Operating Engineers Local 3 (Hawaiian Dredging)

National Labor Relations Board - Board Decisions

Mar 23, 1990

297 N.L.R.B. 953 (N.L.R.B. 1990)

OPERATING ENGINEERS LOCAL 3 (HAWAIIAN DREDGING) 953
Operating Engineers, Local No. 3, of the Interna-
tional Union of Operating Engineers, AFL-CIO
and Kenneth B. Hipp, Esq. (Goodsill, Anderson,
Quinn & Stifel) for Hawaiian Dredging & Con-
struction Company
International Association of Bridge, Structural and
Ornamental Iron Workers, Local Union No.
625, AFL-CIO and Kenneth B. Hipp, Esq.
(Goodsill, Anderson, Quinn & Stifel) for Hawai-
ian Dredging & Construction Company. Cases
37-CD-47 and 37-CD-48
March 23, 1990
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
The charges in these consolidated Section 10(k)
proceedings were filed May 9, 1989, 1 by Kenneth
B Hipp, Esq , on behalf of the Employer, alleging
that the Respondents, Operating Engineers Local 3
and Iron Workers Local 625, each violated Section
8(b)(4)(D) of the National Labor Relations Act by
engaging in proscribed activity with an object of
forcing the Employer to assign certain work to em-
ployees whom it represents rather than to employ-
ees represented by the other Union The hearing
was held June 20 and 21 and August 15, 23, 24,
and 25 before Hearing Officer Edward J Parnell
Thereafter, the Employer, Iron Workers Local 625,
and Operating Engineers Local 3 filed briefs 2
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board affirms the hearing officer's rulings,
finding them free from prejudicial error 3 On the
entire record, the Board makes the following find-
ings
..
' Unless otherwise noted, all subsequent dates will be in 1989
2 The unopposed motion for Iron Workers Local 625 to allow the late
filing of its brief is granted
'Iron Workers Local 625 moved at the hearing and in its brief to
quash the notice of hearing in Case 37-CD-48, on the ground that its
sole action in furtherance of its claim for the disputed work was to file a
grievance alleging that the Employer has breached the applicable collec-
tive-bargaining agreement by assigning the disputed work to the employ-
ees represented by the Operating Engineers We grant the Iron Workers'
motion The record contains no other allegation or evidence of conduct
on the Iron Workers' part that would give rise to a reasonable belief that
Sec 8(b)(4)(D) has been violated Pursuing an arguably meritorious
grievance in connection with a claim for disputed work does not, by
Itself, constitute reasonable cause to believe that the grieving union has
violated Sec 8(b)(4)(D) Longshoremen ILWU Local 7 (Georgia-Pacific),
291 NLRB 89 (1988) (Georgia-Pacific II), affd 892 F 2d 130 (DC Cir
1989) No party contends that the Iron Workers' grievance was not argu-
ably mentonous
I JURISDICTION
The Employer, a Hawaii corporation, is engaged
in the business of engineering and construction in
Honolulu, Hawaii, where for the 12 months pre-
ceding the hearing gross volume of business ex-
ceeded $500,000 and for the same period of time
goods, services, and materials were received from
points directly outside the State of Hawaii, the
value of which exceeded $50,000 The parties stipu-
late, and we find, that the Employer is engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act and that Operating Engineers Local
3 and Iron Workers Local 625 are labor organiza-
tions within the meaning of Section 2(5) of the
Act
II THE DISPUTE
A Background and Facts of Dispute
The Employer, a general contractor, is a party
to collective-bargaining agreements with both Iron
Workers Local 625 and Operating Engineers Local
3 The work jurisdiction provision of the Iron
Workers' agreement with the Employer provides
that claims arising out of the agreement's defini-
tions of covered work "are subject to deci-
sions of the National Joint Board for the Settle-
ment of Jurisdictional Disputes" The Operating
Engineers' agreement with the Employer provides
that jurisdictional work disputes not quickly re-
solved by the parties "will be referred to the re-
spective International Unions for resolution Any
determination and decision shall be reduced to
wntmg and [t]he Contractor and the Union
shall be and are bound by such determination and
decision " The contract provides further that
"[s]hould the National Board for the Settlement of
Jurisdictional Disputes or similar National Plan be
re-established, then said Board and/or Plan shall,
upon execution of an appropriate amendment, be
incorporated within the provisions of this Section"
In April 1988, the Employer, through its Water-
front Division, began work under contract with the
State of Hawaii Department of Transportation on
the construction of a 1600-foot pier at Barbers
Point Harbor The pier at Barbers Point is being
constructed on prestressed concrete piling, topped
by precast concrete planks and poured-in-place
concrete For its pile-driving Operation at Barbers
Point, the Employer essentially uses a composite
crew of employees represented by Operating Engi-
neers Local 3 and employees represented by the
Carpenters Union
The pile-driving operation at Barbers Point in-
volves the use of a steel template to guide the driv-
ing of the underwater piling The template consists
297 NLRB No 149
954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of sets of beams joined by tack welding or bolting
As work on the pier progresses, the template is re-
peatedly assembled and dismantled as it is moved
from the site of one set of concrete piling to an-
other along the pier After the pier is completed,
the template will be removed, no part of it remains
as part of the pier's permanent structure "False
work" is the erection of sheet piling that acts as a
temporary form for pouring concrete Once the
concrete is cured, the "false work" is removed
from the jobsite Hatch covers and grates maintain
alignment during the pouring and curing of con-
crete As with the welding of the template, weld-
ing done in connection with false work, hatch
covers, and grates at Barbers Point does not
become part of the completed pier Of the welding
being performed at the Barbers Point Harbor
project, 95 percent is the welding of templates, 3 to
5 percent is of false work, and 1 percent is spot
welding of grates and hatch covers According to
the testimony of Cedric Ota, the Employer's
project superintendent at the Barbers Point project,
this welding, because it does not become a part of
the permanent structure, need not be performed by
a certified welder nor is it subject to state inspec-
tion
The Employer has assigned this welding to em-
ployees represented by Operating Engineers Local
3 In February 1989, Local 3 was unable to dis-
patch enough welders to meet the Employer's
demand The Employer then sought referrals from
Iron Workers Local 625 Subsequently, Iron Work-
ers Local 625 demanded the assignment of all of
the above-described welding to employees it repre-
sents Operating Engineers Local 3 refused to relin-
quish the work On May 9, the Employer filed
charges against both the Iron Workers and the Op-
erating Engineers alleging that each Union had vio-
lated Section 8(b)(4)(D) The charges alleged that
Operating Engineers Local 3 had threatened to
strike the Barbers Point project if the Employer re-
assigned the work at issue here to employees other
than those it represents and that Iron Workers
Local 625 had filed a grievance seeking the work
At the hearing, Operating Engineers Local 3 Busi-
ness Representative Joseph Treherne testified that,
if the Employer assigned this work to employees
other than those it represents, it would withdraw
the employees it represents from the jobsite and, if
necessary, establish a picket line at the jobsite
B Work in Dispute
The disputed work involves temporary welding
on templates for augers and piles, temporary spot
welding on beams, dnllkeepers, and pile keepers,
and welding on false work beams, hatch cover
frames, and grates in concrete pier construction at
the Barbers Point Harbor pier jobsite
C Contentions of the Parties
As an initial matter, the Iron Workers contends
that the dispute is not properly before the Board
and moves that the notice of hearing be quashed on
the grounds that all parties to the proceeding are
bound to a method for the resolution of jurisdic-
tional disputes The Iron Workers bases its argu-
ment on the contract language quoted above The
Employer contends that neither the Iron Workers'
nor the Operating Engineers' agreement binds the
parties to a method of resolving disputes Specifi-
cally, the Employer contends that the language in
the Iron Workers' agreement states only that deci-
sions of the "National Joint Board for the Settle-
ment of Jurisdictional Disputes" will have prece-
dential value in interpreting the work jurisdiction
clause of the agreement, and that the Operating
Engineers' agreement has never been amended to
incorporate a successor to the "National Board for
the Settlement of Jurisdictional Disputes" The Op-
erating Engineers contends that the existence of a
mechanism for dispute resolution is not an issue
As to the merits of the dispute, the Employer
and the Operating Engineers contend that the dis-
puted work should be awarded to employees repre-
sented by Operating Engineers Local 3 on the basis
of employer preference, collective-bargaining
agreements, economy and efficiency of operations,
safety, area practice, and relative skills and train-
ing Iron Workers Local 625 contends that the fac-
tors of collective-bargaining agreements, relative
skills and training, company and industry practice,
economy and efficiency of operations, and safety
support an award of the disputed work in question
to employees it represents
D Applicability of the Statute
Before the National Labor Relations Board may
proceed with a determination of the dispute pursu-
ant to Section 10(k), it must be satisfied that rea-
sonable cause exists to believe that Section
8(b)(4)(D) has been violated and that the parties
have not agreed on a method for the voluntary set-
tlement of their dispute
As noted above, the May 9 charges alleged that
the Operating Engineers had threatened to call a
strike of all operating engineers at the Barbers
Point jobsite of the Employer assigned the disputed
work to employees represented by the Iron Work-
ers At the hearing, Operating Engineers Business
Representative Joseph Treherne reiterated that he
would call the employees represented by Local 3
off the job and, if necessary, picket the job if the
OPERATING ENGINEERS LOCAL 3 (HAWAIIAN DREDGING) 955
Employer assigned the work to employees repre-
sented by the Iron Workers On the record in this
case, we find reasonable cause to believe that Sec-
tion 8(b)(4)(D) has been violated
We reject the Iron Workers' argument that the
language of either collective-bargaining agreement
quoted above binds the parties to a method for re-
solving junsdictional disputes and we find the
record in this case does not provide a basis to con-
clude that the parties have agreed on a method for
the voluntary adjustment of this dispute In Operat-
ing Engineers Local 139 (Allied Construction), 293
NLRB 604 (1989), we found that the employer and
one of the several unions involved in the work dis-
pute had agreed to abide by the "Plan for the Set-
tlement of Jurisdictional Disputes in the Construc-
tion Industry" established by the Building and
Construction Trades Department of the AFL-CIO
We further found that the plan constituted a
method of dispute resolution binding all parties be-
cause the plan "is applicable to all International
and National unions affiliated with the Building
and Construction Trades Department and their
local constituents" and because the employer had
also bound itself, through the agreement noted
above, to the plan Id at 605 In this case, by con-
trast, neither the language in the Iron Workers'
agreement nor that in the Operating Engineers'
agreement is sufficiently explicit to constitute a
showing that an agreed-upon dispute resolution
mechanism exists Specifically, we cannot find that
the Iron Workers' agreement, which refers only to
decisions of the "National Joint Board for the Set-
tlement of Junsdictional Disputes," binds the par-
ties to submit present and future disputes to any
body currently in existence, the procedures of
which are binding on Operating Engineers Local 3
Similarly, the Operating Engineers' agreement, al-
though it binds the Employer and the Union to
submit disputes to the "respective International
Unions," makes incorporation into the agreement
of the procedures of the Joint Board's successor
subject to "appropnate amendment" The record
contains no evidence that the agreement has been
so amended In short, the contractual language
here lacks the explicit reference to a plan found to
be binding on all parties that was present in Operat-
ing Engineers Local 139 Accordingly, we deny
Iron Workers Local 3's motion to quash the notice
of hearing in Case 37-CD-47, and we find that the
dispute is properly before the Board for determina-
tion
E Merits of the Dispute
Section 10(k) requires the Board to make an af-
firmative award of disputed work after considering
various factors NLRB v Electncal Workers IBEW
Local 1212 (Columbia Broadcasting), 364 U S 573
(1961) The Board has held that its determination in
a jurisdictional dispute is an act of judgment based
on common sense and experience, reached by bal-
ancing the factors involved in a particular case
Machinists Lodge 1 743 (J A Jones Construction),
135 NLRB 1402 (1962)
The following factors are relevant in making the
determination of the dispute
1 Certifications and collective-bargaining
agreements
Neither Union has been certified by the Board as
the collective-bargaining representative for any of
the employees involved here Accordingly, this
factor is not helpful in determining the dispute
As noted above, both Operating Engineers Local
3 and Iron Workers Local 625 have collective-bar-
gaining agreements with the Employer Exhibit A
of the Operating Engineers' agreement sets forth a
wage classification of "Heavy Duty Repairman or
Welder" Subsection A ("Applicable to Structural
Steel") of the Iron Workers' agreement's jurisdic-
tional provision provides, in relevant part, that
ironworkers are to perform
all work with field fabrication, erection and
construction of all ferrous and non-ferrous
metals including metal decking, metal roofing,
siding and other such materials attached to
structural steel (prefabricated metal) framing
and all delivery, loading, unloading, han-
dling, rigging, placing, welding, bolting, set-
ting, plumbing, aligning, stressing and secur-
ing, in connection with all work mentioned
above
Reginald Lee, general manager of the Employer's
Waterfront Division, testified that the welding in-
volved at the Barbers Point project is not welding
structural steel framing, as the templates, false
work, and grates and hatch covers were not a part
of the permanent structure of the pier The Iron
Workers, on the other hand, contends that the
welding at the Barbers Point site is in connection
with structural steel and is covered by the work ju-
risdiction provision of its agreement with the Em-
ployer Based on the record, we cannot conclude
that either agreement clearly and specifically
covers the disputed work Accordingly, we find
that the factor of collective-bargaining agreements
is inconclusive
2 Employer preference and past practice
The Employer has assigned the work in dispute
to its employees represented by Operating Engi-
956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
neers Local 3, who are part of the consolidated
team used for pile driving over water The Em-
ployer prefers that these assignments be continued
Thus, the factor of employer preference favors the
continued assignment of this work to the Employ-
er's employees represented by Operating Engineers
Local 3 4
3 Area practice
Lee testified that since 1978, the Employer's Wa-
terfront Division and its three principal competi-
tors in the business of pile driving over water,
Healy-Tibbets, Lahama Pier, and Peter Kiewit,
have employed only operating engineers to per-
form welding on pile-driving work over water
except when welders were hired through Iron
Workers Local 3 on a supplemental basis Iron
Workers Local 3 introduced evidence that Iron
Workers welders have performed welding closely
resembling the work at issue here in a variety of
structural steel projects for numerous employers,
including the Employer Iron Workers Local 3 dis-
putes the distinctions made by the Employer be-
tween temporary and permanent structures and be-
tween welding in connection with projects that are
located on land and those located over water We
find that the evidence presented by the parties does
not afford a clear indication of any consistent area
practice regarding temporary welding in water-
front projects Accordingly, we find that the factor
of area practice does not favor an award of the
work in dispute to employees represented by either
Union
4 Relative skills
The Employer and the Operating Engineers pre-
sented evidence that the employees represented by
the Operating Engineers are qualified to perform
the welding required at the Barbers Point pier
Moreover, as noted above, the temporary welding
work does not require a certified welder, nor do
the welds require inspection Project Superintend-
ent Ota testified that the skill levels of the operat-
ing engineers and the ironworkers are comparable
However, Ota further testified that the employees
represented by the Operating Engineers were fa-
4 The Employer Introduced testimony that the past practice of its Wa-
terfront Division has been to assign the work in question to operating en-
gineers and to hire Ironworker welders only when the operating engi-
neers are unable to supply enough employees Iron Workers Local 3 has
moved to subpoena the Employer's payroll records from 1979 to the
present to ascertain whether, contrary to the Employer's evidence, at all
times more Ironworkers were assigned this work than operating engi-
neers The hearing officer denied the Iron Workers' motion In adopting
the hearing officer, we note that, even if the records sought by the sub-
poena were to demonstrate that the Employer's practice differed from
that described in the testimony, the other factors on which we rely
would outweigh the Employer's past practice
miliar with the layout of the template because they
had just finished a similar project with Peter
Kiewit Treherne testified that operating engineers
receive some training in welding as part of their
apprenticeship program
Iron Workers Local 625 presented evidence that
the training in welding provided to welders repre-
sented by it is more extensive and detailed than
that provided operating engineer welders, 5 and
contends that ironworker employees receive exten-
sive training in laying out iron and steel, reading
blueprints, and cutting and welding metal for fabri-
cation, and that they perform these functions fre-
quently in the course of their duties on a wide
range of projects It appears that both groups of
employees have the requisite skills to perform the
temporary welding at issue here Accordingly, we
find that the factor of relative skills does not favor
an award of the work in dispute to employees rep-
resented by either Union
5 Economy and efficiency of operations
As noted above, employees represented by Oper-
ating Engineers Local 3 are part of the Employer's
composite pile-driving crew at Barbers Point Lee
testified that employees represented by the Operat-
ing Engineers also operate cranes, forklifts, and
compressors used in the pile-driving operation, that
they are familiar with the Barbers Point operation,
and that use of these welders in the pile-driving op-
eration at Barbers Point affords flexibility with re-
spect to the assignment of duties, as these employ-
ees are qualified to perform the welding called for
at the project and are also able to operate the ma-
chinery used to drive the piles He noted that the
Employer's requirements for welders at the Barbers
Point pier are intermittent so that if the Employer
were to assign the temporary welding to employees
represented by Iron Workers, periods would occur
during a typical workday when no welding work
was available and the ironworkers would be , idle
Moreover, an employee represented by the Operat-
ing Engineers would be temporarily displaced by
the ironworker
5 Iron Workers Local 3 has requested subpoena enforcement based on
its offer of proof that Jeffrey Lane, a teacher at Honolulu Community
College, would testify that he teaches welding courses attended by iron-
workers, that operating engineers have not attended his courses in the
past 2 years, and that fewer hours of welding training are offered to op-
erating engineer apprentices than ironworker apprentices We adopt the
hearing officer s denial of the Iron Workers' motion The evidence cited
in the offer of proof is largely cumulative, as other witnesses, notably
Edison Keomaka, testified regarding the ironworkers' extensive training
in welding Further, we recognize that welding is an Integral part of the
Ironworkers' trade and our findings here are not based on an interpreta-
tion of the evidence that differs from the facts alleged in the offer of
proof
OPERATING ENGINEERS LOCAL 3 (HAWAIIAN DREDGING) 957
Project Superintendent Ota testified that he be-
lieved that the employees represented by the Oper-
ating Engineers could perform the welding effi-
ciently and economically because they can use the
forklift when not welding 6 Accordingly, we find
that the factor of economy and efficiency of oper-
ations favors assignment of the work to employees
represented by the Operating Engineers
6 Safety
Both Ota and Lee testified that, as the employees
represented by the Operating Engineers are part of
the composite crew for the pile-driving operation,
and thus are on the jobsite during the entire oper-
ation, the employees represented by Operating En-
gineers Local 3 are familiar with the steps involved
in the pile-driving operation and thus could make a
more significant contribution to a safe operation
than could employees not familiar with the se-
quence The Iron Workers introduced testimony
that employees it represents have wide experience
in cutting, welding, and fabrication of metal beams,
with the use of welding equipment, and with work-
ing at great heights The Iron Workers contends
6 The Iron Workers contends that the employees it represents can op-
erate forklifts when no welding is available so that an ironworker welder
will not expenence Idle time However, the record indicates that driving
forklifts on construction sites is work claimed by employees represented
by the Operating Engineers on behalf of employees whom It represents,
that the Employer routinely assigns dnvmg forklifts on construction sites
to employees represented by Operating Engineers Local 3 and has as-
signed these duties to operating engineers at the Barbers Point pier
project, and that the Operating Engineers is not willing to relinquish its
claim to the work if the Employer were to assign It to another union No
evidence was presented concerning the ability of employees represented
by the Iron Workers to operate the other machinery involved in the pile-
driving operation
that this experience equips the employees it repre-
sents to perform the work at issue in the safest pos-
sible manner We find that employees of both
groups are capable of performing the disputed
work safely Accordingly, we find that the factor
of safety does not favor an award of the work in
dispute to either Union
Conclusions
After considering all the relevant factors, we
conclude that employees represented by Operating
Engineers Local 3 are entitled to perform the work
in the dispute We reach this conclusion relying on
employer preference and economy and efficiency
of operations
In making this determination, we are awarding
the work to employees represented by Operating
Engineers Local 3, not to that Union or its mem-
bers The determination is limited to the controver-
sy that gave nse to this proceeding
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute
Employees of Hawaiian Dredging & Construc-
tion Company represented by Operating Engineers,
Local No 3, of the International Union of Operat-
ing Engineers, AFL-CIO are entitled to perform
temporary welding on templates for augers and
piles, temporary spot welding on beams, drill-
keepers, and pile keepers, welding on false work
beams, hatch cover frames, and grates in concrete
pier construction at the Barbers Point Harbor pier
jollsite