Millwrights Local Union No. 1862

National Labor Relations Board - Board Decisions

Jul 15, 1970

184 N.L.R.B. 547 (N.L.R.B. 1970)

MILLWRIGHTS LOCAL UNION NO. 1862
Millwrights Local Union No . 1862 and ' Spokane
District Council of Carpenters , United Brother-
hood of Carpenters and Joiners of America,
AFL-CIO and International Association of
Bridge , Structural &2 Ornamental Iron Workers,
Local Union No. 14, AFL-CIO and Jelco, Inc.3
Case 19-CD-154
July 15, 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 the Iron Workers, alleging a
violation of Section 8(b)(4)(D) by the Millwrights.
Pursuant to notice, a hearing was held on January
21 and 22, 1970, at Walla Walla, Washington, be-
fore Hearing Officer Jerome F. McCarthy. The Em-
ployer, the Millwrights, and the Iron Workers ap-
peared at the hearing and were afforded full oppor-
tunity to be heard, to examine and to cross-examine
witnesses, and to adduce evidence bearing on the
issues. The Iron Workers and the Millwrights filed
briefs with the Board.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connec-
tion 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 EMPLOYER
The Employer is a Utah corporation with its prin-
cipal place of business at Salt Lake City, Utah, and
is engaged in heavy construction . It annually per-
forms services for customers located outside the
State of Utah valued in excess of $1 million, and is
currently engaged at the Little Goose Dam Power
Plant Project near Starbuck , Washington , in the in-
stallation of turbines and electrical generators
manufactured by the General Electric Company.
The Employer 's contract is with the Walla Walla
District Corps of Army Engineers and has an ap-
proximate value of $3 million . The parties stipu-
lated , and we find, that the Employer is engaged in
commerce within the meaning of Section 2(6) and
' Herein called the Millwrights
s Herein called the Iron Workers
184 NLRB No. 58
547
(7) of the Act, and that it will effectuate the poli-
cies of the Act to assert jurisdiction herein.
ii. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the Mill-
wrights and the Iron Workers are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Controversy
The work in dispute involves the installation and
final placement of generators and turbines in the
powerhouse at Little Goose Dam. There is no
dispute as to the work involved preparatory to the
final placement.
B. The Basic Facts
As noted above, the Employer has the labor con-
tract for installing turbines and generators in the
powerhouse at Little Goose Dam. The assembly of
the generators and turbines involves the handling of
some extremely heavy parts such as turbine head
covers which weigh approximately 139,000 pounds.
Work with these parts involves the use of power
rigging. The final assembly of parts of the turbines
and the placing of them in the turbine pit in the
powerhouse is done with a 600-ton bridge crane.
The job involved here was the installing of three
special turbines. When the dispute in question
arose, the members of the Iron Workers had
completed the assembly of the outer head covers
on two of the turbines and were preparing to make
the final assembly of the outer head cover on the
third turbine. This last step, the work in dispute,
requires skill and experience because of the fact
that the heavy head cover must be fitted into place
within a tolerance of around 5/1000ths of an inch.
In lowering the outer head cover on the first two
turbines, the Employer had assigned members of
the Iron Workers to do the rigging and signaling
and placed them in control and responsible for the
lift. In preparing to lower the outer head cover on
the third turbine, the Employer also made the as-
signment to the Iron Workers. As preparations
were being made to lower the outer head cover in
its location in the powerhouse, the Millwrights ob-
jected to the Iron Workers using "the machinists
levels," a tool necessary for a proper fitting, since
such tool was considered a Millwrights tool. When
the Employer refused to assign this last stage
' Herein called the Employer
427-835 0 - 74 - 36
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rigging work to the Millwrights, the Millwrights in-
formed the Employer that it was applying to the
National Joint Board for Settlement of Jurisdic-
tional Disputes, hereinafter referred to as the Na-
tional Joint Board. The National Joint Board issued
its award by letters dated September 26, 1969, to
the Millwrights, the Iron Workers, and the Em-
ployer in which it awarded the final installation
work in dispute to the Millwrights.
C. The Contention of the Parties
The Millwrights contends that it did not violate
Section 8(b)(4)(ii)(D) of the Act and thus that the
Board is precluded from making a work determina-
tion within the meaning of Section 10(k) of the
Act. The Millwrights further contends that the
work should be awarded to employees represented
by it due to: (1) the contractual obligations of the
Iron Workers and the Employer to be bound by
decision of the National Joint Board when such
disputes arise; (2) the National Joint Board's award
in its favor; (3) past practices and awards in the in-
dustry; and (4) the training, skills, and experience
of its members.
The Iron Workers contends that the Millwrights
did violate the Act; that the Millwrights requested
the National Joint Board to rule in the Millwrights
favor without any discussion or notice to the Iron
Workers; shortly after the award was made the Na-
tional Joint Board ceased hearing such disputes and
the Iron Workers had no opportunity to seek appel-
late review; only the Iron Workers has the necessa-
ry skill and experience to perform such work; Em-
ployer, area, and industry practice support the as-
signment of the work in question to the Iron Work-
ers. Additionally, the Iron Workers contends that
the U.S. Army Corps of Engineers specified that
only qualified riggers are permitted to do power-
house rigging and object to Millwrights doing any
rigging , a necessary part of the work.
The Employer did not file a brief to the Board,
but it appears from the record that it supports the
contentions of the Iron Workers.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the dispute pursuant to Section 10(k) of the
Jefferson County, Alabama and Vicinity Carpenters District Council (S &
W Masonry, Inc ), 173 NLRB 1241, and cases cited in In 4
5 N L R B v Radio & Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 U .S 573; International Association of Ma-
chinists , Lodge No 1743, AFL-CIO (J. A Jones Construction Com-
pany), 135 NLRB 1402, 1411.
' Member Brown deems it noteworthy that Sec 10(k) of the Act
requires the Board to withhold determination of a jurisdictional dispute
Act, it must be satisfied that there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated.
The testimony of the Employer supporting such a
finding was refuted by the Millwrights. Neverthe-
less, the Board is not charged with a finding that a
violation did in fact occur, but only that reasonable
cause exists to find such a violation. Without ruling
on the credibility of the testimony in issue , we find
such reasonable cause exists, and that the dispute is
properly before the Board for determination under
Section 10(k) of the Act.4
E. The 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 fac-
tors.5 The determination of who is entitled to the
disputed work in a case such as this must rest on an
assessment of all the relevant factors. Certain of the
usual factors normally considered by the Board,
such as arbitration awards, Board certification, and
collective-bargaining agreements , in our opinion,
provide little basis for determining the instant
dispute. The most important factor favoring the
Millwrights would appear to be the award of the
National Joint Board.
From the record it appears that all the parties in-
volved in the instant proceeding at one time agreed
to be bound by awards made by the National Joint
Board. However, the Iron Workers did not par-
ticipate in the Joint Board proceedings which
resulted in the award to the Millwrights herein and,
before any Joint Board decision or the filing of
charges, it manifested an intention not to be bound
by any Joint Board award.6 Additionally, shortly
after the award was made, and presumably before
the Iron Workers could seek appellate review con-
testing the issuance of any award against it , the Na-
tional Joint Board ceased hearing such disputes and
was no longer a viable organization in a position to
administer or police the award. In these circum-
stances , we do not view the Joint Board award as
determinative.
As indicated above, the Employer had assigned
the work to the Iron Workers and the work had
been satisfactorily performed by it. The Employer
testified that the most efficient and economical
case where, as of the time the charge was filed or within 10 days thereafter,
the parties have an agreed - upon method for the voluntary adjustment of
the dispute During this critical period , as the dissent acknowledges, the
Iron Workers had no desire or intention to utilize or pursue the voluntary
procedures by which it had agreed to be bound Compare the cases
discussed in the dissent where the renunciation of a previously agreed-upon
method for adjustment occurred after charges were filed and following the
Joint Board's award
MILLWRIGHTS LOCAL UNION NO. 1862
method was to have the rigging performed by the
Iron Workers. When the Mllwrights helped on the
third turbine the time factor was adversely affected.
The evidence reflects that the crane needed to per-
form the rigging work is under the control of the
Iron Workers prior to the installation and final
placement of the turbine in the powerhouse which
is a major part of the man-hours of the total job. Ef-
ficiency and economy, it appears, would result by
having all the crane work done by one person.
After October 7, 1969, when the change in as-
signment was made by the Employer pursuant to
the National Joint Board award, it appears that the
U.S. Army Corps of Engineers objected to the then
available Millwrights doing any rigging, and there is
some question raised as to whether the Employer
was able at the time to obtain a Millwrights rigger
who was qualified to assume the responsibility for
the rigging. There is nothing in the record, how-
ever, that would demonstrate that Iron Workers, as
a craft, is more proficient in the rigging of the type
herein involved than other crafts, and the record in-
dicates that other crafts perform rigging for the
Employer.
Although it appears that several National Joint
Board awards have awarded the work performed in
the final installation of turbines in the powerhouse
to Millwiights, the record demonstrates that the
usual practice of the Employer has been to assign
the work to the Iron Workers. The Millwrights does
not appear to question the evidence set forth by the
Iron Workers that area custom and practice favors
the Iron Workers rather than the Millwrights.
In view of the above and, most particularly, the
enhanced efficiency and economy effectuated by
utilizing employees represented by the Iron Work-
ers for the complete job, the presence of em-
ployees with the required skills and training who
are members of the Iron Workers, the evidence of
Employer and area practice, and the Employer's
original assignment and apparent desire to adhere
to that assignment, we shall determine this dispute
in favor of the Employer's employees represented
by the Iron Workers.-However, our present deter-
mination is limited to,the controversy which gave
rise to this proceeding. In making this determina-
tion, we are awarding the controverted work to the
Employer's employees represented by the Iron
Workers and not to the Iron Workers.
Accordingly, we find that the Respondent was
not, and is not, entitled by means proscribed by
Section 8(b)(4)(D) of the Act to force or to
require the Employer to assign the disputed work to
' United Brotherhood of Carpenters and Joiners of America, Local 943,
A F of L ( Manhattan Construction Company), 96 NLRB 1045 See also
549
Millwrights rather than to employees represented
by the Iron Workers.
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 hereby
makes the following Determination of Dispute.
A. Employees of the Employer who are
represented by the Iron Workers are entitled to
perform the following work:
The installation and the final placement of
generators and turbines in the powerhouse at
Little Goose Dam Power Plant Project, near
Starbuck, Washington.
B. Millwrights is not entitled by means
proscribed by Section 8(b)(4)(i) or (ii)(D) of the
Act to force or require the Employer to assign the
above-described work to individuals who are
represented by it.
C. Within 10 days from the date of this Decision
and Determination of Dispute, the Millwrights shall
notify the Regional Director for Region 19, in writ-
ing, whether or not it will refrain from forcing or
requiring the Employer to assign the work in
dispute to Millwrights, rather than to employees of
the above-named Employer represented by the Iron
Workers.
MEMBER FANNING, dissenting:
Contrary to my colleagues, I would quash the
notice of hearing in this case.
It is undisputed that all parties here, including the
Employer, were and are contractually bound to
submit jurisdictional disputes to the National Joint
Board for Settlement of Jurisdictional Disputes.
The provisions of Section 10(k) have consistently
been construed by the Board as withholding from it
authority to determine jurisdictional disputes where
at the time the dispute arose the parites thereto are
contractually bound to submit the dispute to the
Joint Board.' The procedures agreed on were fol-
lowed and after all parties had an opportunity to be
heard the National Joint Board awarded the work
in issue to the Millwrights. Copies of the
award were delivered to all parties. The award fully
sets forth the issues involved and the bases for its
decision and is relevant to the instant work dispute.
The Employer was agreeable to, and, indeed, ac-
cepted the award.
My colleagues attempt to distinguish the instant
case from the above precedents on the ground: (1)
cases cited in fn 8, infra
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Iron Workers question whether they
received proper notice of the hearing held by the
Joint Board; (2) the Iron Workers did not par-
ticipate in that proceeding and have indicated they
are not bound by the award; and (3) after the
award was made the Joint Board ceased hearing
such disputes and appellate review was not availa-
ble.
I do not believe that these are adequate reasons
to depart from this Board's long-established
procedures in dealing with jurisdictional disputes.
The Iron Workers have clearly taken the position
that they have refused to participate in any Joint
Board proceeding and will continue to refuse to be
bound by the results of any determination made by
that Board. It is settled law that a party, such as the
Iron Workers, which has voluntarily agreed to
abide by the procedures of the Joint Board, cannot
refuse to comply with an award of that agency and
invoke this Board's determination of the dispute."
"See, e g Millwrights Local 1102, United Brotherhood of Carpenters,
121 NLRB 101, 106-107, Meyer Furnace Co, 114 NLRB 924, 930, A W
Lee, Inc , 113 NLRB 947, 951, International Brotherhood of Teamsters,
While appellate review may not have been available
to the Iron Workers for a time due to a hiatus in the
operation of the Joint Board, there is no indication
that the Iron Workers had any intention or desire to
avail itself of such review procedures. Moreover, no
evidence has been adduced that Joint Board review
of the original award is not now available to the
Iron Workers. In view of the clear Congressional
policy to encourage the voluntary adjustment of ju-
risdictional disputes I would adhere to this Board's
policy of insisting that parties who have such an
agreed-upon method be required to resolve their
disputes through that method.
Accordingly, I would quash this notice of hearing
and remand this case to the Regional Director with
instructions to proceed in accordance with the
provisions of Section 102.93 of the Board's Rules
and Regulations under which a complaint alleging a
violation of Section 8(b)(4)(D) may, if ap-
propriate, issue and be litigated.
Chauffeurs, Warehousemen and Helpers of America, Local #236 (William F
Taylor), 97 NLRB 1003,1006