, from the view
of the efficient and economical operation of the entire
process, the facts tend to favor an award to the em-
ployees of the Employer.
5. Safety
Respondent contends assignment of the work to its
members is essential to safe operations. The Employer,
on the other hand, makes the same contention regard-
ing the assignment of the work to its own employees.
The record, however, does not tend to favor an assign-
ment to either group of employees as opposed to the
other as being more conducive to safe operation.
Conclusions
Having considered all pertinent factors we conclude
that employees of the Employer represented by the
Sprinkler Fitters are entitled to perform the work in
dispute. Members of Sprinkler Fitters are at least as
skilled as engineers insofar as the disputed work is
concerned and the Employer has been satisfied with the
quality of their work and resulting efficiency. More-
over, the assignment of the work to sprinkler fitters is
consistent with the Employer's interpretation of its
contract with the Sprinkler Fitters, its assignment and
past practice, and it is not inconsistent with any other-
wise uniform area or industry practice and will result
in more efficient and more economical operations. Ac-
cordingly, we conclude from the foregoing that the
Employer's assignment of work to employees repre-
sented by the Sprinkler Fitters should not be disturbed.
On the basis of the entire record, therefore, we shall
determine the existing jurisdictional dispute by award-
ing to the employees employed by the Employer and
represented by the Sprinkler Fitters, rather than in-
dividuals represented by the Engineers, the operation
of the Lull. In making this determination the Board is
assigning the disputed work to employees represented
by Local 669 but not to that Union or its members.
LOCAL 926, OPERATING ENGINEERS 607
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Re-
lations Act, as~ amended, and upon the foregoing
findings and the entire record-in this proceeding,, the
National Labor Relations Board makes the ,following
determination of dispute:-
1. Employees of High Point Sprinkler Company of
Atlanta, currently represented by Local 669, United
Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada, are entitled to perform the work of
operating the Lull 40-foot end lift in the installation of
piping for their Employer at the Western Electric job-
site at Tucker, Georgia.
2. Local 926, International Union of Operating Engi-
neers, is not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force or require High Point
Sprinkler Company of Atlanta to assign-,the work in
dispute to the employees represented by said Union.
3. Within 10 days from the date of this Decision and
Determination of Dispute, Local 926, International
Union of Operating Engineers,- shall notify the Re-
gional Director for Region 10, in writing, whether or
not it will refrain from forcing or requiring High Point
Sprinkler Company of Atlanta to assign the work in
dispute in a manner inconsistent with this determina-
tion.