Local 52, Operating Engineers

National Labor Relations Board - Board Decisions

Nov 26, 1975

221 N.L.R.B. 869 (N.L.R.B. 1975)

LOCAL 542, OPERATING ENGINEERS
Local 542, International Union of Operating Engi-
neers, AFL;-CIO and Westinghouse Electric Cor-
poration and Delmarva , Power & Light Company
and Local Union 1238 of the International Brother-
hood of Electrical Workers , AFL-CIO.' Cases 4-
CD-385 and 4-CD-387
November 26, 1975
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Westinghouse Electric Corpora-
tion , herein called Westinghouse, and Delmarva
Power & Light Company, herein called Employer,
alleging that Local 542, International Union of
Operating Engineers, AFL-CIO, herein called Oper-
ating Engineers, had violated Section 8(b)(4)(D) of
the Act, by seeking to force Employer to assign the
work in dispute described herein to employees
represented by` the Operating Engineers rather than
to employees'represented by Local Union 1238 of the
International Brotherhood of Electrical Workers,
AFL-CIO, herein called Electrical Workers. Pur-
suant to notice, a hearing was held in Wilmington,
Delaware, on May 7, 1975, before Hearing Officer
James C. Peck, Jr. 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. Thereafter; Employer
and Respondent Union both filed briefs in support of
their positions.
Pursuant to the provisions of Section 3(b) of the
National, Labor Relations Act, as amended, the
National Labor Relations Board . has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they, are
free from prejudicial error. The rulings are hereby
affirmed.2 Upon the entire record in this case,
including the briefs, the Board makes the following
findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer is a Delaware corporation providing
gas to Delaware and electrical power to Delaware,
Maryland, and parts of Virginia. Annual gross
revenues are in excess of $250,000 and purchases
Name appears as amended at hearing
a The Employer's motion to reopen the hearing is hereby denied
Reopening of the hearing was sought to permit cross-examination of
221 NLRB No. 123
869
from outside the State of Delaware are in excess of
$50,000. Westinghouse Electric Corporation is a
Pennsylvania corporation engaged in the manufac-
ture of electrical equipment. Annual sales to custom-
ers directly outside the Commonwealth of Pennsyl-
vania are in excess of $50,000, and total gross
revenues are in excess of $1 million. The parties
stipulated, and we find, that Employer and. Westing-
house are both engaged in commerce, within the
meaning of Section 2(6) and (7) of the Act,, and that
it will effectuate the purpose and policies of the Act
to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that .the
Ope-rating Engineers and Electrical Workers are
labor organizations within the meaning of Section
2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The work in dispute is the operation of an
overhead gantry crane in connection with mainte-
nance work performed by Westinghouse on a turbine
generator at Employer's Edge Moor generating
station . In March 1975, pursuant to its normal
practice , Employer commenced the overhaul of the
turbine generator under a maintenance ' contract with
Westinghouse. The overhead gantry crane is used to
remove and replace heavy parts in disassembling and
reassembling the turbine.
The dispute arose when Employer, in accordance
with the provisions of its contract with
,'
Westing-
house, assigned the crane work to"its own employees
represented by the Electrical Workers. At this time,
the Operating Engineers , under its construction
contract with Westinghouse demanded the crane
work or, in the alternative , that Westinghouse hire a
standby operator . Westinghouse responded that the
work had been reserved by contract to Employer and
that its construction contract with the Operating
Engineers did not include the overhaul of the
turbine. For its maintenance contracts , as distin-
gushed from construction work ,, Westinghouse has
an agreement with the United Brotherhood of
Carpenters covering the operation of cranes, but
under this contract the work may be reserved to the
customer.
Respondent 's witness with respect to industry practice Since our determina-
tion herein is in accord with Employer's contentions , such additional cross-
examination is unnecessary.
870 DECISIONS ` OF NATIONAL LABOR RELATIONS BOARD
B. Contentions of the Parties
Employer contends that it assigned the operation
of the overhead gantry crane in accordance with its
contract with Westinghouse and its contract with the
Electrical Workers, that employees represented by
the Electrical Workers are trained for the crane work,
that the use of such employees is efficient and
economical, and that its consistent practice has been
to assign the work in dispute to its employees
represented by the Electrical Workers.
The Operating Engineers contends that this is not a
jurisdictional dispute, but a dispute involving the
interpretation of its collective-bargaining agreement
with Westinghouse. Thus, it claims' that it did not
demand the Employer's crane operator be replaced
by a member of the Operating Engineers but alleges
that its contract with Westinghouse ' required West-
inghouse to hire a standby operator.
C. Applicability of the Statute
Samuel Mento, business manager for the Electrical
Workers, testified that on March 5, 1975, Louis
Lattanzio, business manager for the Operating
Engineers, called and said he had a contractual
dispute with Westinghouse in regard to the crane
work. On March 6, the Operating Engineers began to
picket the jobsite in an effort to have the crane work
assigned to its members. Its picketing activities were
directed at both Employer and Westinghouse. On
March 7, picketing occurred at Westinghouse pro-
jects in Chester and Eddystone, Pennsylvania, for a
period of 1 day, The picketing at Edge Moor lasted
approximately 2 weeks. Since the Operating Engi-
neers ^ engaged in picketing to force either reassign-
ment of the crane operator work to its members or
payment for the work, we find reasonable cause to
believe that a violation of Section 8(b)(4)(D) has
occurred and that the dispute is properly before the
Board for determination under Section 10(k) of the
Act.
D. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work after taking
into account the evidence supporting the claims of
the parties and balancing all relevant factors.3 We
therefore turn to consideration of such factors as
contractual obligations, Employer's assignment of
the work, past practice, . skill and training, and
efficiency and economy of operation.
The agreement between the Employer and West-
inghouse specifically provides, that Employer shall
supply the gantry crane operator. This conforms with
the consistent; practice of Employer to have its
employees operate the overhead crane during turbine
overhauls at the Edge Moor station. ' Under the
collective-bargaining agreement between Employer
and the Electrical Workers, employees represented
by that Union have operated the overhead gantry
crane. Westinghouse's collective-bargaining agree-
ment with the Operating Engineers applies only to
construction and not to maintenance contracts. As to
maintenance agreements, Westinghouse has a collec-
tive-bargaining agreement with the United Brother-
hood of Carpenters. This agreement provides, how-
ever, that the parties are bound by the customer's
desires to have its own employees perform the work
on its equipment. As we have seen, pursuant to the
contract between Westinghouse and Employer, the
operation of the gantry crane was reservedto the in-
plant Union representing Employer's employees.'
Thus, it appears that assignment of the gantry crane
operation to the Electrical Workers was in accord-
ance with the contractual obligations of all the
parties, the consistent past practices of Employer,
and Employer's wishes.'
With respect to such other factors as the employ-
ees' skills and economy and efficiency of operations,
the Operating Engineers did not contend nor submit
any evidence that its members were more skilled or
more efficient. But it is clear, as Employer contends,
that having its - own employees on the premises
operate the crane when necessary is more efficient
than having an outside employee stand by for the
occasional operation of the crane. It is also more
economical since having an outside employee stand
by to await work would entail the considerable
additional cost of a full-time employee, which
Employer has estimated would total approximately
$9,000 for the overhaul period.
The Operating Engineers presented evidence of a
few instances spread over several years in which
overhead cranes were operated by its members.
Apart from the' question whether these situations
involved maintenance as distinguished from con-
struction work, it is clear that this evidence is
insufficient to establish an industry practice, particu-
larly in the face of the Employer's contrary practice
and Westinghouse's contractual recognition of its
customers' rights to reserve performance of such
work for their own employees.
3 N.L.R.B. v. Radio and Television Broadcast Engineers, Union, Local
1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 U.S. 573 (1961); International Association of
Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company),
135 NLRB 1402,1410-11 (1962).
LOCAL 542, OPERATING ENGINEERS 871
Conclusion
On the basis of the contractual obligations of the
parties, Employer's assignment and consistent past
practice, and economy and efficiency of operations,
we conclude that the employees of Delmarva Power
& Light Company who are represented by the
Electrical Workers are entitled to the work in
question and we shall determine the dispute in their
favor.
Accordingly, we shall award the disputed work to
those employees who are represented by the Electri-
cal Workers, but not to that Union or its members.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the Act, upon the basis
of the foregoing findings and the entire record in this
proceeding, the Board hereby makes the following
Determination of Dispute:.
1. Employees of Delmarva Power & Light Com-
pany,` Wilmington, Delaware, currently represented
by Local Union 1238 of the International Brother-
hood of Electrical Workers, AFL-CIO, are entitled
to perform the work of the operation of the overhead
gantry crane at the Edge Moor Station of Delmarva
Power & Light Company when that crane is used` in
conjunction with maintenance work`being performed
by Westinghouse Electric Corporation.
2. Local 542, International Union of Operating
Engineers, AFL-CIO, is not entitled, by means
proscribed by Section 8(b)(4)(D) of the, Act, to force
or require Delmarva Light & Power Company to
assign the above work to operating engineers
represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local 542, Interna-
tional Union of Operating Engineers, AFL-CIO,
shall notify the Regional Director for Region 4, in
writing, whether or not it will refrain from forcing or
requiring Delmarva Power & Light Company, by
means proscribed by Section 8(b)(4)(D) of the Act, to
assign the work in dispute in a manner inconsistent
with the above determination.