Operating Engineers, Local No. 673

National Labor Relations Board - Board Decisions

Jun 16, 1981

256 N.L.R.B. 1228 (N.L.R.B. 1981)

1228 DECISIONS OF NATIONAL LABOR RELATIONS BOAR!D
International Union of Operating Engineers, Local
No. 673 and Oliver B. Cannor & Son, Inc., of
Florida and International Brotherhood of Paint-
ers and Allied Trades, Local Union 164. Case
12-CD-271
June 16, 1981
DECISION AND DETERMINATION OF
DISPUTE
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Oliver B. Cannon & Son,
Inc., of Florida, herein called the Employer, alleg-
ing that International Union of Operating Engi-
neers, Local No. 673, herein called the Respondent
or the Engineers, had violated Section 8(b)(4)(D)
of the Act by engaging in certain proscribed activi-
ty with an object of forcing or requiring the Em-
ployer to assign certain work to its members rather
than to employees represented by International
Brotherhood of Painters and Allied Trades, Local
Union 164, herein called Painters or Local 164.
Pursuant to notice a hearing was held before
Hearing Officer John C. Wooten on January 20,
1981. All parties appeared and were afforded full
opportunity to be heard, to examine and cross-ex-
amine witnesses, and to adduce evidence bearing
on the issues.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer, a Florida corporation, is a wholly-owned
subsidiary of Oliver B. Cannon & Son, Inc., a
Pennsylvania corporation, which is in turn a
wholly-owned subsidiary of Philadelphia Suburban
Corporation, a Delaware corporation. The Em-
ployer is party to a contract with Container Corpo-
ration of America (CCA) to perform certain ren-
ovation or rework construction at CCA's paper
production facility at Fernandina Beach, Florida.
The amount of the contract is $224,252. In the
course of that contract, which will be performed in
a 12-month period, the Employer will use paint,
sand, and equipment, valued substantially in excess
of $50,000, which paint, sand, and equipment, will
be or has been shipped directly to the jobsite from
points outside the State. The parties also stipulated,
and we find, that the Employer is engaged in com-
merce within the meaning of Section 2(6) and (7)
256 NLRB No. 184
of the Act and it will effectuate the purposes of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVII)
The parties stipulated, and we find, that the En-
gineers and the Painters are labor organizations
within the meaning of Section 2(5) of the Act.
111. THE DISPUTE
A. The Work in Dispute
The work in dispute involves the servicing and
operation of three Ingersoll-Rand air compressors
(a 750 CFM, a 1050 CFM, and a 1200 CFM) inci-
dent to the Employer's sandblasting and repainting
work at the Fernandina Beach, Florida, facility of
the CCA, Papermill Division.
B. Background and Facts of the Dispute
The Employer has a contract with CCA to pro-
vide sandblast cleaning and repainting of certain
buildings at CCA's paper production facility at
Fernandina Beach, Florida. In repainting, old paint
is removed by sandblasting and new paint is
sprayed on the cleaned surface. The air compres-
sors are used for both operations. The Employer,
through its parent corporation, is party to a collec-
tive-bargaining agreement between District Council
No. 21, Brotherhood of Painters and Allied Trades,
and Associated Master Painters and Decorators of
Philadelphia, Inc. Under that agreement, the Em-
ployer is bound to honor the "Working Agreement
between Painters Local Union No. 164 and the
Jacksonville Chapter, Painting and Decorating
Contractors of America" when, as here, the Em-
ployer is working within the jurisdiction of Local
164. The Employer's employees, all of whom are
represented by the Painters pursuant to the above-
described agreements, perform the disputed work
as an incident to their sandblasting and repainting
work. The disputed work is not referred to in the
contract. Supervisors may, on occasion, also per-
form the disputed work.
On November 17, 1980,1 Nicholas Castellano,
the Employer's project manager at the CCA site,
spoke with a representative of the Engineers, who
requested that the Employer assign an employee
represented by the Engineers to operate the air
compressors on the job. Castellano refused to do
so. Around December 3, Castellano again spoke
with the Engineers representative, who told him "I
have my back against the wall. If you don't put an
operator on the compressor, I will have to take
All dates are in 1980, unless otherwise specified.
OPERATING ENGINEERS, LOCAL NO. 673 1229
some sort of action."2 The next day the Engineers
established picket lines at the jobsite. Other crafts,
including the Painters, refused to cross the picket
line, and as a result work ceased on the entire job.
McKenzie, a journeyman painter employed by the
Employer and the Painters steward, was told by
Acton that the strike would continue until an oper-
ating engineer was hired to run the compressors.
On the next scheduled working day, December
8, the picketing continued. On that day, the CCA
project engineer directed the Employer to cease all
work at the jobsite until the Employer could assure
CCA that there would be no further work stop-
page. Subsequently, the Engineers agreed to cease
picketing pending Board resolution of the dispute,
and on January 5, 1981, the Employer resumed
work on the CCA contract with members of the
Painters continuing to operate the compressors.
C. The Contentions of the Parties
The Employer contends the dispute is properly
before the Board for determination, and that it has
assigned the disputed work to its employees who
are represented by the Painters, in accordance with
its collective-bargaining agreements, industry prac-
tice, and for reasons of relative skills and economy
and efficiency.
The Respondent asserts that no jurisdictional dis-
pute exists because Local 164 has disclaimed the
disputed work by virtue of an interunion agreement
-ranting jurisdiction to the Respondent. In support
this contention, the Respondent introduced a
'orandum of understanding dated April 22,
which was purportedly reached by the Inter-
L1 Unions of Local 164 and Local 673, in
the Painters disclaimed the operation of
,sors of 600 CFM or greater, together with
of its business manager that this agree-
onsistently been honored during its term.
lent is signed by the business managers
dls. The Respondent contends that
taken no action inconsistent with this
timer, and notes that the Painters
ket line established by the Engi-
ite. The Respondent further con-
agreed-upon method for reso-
virtue of the dispute-resolu-
Employer-Painters collec-
The Respondent asserts
v to these agreements
the Painters has in-
hanism, it express-
lresentative's name was
,e by that name works
Edwards is an assistant
herwise deny that the
ly assents to participate in and be bound by any
proceedings that may be instituted. Alternatively,
the Respondent contends that the work should be
assigned to it based on the interunion agreement,
relative skills, economy, and efficiency, and the
employer and area practice.
Local 164 appeared at the hearing but has taken
no position on the record. However, representa-
tives of the Painters International testified, claimed
the work as properly that of the Painters, and
stated that under the International's constitution
the Local 164 business manager was without au-
thority to waive the Union's jurisdictional claims.
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 upon
a method for the voluntary adjustment of the dis-
pute.
It is clear that the Respondent engaged in picket-
ing at the jobsite and that such picketing was to
protest the Employer's assignment of the disputed
work to its employees who are represented by the
Painters. Accordingly, we find that reasonable
cause exists to believe that the Respondent violated
Section 8(b)(4)(D) of the Act.
We find no merit in the Respondent's contention
that the Painters have disclaimed the disputed
work by virtue of the memorandum of understand-
ing. In this regard, we note that the Employer's
employees, represented by the Painters, have con-
tinued to perform the work. The Board has long
held that such disclaimers are ineffective where, as
here, the employees represented by the disclaiming
organization continued to perform the disputed
work.:
Additionally, we find that there exists no agreed-
upon method for the voluntary adjustment of the
dispute to which all parties are bound. Whatever
obligations the Internationals or Locals imposed
upon themselves through the memorandum of un-
derstanding, there is no evidence that the Employ-
er agreed to be bound by this agreement, and the
Employer expressly denies any such obligation.
With respect to the dispute-resolution clauses of
the Employer-Painters collective-bargaining agree-
ments, neither the Employer nor the Painters has
instituted proceedings under them and, in any
3 See, e.g., Bricklar, d& Al/id (rafismen. [.aul nion 1No 2 of Cali
fornia. Bricklayers and .4lted (orsimc.n.n *4L-C.O si I tiarrm (bn'tru,
tion. Inc.), 254 NLRH No 123 (I'x1)1 Irrin, rnaion l trh,wrh ofd f.1 ic,
cal Workers. Laol .',. 610 (Land'au Ouljdrr Sign (tiunyp I,. 2
NLRB 320(1976)
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
event, the Engineers are not a party to the agree-
ments and the Employer has indicated it would not
assent to any such tripartite proceeding. Accord-
ingly, we find that the Painters have not disclaimed
the diputed work, there is no agreed-upon method
for the voluntary adjustment of the dispute, and
that this dispute is properly before the Board for
determination.
E. 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 the
determination of the dispute before us:
1. The Employer past practice
The record discloses that a jurisdictional distinc-
tion is made in the industry between "new con-
struction" painting and "maintenance" or "rework"
painting. The disputed work is "maintenance," and
undisputed evidence shows that the Employer has
uniformly assigned such work to its own employ-
ees represented by the Painters. Accordingly, this
factor favors an award to the Painters.
2. Skills, economy, and efficiency
Members of both the Painters and the Engineers
have operated compressors. The record discloses
that the operation of the compressors is relatively
simple, requiring filling it with fuel, water, and oil,
pushing a button to turn it on, checking the water
and oil levels periodically, and pushing a button to
turn it off. It does not require full-time attention,
and the Employer's employees can sandblast and
paint and still tend the compressors as required.
The Employer would have no work other than
running the compressor for members of the Engi-
neers. We therefore find that this factor favors an
award to the Painters.
3. The Employer preference
The Employer has assigned the disputed work to
its employees represented by the Painters and has
expressed its preference that the disputed work be
performed by these employees. The employer pref-
erence therefore favors an award to the Painters.
Conclusion
Upon the record as a whole, and after full con-
sideration of all the relevant factors involved, we
conclude that employees represented by the Paint-
ers are entitled to perform the disputed work. In
making this determination, we are awarding the
work in question to employees who are represented
by the Painters, but not to that Union or its mem-
bers. The present determination is limited to the
particular dispute which gave rise to this proceed-
ing. 4
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
makes the following Determination of Dispute:
1. Employees of Oliver B. Cannon & Son, Inc.,
of Florida, who are represented by International
Brotherhood of Painters and Allied Trades, Local
Union 164, are entitled to operate the air compres-
sors used in the Employer's sandblasting and re-
painting operations at the Fernandina Beach, Flor-
ida, facility of the Container Corporation of Amer-
ica, Papermill Division,
2. International Union of Operating Engineers,
Local No. 673, is not entitled by means proscribed
by Section 8(b)(4)(D) of the Act to force or require
Oliver B. Cannon & Son, Inc., of Florida to assign
the disputed work to employees represented
that labor organization.
3. Within 10 days from the date of this De
and Detemination of Dispute, International
of Operating Engineers, Local No. 673, shal
the Regional Director for Region 12, in
whether or not it will refrain from forcir
quiring the Employer, by means proscrib
tion 8(b)(4)(D) of the Act, to assign t'
work in a manner inconsistent with t'
termination.
4 We reject the Employer's request for a broa,
and similar work disputes arising between it ar
Respondent's picketing was fr a brief period, it
with the Eimployer to allow work to conlinlt
parties submitted their dispute to the Bo:
cientt to demonstrate that the Respond,
unldawful cttlIduct in order to obtain
lhct circunlstances, we are unable
penslable to the fashioning of a
Brotherhood J Ellecrical Woreke
Signal (>. Inc!. 248 NLRB
OPERATING ENGINEERS. LOCAL NO 673 1229
some sort of action."2 The next day the Engineers
established picket lines at the jobsite. Other crafts,
including the Painters, refused to cross the picket
line, and as a result work ceased on the entire job.
McKenzie, a journeyman painter employed by the
Employer and the Painters steward, was told by
Acton that the strike would continue until an oper-
ating engineer was hired to run the compressors.
On the next scheduled working day, December
8, the picketing continued. On that day, the CCA
project engineer directed the Employer to cease all
work at the jobsite until the Employer could assure
CCA that there would be no further work stop-
page. Subsequently, the Engineers agreed to cease
picketing pending Board resolution of the dispute,
and on January 5, 1981, the Employer resumed
work on the CCA contract with members of the
Painters continuing to operate the compressors.
C. The Contentions of the Parties
The Employer contends the dispute is properly
before the Board for determination, and that it has
assigned the disputed work to its employees who
are represented by the Painters, in accordance with
its collective-bargaining agreements, industry prac-
tice, and for reasons of relative skills and economy
and efficiency.
The Respondent asserts that no jurisdictional dis-
pute exists because Local 164 has disclaimed the
disputed work by virtue of an interunion agreement
granting jurisdiction to the Respondent. In support
of this contention, the Respondent introduced a
memorandum of understanding dated April 22,
1971, which was purportedly reached by the Inter-
national Unions of Local 164 and Local 673, in
which the Painters disclaimed the operation of
compressors of 600 CFM or greater, together with
testimony of its business manager that this agree-
ment has consistently been honored during its term.
This agreement is signed by the business managers
of both locals. The Respondent contends that
Local 164 has taken no action inconsistent with this
purported disclaimer, and notes that the Painters
honored the picket line established by the Engi-
neers at the jobs.ite. The Respondent further con-
tends that there is an ,.greed-upon method for reso-
lution of the dispute by virtue of the dispute-resolu-
tion mechanism of the Employer-Painters collec-
tive-bargaining agreements. The Respondent asserts
that although it is not a party to these agreements
and neither the employer nor the Painters has in-
voked the dispute resolution mechanism, it express-
2 Castellano testified that the Engineer, rsrcre.ental.i c' s name was
David Acton. The Respondent denies Ih I .ols1 ile bh that name works
for the Engineers, but acknowledges that a I sivld Edwards is an ssislant
business agent of the Engineers and does nt oerwise dcns that the
above-described conversations occurred.
ly assents to participate in and be bound by any
proceedings that may be instituted. Alternatively,
the Respondent contends that the work should be
assigned to it based on the interunion agreement,
relative skills, economy, and efficiency, and the
employer and area practice.
Local 164 appeared at the hearing but has taken
no position on the record. However, representa-
tives of the Painters International testified, claimed
the work as properly that of the Painters, and
stated that under the International's constitution
the Local 164 business manager was without au-
thority to waive the Union's jurisdictional claims.
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 upon
a method for the voluntary adjustment of the dis-
pute.
It is clear that the Respondent engaged in picket-
ing at the jobsite and that such picketing was to
protest the Employer's assignment of the disputed
work to its employees who are represented by the
Painters. Accordingly, we find that reasonable
cause exists to believe that the Respondent violated
Section 8(b)(4)(D) of the Act.
We find no merit in the Respondent's contention
that the Painters have disclaimed the disputed
work by virtue of the memorandum of understand-
ing. In this regard, we note that the Employer's
employees, represented by the Painters, have con-
tinued to perform the work. The Board has long
held that such disclaimers are ineffective where, as
here, the employees represented by the disclaiming
organization continued to perform the disputed
work. 3
Additionally, we find that there exists no agreed-
upon method for the voluntary adjustment of the
dispute to which all parties are bound. Whatever
obligations the Internationals or Locals imposed
upon themselves through the memorandum of un-
derstanding, there is no evidence that the Employ-
er agreed to be bound by this agreement, and the
Employer expressly denies any such obligation.
With respect to the dispute-resolution clauses of
the Employer-Painters collective-bargaining agree-
ments, neither the Employer nor the Painters has
instituted proceedings under them and, in any
i See, c. g Brikll r & 41hisd (crujismen, L.wal I'molsn ,. 2 o Callh-
Ji)rnitl, Birti[/ a rirs ansid -t/sd ( / riCslt n. 41.--C () tL J IHarris Construc-
tlion, Ins 254 NI.HI No 121 i 1 I Inter national Brolhrhsod oJ IElectri-
cal
4
sorAt,rs. Loiul 'i 610 l.urlaiuu Ouldsrs Sign (Uonpaine Inc.. 225
NIRlt 320 ( 1q76)
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
event, the Engineers are not a party to the agree-
ments and the Employer has indicated it would not
assent to any such tripartite proceeding. Accord-
ingly, we find that the Painters have not disclaimed
the diputed work, there is no agreed-upon method
for the voluntary adjustment of the dispute, and
that this dispute is properly before the Board for
determination.
E. 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 the
determination of the dispute before us:
1. The Employer past practice
The record discloses that a jurisdictional distinc-
tion is made in the industry between "new con-
struction" painting and "maintenance" or "rework"
painting. The disputed work is "maintenance," and
undisputed evidence shows that the Employer has
uniformly assigned such work to its own employ-
ees represented by the Painters. Accordingly, this
factor favors an award to the Painters.
2. Skills, economy, and efficiency
Members of both the Painters and the Engineers
have operated compressors. The record discloses
that the operation of the compressors is relatively
simple, requiring filling it with fuel, water, and oil,
pushing a button to turn it on, checking the water
and oil levels periodically, and pushing a button to
turn it off. It does not require full-time attention,
and the Employer's employees can sandblast and
paint and still tend the compressors as required.
The Employer would have no work other than
running the compressor for members of the Engi-
neers. We therefore find that this factor favors an
award to the Painters.
3. The Employer preference
The Employer has assigned the disputed work to
its employees represented by the Painters and has
expressed its preference that the disputed work be
performed by these employees. The employer pref-
erence therefore favors an award to the Painters.
Conclusion
Upon the record as a whole, and after full con-
sideration of all the relevant factors involved, we
conclude that employees represented by the Paint-
ers are entitled to perform the disputed work. In
making this determination, we are awarding the
work in question to employees who are represented
by the Painters, but not to that Union or its mem-
bers. The present determination is limited to the
particular dispute which gave rise to this proceed-
ing.4
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
makes the following Determination of Dispute:
1. Employees of Oliver B. Cannon & Son, Inc.,
of Florida, who are represented by International
Brotherhood of Painters and Allied Trades, Local
Union 164, are entitled to operate the air compres-
sors used in the Employer's sandblasting and re-
painting operations at the Fernandina Beach, Flor-
ida, facility of the Container Corporation of Amer-
ica, Papermill Division.
2. International Union of Operating Engineers,
Local No. 673, is not entitled by means proscribed
by Section 8(b)(4)(D) of the Act to force or require
Oliver B. Cannon & Son, Inc., of Florida to assign
the disputed work to employees represented by
that labor organization.
3. Within 10 days from the date of this Decision
and Detemination of Dispute, International Union
of Operating Engineers, Local No. 673, shall notify
the Regional Director for Region 12, in writing,
whether or not it will refrain from forcing or re-
quiring the Employer, by means proscribed by Sec-
tion 8(b)(4)(D) of the Act, to assign the disputed
work in a manner inconsistent with the above de-
termination.
4 We reject the Employer's request for ai broa] order applying to this
and similar work disputes arising between t d the Respondent. The
Respondent's picketing was for a brief period. t subsequently cooperated
with the Employer to allow, work to contilinl on the CCA site hile the
parties submitted their dispute to the Bo:urd, and the evidence is insuffi-
cient to demonstrate that the Respond :nlt is likely to engage i further
unlawful conduct in order to obtain oirk inmilar to) that in dispute In
these circumstances, spe are unable ',o find that "a broad order is indis-
pensable to the fashioning of a '.neaningful award here" International
Brotherhood of Electracl Worke rs. .4FL-CI0 I.ocal 14 (Standard Sign &
Signal Cor. Inc. 248 NLRB t 144, 1148 (1980).