United Brotherhood of Carpenters and Joiners

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 868 (N.L.R.B. 1969)

868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Locals 542 and 393, United Brotherhood of
Carpenters and Joiners of America , AFL-CIO, and
Carpenters District Council of South Jersey,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO and United Engineers &
Constructors, Inc. and Public Service Electric &
Gas Company and System Council , Utility
Employees-2, Local 1335, International
Brotherhood of Electrical Workers, AFL-CIO.
Case 4-CD-200
June 30, 1969
DECISION AND DETERMINATION OF
DISPUTE
By CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended,
following charges filed on February 25, 1969, by
United Engineers & Constructors, Inc.,' under
Section 8(b)(4)(D) of the Act. The charges allege, in
substance, that Locals 542 and 393, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, and Carpenters District Council of South
Jersey, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO,' violated Section
8(b)(4)(D) by striking and picketing to force or
require United Engineers to assign part of the work
of calibrating the scales at the Public Service
Electric & Gas Company' concrete batch plant
located at Hancock's Bridge, New Jersey, to
individuals employed by United Engineers, and/or
its subcontractors, represented by Carpenters, rather
than to employees of Public Service Electric,
represented by System Council, Utility
Employees-2, Local 1335, International Brotherhood
of Electrical Workers, AFL-CIO.' Pursuant to
notice, a hearing was held before Alfred Vitarelli,
Hearing Officer, on April 7, 8, and 9, 1969. 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 issues.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are
hereby affirmed. Briefs were filed by United
Engineers , Carpenters, and IBEW, which have been
duly considered.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE COMPANIES
The parties stipulated, and we find, as follows:
United Engineers, a Delaware Corporation, is
engaged in the building and construction business,
operating in the various States of the United States
and in foreign countries. Its gross volume of
business annually exceeds $1,000,000 and it does
business in interstate commerce in excess of $50,000
annually. It is presently engaged in building a
nuclear generating plant in Hancock's Bridge, Salem
County, New Jersey, the cost of which approximates
$350,000,000. In the construction of this plant, for
Public Service Electric, United Engineers purchased
materials outside the State of New Jersey valued in
excess of $50,000.
Public Service Electric, a New Jersey corporation,
is engaged in the manufacture and distribution of
gas and electric energy. Its gross volume of
business annually exceeds $250,000.
We find, in accordance with the stipulation of the
parties, that United Engineers and Public Service
Electric are employers engaged in commerce 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.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find, that
Carpenters and IBEW are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The disputed work which gave rise to this
proceeding concerns the moving, lifting, and
handling of weights in connection with the
calibration of scales at the concrete batch plant at
the nuclear generating facility construction site
located at Hancock's Bridge, New Jersey.
B. The Facts
The record indicates that United Engineers is the
general contractor building a nuclear generating
station at Hancock's Bridge, New Jersey, primarily
for Public Service Electric. United Engineers
employs a work force of about 950 employees at the
worksite. In the process of building the station, a
batch plant was erected on the jobsite for the mixing
of concrete.' This batch plant serves the function of
receiving, storing, and mixing the various aggregate
' Hereinafter referred to as United Engineers.
'Hereinafter referred to as Carpenters
'Hereinafter referred to as Public Service Electric
'Hereinafter referred to as IBEW
'The record reflects that Public Service Electric owns the concrete batch
plant.
177 NLRB No. 90
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 869
materials which make up concrete . In connection
therewith, scales are used to measure the proper
amount of ingredients necessary to mix the concrete
according to the specifications required by the
Atomic Energy Commission. Two scales are
involved in this dispute. In order to insure the
proper mixture of ingredients, these scales are
calibrated once a month, utilizing 50 pound weights,
and, at times, lighter weights.
The initial calibration of scales at the concrete
batch plant occurred on October 31, 1968. Public
Service Electric assigned six of its laboratory
employees, represented by IBEW, to perform the
calibration, and they were assisted by five employees
of United Engineers and/or its subcontractors, who
are members of the Building Trades ; namely, two
carpenters, one carpenter foreman, and two
ironworkers." The Building Trades members
handled, primarily, the heavy work, such as setting
up the scales, lifting, and rigging the weights. At the
second calibration, which took place on November
24, 1968, Public Service Electric assigned 11 of its
laboratory employees to perform the calibration,
and they were assisted by approximately the same
number of carpenters and ironworkers , as were
present in the first calibration. Subsequent
calibrations occurred on December 29, 1968,
February 23, 1969, and March 30, 1969, but these
calibrations were performed exclusively by the
laboratory employees of Public Service Electric,
represented by IBEW.
Shortly after the fourth calibration, namely, on
February 24, 1969, Carpenters began picketing the
jobsite, the picket sign legends reading "We are
picketing United Engineers for violation of
agreement , Carpenters Locals 542 and 393." The
picketing lasted 1 week, and during this week, on
February 25, 1969, the instant charges were filed by
United Engineers.
C. Contentions of the Parties
Public Service Electric. Carpenters, while
disclaiming any entitlement to the work of actually
calibrating or adjusting the scales themselves,
contends that the initial assignment of the disputed
work, insofar as it pertains to the moving of
weights, the placing of weights on pans, and the
removal of them during calibration, was properly
made to it; that subsequently the work was
improperly removed to IBEW; and that, upon
consideration of all pertinent factors, it should be
awarded such work.
D. Applicability of the Statute
Before the Board proceeds with a determination
of 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. As
stated above, the uncontroverted record testimony
establishes that Carpenters picketed and struck
United Engineers , the prime contractor, at the
jobsite. It is further established that an object of this
picketing, as evidenced by the picket sign legend,
and other facts in the record, was to force or require
United Engineers, and/or Public Service Electric, to
assign particular work to members of Carpenters,
rather than to members of IBEW. Accordingly, we
find, on the basis of the entire record, that there is
reasonable cause to believe that a violation of
Section 8(b)(4)(D) of the Act has occurred, and that
the dispute is properly before the Board for
determination under Section 10(k) of the Act.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of the disputed work
after due consideration of the various relevant
factors.' The following factors are relevant in
determining the claims of the parties herein:
Public Service Electric argues that it is the owner
of the nuclear generating plant, and that it
designated United Engineers to be the prime
contractor in the construction thereof; that it made
the assignment of the disputed work to its own
laboratory employees because it felt it had a right to
do so , and because it believed such assignment to be
the most efficient and economical way to operate.
United Engineers takes the position that this case is
properly before the Board as a means of resolving a
jurisdictional dispute, and that it will be satisfied
with any award of the disputed work the Board may
wish to make . IBEW contends that Public Service
Electric made a valid assignment of work to its own
employees, represented by a certified union (IBEW),
and that it and Public Service Electric are operating
under a current collective -bargaining agreement, and
that the Carpenters has no standing herein since
Carpenters is not privy to any such relationship with
1. Certification and collective-bargaining
agreements
The record reflects that there is no Board
certification specifically relating to the disputed
work. It also appears that in 1943 or 1944, IBEW
was certified by the Board as bargaining
representative of certain employees of Public Service
Electric, including the laboratory employees
involved herein, and the parties are presently
operating under a collective-bargaining agreement.
'It appears that the subcontractors had been assigned to the first
calibration by one Bob Harris , a United Engineers supervisor in charge of
the batch plant The record is not clear as to the circumstances under
which Harris permitted these individuals to work , and it otherwise appears
that Harris' employment with United Engineers was terminated shortly
after the incident . Harris was not called as a witness in this proceeding.
'international Association of Machinists, Lodge No 1743. AFL-CIO (J
A Jones Construction Company), 135 NLRB 1402.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The job classifications of the various laboratory
employees used by Public Service Electric, such as
test engineer , technician , laboratory tester A, and
laboratory tester B, are described in the contract,
but no specific reference is made therein to the work
of performing the calibration of scales . United
Engineers and Carpenters are parties to national
and local agreements . Such contracts contain no
specific reference to calibration of scales at a
concrete batch plant , although "millwrights" are
given general jurisdiction over the installation of
"scales."
As described previously , Public Service Electric
awarded the contract for building a nuclear
generating station to United Engineers, and in
connection therewith , the Atomic Energy
Commission laid down certain specifications for the
mixing of the concrete . Under the agreements
between Public Service Electric and United
Engineers , it appears that the primary responsibility
for the calibration of scales at the concrete batch
plant rests with Public Service Electric , although
United Engineers may furnish support personnel.
There is no evidence in the record of any agreement
which precludes Public Service Electric, the owner
of the concrete batch plant , from assigning this
work to its own employees.
2. Employer , area, and industry practice
Public Service Electric has erected five generating
stations in the State of New Jersey over the past 20
years. At three of these plants , ready-mix concrete
was used , thus requiring no calibration of scales. At
the remaining two plants , namely, at Sewaren and
Linden , which were also built by United Engineers,
concrete batch plants were used , and the calibration
of scales, and the work incident thereto, were
performed by Public Service Electric laboratory
personnel , represented by IBEW . Testimony was
adduced to the effect that members of Carpenters
and other unions worked in the vicinity of these two
batch plants , but made no claim to the work.
Carpenters introduced testimony to the effect that
millwrights have done maintenance and repair work
in concrete batch plants , after initial calibration, and
that scales are worked on by millwrights in
refineries, truck weighing areas , vessels, or hoppers.
However, Carpenters conceded that it was not aware
of any instance , in the last 20 years, where
millwrights placed weights on scales or participated
in the calibration of scales on a repetitive basis,
once the initial calibration of scales was
accomplished.
3. Relative skills and efficiency of operation
IBEW contends that its members have
traditionally performed the work of calibrating
scales at a concrete batch plant , and that this work
requires a certain degree of skill in placing the
weights on the scales . Moreover , it argues that the
lifting and moving of weights and the actual testing
of the scales is one integrated operation , and that
when millwrights and ironworkers assisted in the
calibrations , the work took longer because they did
not know the exact nature of the work . On the other
hand, Carpenters argues that United Engineers
made the initial assignment of lifting and moving
the weights to its members , and moreover , contends
that the handling of weights requires no special skill.
4. Action of the National Joint Board for
settlement of jurisdictional disputes
The record reflects that in February 1969,
Carpenters brought this dispute to the attention of
the National Joint Board for settlement of
jurisdictional disputes , and that on February 27,
1969, the National Joint Board advised United
Engineers that the work assignment should be
resolved in favor of the Carpenters , whose members
were initially assigned the disputed work . However,
neither the IBEW nor Public Service Electric is a
party to the National Joint Board plan for settling
jurisdictional disputes nationally and locally, nor did
they otherwise consent to the submission of the
dispute to the National Joint Board . Moreover, the
record reveals that in making its award, the
National Joint Board considered only its procedural
rules and did not base its award upon substantive
factors such as we normally rely upon in
determining the merits of the jurisdictional dispute.
Conclusions as to the Merits of the Dispute
Upon consideration of all perinent factors, we
conclude that employees of Public Service Electric,
represented by IBEW , are entitled to perform the
work in dispute . Control over the assignment of the
work in dispute is lodged in Public Service Electric.
Employees of Public Service Electric, represented by
IBEW , are fully capable of performing the whole of
the calibration work in question , and it appears that
Public Service Electric , which assigned them the
work , is satisfied with the quality of their work and
the cost of employing them . Moreover , the instant
assignment of the disputed work to IBEW is not
inconsistent with any Board certification or
contractual assignment, or with the past practice of
Public Service Electric, nor is it inconsistent with
area or industry practice. Public Service Electric
owns the concrete batch plant , and has the primary
responsibility for the calibration of scales in
accordance with specifications laid down by the
Atomic Energy Commission . Moreover , we find that
the calibration of scales, and the work incident
thereto , is essentially an integrated operation, and
that it is economically sound and feasible for the
employees of Public Service Electric, represented by
IBEW , to perform the entire operation. We
conclude , therefore , that Public Service Electric's
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 871
assignment of the disputed work to employees
represented by IBEW should not be disturbed. We
shall, accordingly, determine the existing
jurisdictional dispute by deciding that IBEW, rather
than Carpenters, is entitled to the work in dispute.
In making this determination , we are assigning the
disputed work to the employees of Public Service
Electric, who are represented by IBEW, but not to
that Union or its members.
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 employed by Public Service Electric
& Gas Company, who are represented by System
Council, Utility Employees-2, Local 1335,
International Brotherhood of Electrical Workers,
AFL-CIO, are entitled to the work of moving,
lifting, and handling of weights in connection with
the calibration of scales at the concrete batch plant
at the nuclear generating facility construction site
located at Hancock' s Bridge , New Jersey.
2. Locals 542 and 393, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, and
Carpenters District Council of South Jersey, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, are not entitled, by means proscribed by
Section 8(b)(4)(D) of the Act, to force or require
United Engineers and Constructors, Inc., and/or
Public Service Electric & Gas Company, to assign
the above-described work to employees represented
by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Locals 542 and 393,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, and Carpenters District
Council of South Jersey, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, shall
notify the Regional Director for Region 4, in
writing, whether or not it will refrain from forcing
or requiring Public Service Electric & Gas
Company, and/or United Engineers and
Constructors, Inc., by means proscribed by Section
8(b)(4)(D) of the Act, to assign the work in dispute
to employees represented by Carpenters, rather than
to employees of Public Service Electric & Gas
Company, represented by IBEW.