Operating Engineers Local 825 (Bay Steel Deck Erectors)

National Labor Relations Board - Board Decisions

Apr 9, 1992

307 N.L.R.B. 22 (N.L.R.B. 1992)

22
307 NLRB No. 5
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers, Local
825, ABCDR & RH, a/w AFL–CIO and Bay
Steel Deck Erectors, Inc. and International As-
sociation of Bridge, Structural and Ornamental
Iron Workers, Local 480. Case 22–CD–584
April 9, 1992
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed on May 16, 1991, by the Employer, Bay Steel
Deck Erectors (Bay Steel) alleging that the Respond-
ent, International Union of Operating Engineers, Local
825, ABCDR & RH (Operating Engineers) 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 it represents rather than to employees rep-
resented by the International Association of Bridge,
Structural and Ornamental Iron Workers, Local 480,
AFL–CIO (Iron Workers). The hearing was held on
September 11, 1991, before Hearing Officer Norma B.
C. Sharp. Thereafter, the Employer and the Operating
Engineers filed briefs in support of their positions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.
I. JURISDICTION
The Company is a New Jersey corporation engaged
in the installation of floor decking, with its principal
place of business in Brick, New Jersey, where it annu-
ally receives goods and materials valued in excess of
$50,000 directly from suppliers located outside the
State of New Jersey. The parties stipulate, and we find,
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
the Operating Engineers and Iron Workers are labor
organizations within the meaning of Section 2(5) of
the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Bay Steel separately subcontracted Rabinowitz Iron-
works, Inc. and Damon G. Douglas Company to install
sheet metal floor decking at jobsites in Springfield and
Hackensack, New Jersey, respectively. Bay Steel’s em-
ployees are represented by the Iron Workers. Some-
time in May or June 1991 the business agent for the
Operating Engineers contacted Charles O’Neil, the vice
president of Bay Steel. The agent told O’Neil that Bay
Steel did not have an agreement with the Operating
Engineers for the work at the Springfield site and
would have to have a man to ‘‘cover,’’ i.e., turn on
and off and maintain, the welding machine, or the Op-
erating Engineers would picket the jobsite. O’Neil re-
fused to comply and picketing began 2 days later. The
picket signs stated: ‘‘Local 825 versus Bay Steel No
Signed Agreement.’’ Bay Steel employees crossed the
picket line, but the crane operators, who were members
of the Operating Engineers, honored the picket line
and work ceased. The site owner, Rabinowitz Iron-
works, told Bay Steel to leave until the crane work
was completed. Bay Steel left and returned to complete
its job after the crane work was done.
According to Bay Steel Vice President O’Neil, pick-
eting began at the Hackensack construction site after
O’Neil advised Operating Engineers’ Business Agent
Craig Wask that Bay Steel did not need someone to
‘‘cover’’ the welding machines. O’Neil testified that
Bay Steel was forced off the job by Damon Douglas,
Inc. in order to end the picketing. Bay Steel subse-
quently filed a petition for a representation election
and unfair labor practice charges alleging violations of
Sections 8(b)(7)(C), 8(b)(4)(ii)(B), and 8(b)(4)(i) and
(ii)(D). The Regional Director obtained a voluntary
cessation of picketing at the Springfield site and an
agreement not to picket the Hackensack site so that
Bay Steel could return to the sites and perform its
work.
B. Work in Dispute
The disputed work involves the starting, stopping,
and maintenance of welding machine engines. The
welding machine engine is mounted on the back of a
pickup truck, which is driven by a foreman who is rep-
resented by the Iron Workers. The welding machine is
started by flipping a switch on the engine.
C. Contentions of the Parties
Bay Steel contends that reasonable cause exists to
believe that the Operating Engineers violated Section
8(b)(4)(D). It argues that the task of ‘‘covering’’ the
welding machine engine should be assigned to its em-
ployees who are represented by the Iron Workers with
whom it has a collective-bargaining agreement. Bay
Steel asserts that the collective-bargaining agreement,
employer preference, practice, economy and efficiency
favor assignment of the disputed work to employees
represented by the Iron Workers. Additionally, the Em-
ployer seeks a broad determination contending that
there is a likelihood that similar disputes will recur in
the geographical area.
The Operating Engineers argues that it seeks to rep-
resent those employees assigned to ‘‘cover’’ the weld-
ing machine engines and does not claim that the dis-
23OPERATING ENGINEERS LOCAL 825 (BAY STEEL DECK)
1 We find without merit the Operating Engineers’ argument that
the jurisdictional dispute is moot.
puted work has to be assigned to employees it rep-
resents. It further maintains that its picketing was law-
ful within the limits of Section 8(b)(7)(C) of the Act
because its purpose was to obtain an 8(f) prehire
agreement. It also argues that the dispute is moot be-
cause the picketing has stopped and the work is com-
pleted.1
The Operating Engineers also argues that a broad
determination is unnecessary because a similar dispute
is not likely to occur because it has agreed not to pick-
et or threaten to picket for an 8(f) agreement covering
persons operating welding machines.
Iron Workers, Local 480, did not appear or take part
in the proceeding.
D. Applicability of the Statute
Before the Board may proceed with a determination
of the dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that a violation of Section 8(b)(4)(D) has oc-
curred and that there exists no agreed-upon method for
the voluntary adjustment of the dispute.
Bay Steel Vice President O’Neil testified that agents
of the Operating Engineers claimed the work in dispute
and then picketed the Springfield and Hackensack
worksites.
Operating Engineers argues that it did not violate
Section 8(b)(4)(D) because its picketing was recog-
nitional. Although its contention that it was seeking to
represent the employee performing the disputed work
and a contract with the Employer might support a find-
ing that it had a recognitional objective, the issue in
a 10(k) proceeding is whether reasonable cause exists
to believe that the respondent had as one objective
forcing or requiring the employer to assign the dis-
puted work to individuals represented by it. Electrical
Workers IBEW Local 701 (University of Chicago), 255
NLRB 1157, 1161 (1981).
We find reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred and, in the absence
of any claim or evidence to the contrary, that there ex-
ists no agreed-upon method for the voluntary adjust-
ment of the dispute within the meaning of Section
10(k). Accordingly, we find that the dispute is properly
before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative award of disputed work after considering various
factors. NLRB v. Electrical 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 balancing the factors in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of the dispute.
1. Collective-bargaining agreements
Vice President O’Neil testified that Bay Steel has
had collective-bargaining agreements since 1983 with
the Iron Workers which represents the employees as-
signed the responsibilities of welding metal decking to
flooring. He also testified that the agreement does not
specifically mention the work in dispute. The mere ex-
istence of a collective-bargaining agreement is not a
factor favoring a work assignment. Thus, this factor fa-
vors neither group of employees.
2. Employer preference and past practice
The Employer prefers to award the work in dispute
to employees represented by the Iron Workers. Bay
Steel has had a collective-bargaining agreement with
the Iron workers since 1983. It has never hired an en-
gineer to start, stop, or service the welding machine
engine. Generally, the foreman at the jobsite turns the
welding machine engine switch on or off. Employees
represented by the Iron Workers also start the machine
when doing welding.
Thus, the factor of employer preference and past
practice favors the assignment of the work in dispute
to the Employer’s employees represented by the Iron
Workers.
3. Area and industry practice
The work in dispute has been assigned to members
of the Iron Workers as well as to members of the Op-
erating Engineers in the area. Witnesses from PSM
Steel Construction and McManus Steel Deck Erectors,
Inc. testified as to area practice.
Richard Paluzzi, vice president of PSM Steel, testi-
fied that PSM had employed, for approximately 3
years, a member of the Operating Engineers whose
sole purpose was to start, stop, and service welding
machines. Paluzzi testified that PSM had signed a con-
tract with the Operating Engineers in October 1984
when PSM was required, allegedly as a result of
threats made to its steel deck supplier, to hire an engi-
neer even though it did not need or want one. He also
testified that employees represented by the Iron Work-
ers would also start and stop the machines and that,
since 1989, the task of ‘‘covering’’ and maintaining
the machines has been assigned to employees rep-
resented by the Iron Workers.
Michael McManus, secretary of McManus Steel, tes-
tified that McManus Steel, which also uses welding
machines in installing metal floors, uses employees
represented by the Operating Engineers as well as em-
ployees represented by the Iron Workers. According to
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The Employer’s request for a broad determination is denied. A
broad determination may be justified where there is evidence of
similar and widespread practices with the same unlawful objective.
See Teamsters Local 5 (Mid South Fire Protection), 224 NLRB
1605 (1976). The subjective testimony of witnesses Paluzzi and
McManus that their companies would not have entered into collec-
tive-bargaining agreements with Operating Engineers without some
pressure is not sufficient to establish that a broad determination is
warranted here.
McManus, the assignment depends on whether the Op-
erating Engineers insists that a member of the Oper-
ating Engineers ‘‘covers’’ the welding machine. We
find that the factor of area practice is inconclusive.
4. Relative skills
All of the witnesses testified that no skill is required
to perform the work in dispute of turning the engine
on and off, and changing the oil and air filters. Thus,
the factor of relative skills favors neither group of em-
ployees.
5. Economy and efficiency of operations
Currently the work in dispute is performed by em-
ployees represented by the Iron Workers, with whom
the Employer has a collective-bargaining agreement.
After starting the welding engine these employees per-
form other functions, including welding. In contrast,
the Employer employs no employees represented by
the Operating Engineers and if the Employer did em-
ploy an operating engineer merely to ‘‘cover’’ the
welding machine engine that employee would be idle
for most of the work day. For example, Vice President
Paluzzi of PSM Steel testified that when that company
employed an operating engineer to perform the work
in dispute he had nothing to do during the work day
because the iron workers, who arrived at the jobsite
first, turned on the welding machine. The operating en-
gineer would service the machine when it was not
being used, a task that took approximately 2 hours,
was necessary only every few months, and could have
been performed by employees represented by the Iron
Workers.
We find the factor of economy and efficiency of op-
erations favors assignment of the work in dispute to
employees represented by the Iron Workers.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by Iron Workers
Local 480 are entitled to perform the work in the dis-
pute. We reach this conclusion relying on the factors
of employer preference and past practice, and economy
and efficiency of operations.
In making this determination, we are awarding the
work to employees represented by Iron Workers Local
480, not to that Union or its members. The determina-
tion is limited to the controversy that gave rise to this
proceeding.2
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of Bay Steel Deck Erectors, Inc. rep-
resented by the Iron Workers Local 480 are entitled to
perform the disputed work of starting, stopping, and
maintaining welding machine engines at the Spring-
field and Hackensack, New Jersey jobsites of Bay
Steel Deck Erectors, Inc.
2. International Union of Operating Engineers, Local
825 ABCDR & RH, AFL–CIO, is not entitled by
means proscribed by Section 8(b)(4)(D) of the Act to
force Bay Steel Deck Erectors, Inc. to assign the dis-
puted work to employees represented by it.
3. Within 10 days from this date, Operating Engi-
neers, Local 825, ABCDR & RH, a/w AFL–CIO, shall
notify the Regional Director for Region 22 in writing
whether it will refrain from forcing the Employer, by
means proscribed by Section 8(b)(4)(D), to assign the
disputed work in a manner inconsistent with this deter-
mination.