Operating Engineers, Local 4

National Labor Relations Board - Board Decisions

Aug 15, 1972

198 N.L.R.B. 915 (N.L.R.B. 1972)

OPERATING ENGINEERS, LOCAL 4
International Union of Operating Engineers , Local 4
and Joseph Rugo, Inc. and International Brother-
hood of Firemen , Oilers, Operators, Helpers and
Maintenance Men, AFL-CIO, Local Union No. 3.
Case 1-CD-286
August 15, 1972
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing the filing of charges by Joseph Rugo, Inc.,
hereinafter referred to as the Employer, alleging that
International Union of Operating Engineers, Local 4,
hereinafter referred to as Operating Engineers or
Respondent, violated Section 8(b)(4)(D) of the Act
by engaging in certain proscribed activity with an
object of forcing or requiring the Employer to assign
certain work to Operating Engineers rather than to
International Brotherhood of Firemen, Oilers, Oper-
ators, Helpers and Maintenance Men, AFL-CIO,
Local Union No. 3, hereinafter referred to as
Firemen.
Pursuant to notice, a hearing was held before
Hearing Officer Robert C. Rosemere on March 21
and 22, 1972. 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, all parties
filed briefs in support of their positions.
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 made by the
Hearing Officer at the hearing and finds that they are
fi:ee from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
makes the following findings:
I.1 THE BUSINESS OF THE EMPLOYER
Joseph Rugo, Inc., is a general contractor in the
building and construction industry. The dispute
herein involves work on construction of a public
health facility for the Commonwealth of Massachu-
setts in Forest Hills, Massachusetts. In the course of
its operations, the Employer annually receives in
Massachusetts directly from points outside Massa-
chusetts materials having a value exceeding $50,000.
The parties stipulated, and we find, that the
915
Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that it
will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Operating
Engineers and Firemen are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Work in Dispute
The instant dispute involves the operation of high
pressure steam boilers constituting a part of the
construction project's permanent heating system for
the provision of temporary heat at the construction
site.
B. Background and Facts of the Dispute
The Employer engaged M. J. Flaherty Co., herei-
nafter referred to as Flaherty, as the heating
subcontractor on the project. On December 13, 1971,
Flaherty completed the installation of high pressure
steam boilers on the site, and hired members of
Operating En. ineers to test the boilers. Flaherty
terminated these employees on December 17, 1971.
On December 20, 1971, Flaherty hired a member of
Firemen to complete the testing. When the testing
was completed, the Employer notified Flaherty that
it would take over the operation of the boilers for the
provision of temporary heat. On December 21, 1971,
the Employer hired members of Firemen to operate
the boilers and sometime thereafter signed a contract
with Firemen covering the work. Respondent Oper-
ating Engineers protested the Employer's assignment
of the work and began picketing on December 28,
1971, with signs stating that it was on strike against
the Employer. Respondent subsequently submitted
its dispute to the Boston Local Board for Adjustment
of Jurisdictional Disputes, herein called the Boston
Local Board, and obtained a determination from
that Board that its claim was in accord with, trade
and area practice.
C. Contentions of the Parties
1. The Employer and Firemen contend that a
jurisdictional dispute exists and that members of
Firemen are entitled to the work in light of the
Employer's assignment and the economy and effi-
ciency of operation.
2. Respondent contends that no jurisdictional
dispute exists because the picketing was for the
purpose of obtaining the reinstatement of members
198 NLRB No. 124
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to jobs from which they had been terminated.
Alternatively, it contends that, even if a jurisdictional
dispute exists, its members are entitled to the work
because of the clear area practice favoring such an
assignment.
D. Applicability of the Statute
The charge alleges violation of Section 8(b)(4)(D)
of the Act and the record furnishes reasonable cause
to believe that Respondent's picketing described
above, had as an object the Employer's reassignment
to its members of work then being performed by
members of Firemen, rather than merely requiring
the Employer to reinstate the employees whom it
represented to jobs previously provided them by
Flaherty and from which Flaherty had terminated
them.' Firemen continues to assert jurisdiction over
the disputed work and the right of its members to
continue to perform it in accord with the Employer's
assignment. We find, accordingly, that there is
reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred and that the dispute
is properly before the Board for determination under
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 disputed work after
giving due consideration to various relevant factors.2
The Board has held that its determination of a
jurisdictional dispute is an act of judgment based on
commonsense and experience, reached by balancing
those factors involved in a particular case.3 The
following factors are relevant in making a determina-
tion of dispute before us.
1. Certifications and collective-bargaining
agreements
There is no Board certification determining the
bargaining representative for the employees assigned
to perform the work in dispute. Nor has either of the
labor organizations here involved been certified by
the Board as the collective-bargaining representative
for a unit of the Employer's employees.
At no time here material has the Employer been a
party to a collective-bargaining agreement with
Operating Engineers covering this work. Although
the Employer now has a collective-bargaining agree-
ment with Firemen, it entered into that agreement
1 Operating Engineers contends that its submission of the dispute to the
Boston Local Board was pursuant to procedures agreed on by the Employer
as a member of the Associated General Contractors . However, Respondent
concedes that Firemen was not party to these procedures and that there is
therefore no mutually "agreed upon method" for adjustment of the dispute
within the meaning of Section 10(k) of the Act.
sometime after the dispute over the work arose. That
agreement does not therefore constitute an operative
factor in our determination of the dispute.
2. Employer's assignment and past practice
The Employer concedes that it has no past practice
of assigning the disputed work because it had never
before used high pressure steam boilers for the
purpose of furnishing temporary heat. The Employer
based the assignment of the work to members of
Firemen on knowledge that such persons were
experienced in operating boilers of the type here
involved and had the necessary licenses.
3. Relative skills, efficiency, and economy of
operations
Both Firemen and Operating Engineers possess
sufficient skills to perform the work in dispute, and
members of both have had considerable experience
in operating boilers of the type here involved. Both
have members with the appropriate licenses ready to
perform the work.
4. Area practice
Respondent Operating Engineers is a building
trades union involved exclusively in the construction
industry. The record shows that, under uniform area
practice, the operation of equipment for the provi-
sion of temporary heat during the construction phase
is performed by a building trades union. The
jurisdiction of the various building trades unions is
determined by the type of equipment used for this
purpose. The operation of high pressure steam
boilers is within Operating Engineers ' jurisdiction
according to this standard, and the Boston Local
Board so found when Respondent submitted the
dispute to it for determination. Firemen on the other
hand is not a building trades union. Although it has
operated equipment in the area for the provision c A
heat during a construction phase, it has done so only
where the construction involved additions to tenapt-
ed buildings under the owner's or building manager's
auspices. Firemen has never had a collective-bargain-
ing agreement with a general contractor in 'the
construction industry prior to this job, and; its
predominant involvement in the operation of the
kind of equipment here in issue has been confined to
the provision of permanent heat in completed
buildings.
2 N. L.R. B. v. Radio and Television Broadcast Engineers Union, Local
12/2, International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System ], 364 U.S. 573, 586.
s International Association of Machinists, Lodge No. 1743, AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402.
a
OPERATING ENGINEERS, LOCAL 4
We conclude that the area practice favors an award
to Respondent.
CONCLUSION
Upon the entire record and in consideration of the
foregoing findings, we conclude that the certification,
collective-bargaining agreement, and skill and effi-
ciency factors. are relatively neutral as between the
disputing labor organizations. The Employer's as-
signment to Firemen is in conflict with a well-defined
area practice which strongly favors an assignment to
Operating Engineers. In light of the volume and
complexity of construction in the area we do not
believe this well-defined practice with respect to
disputed work should be disturbed absent some
compelling reason.4 To hold otherwise, solely on the
basis of the Employer's assignment, would invite
controversy in an area where effective guidelines
have already been established. Therefore, we con-
clude that the employees represented by Respondent
917
are entitled to the work in question, and we shall
determine the dispute in their favor. In making this
determination, however, we are assigning the disput-
ed work to employees represented by Operating
Engineers and not to that Union or its members.
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 Dis-
pute:
Employees who are currently represented by the
International Union of Operating Engineers , Local 4,
AFL-CIO, are entitled to the operation of high
pressure steam boilers for temporary heating purpos-
es at the Public Health facility being erected for the
Commonwealth of Massachusetts in Forest ' Hills,
Massachusetts , by Joseph Rugo, Inc.
4 Cf. Local Union No. 6, International Association of Bridge, Structural &
Ornamental Ironworkers (Spancrete Northeast, Inc.), 196 NLRB No. 178.