Local Union No. 317, IBEW, AFL-CIO

National Labor Relations Board - Board Decisions

Jun 16, 1970

183 N.L.R.B. 412 (N.L.R.B. 1970)

412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No . 317, International Brotherhood of
Electrical Workers, AFL-CIO and International
Union of Operating Engineers , AFL-CIO and
Hughes-Bechtol , Inc. Case 9-CD-171
III. THE DISPUTE
A. Background and Facts of the Dispute
June 16, 1970
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, BROWN, AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by International Union of Operat-
ing Engineers , AFL-CIO, herein called Operating
Engineers , alleging that Local Union No. 317, In-
ternational Brotherhood of Electrical Workers,
AFL-CIO, herein called Electrical Workers, vio-
lated Section 8(b)(4)(D) of the Act. A duly
scheduled hearing was held before Hearing Officer
Mark Fox on December 16 and 23, 1969. 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.
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. The rulings are hereby
affirmed.
Upon the entire record in this case, the Board
makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
Hughes-Bechtol, Inc., herein called Hughes-
Bechtol or Employer, is an Ohio corporation en-
gaged in the electrical and mechanical contracting
business. During the past year, the Employer had a
direct flow of products in interstate commerce
valued in excess of $50,000, which were purchased
and caused to be shipped to its place of business in
Dayton, Ohio, from points directly outside the State
of Ohio.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that Electri-
cal Workers and Operating Engineers are labor or-
ganizations within the meaning of Section 2(5) of
the Act.
Hughes-Bechtol has several contracts at the J. M.
Stewart Generating Station at Aberdeen, Ohio. Ed-
ward Fester is project manager for Hughes-Bechtol
at this site. For this project, there was a prejob con-
ference in March 1968 which was attended by
Charles Baldwin, Fester's assistant; Russell Kinney,
assistant business manager for the Electrical Work-
ers; Clifford Farwell, business representative for
the Operating Engineers; General Electric's project
manager, Trimbach; and representatives of several
other unions. Trimbach discussed the installation
specifications of certain air circuit breakers. Fester
and Baldwin conferred with the foreman for Bertke
Electric, a contractor also on the project, to find
out the type of hoisting equipment that should be
used for lifting the large air circuit breakers. Bert-
ke's foreman and one of the operators of their
equipment advised that the type of hydrocrane used
by Bertke would not serve their purpose. Arrange-
ments were then made for a rental of a "Bay City
crane"' from an equipment rental operator named
McFarland. The crane came with an operator and
an oiler who were members of Operating En-
gineers . About April 7, 1969, the Employer began
unloading component parts of the circuit breakers
from railroad cars utilizing the Bay City crane and
moved them to the switchyard. This operation
lasted about 4 weeks. During this period the operat-
ing engineers and the electrical workers worked
together. Electrical Workers never claimed the
operation of the Bay City crane, nor did it attempt
to cause Hughes-Bechtol to perform the work with
any other type of equipment.
While the unloading was proceeding, Fester and
Baldwin considered the possibilities of installing the
circuit breakers with a smaller type of crane known
as a cherry picker. However, the problem with
using a cherry picker was that the terrain of the
switchyard was muddy and soft. Any cherry picker
available at that time was lighter than the Bay City
crane , was hydraulically driven, and was considered
unsafe for the operation. The possibility of leveling
the terrain was discussed with the representatives of
Maxon Construction Company, the contract
manager . No firm arrangements were made for
leveling the terrain, and Fester and Baldwin
thereafter decided that safety required them to use
the larger Bay City crane for the installation of the
circuit breakers.
' This crane is described as a 25-ton Bay City cable -driven truck crane
and was apparently larger than the type of cranes used by Bertke.
183 NLRB No. 52
LOCAL UNION NO. 317, IBEW , AFL-CIO
On May 15, 1969, Carl Crump, Electrical Work-
ers job steward, told Baldwin that the linemen
could not go on working with the Bay City crane.
The linemen then performed "busy work", i.e.,
they were "unavailable" to help install the circuit
breakers, and this continued on May 16, 1969. Jan-
now, the General Electric installer on the job, com-
plained that the linemen were refusing to work with
the crane, and Jannow was concerned that the cir-
cuit breakers would be damaged due to their inac-
tivity. On May 19, 1969, Baldwin told Spears, the
linemen foreman, to start getting the insulators up
on a stand. Spears answered that he had been in-
structed not to do it. Berry, business manager of the
Electrical Workers, informed the Employer that he
would not permit his men to work with the Bay City
crane in hoisting and setting the circuit breakers.
The object of the acts and conduct of Berry was to
force the Employer to utilize a crane, presumably a
cherry picker, that would be run by electrical work-
ers for the work of hoisting and erecting air circuit
breakers rather than utilizing the Bay City crane
run by employees who are members of or
represented by Operating Engineers.
413
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of dispute pursuant to Section 10(k) of the
Act, it must be satisfied that there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated.
In this case, as detailed previously, the original
assignment of the operation of the disputed equip-
ment was made to the operating engineers. It ap-
pears that Electrical Workers claimed the work in
dispute for its members and informed the Employer
that it would not permit employee-members of its
union to perform work with the Bay City crane,
thereby preventing the completion of the work in
accordance with the work assignment, and caused
the employees of the Employer to stop work at this
jobsite until members of Electrical Workers sub-
sequently agreed to return to work. We find there is
a reasonable cause to believe that violations of Sec-
tion 8(b)(4)(D) have occurred, and that the
dispute is properly before the Board for determina-
tion under Section 10(k) of the Act.
E. Merits of the Dispute
B. The Work in Dispute
The work here in dispute involves the manning
and operation of a crane used for hoisting and
erecting air circuit breakers in a switchyard at the
J. M. Stewart Generating Station at Aberdeen,
Ohio.
C. The Contentions of the Parties
Operating Engineers contends that the Employer
had the right to perform the work involved with the
equipment of its own choosing, the Bay City crane,
and Operating Engineers were the operators of the
crane.
Electrical Workers asserts that there is insuffi-
cient evidence to warrant a finding by the Board
that there is reasonable cause to believe that Sec-
tion 8(b)(4)(D) of the Act has been violated or
that the dispute is properly before the Board for
determination. Hence, it requests the Board to
quash the notice of hearing issued in this matter
and to dismiss the charges giving rise to such notice
of hearing. Alternatively, Electrical Workers con-
tends an award of the operations of the equipment
utilized to hoist and erect air circuit breakers
should be made to members of its union rather than
to members of Operating Engineers.
Section 10(k) of the Act requires the Board to
make an affirmative award of the disputed work
after giving due consideration to various relevant
factors, and the Board has held that its determina-
tion in jurisdictional dispute cases is an act of
judgment based on commonsense and experience
in balancing such factors.2
Electrical Workers does not contend that the
operation of the Bay City crane should be awarded
to its members, but contends it should have the
work assignment of both hoisting and installing the
air circuit breakers. Inherent in such contention is
that the Employer should use a lighter crane in
order that employees represented by Electrical
Workers could operate it. Viewed in such light, it is
clear that their claim that a smaller crane be util-
ized was simply a method of asserting their claim
for the work. Testimony was introduced by Electri-
cal Workers to the effect that members of their
union have operated equipment to hoist and erect
breakers on similar type projects in different parts
of the country. They have used equipment such as a
cherry picker or "hydrocrane." The record shows
that the Employer considered using such hoisting
equipment as a cherry picker for the installation of
the air circuit breakers on this project but decided
Y International Association of Machinists, Lodge No 1743, AFL-CIO (J
A Jones Construction Co ), 135 NLRB 1402, 1410
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that this piece of equipment was too light to per-
form the work. Moreover the terrain of the
switchyard was uneven and soft, and the Employer
concluded that it would be unsafe to use a cherry
picker.
A 25-ton Bay City cable-driven truck crane was
recommended for the job on this project and the
Employer decided to rent the Bay City crane from
McFarland. This was accomplished on the basis of
a package hourly rate which included the wages of
the operator and oiler assigned to the crane. As
noted above, Electrical Workers never claimed the
operation of the Bay City crane and it never offered
to supply an operator and an oiler. Although it may
have been more economical for the Employer to
have had an electrical worker operate a cherry
picker and then perform other work when the cher-
ry picker was not in use, this, in the judgment of the
Employer, would be unsafe. The Employer's
judgment to utilize the Bay City crane was reached
after consultation with and on the advice of com-
petent equipment operators; such decision was
reasonable and was heavily influenced by the safety
factors involved. The record shows that the work
performed by members of Operating Engineers has
been satisfactory.
We determine that the work in dispute shall be
awarded to the operating engineers, employed by
Hughes-Bechto13 who are represented by Operating
Engineers, but not to that union or its members.
The present determination is limited to the particu-
lar controversy which gave rise to this proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of
the foregoing findings and the entire record in this
case, the National Labor Relations Board makes
the following determination of dispute:
1. Operating engineers represented by Interna-
tional Union of Operating Engineers, AFL-CIO,
and employed by Hughes-Bechtol, Inc., are entitled
to perform the tasks of operating the Bay City
crane in connection with the installation of the air
circuit breakers at the J. M. Stewart Generating
Station at Aberdeen, Ohio.,
2. Local Union No. 317, International Brother-
hood of Electrical Workers, AFL-CIO, is not enti-
tled, by means proscribed by Section 8(b)(4)(D)
of the Act, to force or require Hughes-Bechtol,
Inc., to assign the work in dispute to employees
represented by the aforesaid union.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local Union No.
317, International Brotherhood of Electrical Work-
ers, AFL-CIO, shah notity the Regional Director
for Region 9, in writing, whether or not it will
refrain from forcing or requiring Hughes-Bechtol,
Inc., by means proscribed by Section 8(b)(4)(D),
to assign the work in dispute in a manner incon-
sistent with the above determination.
' As noted earlier in the Decision , Hughes-Bechtol rents the Bay City
crane on a package basis Although the crane operator and oiler are on Mc-
Farland's payroll, we find that Hughes-Bechtol is a joint employer with Mc-
Farland as it appears that while on the job Hughes-Bechtol exercises
direction and control over the operator and oiler