Operating Engineers Local 825 (Gpu Nuclear)

National Labor Relations Board - Board Decisions

Nov 25, 1986

282 N.L.R.B. 267 (N.L.R.B. 1986)

OPERATING ENGINEERS LOCAL 825 (GPU NUCLEAR)
International Union of Operating , Engineers, Local
825 and GPU Nuclear Corporation and Jersey
Central Power and Light Company and Cata-
lyic, Inc. and System Council U-3, International
Brotherhood of Electrical Workers. Case 4-
CD-691
25 November 1986
DECISION AND DETERMINATION OF
DISPUTE
By CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
The charge in this Section 10(k) proceeding was
filed 13 June 1986 and amended 7 July 1986 by
GPU Nuclear Corporation (GPU),' alleging that
the Respondent, International Union of Operating
Engineers , Local 825 (Operating Engineers), violat-
ed Section 8(b)(4)(D) of the National Labor Rela-
tions Act by engaging in proscribed activity with
an object of forcing the Employer, Jersey Central,
to assign certain work to employees it represents
rather than to employees represented by System
Council U-3, International Brotherhood of Electri-
cal Workers (Electrical Workers). The hearing was
held 28 July 1986 before Hearing Officer Peter C.
Verrochi. Thereafter, GPU, Jersey ' Central, and
Electrical Workers filed posthearing briefs.
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. On the
entire record, the Board makes the following find-
ings.
1. JURISDICTION
GPU and Jersey Central are New Jersey corpo-
rations and wholly owned subsidiaries of GPU In-
corporated. Jersey Central is engaged in the gen-
eration, transmission, and distribution of electricity
to various areas within the State of New Jersey.
Jersey Central also owns the Oyster Creek Nuclear
Generating Station (Oyster Creek) in Forked
River, New Jersey, which is managed by GPU.
Jersey Central annually derives gross revenues in
excess of $500,000, and annually purchases goods
and services in excess of $50,000 directly from sup-
pliers located outside the State of New Jersey. Ac-
cordingly, we find that Jersey Central is engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act and that Operating Engineers
and Electrical Workers are labor organizations
within the meaning of Section 2(5) of the Act.
1 The charge was amended to include Jersey Central Power and Light
Company (Jersey Central) as a Charging Party.
IL THE DISPUTE
267
A. Background and Facts'of Dispute
The Oyster Creek Nuclear facility is regulated
by the Nuclear Regulatory Commission (NRC).
NRC regulations require that nuclear reactors be
shut down for periodic maintenance and refueling
and for necessary modification work. One such
"scheduled outage" began at Oyster Creek in April
1986 and was expected to continue until the fol-
lowing October.
Catalytic, Inc. (Catalytic), a general maintenance
contractor, has performed construction, mainte-
nance, and repair work at Oyster Creek since 1983,
mostly during scheduled outages. Jersey Central
retained Catalytic to perform maintenance and
modification work during the 1986 outage. For this
work, Catalytic maintained a continuous operation
at Oyster Creek, employing between 400 and 600
workers represented by various building trades
unions; the workers involved in the present dispute
are represented by Operating Engineers. Catalytic's
entire work force is covered by the General Presi-
dents' Project Maintenance Agreement, a standard
national contractor agreement to which various
building trades unions, including Operating Engi-
neers, are signatory.
In its contract with Catalytic, Jersey Central re-
served the right to perform certain maintenance
work, using its own employees. During the 1986
outage, Jersey Central assigned to its own employ-
ees, who are represented by Electrical Workers, all
mobile crane work in support of Catalytic's mainte-
nance function. Mobile cranes are used to support
outdoor maintenance or modification activities that
require lifting and can be driven under their own
power. Although' mobile cranes are used when the
Oyster Creek facility is operating, their usage be-
comes heavier during outages when more mainte-
nance work is done. A significant amount of
mobile crane work at Oyster Creek is performed
with rental cranes.
Beginning at approximately 6 a.m. on 20 May
1986 and continuing throughout that day, Operat-
ing Engineers 'picketed at each of the five en-
trances to the Oyster Creek facility. The picket
signs stated that GPU was "unfair" to Operating
Engineers . Business Agent for Operating Engineers
Robert Potts stated to a GPU representative that
the dispute concerned the operation of a mobile
crane at Oyster Creek and that workers were oper-
ating the cranes who should not be doing so. As a
result of the picketing, none of the 400-600 Cata-
lytic employees who were scheduled to perform
maintenance functions reported for work that day.
282 NLRB No. 39
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That evening a reserve gate system was estab-
lished. The following day, 21 May, Operating En-
gineers resumed picketing at the gates reserved for
GPU and Jersey Central employees, but not at the
gates reserved for contractors. Once again the
Catalytic employees did not report for work as a
result of the picketing. The picketing ended about
6 p.m., after Jersey Central agreed to meet with
Operating Engineers to discuss the dispute.
At the meeting, which was held on 27 May 1986,
Operating Engineers asserted that mobile crane
work in support of Catalytic's maintenance func-
tion should be assigned to the employees it repre-
sents rather than to Jersey Central employees rep-
resented by ,Electrical Workers. There was no reso-
lution of the dispute at the meeting, but Jersey
Central subsequently informed Operating Engineers
that it would continue to assign the mobile crane
work to its own employees.
Thereafter, on 13 June 1986, representatives of
Operating Engineers reappeared at Oyster Creek
and, although the reserve gate system was still
intact, distributed handbills at each of the five en-
trances to the facility. The handbills, entitled "In-
formation to the Public," stated that GPU and
Jersey Central deprived Operating Engineers of
work traditionally performed by its members by as-
signing "a non-building trades employee" to oper-
ate a rental crane. The handbilling was concentrat-
ed at the times of shift changes and, like the prior
picketing, caused the Catalytic employees to fail to
report for work. That same day GPU filed the
present charges.
By letter' dated 21 July 1986 Operating Engi-
neers moved to quash the notice of hearing, con-
tending that the dispute had become moot because
the work was completed and submitting what pur-
ported to be a disclaimer of the disputed work.
The disclaimer states:
[B]y this letter Local 825 affirmatively repre-
sents that it will not engage in any conduct
violative of Section 8(b)4(i)(ii)(D) [sic] which
in any way relates to the assignment of operat-
ing the mobile crane. Local 825 further repre-
sents that it will not handbill at or near the en-
trance 'to the job site which may be reserved
for the use of neutrals, their employees and/or
suppliers. Local 825 reserves the right to con-
tinue to handbill at any other location.
B. Work in Dispute
The disputed work involves the operation of a
mobile crane being used in support of maintenance
and modification work being performed by Cata-
lytic, Inc. at the Oyster Creek Nuclear Generating ,
Station on Route 9 in Forked River, New Jersey. tentions pertaining to the assignment of the mobile crane work
C. Contentions of Parties
GPU and Jersey Central contend that the Oper-
ating Engineers' picketing and handbilling consti-
tute violations of Section 8(b)(4)(i) and (ii)(D) of
the Act. They further contend that Operating En-
gineers did not effectively disclaim an interest in
the disputed work in its 21 July 1986 letter, but
simply disavowed any further unlawful conduct
and asserted that it would not handbill at neutral
entrances to the site. GPU and Jersey Central
maintain that the work in dispute should be award-
ed to Jersey Central's employees who are repre-
sented by Electrical Workers based on provisions
of the applicable collective-bargaining agreements;
employer preference and past practice; industry
and area practice; relative skills and safety; and
economy and efficiency of operations. The Em-
ployers also request that the Board enter a broad
order awarding the general category of mobile
crane work to Jersey Central employees in order
to cover similar disputes that may arise in the
future at Oyster Creek.
Electrical Workers contends, in agreement with
GPU and Jersey Central, that the disputed work
should be awarded to Jersey Central employees it
represents based on the above factors.
Operating Engineers did not appear at the hear-
ing or submit a statement of position regarding the
assignment of the disputed work.2
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the 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 not agreed on a
method for the voluntary adjustment of the dis-
pute.
The record clearly shows that on 20 and 21 May
1986 Operating Engineers picketed the Oyster
Creek facility carrying signs that accused GPU of
being "unfair" to Operating Engineers, and that a
representative for the Union stated at that time that
the dispute concerned the operation of a mobile
crane. Further, at a meeting held on 27 May ' 1986,
Operating Engineers asserted to Jersey Central that
the mobile crane work should be assigned to the
employees it represents rather than to Jersey Cen-
tral employees' who are represented by Electrical
Workers. After Jersey Central indicated that it
would continue to assign the crane work to its own
employees, Operating Engineers reappeared at
Oyster Creek and distributed handbills, which
but made no con-2 Counsel for Catalytic was present at the heanng
OPERATING ENGINEERS LOCAL 825 (GPU NUCLEAR) 269
stated that GPU and Jersey Central wrongfully as-
signed a nonbuilding trades employee to operate a
rental crane. None of the 400-600 Catalytic em-
ployees reported for work at Oyster Creek on the
days that the Operating Engineers engaged in the
picketing and handbilling activities.
On the basis of the foregoing, we find that an
object of the Operating Engineers' picketing was to
force Jersey Central to reassign the disputed work
to its members. Accordingly, we find that reasona-
ble cause exists to believe that Operating Engineers
violated Section 8(b)(4)(D) of the Act.
Further, the record contains no evidence show-
ing that an agreed-upon method for the voluntary
adjustment of this dispute exists to which all'parties
are bound.3
Regarding the purported disclaimer by Operat-
ing Engineers, it is well established that when a
party to a jurisdictional dispute effectively re-
nounces its claim to the work in question, the
Board considers the dispute to be at' an end and
quashes the notice of hearing. Operating Engineers
Local 369 (Austin Co.), 255 NLRB 476, 478 fn. 1
(1981). Operating Engineers did not, however, dis-
claim an interest in the disputed mobile crane work
in its 21 July 1986 letter. Rather, Operating Engi-
neers merely stated that it would not engage in un-
lawful conduct in regard to the assignment of oper-
ating the mobile crane and that, while reserving
the right to handbill, it would not do so at en-
trances to the jobsite reserved for neutrals.
Operating Engineers also maintained in its 21
July 1986 letter that the, jurisdictional dispute is
moot because the crane work has been completed.
The Board frequently has held that the completion
of the work involved does not render a jurisdic-
tional dispute moot when there is evidence of simi-
lar disputes between the parties in the past or noth-
ing to indicate that such disputes will not occur in
the future. E.g., Plumbers Local 201 (Shaker,
Travis), 271 NLRB 650, 652 (1985). Here the
record indicates that Catalytic has performed main-
tenance work at Jersey Central since 1983,.and that
maintenance work and mobile crane support oper-
ations are especially heavy during scheduled out-
ages, which are required by the NRC. Therefore,
we conclude that there is nothing to indicate that
such disputes will not occur in the future. In light
of the above and Operating Engineers' ineffective
a By letter dated 9 July 1986 Operating Engineers moved to quash the
notice of hearing, contending that a pending arbitration proceeding in-
volving Catalytic and Operating Engineers was an alternative method of
dispute resolution . The Regional Director denied the motion to quash,
finding that the arbitration proceeding did not satisfy the statutory re-
quirements for deferral of the 10(k) proceeding because it would not be
binding on GPU and Electrical Workers
disclaimer, we find that the instant case is not
moot.
We find reasonable cause to believe that a viola-
tion of Section 8(b)(4)(D) has occurred and that
there exists no agreed method for voluntary adjust-
ment of the dispute within the meaning of Section
10(k) of the Act. Accordingly, we find that the dis-
pute 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. 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 bal-
ancing the factors involved in a particular case.
Machinists Lodge 1743 (J. A. Jones Construction),
135 NLRB 1402 (1962).
The following factors are relevant in making the
determination of this dispute.
1. Certifications and collective -bargaining
agreements
Neither Union has been certified by the Board as
the collective-bargaining representative of any of
the employees involved here . Accordingly, this
factor is not helpful in determining the dispute.
The collective -bargaining agreement between
Jersey Central and Electrical Workers provides
that the Union is the exclusive representative of a
unit of Jersey Central workers that includes all reg-
ular operating , production, and maintenance em-
ployees . The operation of cranes is included under
"Duties" in the job descriptions of the following
classifications : Mechanical Maintenance "B"-Nu-
clear; Mechanical Maintenance "A"-Nuclear;
Heavy Equipment Operator (Special); and Heavy
Equipment Operator. There is no collective-bar-
gaining agreement between Jersey Central and Op-
erating Engineers.
The General Presidents' Project Maintenance
Agreement, which covers Catalytic employees and
to which Operating Engineers is signatory , states
the following under "Article V: Scope of Work":
The Unions and the Contractor understand
that the owner may choose ' to perform or di-
rectly subcontract or purchase any part or
parts of the work necessary on his project
with due consideration given to achieving the
highest maintenance standards and harmonious
working conditions herein.
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The above agreement is modified by Building
Trades Labor Agreement "A," which reflects con-
tractual changes that have been negotiated between
Catalytic and the building trades. These modifica-
tions are reflected in an addendum letter provided
by Catalytic to Operating Engineers which states,
in pertinent part, that the owner's specialty shops,
including crane services, will support building
trades crafts by providing the required support
services.
Based on the above, we find that the factor of
collective-bargaining agreements favors an award
of the work in dispute to Jersey Central's employ-
ees who are represented by Electrical Workers.
2. Company preference and past practice
Through the testimony of Robert J. Streisel,
Jersey Central's manager of labor relations at
Oyster Creek, Jersey Central expressed its prefer-
ence for assigning the disputed work to its own
employees.
There was consistent testimony that Jersey Cen-
tral's past practice at Oyster Creek has been to
assign to its employees, including those from
Oyster Creek as well as from its other facilities, the
operation of owned and rented mobile cranes in
support of both contractor work and its own in-
plant maintenance work.4 More specifically, the
testimony established that since 1983, when Cata-
lytic first performed work at Oyster Creek, crane
work in support of Catalytic's maintenance func-
tion has been provided by Jersey Central employ-
ees. Accordingly, we find that this factor favors an
award to Jersey Central's employees who are rep-
resented by Electrical Workers.
3. Area and industry practice
Streisel testified that Jersey Central's practice re-
garding the operation of mobile cranes conforms to
industry practice in New Jersey. He stated that the
two other major electric utilities in the State, At-
lantic City Electric and Public Service Gas and
Electric, assign their own personnel to operate
mobile cranes in support of contract work. Ac-
cordingly, we find that this factor favors an award
to Jersey Central's employees who are represented
by Electrical Workers.
4. Relative skills and safety
William Muehleisen, Jersey Central's supervisor
of shops, tools, and equipment at Oyster Creek, tes-
tified that Jersey Central employees have an advan-
tage over outsiders regarding the operation of
mobile cranes because they have worked with the
company-owned cranes and know their peculiar
operating characteristics, and because they are fa-
miliar with the roadways within the facility and
the safety considerations involved when moving
mobile cranes about the property.
Kenneth Leighton, a Jersey Central group super-
visor in charge of heavy equipment,5 testified re-
garding the nature of the training that Jersey Cen-
tral employees receive in order to operate mobile
cranes. Leighton explained that the initial ' training
to become a heavy machine operator is extensive
and closely supervised and can last anywhere from
2 months to 2 years, depending on the abilities of
the individual involved. Heavy equipment opera-
tors with crane experience are eligible to become
"specials," a classification which allows them to
operate cranes with booms in excess of 99 feet. In
order to become a special, a worker must have 90
days' experience operating a long boom under su-
pervision and must then pass a state examination in
order to be licensed. Leighton stated that his office
conducts monthly safety and training meetings for
Farmingdale crane operators to review operating
procedures and keep employees abreast of changes
in equipment. He stated that the meetings consist of
hour-long, discussions and approximately 3 hours of
hands-on experience.
Leighton further testified that there are 30-40
people at Oyster Creek who operate cranes, with
an average time in grade ranging from 3.8 years for
"B" mechanics to 9.6 years in the "A" grade,
which is the higher classification.
Leighton's testimony indicates that the mobile
crane work requires considerable training and that
operation of the cranes at Oyster Creek involves
significant safety considerations. It is undisputed
that Jersey Central's employees possess the requi-
site skills to perform the disputed work and that
they have performed this work in a satisfactory
manner in the past. As noted above, Operating En-
gineers presented no evidence on the merits; there-
fore, it has not shown that employees it represents
possess the requisite skills to perform the disputed
work. Accordingly, we find that this factor favors
an award to Jersey Central's employees represent-
ed by Electrical Workers.
5. Economy and efficiency of operations
Streisel testified that NRC regulations require
that an individual complete a training program to
become familiar with a nuclear facility's layout and
4 Streisel testified that in its arrangement with Catalytic to perform
certain maintenance work Jersey Central reserved the right to assign cer-
tam work to its own employees.
5 Leighton's office is at Jersey Central's Farmingdale facility. The
heavy equipment operators under his immediate supervision occasionally
run the smaller cranes and the rental cranes at Oyster Creek.
OPERATING ENGINEERS LOCAL 825 (GPU NUCLEAR) 271
safety concerns. before being -authorized to.'gain
unescorted access to the premises., Oyster Creek's
training program last for 3 days. Streisel stated that
contract workers with short-term assignments, such
as the Catalytic workers who seek to operate
mobile cranes, are assigned a personal escort rather
than enrolled in the 3-day training program. Thus,
Streisel concluded that the assignment of mobile
crane work to employees represented by Operating
Engineers would be inefficient because a Jersey
Central escort would be needed for each Catalytic
employee. Muehleisen testified that inefficiency
would also result because Catalytic employees rep-
resented by Operating Engineers, unlike Jersey
Central employees represented by Electrical Work-
ers, do not perform the oiling, cleaning; and me-
chanical maintenance on the cranes they operate.
Muehleisen also stated that employees represented
by Operating Engineers are less efficient because
they must be paid for a minimum of 4 hours of
work per day regardless of the work actually per-
formed, and because they cannot be assigned to op-
erate more than two pieces of equipment daily. On
the other hand, as an example of the greater effi-
ciency of employees represented by Electrical
Workers, Muehleisen described a situation when a
single, Jersey Central employee alternatively oper-
ated two cranes to complete a project at Oyster
Creek.
Since Operating Engineers presented no evi-
dence showing that it would be as efficient or eco-
nomical to utilize employees represented by it to
perform the disputed work, we find that this factor
favors an award to Jersey Central's employees rep-
resented by Electrical Workers.
Conclusions'
After considering all the relevant factors, we
conclude that employees represented by Electrical
Workers are entitled to perform the work in dis-
pute. We reach this conclusion relying on the fac-
tors of collective-bargaining agreements; company
preference and, past practice; area and industry
practice; relative skills and safety; and economy
and efficiency of operations. In making this deter-
mination, we are awarding the work to employees
represented by Electrical Workers, not to that
Union or its members.
siruction phase -of "the Oyster Creek project "6 and
that Operating Engineers has continued to be the
"aggressor" in other jurisdictional disputes.? GPU
and Jersey Central therefore contend that Operat-
ing Engineers' history of misconduct, together with
the ineffective disclaimer in this case, portend fur-
ther unlawful activity.
The Board will award a broad order where the
dispute is likely to recur and where there is evi-
dence that the charged union will engage in , further
unlawful conduct in order to obtain work similar
to that in dispute. See Electrical Workers IBEW
Local 104 (Standard Sign), 248 NLRB 1144, 1147-
1148 (1980); Operating Engineers Local 926 (Oliver
B. Cannon), 258 NLRB 1101, 1104 (1981). Here
there is insufficient evidence indicating a proclivity
on the part of Operating Engineers to engage in
further unlawful conduct at Oyster Creek. The in-
cidents surrounding the construction of the Oyster
Creek facility are remote in time, and the other
cases cited involved other parties. Moreover, the
request for a broad order is inconsistent with Oper-
ating Engineers' 21 July 1986 letter which, al-
though ineffective as a disclaimer, expressly states
that Operating Engineers will not engage in future
unlawful conduct with regard to, the mobile crane
work. Accordingly, we conclude that the issuance
of a broad order is inappropriate in this proceed-
ing. The determination is limited to the controver-
sy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. Employees of Jersey Central Power and Light
Company represented by System Council U-3,
International Brotherhood of Electrical Workers
are entitled to operate the mobile crane used to
support maintenance and modification work being
performed by Catalytic, Inc. at the Oyster Creek
Nuclear Generating Station on Route 9 in Forked
River, New Jersey.
2. International Union of Operating Engineers,
Local 825 is not entitled by means proscribed by
Section 8(b)(4)(D) of the Act to force Jersey Cen-
tral Power and Light Company to assign the dis-
puted work to employees represented by it.
3. Within 10 days from this date, International
Union of Operating Engineers, Local 825 shall
Scope of the Award
GPU and Jersey Central request that the Board
issue a broad work award covering similar disputes
that may occur in the future at Oyster Creek. In
this regard, they note that a broad order was en-
tered against Operating Engineers during the con-
6 Operating Engineers Local 825 (Burns & Roe), 162 NLRB 1617, 1622
(1967), enfd. in relevant part 410 F.2d 5 (3d Cit. 1969), in which the
Board found violations of Sec. 8(b)(4)(D) and ordered Local 825 to cease
and desist from engaging in such conduct until all building and construc-
tion at the Oyster Creek project was completed.
7 Operating Engineers Local 825 (Harms Construction), 273 NLRB 833
(1984); Operating Engineers Local 825A (Humble Oil), 195 NLRB 322
(1972).
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notify the Regional Director for Region 4 in writ- scribed by Section 8(b)(4)(D), to assign the disput-
ing whether it will refrain from forcing Jersey ed work in a manner inconsistent with this determi-
Central Power and Light Company, by means pro- nation.