Elevator Constructors Local 15 (Northwestern Elevator)

National Labor Relations Board - Board Decisions

Dec 18, 1992

309 N.L.R.B. 1333 (N.L.R.B. 1992)

1333
309 NLRB No. 151
ELEVATOR CONSTRUCTORS LOCAL 15 (NORTHWESTERN ELEVATOR)
1 All dates are in 1991 unless otherwise noted.
2 Although the Employer has an existing bargaining relationship
with Local 139, the unit that Local 139 represents consists of ware-
house employees who are not involved in this proceeding.
International Union of Elevator Constructors, Local
No. 15, AFL–CIO and Northwestern Elevator
Company, Inc. and International Union of Op-
erating Engineers, Local No. 139, AFL–CIO.
Case 30–CD–142
December 18, 1992
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The charge in this Section 10(k) proceeding was
filed on December 24, 1991, by Northwestern Elevator
Company, Inc. (the Employer) alleging that Inter-
national Union of Elevator Constructors, Local No. 15,
AFL–CIO (Local 15) violated Section 8(b)(4)(D) of
the National Labor Relations Act by engaging in pro-
scribed activity with an object of forcing the Employer
to assign certain work to employees it represents rather
than to employees represented by International Union
of Operating Engineers, Local No. 139, AFL–CIO
(Local 139). The hearing was held January 29 and
March 12 and 13, 1992, before Hearing Officer Kath-
leen L. Rupprecht.
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 Employer, a Wisconsin corporation with its
principal offices located in Milwaukee, Wisconsin, is
primarily engaged in elevator construction throughout
the State of Wisconsin and the Upper Peninsula of
Michigan. During the calendar year ending December
31, 1991, a representative period, the Employer sold
and shipped goods and materials valued in excess of
$50,000 directly to customers located outside the State
of Wisconsin. The parties stipulated, and we find, that
the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
Locals 15 and 139 are labor organizations within the
meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Oscar J. Boldt Construction Co. (Boldt) is the gen-
eral contractor on a project for Consolidated Papers,
Inc. located near Wisconsin Rapids, Wisconsin. On
January 9, 1991,1 the Employer entered into a sub-
contract with Boldt to furnish the ‘‘engineering, fab-
rications, construction and start up of (3) freight ele-
vators’’ at the Consolidated Papers site. Elevator con-
struction begins with the drilling of elevator cylinder
wells below ground.
Boldt is signatory to a collective-bargaining agree-
ment with Local 139 which both entities interpret as
providing for the assignment of all drilling work to
Local 139-represented employees on projects covered
by the agreement. Local 139 informed Boldt that it
would enforce this contractual provision on the Con-
solidated Papers project.
When the project began, the Employer subcontracted
the work of drilling two outside cylinder wells at the
site to Layne Northwest which assigned the work to
employees represented by Local 139. After Layne
Northwest finished this work, Boldt asked the Employ-
er’s vice president of field operations, Kenton Rosen-
berg, whether the Employer also intended to assign the
inside drilling work at the project to Local 139-rep-
resented employees as required by Boldt’s contract
with Local 139. Rosenberg responded that the Em-
ployer planned to follow its past practice of assigning
the inside drilling work at the site to its own employ-
ees who are represented by Local 15.2
Thereafter, in August, Boldt advised Rosenberg that,
pursuant to their subcontract covering the Consolidated
Papers jobsite, Boldt would hold the Employer respon-
sible for any labor dispute that arose between Locals
15 and 139 over the inside drilling work. In December,
after the Employer had finished the hoist-way for the
inside wells, Boldt attempted to pressure the Employer
into using a Local 139-represented employee to operate
the inside spudding rig. Rosenberg agreed to allow an
employee represented by Local 139 to stand by at the
jobsite while Local 15-represented employees sank the
well. Thereafter, on December 19, Boldt informed
Rosenberg that it would supply an experienced em-
ployee represented by Local 139 to operate the rig at
Boldt’s expense, but that the Employer had to assume
full responsibility for his work. Rosenberg reluctantly
agreed to this proposal on the condition that the Local
139-represented employee was qualified to perform the
work.
On December 20, 1991, Rosenberg advised Russ
Moldenhauer, Local 15’s business representative, that a
Local 139-represented employee would operate the
spudding rig used to bore the inside cylinder holes at
the site. Moldenhauer responded that the drilling in-
volved was Local 15’s work and that Local 15 would
file a grievance and picket the jobsite if the Employer
reassigned the work. On December 23, Local 15 filed
a grievance against the Employer claiming for employ-
ees it represents the drilling work which had been as-
1334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
signed to the employee represented by Local 139. The
Employer then filed the instant charge against Local 15
alleging a violation of Section 8(b)(4)(D) of the Act.
In January 1992, Gordon Ostrem, who is represented
by Local 139, began to operate the spudding rig at the
Consolidated Papers site to drill the inside cylinder
wells. Based on its collective-bargaining agreement
with Local 15, the Employer assigned a mechanic and
a helper to assist Ostrem in the performance of this
work. The Employer claimed that Ostrem’s progress in
drilling the first cylinder well was ‘‘abysmal’’; that the
hole he initially drilled was not sufficiently plumb and
workers had to surround it with concrete in order to
correct the problem; that the steel cable used to hoist
and drop the drill bit and stem snapped four times be-
cause Ostrem failed to operate the rig properly; and
that Ostrem, while operating the drill, broke a rel-
atively new bit that cost between $4000 and $5000 to
replace.
B. Work in Dispute
The work in dispute, as described in the notice of
hearing, concerns the ‘‘sinking, drilling or boring of el-
evator shaft holes, or cylinder wells in connection with
the installation of elevators.’’ The Employer, however,
made a motion at the outset of the hearing to broaden
the scope of the disputed work to include all associated
assembly and dismantling of the drilling rigs involved
in the performance of the work described above. Local
139 protested the motion on grounds of timeliness. The
hearing officer granted the motion subject to further re-
view in light of the evidence presented during the
hearing. Further, the Employer notes in its brief to the
Board that it has purchased the equipment necessary to
perform outside drilling work and that it plans in the
future to assign such work to its employees who are
represented by Local 15. Thus, the Employer contends
that the disputed work should encompass both inside
and outside drilling work on elevator shaft holes.
Based on our review of the record, we find that as-
sembly and dismantling of the drilling rig is part of the
work involved in the drilling of elevator shaft holes.
We further conclude that the issue concerning the as-
signment of this work was fully litigated at the hear-
ing. Therefore, we affirm the hearing officer’s ruling
to include assembly and dismantling work as part of
the work in dispute here. Contrary to the Employer’s
argument, we shall not make an affirmative award of
the drilling work on outside elevators because the evi-
dence here shows that in early 1991 employees rep-
resented by Local 139 performed this work without
dispute.
C. Contentions of the Parties
The Employer argues in its brief that there is reason-
able cause to believe that Section 8(b)(4)(D) has been
violated based on Local 15’s threat to picket the job-
site if the Employer reassigned the disputed work. The
Employer claims that the Board should award the dis-
puted work to employees represented by Local 15
based on their collective-bargaining agreement, the
Employer’s preference and past practice, relative skills
and safety, and efficiency and economy of operations.
The Employer also has requested that the Board make
a broad work award covering its operations in areas
where the geographical jurisdiction of Local 15 coin-
cides with the territorial jurisdiction of Local 139.
Local 15’s position is generally in agreement with
that of the Employer.
In its brief, Local 139 contends that the Board
should quash the notice of hearing because the instant
proceeding involves nothing more than a contrived ef-
fort by the Employer and Local 15 to obtain an assign-
ment of the disputed work for Local 15-represented
employees. Local 139 further argues that the Board
should adopt the dissenting position of Chairman Ste-
phens in Laborers Local 731 (Slattery Associates), 298
NLRB 787 (1990), and find that Local 139’s effort to
enforce its subcontracting clause with Boldt does not
constitute a competing claim for the disputed work. If
the Board finds that a jurisdictional dispute exists in
this case, Local 139 asserts that the disputed work
should be assigned to employees it represents based on
its collective-bargaining agreement with Boldt, the Em-
ployer’s past practice, area and industry practice, and
efficiency and economy of operations.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute pursuant to Section 10(k) of the Act, it
must be satisfied that: (1) there is reasonable cause to
believe that Section 8(b)(4)(D) has been violated, and
(2) there is no agreed-upon method for the voluntary
resolution of the dispute.
With respect to (1) above, the evidence shows that
Local 15’s business representative, Moldenhauer,
threatened, inter alia, to picket the jobsite if the Em-
ployer reassigned the disputed work to employees rep-
resented by Local 139. Although Local 139 has argued
that the Employer and Local 15 contrived to create a
jurisdictional dispute in order to gain an affirmative
work award for Local 15-represented employees, there
is no record evidence to support the assertion that the
threat to picket was collusive and not genuine. Thus,
we conclude that there is reasonable cause to believe
that Local 15 used means proscribed by Section
8(b)(4)(ii)(D) to enforce its claim to the work.
We also find that there are competing claims here
for the disputed work. In this regard, we rely on the
evidence that Local 139 admittedly informed Boldt
that it intended to enforce the provision in their collec-
tive-bargaining agreement which assertedly covers the
1335ELEVATOR CONSTRUCTORS LOCAL 15 (NORTHWESTERN ELEVATOR)
3 Local 139’s contract with Boldt is immaterial to our resolution
of this dispute because the Employer controls the assignment of the
disputed work under its subcontract with Boldt.
disputed work. Based on the Board’s decision in Slat-
tery Associates, supra, which we decline to reconsider
here, we conclude that Local 139’s conduct constituted
a claim for the disputed work that supports the finding
that a jurisdictional dispute exists.
With respect to (2) above, it is undisputed that there
exists no agreed-upon method for the voluntary adjust-
ment of this dispute within the meaning of Section
10(k) of the Act. Accordingly, we find that this 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
relevant 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 involved 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 this dispute.
1. Certification and collective-bargaining
agreements
There is no evidence that the Board has certified ei-
ther Local 15 or Local 139 as the collective-bargaining
representative for any of the employees involved in
this case. Section 4(a) of the collective-bargaining
agreement between the Employer and Local 15 pro-
vides that employees represented by Local 15 will per-
form all work involved in the ‘‘sinking, drilling, bor-
ing or digging [of] cylinder wells for hydraulic lifts,
hydraulic elevators and screw lifts.’’ We find that this
provision specifically covers the work in dispute. By
contrast, there is no collective-bargaining agreement
between the Employer and Local 139 that covers this
work.3
Accordingly, we find that although the factor of
Board certifications does not favor employees rep-
resented by either labor organization, the factor of rel-
evant collective-bargaining agreements clearly favors
an assignment of the disputed work to employees rep-
resented by Local 15.
2. The Employer’s preference and past practice
The evidence shows that, except for an isolated situ-
ation in which a Local 15-represented employee was
sick, the Employer has consistently assigned the inside
drilling work in dispute to employees represented by
Local 15. Although it is true that the Employer did as-
sign this work on the instant project to an employee
represented by Local 139, we note that this work as-
signment resulted from pressure that Boldt exerted on
the Employer so that Boldt would not breach its col-
lective-bargaining agreement with Local 139. It is also
clear that the Employer’s preference is to continue the
assignment of the disputed work to Local 15-rep-
resented employees.
For these reasons, we conclude that the factor of the
Employer’s preference and past practice favor an
award of the disputed work to its own employees who
are represented by Local 15.
3. Relative skills and safety considerations
The Employer’s witnesses testified that, unlike other
kinds of wells that are sunk in the construction indus-
try, elevator cylinder wells require extreme precision
and accuracy in terms of their plumbness and location.
If the elevator well is not perfectly plumb, the installa-
tion of the elevator itself cannot be done properly. The
evidence also shows that the drilling of elevator wells
can be a dangerous undertaking if the operator is not
proficient in handling the equipment. For example, se-
rious injury may result if the operator prematurely
starts the drill before the helper leaves the hoist-way
or if the mast on the inside spudding rig collapses be-
cause it is not securely braced and rigged.
The record clearly demonstrates that employees rep-
resented by Local 15 have performed the Employer’s
inside drilling work for many years in a safe and pro-
ficient manner. Although Local 139-represented em-
ployees have extensive experience in drilling outside
wells, it appears that the drilling of inside wells is a
different operation in which these employees are less
experienced as shown by the uncontradicted testimony
regarding Ostrem’s travails on the present jobsite. Ac-
cordingly, we find that the factors of relative skills and
safety considerations tend to favor an award of the dis-
puted work to Local 15-represented employees.
4. Area and industry practices
There is no specific evidence regarding the industry
practice for inside drilling work. Regarding area prac-
tice, the record shows that in the State of Wisconsin
both employees represented by Local 15 and unrepre-
sented employees have performed the inside drilling
work in dispute. It appears that the drilling work per-
formed by Local 139-represented employees has been
limited to outside wells, such as those they sunk for
Layne Northwest in the present case.
Clearly, the evidence is insufficient to establish that
industry practice favors either group of employees. Be-
cause unrepresented employees, as well as Local 15-
represented employees, perform inside drilling work in
the relevant geographical area, we find that area prac-
1336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 See, e.g., Plumbers Local 2 (Morse Diesel), 307 NLRB 644
(1992), and cases cited at fn. 5.
tice is inconclusive and also does not favor an award
to either competing group.
5. Efficiency and economy of operations
The Employer’s contract with Local 15 requires the
Employer to employ both a mechanic and a helper rep-
resented by Local 15 when it performs the disputed
work. If the Board were to assign such work to em-
ployees represented by Local 139, the Employer would
have to employ at least one employee, in addition to
the two represented by Local 15, to drill inside wells
for the elevator shaft. The addition of one employee to
the present complement of two Local 15-represented
employees to complete this work clearly would in-
crease the Employer’s operating expenses. In these cir-
cumstances, we find that the factor of efficiency and
economy of operations favors an award of the disputed
work to employees represented by Local 15.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by International
Union of Elevator Constructors, Local No. 15, AFL–
CIO are entitled to perform the work in dispute as de-
scribed above. We reach this conclusion based on the
Employer’s collective-bargaining agreement with Local
15, the Employer’s preference and past practice of as-
signing the disputed work to these employees, relative
skills and safety considerations, and efficiency and
economy of operations. In making this determination,
we are awarding the work in dispute to employees rep-
resented by Local 15, but not to that Union or its
members.
Scope of the Award
The Employer has requested a broad determination
covering its performance of the disputed work wher-
ever Local 15’s geographical jurisdiction coincides
with the territorial jurisdiction of Local 139. In finding
that a broad award is inappropriate here, we stress that
the labor organization alleged to have engaged in pro-
scribed conduct is the Union which represents the em-
ployees to whom we are awarding the disputed work
and to whom the Employer prefers to assign it. The
rival claimant, Local 139, is not alleged to have en-
gaged in coercive conduct, nor does the record reveal
that it has any intention of doing so. In these cir-
cumstances, the Board has declined to make a broad
determination. Iron Workers Local 433 (Crescent
Corp.), 277 NLRB 670, 675 (1985). Accordingly, our
determination here is limited to the controversy that
gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of Northwestern Elevator Company, Inc.,
represented by International Union of Elevator Con-
structors, Local No. 15, AFL–CIO are entitled to per-
form all the work of sinking, drilling or boring of ele-
vator shaft holes, or cylinder wells, as well as all asso-
ciated assembly and dismantling work, in connection
with the installation of inside elevators at the Consoli-
dated Papers jobsite near Wisconsin Rapids, Wiscon-
sin.
MEMBER OVIATT, concurring.
Unlike the Chairman in his dissent in Laborers
Local 731 (Slattery Associates), 298 NLRB 787
(1990), I believe that a jurisdictional dispute exists
where, as here, a general contractor, contrary to a law-
ful union signatory subcontracting clause, contracts the
work to a subcontractor whose employees are rep-
resented by a union that is different from the one rep-
resenting the general contractor’s employees. That is,
the requirements for a jurisdictional dispute are met—
there are competing claims to disputed work from rival
groups of employees. I would not, however, precisely
follow the traditional route in resolving the merits of
the dispute. In making the award of work in a jurisdic-
tional dispute, the Board traditionally reviews those
factors relevant to the award as they apply to the em-
ployer that controls the work in dispute. Thus, where
the work is to be performed by a subcontractor, the
Board typically would take account of the subcontrac-
tor’s rather than the general contractor’s preference and
past practice because the former controls the work in
dispute.1 In my judgment this analysis should not be
followed when the general contractor has attempted to
cede control of the disputed work in violation of a
lawful contract clause.
Different rules should then apply for awarding the
disputed work. We should review—with equal
weight—the preference and past practice of the general
contractor and the subcontractor. Similarly, the certifi-
cations and collective-bargaining agreements applicable
to the general contractor should be as significant as
those applicable to the subcontractor. Thereby, to a
reasonable extent, a general contractor will be deterred
from attempting to use Board 10(k) awards as—in the
Chairman’s words—‘‘safe havens for contract
breaches.’’ With this approach, it will be increasingly
likely that employees of the general contractor will re-
ceive an award of the work in dispute.
Under my analysis, I find that the factor of collec-
tive-bargaining agreements favors an award to neither
group of employees. As noted by Member Devaney,
Northwestern’s contract with Local 15 has a provision
covering the work in dispute. But as I view the Boldt
contract with Local 139 to be equally relevant and as
1337ELEVATOR CONSTRUCTORS LOCAL 15 (NORTHWESTERN ELEVATOR)
that contract appears to provide that the work in dis-
pute be performed by employees represented by Local
139, I conclude that this factor favors neither group of
employees.
I also find that employer preference and past prac-
tice favors neither group of employees. Northwestern
prefers to use, and has in the past used, employees rep-
resented by Local 15. Although Boldt’s preference and
past practice are not fully clear on the record before
us, its efforts to have Northwestern use employees
from Local 139 suggests that its preference and past
practice favors employees represented by Local 139.
I agree with Member Devaney, for reasons stated by
him, that the relative skills and safety considerations
favor employees represented by Local 15 and that area
and industry practice favors neither group. But I am
uncertain that efficiency and economy of operations fa-
vors an award to Local 15-represented employees. If
the Board awards the work in dispute to employees
represented by Local 139, then arguably the North-
western-Local 15 contract no longer applies. Therefore,
in that event, Northwestern would not necessarily have
to employ—as Member Devaney suggests—employees
represented by both Local 139 and Local 15. Given
this uncertainty, I cannot conclude that the factors of
efficiency and economy of operations favor either
group of employees.
Ultimately, based on the factors of relative skills and
safety considerations, I would award the work in dis-
pute to employees represented by Local 15.
CHAIRMAN STEPHENS, dissenting.
For the reasons stated in my dissenting opinion in
Laborers Local 731 (Slattery Associates), 298 NLRB
787, 790 (1990), I would not find that Local 139’s ef-
forts to enforce its union signatory subcontracting
clause with Boldt constituted a competing claim for
the disputed work, and I would quash the 10(k) notice
of hearing.