Operating Engineers, Local 701

National Labor Relations Board - Board Decisions

Jun 27, 1974

212 N.L.R.B. 126 (N.L.R.B. 1974)

126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers, Local
701, AFL-CIO and L. K. Comstock & Company,
Inc. and International Brotherhood of Electrical
Workers, Local No. 125, AFL-CIO. Case 36-
CD-119
II THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that the Operat-
ing Engineers and the Electrical Workers are labor
organizations within the meaning of the Act.
June 27, 1974
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, KENNEDY. AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed January 24, 1974, by L. K. Comstock
& Company, Inc., hereinafter called the Employer,
alleging that the International Union of Operating
Engineers, Local 701, AFL-CIO, hereinafter called
the Operating Engineers, has violated Section
8(b)(4)(D) of the Act by engaging in certain pro-
scribed activity with an object of forcing or requiring
the Employer to assign certain work to employees
represented by the Operating Engineers, rather than
to employees represented by the International Broth-
erhood of Electrical Workers, Local No. 125, AFL-
CIO, hereinafter called the Electrical Workers.
A hearing was held before Hearing Officer Dale B.
Cubbison on March 5, 6, 7, and 8, 1974, at Portland,
Oregon. 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 issue.
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 au-
thority in this proceeding to a three-member panel.
The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, the Board
makes the following findings:
I THE BUSINESS OF THE COMPANY
The parties stipulated that the Employer is engaged
in the construction business in the State of Oregon,
and during the past year received goods and materials
in excess of $50,000 in value which was shipped to it
from points directly outside the State of Oregon. We
find, therefore, that the Employer is engaged in com-
merce 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.
III THE DISPUTE
The work in dispute is the operation of a Pittman
boom truck with attachments, a Grove crane, and a
skidder l used in the installation of temporary lighting
on Interstate 5 between the Tualatin interchange and
the Tigard interchange.
A. Applicability of the Statute
The Operating Engineers began picketing in De-
cember 1973, asserting that the Employer, by failing
to hire employees represented by the Operating Engi-
neers to perform the work in dispute, had failed to
adhere to a short-form agreement binding the Em-
ployer to an agreement with the Association of Gener-
al Contractors. The Employer contended that the
disputed work properly belonged to employees repre-
sented by the Electrical Workers and refused to reas-
sign the work. As we interpret the purpose of the
picketing to be to compel the Employer to discontinue
its present assignment and reassign the work to em-
ployees represented by the Operating Engineers, we
find that reasonable cause exists to believe that the
picketing violated Section 8(b)(4)(D) of the Act.
Although the Operating Engineers allege that the
Employer is contractually bound through the short-
form agreement to past decisions of the Joint Board
(apparently now succeeded by the Impartial Jurisdic-
tional Dispute Board), it does not contend that the
Electrical Workers currently is a party to any such
Joint Board agreements. Accordingly, we find that
the parties have not agreed upon a method for the
voluntary adjustment of the dispute.
B. Background and Facts of the Dispute
The Employer utilizes a crew of three to four em-
ployees, currently represented by the Electrical Work-
ers, to erect the temporary lighting which consists of
wooden poles with illuminating arms attached. These
employees accomplish their work tasks by operating
a Pittman boom truck (which is used in all phases of
the work and may have attached to it a hydrocrane,
a man-lift bucket, an auger, a power tamper, and a
wire drum), a Grove crane (used only where the Pitt-
1 The charge was amended at the hearing to include the operation of a
skidder as part of the work in dispute
212 NLRB No. 17
OPERATING ENGINEERS, LOCAL 701 127
man boom truck does not possess a sufficiently long
boom to perform the work), and a skidder (a rubber-
tired tractor used to skid wood poles into position for
installation, to pull the Pittman boom truck into posi-
tion to work if the terrain is difficult, and, with the
addition of a drum at the rear of the skidder, to string
line).
The only work that is disputed is "outside line
work," which involves the installation of temporary
lighting with overhead lines as the source of power.
C. The Contentions of the Parties
The Employer and Electrical Workers assert that
the work in dispute is covered by an outstanding
Board certification of the Electrical Workers, that the
work has been performed regularly by employees rep-
resented by the Electrical Workers pursuant to collec-
tive-bargaining agreements with the Northwest Line
Constructors, and that for reasons of safety and econ-
omy the work in dispute should continue to be per-
formed by employees represented by the Electrical
Workers.
The Operating Engineers demands the work pur-
suant to the short-form AGC agreement and assert
that the certification should not be determinative.
They further assert that employees represented by the
Operating Engineers have traditionally operated the
equipment in dispute, that the members possess the
necessary skill and training, and that the existing four-
man crew could include at least one employee repre-
sented by the Operating Engineers to operate the
heavy equipment involved.
D. 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 factors. The following
factors are relevant in making a determination of the
dispute before us:
1. Certification
In 1953 , the Electrical Workers was certified by the
Board in Case 36-RC-815 to represent, inter alia, line
equipment men (which included cable splicers, jour-
neymen linemen , the head ground man, ground men,
power men, jack -hammer men , compressor men, and
hole diggers). Parties to the controversy resulting in
the certification were the Operating Engineers, Local
370 and 371 ; Northwest Line Constructors , Chapter
of the National Electrical Contractors Association;
and the Electrical Workers, Locals 77, 125, 483, and
659. Notwithstanding the argument of the Operating
Engineers that Local 701 was not a party to the 1953
certifications, that the work is different than heavy
highway construction projects, and that 'a determina-
tion over 20 years old cannot take into account cur-
rent area practice, we find that the certification is a
factor favoring the awarding of the work to employees
represented by the Electrical Workers.
2. Employer's assignment and past practice
The Employer asserts that it prefers to assign the
work to members of outside Locals 125, 659, 77, and
483 of the Electrical Workers for reasons of efficiency,
and safety. The evidence indicates that the usual past
practice of the Employer has been to assign tempo-
rary lighting work to employees represented by the
Electrical Workers.
3. Area practice
The evidence indicated that area employers have
more frequently used employees represented by the
Electrical Workers than employees represented by the
Operating Engineers to perform temporary lighting
work. Apparently, the use of composite crews has
been largely limited to inside or permanent lighting
projects.
4. The collective-bargaining agreements
On January 20, 1972, the Employer and the Operat-
ing Engineers entered into an agreement which incor-
porated by reference the master labor agreement
between the Operating Engineers and the Association
of General Contractors (AGC), as well as all succes-
sive agreements. On June 1, 1973, the Operating Engi-
neers and the AGC entered into a master labor
agreement which provided certain manning provi-
sions specifying that the Operating Engineers would
operate certain types of heavy equipment, including
grave cranes, rubber-tired skidders, and hydraulic
cranes.
The Employer is a member of the Northwest Line
Constructors (NWLC) and, pursuant to a letter of
assent, is a signatory to an agreement negotiated be-
tween the Electrical Workers and the NWLC which
provides that it will cover all production and mainte-
nance work in accord with the NLRB certification in
Case 36-RC-815, including pole line construction
work and highway lighting systems.
As each Union appears to be a signatory to an
agreement providing that the Employer will assign the
disputed work to that Union, we find that neither
union is favored by this factor.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Relative skills and safety
Although there is testimony indicating that employ-
ees represented by both Unions possess the skill to
perform the disputed work, the evidence indicates
that the employees represented by the Electrical
Workers have had greater training and experience
enabling them to deal with emergencies unique to
electical construction. The Electrical Workers has a
3-1/2-year apprentice period during which time its
members receive specialized training in pole-top re-
suscitation and procedures for clearing a man away
from an energized line. The problems of operating the
equipment in dispute in close proximity to high-volt-
age lines is obvious; the factor of safety is clearly
important and favors the claim of the Electrical
Workers.
6. Economy and efficiency
Since the Operating Engineers does not claim any
wiring or electrical work, but claims only the opera-
tion of the equipment, it appears that permitting em-
ployees represented by the Electrical Workers to
perform the work will result in greater efficiency than
if a composite crew performs the work. Although the
Operating Engineers asserts that the present opera-
tion could be rescheduled to permit maximum use of
the equipment operated if an employee represented
by the Operating Engineers would be constantly oper-
ating the equipment in dispute, it seems clear that the
work can be more efficiently performed when all the
employees are multiskilled and can easily switch from
one job function to another.
7. Joint Board determinations
The Operating Engineers introduced into evidence
decisions of the National Joint Board for the Settle-
ment of Jurisdictional Disputes and assert that these
decisions all suppport their claim that the disputed
work should be assigned to employees represented by
the Operating Engineers. However, there is no indica-
tion in the brief decisions that the work was outside
electrical work. Accordingly, we are unable to give
any weight to these Joint Board awards in deciding
this case.'
2 Pitchard Electric Co, Inc, 168 NLRB 374
Conclusion
Based upon the entire record, and after full consid-
eration of all relevant factors, we conclude that the
employees who are represented by the Electrical
Workers are entitled to perform the work in dispute
rather than employees represented by the Operating
Engineers. We reach the conclusion based primarily
upon the Employer's preference, the training and ex-
perience of employees represented by the Electrical
Workers in dealing with electrical hazards and emer-
gencies unique to outside or temporary lighting, and
factors of economy and efficiency in maintaining a
crew capable of the flexibility of performing all as-
pects of the operation. Accordingly, we shall de-
termine the dispute before us by awarding the work
in dispute to those employees represented by the Elec-
trical Workers, but not to that Union, or its members.
The present determination is limited to the particular
controversy which gave rise to the 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 pro-
ceeding, the National Labor Relations Board hereby
makes the following Determination of Dispute:
1. Employees of L. K. Comstock & Company,
Inc., who are represented by the International Broth-
erhood of Electrical Workers, Local No. 125, AFL-
CIO, are entitled to perform the work of operating the
Pittman boom truck, Grove crane, and skidder.
2. International Union of Operating Engineers,
Local 701, AFL-CIO, is not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force or
require L. K. Comstock & Company, Inc., to assign
the above work to employees represented by it.
3. Within 10 days from the date of the Decision
and Determination of Dispute, International Union
of Operating Engineers, Local 701, AFL-CIO, shall
notify the Regional Director for Region 36 whether or
not it will refrain from forcing or requiring the Em-
ployer by means proscribed by Section 8(b)(4)(D) of
the Act to assign the work in dispute to employees
represented by Operating Engineers rather than to
employees represented by Electrical Workers.