Operating Engineers, Local 4

National Labor Relations Board - Board Decisions

Dec 29, 1971

194 N.L.R.B. 755 (N.L.R.B. 1971)

OPERATING ENGINEERS, LOCAL 4
International Union of Operating Engineers , Local 4
and its Branches , AFL-CIO,' and its Agent , Walter
Ryan and Utec Constructors, Inc. and International
Brotherhood of Electrical Workers, Local 104.2
Case 1-CD-272
December 29, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended , following
charges filed on September 1, 1971, by Utec Construc-
tors, Inc., herein called Utec, alleging that Interna-
tional Union of Operating Engineers , Local 4 and its
branches , AFL-CIO, herein called Local 4, and its
agent, Walter Ryan , had violated Section 8 (b)(4)(D)
of the Act.
Pursuant to notice , a hearing was held on October 5
and 6 , 1971, at Boston , Massachusetts , before Hearing
Officer Perry G. Panos. Utec; Local 4 ; Walter Ryan;
International Brotherhood of Electrical Workers,
Local 104, herein called Local 104; National Electri-
cal Contractors Association, herein called NECA;
and M . Ruta Construction Co., Inc., herein called
Ruta, 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 , Utec and Local 4 filed
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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. The rulings are hereby
affirmed . The Board has considered the entire record
in this case and hereby makes the following findings:
1. THE EMPLOYER
Utec is a Kansas corporation whose principal place
of business is in South Lynnfield, Massachusetts. It is
engaged in the business of underground cable
installation in the electrical industry. Utec has annual
gross sales in excess of $2 million. In the conduct of its
business it annually performs services valued in excess
of $50,000 outside the Commonwealth of Massachu-
setts. The parties stipulated, and we find, that Utec is
engaged in commerce within the meaning of Section
i The name of Respondent Union appears as amended at the hearing.
2 The name of Intervenor Union appears as amended at the hearing.
194 NLRB No. 126
755
2(6) and (7) of the Act and it will effectuate the
policies of the Act to assert J urisdiction herein.
II. THE LABOR ORGANIZATIONS
The parties stipulated , and we find, that Local 4 and
Local 104 are labor organizations within the meaning
of Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The work in dispute consists of the operation of
Grove hydraulic cranes.
B. Background and Facts of the Dispute
Utec has a contract with the Boston Edison
Company, an electric utility operating in the Greater
Boston area, for the installation of approximately
36,000 lineal feet of pipe-type cable 3 between Sudbury
and Maynard, Massachusetts. Utec's prime contract
with Boston Edison is valued at $1 million. Utec
engaged Ruta to perform the excavation work on the
project. The subcontract between Utec and Ruta
provides that Utec pays the wages of all the Ruta
employees, and allows Ruta to share in the profits
from the excavation portion of the prime contract.
Utec has 13 men on the project, consisting of a
superintendent, an office manager, and 11 electrical
workers who are represented by Local 104. Ruta has
21 men on the project, consisting of a superintendent,
15 laborers represented by Local 609, Laborers, and 5
operating engineers represented by Local 4.
The project began on June 7, 1971. The work
involved is specialized, consisting of the underground
installation of pipe-type cables which are used to
transmit high voltage electricity. The process consists
of excavating trenches which are, on the average, 6
feet deep, into which are placed pipes measuring 50
feet long and weighing about 1 ton. The excavation is
performed by Ruta employees. The heavy pipes are
removed from piles and placed in the excavated
trenches by means of a hydraulic crane which is
driven on wheels. The crane has a hydraulic-operated
boom and the hoisting cable is operated by a
hydraulic-operated drum. Hydraulic cranes have
various lifting capacities from 7 to 65, tons. "Grove" is
the name of the manufacturer of the two cranes used
by Utec. The crane normally supports the pipe while
the pipe is being welded to the'pipe adjacent to it by
electrical workers employed by Utec and represented
by Local 104. A sheathed paper-insulated cable is
then pulled through the pipe by the electrical workers
3 The term pipe-type cable is synonymous with the term oil-a-static
cable.
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and later these same employees pump oil into the pipe
to provide pressure and facilitate insulation.
In June 1971, Utec assigned an electrical worker
represented by Local 104 to operate a Grove
hydraulic crane of 14-ton capacity owned by Utec. In
July 1971, Utec leased a second Grove hydraulic
crane with a seven-ton capacity and assigned an
electrical worker represented by Local 104 to operate
it.
According to James Stoneberger, Utec's president,
on August 27, 1971, at a meeting between representa-
tives of Local 4 and Utec, Walter Ryan (Local 4's
business manager), claimed the disputed work for
Ruta employees represented by Local 4. Stoneberger
testified that "It was left at this meeting that if he
(Ryan) could not get together with the business agent
of Local 104, then he (Ryan) would have to take
necessary steps to bring this matter to a head as to the
correct assignment of the crane."
Stoneberger further testified that on August 31,
1971, a Mr. Davin,, a business agent for Local 4, came
to the jobsite and told Mr. Ruta, the president of
Ruta, to have the operating engineers employed by
Ruta and represented by Local 4, stop working.
Stoneberger testified that his superintendent in-
formed him that Davini had done this, according to
Davini's statement to the superintendent, "to bring
the matter to a head." The work stoppage occurred on
August 31 at noontime and lasted,through September
1, 1971. There was no picketing. The laborers
employed by Ruta remained on the job. On Septem-
ber 1, 1971, the charge in the instant case was filed.
It was stipulated at the hearing that Local 104 and
Local 4 each claimed the disputed work.
Ryan testified that Local 4 on August 27, 1971, had
protested the assignment of the disputed work on the
Utec job to electrical workers employed by Utec and
represented by Local 104. In addition, he admitted
that the reason for the work stoppage was "to press
our claim for the work of operating these cranes."
Utec is not a party to the National Joint Board for
the Settlement of Jurisdictional Disputes, herein
called the Joint Board. NECA members engaged in
outside electrical work, such as Utec, are not bound to
the Joint Board. In addition, Local 104, as an outside
electrical union, is not party to the Joint Board. Local
4 through its International is a party to the Joint
Board. There was no evidence that Local 4 had
submitted this dispute to the Joint Board or of any
other agreed-upon method for the adjustment of the
dispute.
4 N L R.B v Plasterers' Local Union No 79, Operative Plasterers' and
Cement Masons' International Association of Houston, Texas, et al (Texas
State Tile & Terrazzo Company, Inc), 404 U S. 157, decided December 6,
1971
5 N L R B v. Radio & Television Broadcast Engineers Union, Local 1212,
C. Contentions of the Parties
Utec contends that the assignment of the disputed
work to its employees who are represented by Local
104 was proper in light of certain factors usually
considered by the Board in these matters.
Local 4 maintains that the disputed work should be
assigned to Ruta employees represented by it on the
basis of certain factors normally considered by the
Board in making such assignments.
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 that there is reasonable cause to
believe that Section 8(b)(4)(D) has been violated and
that the parties have no agreed-upon method for the
voluntary adjustment of the dispute.
As set forth previously, it is undisputed that Local 4
caused a work stoppage of operating engineers
employed by Ruta and represented by Local 4, and
that such work stoppage was in support of Local 4's
demand that Utec change the assignment of the
disputed work from electrical workers represented by
Local 104 to operating engineers represented by Local
4. Accordingly, we find that reasonable cause exists to
believe that Local 4s work stoppage violates Section
8(b)(4)(D) of the Act.
We also conclude that there is no effective method
for the voluntary adjustment of the dispute within the
meaning of Section 10(k) of the Act, as Utec, NECA,
and Local 104 are not bound by the decisions of the
Joint Board.4
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work upon consider-
ation of relevant factors.5 Such determination in a
jurisdictional dispute is based upon commonsense
and experience, reached by balancing those factors
involved in a particular case.6
The following factors are relevant in making the
determination of the dispute before us.
1. The collective-bargaining agreements
By virtue of its membership in NECA, Utec is party
to the continuous Pipe-Type Underground Oil-Filled
Transmission Conduit Installations Agreement be-
tween NECA and International Brotherhood of
Electrical Workers, AFL-CIO, herein called IBEW,
International Brotherhood of Electrical Workers (Columbia Broadcasting
System), 364 U S. 573.
6 International Association of Machinists (J. A. Jones Construction
Company), 135 NLRB 1402
OPERATING ENGINEERS, LOCAL 4
and the Utility Line Construction Agreement between
the Northeastern Line Constructors Chapter of
NECA and Local 104.
Utec's contract with the IBEW provides that the
IBEW's jurisdiction shall include "Handling and
hauling of material after 1st drop." "After 1st drop"
refers to the handling of equipment after delivery to
the jobsite. Utec's contract with Local 104 provides
that Local 104's jurisdiction shall include the follow-
ing work:
1-1 The intent of this Agreement is to establish
uniform conditions of employment for the Electri-
cal Workers referred by the Union to the Electrical
Contractor for the purpose of doing line construc-
tion, reconstruction, maintenance line work, sta-
tion and cable work (Underground Residential
Distribution) or other electrical work .. . .
This contract also covers a job classification entitled
"Line Equipment Operator." These provisions would
appear to cover the work involved herein.
Utec has no contract with Local 4. Ruta does have a
contract with Local 4.
Accordingly, the collective-bargaining agreements
between NECA and IBEW and the NECA chapter
and Local 104 are factors favoring the assignment of
the disputed work to electrical workers represented by
Local 104.
2. Company, area, and industry practice
Stoneberger testified that the present project was
Utec's first pipe-type cable job. He stated that in the
industry the disputed work has been done by
members of both Local 104 and Local 4.
Samuel H. Jones, chapter manager of the North-
eastern Line Constructors chapter of NECA, testified
that he has participated in 14 jurisdictional disputes
between IBEW and International Union of Operating
Engineers, herein called IUOE, involving the operat-
ing of cranes on pipe-type cable installations and in
all of those disputes the IBEW was assigned the work.
He also stated that the practice in the Boston area is to
assign crane work to members of Local 104 and that
Boston Edison pipe-type cable work has been
assigned to members of Local 104 from 1960 to 1970.
He further testified that it has been the practice of
pipe-type cable contractors to assign crane work to
members of Local 104 and that there has been no
dispute in the past 6-1/2 years.
Ryan testified that on various pipe-type cable
projects from 1955 to 1971 in the Greater Boston area,
cranes have been operated by members of Local 4. As
to a number of these projects he could not state that
the cranes were of the type involved herein. He also
testified that members of Local 4 have operated the
cranes on past projects involving gas pipe and steam
757
line installations, which he claimed were similar to
pipe-type cable installations. Additionally, he stated
that Local 4 has contracts with many of the large
crane rental companies in the area.
Because of the contradictory evidence, we cannot
find that company, area, or industry practice favors
either union.
3. Relative skills and safety
Testifying that members of both Unions were
equally qualified, Stoneberger further stated that he
was satisfied with the performance of the disputed
work by members of Local 104.
Local 4 and Local 104 have training programs for
the operation of cranes. The Commonwealth of
Massachusetts requires operators of hoisting ma-
chines to be licensed. Members of Local 4 operating
cranes are licensed. There was no evidence that Local
104 members operating cranes were not licensed.
Accordingly, we find that the members of each
Union have sufficient skill to perform the disputed
work in a safe and competent manner.
4. 1957 and 1971 agreements
Local 4 introduced a 1957 "Memorandum of
Understanding" between the IBEW and the IUOE
giving the disputed work to members of the IUOE,
which Local 4 contends is still in effect. The 1957
agreement is dated June 26, 1957, and states that it
"shall take effect when signed by the parties and shall
remains [sic] in effect for one year from such date and
notice of change or cancellation may be given 60 days
prior to the anniversary date." Ryan testified that
subsequent to the June 26, 1957, agreement, commit-
tees representing each International Union worked
out another memorandum but no binding agreement
ever resulted, as the president of the IBEW did not
sign the agreement. Ryan further stated that to his
knowledge there is no written agreement that binds
the Internationals at the present time. In these
circumstances, we cannot conclude that the 1957
"Memorandum of Agreement" is still in effect or that
it is a factor favoring assignment of the disputed work
to Local 4.
Local 4 also introduced a February 26, 1971,
"Memorandum of Understanding" between a local
affiliate of the IBEW and the IUOE and several
IUOE local affiliates in an area in New York State
north and west of Westchester County, which Local 4
contends brings up to date the earlier understanding
of the parties and reclarifies the jurisdictional line
between the two Unions. In view of its limited scope,
we cannot find the 1971 agreement to be applicable to
the present jurisdictional dispute in the Greater
Boston area.
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Joint Board awards
Although Joint Board awards are not binding on
Utec, NECA, or Local 104, we nevertheless do
consider any Joint Board award as a factor in
determining the proper assignment of the disputed
work.
Local 4 introduced an award of the Boston Joint
Board dated February 25, 1955, in which the Joint
Board awarded "the operation of the machines in
question" on the Electrical Constructors, job for
Boston Edison to Local 4 as opposed to Local 104.
One of the machines in question was a "portable truck
crane." Local 4 also introduced a telegram of the Joint
Board in Washington dated April 19, 1955, ordering
the IBEW president to instruct Local 104 to comply
with the decision of the Boston Joint Board . Accord-
ing to the award , "all parties in interest" took part in
the proceeding.
Ryan testified that he did not know if hydraulic
cranes were used on the Electrical Constructors job.
He did testify that hydraulic cranes were not
commonly used until 10 or 15 years ago.
In these circumstances , we cannot determine that
the Joint Board award applies to the present disputed
work herein , and we are therefore unable to accord it
significant weight.
6. Economy and efficiency
Stoneberger testified that as the crane operator
spends only 80 percent of his time operating the crane,
he can spend the remaining time doing other
installation work normally performed by members of
Local 104 . Stoneberger estimated that during the
whole period of the project 60 percent of the
operator 's time would be spent operating the crane
and 40 percent on other installation duties. Also,
according to Stoneberger, Local 104 required only a
5-hour guaranteed showup time whereas Local 4
required a guaranteed 40-hour week regardless of
weather conditions.
In these circumstances , we find that the factors of
economy and efficiency favor the assignment of the
disputed work to members of Local 104.
Conclusion
Based upon the entire record, and after full
consideration of all relevant factors, we conclude that
the Employer's employees who are represented by
Local 104 are entitled to the work in dispute rather
than employees represented by Local 4. We reach this
conclusion relying on the Employer's assignment of
the disputed work to employees represented by Local
104 who possess the requisite skills, the fact that the
assignment is consistent with the Employer's current
bargaining agreements with Local 104 and the IBEW,
and the fact that such assignment will result in greater
economy and efficiency of operations.
Accordingly, we shall award the disputed work to
employees represented by Local 104, but not to that
Union or its members. Our present determination is
limited to the particular 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
proceeding, the National Labor Relations Board
hereby makes the following determination of the
dispute:
A. Employees of Utec Constructors, Inc., current-
ly represented by International Brotherhood of
Electrical Workers, Local 104, are entitled to perform
the following work:
Operation of Grove hydraulic crane
B. International Union of Operating Engineers,
Local 4 and its branches, AFL-CIO, and its agent,
Walter Ryan, are not entitled by means proscribed by
Section 8(b)(4)(D) of the Act to force or require Utec
Constructors, Inc., to assign the above-described
work to members of the aforesaid Union.
C. Within 10 days from the date of this Decision
and Determination of Dispute, International Union
of Operating Engineers, Local 4 and its branches,
AFL-CIO, and its agent, Walter Ryan, shall notify
the Regional Director for Region 1, in writing,
whether they will refrain from forcing or requiring
Utec Constructors, Inc., by means proscribed by
Section 8(b)(4)(D) of the Act, to assign the work in
dispute to operating engineers represented by the
aforesaid Union and its agent, Walter Ryan, rather
than to employees of Utec Constructors, Inc.,
represented by International Brotherhood of Electri-
cal Workers, Local 104.