Omaha Carpenters District Council

National Labor Relations Board - Board Decisions

Jan 13, 1965

150 N.L.R.B. 991 (N.L.R.B. 1965)

OMAHA CARPENTERS DISTRICT COUNCIL, ETC. 991
Omaha Carpenters District Council , and its agent Don Bastemyer
and Bel-Toe Foundation Co. Case No. 17-CD-57. January 13,
1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10(k) of the National Labor
Relations Act, as amended, following a charge filed by Bel-Toe Foun-
dation Co., hereinafter called the Employer, alleging that Omaha Car-
penters District Council and its agent, Don Bastemyer, hereinafter
called Carpenters or Respondents, had violated Section 8(b) (4) (i)
and (ii) (D) of the Act. The charge alleges, in substance, that the
Respondents and their agent Don Bastemyer induced and encouraged
employees to engage in a strike or refusal to work, and threatened,
coerced, or restrained the Employer with an object of forcing. or re-
quiring the Employer to assign particular work to employees repre-
sented by Respondents rather than to employees represented by Local
571, International Union of Operating Engineers, AFL-CIO, herein
called Operating Engineers Local 571, and by Local 1140, Interna-
tional Hod Carriers, Building and Common Laborers of America,
AFL-CIO, herein called Laborers Local 1140. Thereafter, a hearing
was held before Hearing Officer Vincent M. Helm, on November 12
and 13, 1964. All parties appeared at the hearing and were afforded
full opportunity to be heard, to examine and cross-examine wit-
nesses,, and to adduce evidence bearing on the issues.' The rulings of
the Hearing Officer made at the hearing are free from prejudicial
error and are hereby affirmed. The briefs filed by Laborers Local
1140, Operating Engineers Local 571, and the Employer, have been
duly considered. The Respondents filed no brief.
Pursuant to Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Mem-
bers Fanning, Brown, and Jenkins].
Upon the entire record in the case, the Board makes the following
findings :
1. The Business of the Employer
Bel-Toe Foundation Co. is a Texas corporation engaged in founda-
tion drilling in the construction industry and annually provides serv-
ices for interstate companies, such as Peter Kiewit & Sons, valued in
excess of $50,000 and annually receives supplies of cement and steel
from points located outside the State of Texas of a value in excess of
1 Representatives of the Respondents left the hearing after participating in certain
preliminary stages of the hearing in which they joined in the Laborers ' motion to quash
the 10 ( k) hearing.
150 NLRB No. 94.
775-692-65-vol. 150-64
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$50,000. We find that the Employer is engaged in commerce within
the meaning of the Act and that it will effectuate the purposes of the
Act to assert jurisdiction herein.
2. The labor organizations involved .
The parties stipulated, and we find, that the Omaha Carpenters
District Council, Operating Engineers Local 571, and Laborers Local
1140, are labor organizations within the meaning of Section 2(5) of
the Act.
3. The dispute
A. The work at issue
This dispute arose while the Employer was installing concrete
foundation pillars for a processing plant for the Kellogg Company
at 96th and F Streets, Omaha, Nebraska.
In their simplest form, such foundation pillars are constructed by
drilling a shaft and filling the shaft with concrete. More sophisti-
cated procedures are called for in instances where reinforcing is
required or where the ground is such that it will collapse into the
shaft before the concrete can be poured. The drill used to prepare
the shaft in which such pillars are formed is mounted on either a
crawler machine, resembling a mobile crane called a dragline, or a
truck. The dragline or truck is equipped with a boom, which in its
outermost area supports a power-driven rotary called a kelly, to
which is connected the drilling tools and accessories as they are
needed. It is also equipped with a power-operated line, called a
service line, which is hooked onto tools, accessories, and casings to
move them to and from the vicinity of the drilling operation. It is
customary that an operator and an oiler be permanently assigned to
operate each machine and that local operators and oilers be hired as
they are needed. The Employer employs a permanent force of
laborers and also hires them locally- as they are needed. The laborers
attach the tools to the rotary, or kelly, in the sequence in which they
are needed, clean up, and otherwise assist in the operation. Such
assistance is more fully described hereinafter.
On the Omaha project the procedure followed by the Employer is
as follows : After the dragline and its attachments are unloaded and
assembled by employees represented by the Operating Engineers, the
operator, under the direction and signaling of the oiler, called flag-
ging, moves the dragline to the spot where the drilling is to be done.
The oiler then spots the kelly directly over this spot, called spotting,
and aligns the dragline relative to the spot, called aligning. The
laborers then attach the service line to the auger, the operator brings
it into position, and the laborers attach it to the kelly. The operator
drills the shaft, periodically removing the auger to be cleaned, either
OMAHA CARPENTERS DISTRICT COUNCIL, ETC. 993
by the `operator shaking the dirt free or, when necessary, by the
laborers shoveling the dirt away from the auger. When the desired
depth is reached, a cylindrical casing, inches smaller in diameter but
a few feet longer than the shaft, must be inserted into the shaft. To
insert the casing, the laborers attach the service line to the casing
with a choker on a sling and the operator moves it into position and
lowers it into the shaft while it is aligned or guided 'by the laborers.
This procedure of the laborers attaching the service line to the drill
accessories and tools and connecting them to the kelly when necessary
is followed throughout the entire operation. Next, another attach-
ment called a. header is in this manner connected to the kelly. The
header locks into the protruding end of the casing and permits the
operator to rotate the casing enabling it to descend to the bottom of
the shaft. After this is accomplished the laborers attach a smaller
diameter auger to the kelly and the operator drills the shaft deeper
into the ground. The laborers then attach an underreaming tool
to the kelly and the operator reams a bell-shaped opening at the
bottom of the extended shaft just below the casing. A laborer is then
lowered to the bottom of the shaft by the service line on the dragline
with a cleanout bucket and the filled bucket is attached to the service
line and removed from the shaft by the operator and dumped by
another laborer. The shaft is then inspected and, if approved, the
shaft is ready for the insertion of concrete. The concrete is brought
to the site by a transit-mix truck, which is backed up to the shaft, and
the concrete is inserted into the shaft through a chute. On some
occasions the concrete does not flow through the chute into the shaft
evenly and the laborers have to shovel it down the chute into the
shaft. After the concrete is poured,the casing is removed. If at any
time during the operation any of the tools or foundation accessories
need repair or maintenance on the site, this work is done by the oiler.
His job also includes oiling and other general maintenance of the
dragline.
Although the Employer has no collective-bargaining agreement
with any union, the laborers performing this work are currently
being represented by Local 1140, Laborers, and the operators and
oilers performing this work are currently being represented by Local
571, Operating Engineers. The present dispute involves the question
of whether the Carpenters are entitled to require the Employer- to
assign to piledrivers represented by the Carpenters (1) the work of
flagging, spotting, and aligning the dragline and maintaining and
repairing the tools and accessories at the site rather than to the oilers,
and (2) the work of attaching the service line to the casings and
aligning the casings as they are inserted into the shaft and similarly
attaching the service line to the casings for their ultimate withdrawal
from the shaft, rather than to the laborers.
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pete Quinton, Employer's construction superintendent, testified
that approximately 3 days before the construction project began in
Omaha he was approached by Art Dessech, a business agent of the
Carpenters District Council, who requested that a couple of pile-
drivers be put on the Employer's rigs , stating that he thought that it
was their work. Quinton refused, stating that the Company had
never used piledrivers on that type of work. The next day, Quinton
was approached by the Carpenters' District Council business agent
Don Bastemyer, who requested that piledrivers be assigned to the
work, and again Quinton refused. A few days later, Bastemyer
handed Quinton a telegram from the International Carpenters Union
addressed to Bastemyer, which stated that the work of the aligning,
spotting, insertion , and removal of the casings, and the welding; cut-
ting, and general maintenance was the work of the Carpenters.
Sometime later, Bastemyer again accosted Quinton with a letter from
the National Joint Board for the Settlement of Jurisdictional Dis-
putes purporting to award the above-mentioned work to piledrivers,
and the removal of dirt and debris from the equipment and pouring
of concrete as well as general assistance in handling of casing and
material to the laborers. Quinton reiterated the Company's refusal
to reassign the work, and Bastemyer then stated that the project
would be picketed the following morning. The next day,.a, picket
was placed at the jobsite by the District Council, and remained there
for a week.
B. Contentions of the parties
Since the Respondents did not file a brief, their present position is
unknown. At the hearing the Respondents appeared to contend that
no jurisdictional dispute existed.
The Employer takes the position that it has always assigned, the
work in dispute to laborers and operating engineers, as it has done in
the present case and that said assignment conforms with industry
practice . The Employer also points out that were it to assign the
work in dispute to the Respondents, it would still have to hire the
same number of oilers and laborers to, perform the remaining por-,
tions of the job not claimed by the Respondents.
The Laborers, prior to the hearing, submitted a motion to quash the
entire 10(k) hearing to the Regional Director for Region 17. The
Laborers based its motion on an agreement between it and the
Respondents which stipulated that the work in dispute at the specific
project was proper work that belonged to the Respondents. The
Laborers therefore argues that no jurisdictional dispute exists and
that the necessity for a 10(k) hearing has been removed. The
Regional Director denied the motion. The Laborers petitioned the
Board for a review of the Regional Director's decision 2 At the hear-'
2 The Board, by Order dated November 10, 1964, denied the request.
OMAHA CARPENTERS DISTRICT COUNCIL, ETC. 995
ing the Laborers again presented its motion and the Hearing Officer
referred the motion to the Board for a decision. In its brief to the
Board, the Laborers contends that the motion should be granted for
the reasons set out above. However, if the motion is not granted, it
argues that the Board should make a determination on the merits of
the case and award it the work laborers have previously done on these
jobs in accordance with the past practice of performing the work .3
The Engineers contends that it is entitled to the work it has pre-
viously done on these jobs in accordance with its past practice of
performing the work.
C. Applicability of the statute
Section 10(k) of the Act empowers the Board to hear and deter-
mine a dispute out of which a Section 8(b) (4) (D) charge has arisen,
unless the parties to such dispute submit to the Board satisfactory
evidence that they have adjusted agreed-upon methods for the volun-
tary adjustment of the dispute. Before the Board proceeds with a
determination of dispute, however, it is required to find that there is
reasonable cause to believe that Section 8(b) (4) (D) has been
violated.
The record shows that the Employer assigned the disputed work
to employees represented by Laborers Local 571 and Operating
Engineers Local 1140, whereupon Respondents claimed that their
members were entitled to the work. The Respondents thereafter
threatened to picket and did picket the Employer's jobsite. It is
clear that the object of these threats and inducements was to force
the Employer to change work assignments , an object prohibited by
Section 8(b) (4) (D). We therefore find reasonable cause to believe
that Section 8(b) (4) (i) and (ii) (D) of the Act has been violated
and accordingly that the dispute is properly before this Board for
determination under Section 10(k) of the Act 4
a The Laborers also contends that the National Joint Board award assigning the work
to the Carpenters settled the jurisdictional dispute and therefore a 10(k) hearing is not
necessary. We find this contention without merit since we have consistently held that
the involved employer must be a party to an agreement that purports to settle an existing
jurisdictional dispute. Local 450, International Union of Operating Engineers (Painting
and Decorating Contractors of America, Houston Chapter, etc ), 119 NLRB 1725.
* The Laborers-Carpenters agreement, which purports to constitute a settlement of the
jurisdictional dispute involved, apparently stipulates that the work in dispute on the
specific Kellogg project belonged to the Carpenters. The Laborers however does not con-
cede that on other projects the work performed would properly be the work of the Car-
penters. Indeed, it contends to the contrary. Moreover, there is no dispute that prior to
the execution of the agreement the Laborers was maintaining its right to perform the
particular work in dispute. Furthermore, apart from stipulating that certain work of
the Laborers belonged to the Carpenters, the agreement also purports to dispose of the
Operating Engineers' claim. Neither the Operating Engineers, nor the Employer for that
matter, was signatory to the agreement purporting to settle the jurisdictional dispute.
Under the circumstances, we cannot agree with the Laborers' contention that a jurisdic-
tional dispute no longer exists and that the question is now moot. Accordingly, we must
deny the Laborers' motion, in which the Respondents joined, to quash the hearing and
dismiss the charge.
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Merits of the dispute
As we stated in J. A. Jones case ,5 we will, pursuant to the Supreme
Court's CBS decision, determine in each case presented for resolu-.
tion under Section 10(k) of the Act, the appropriate assignment of
disputed work only after taking into account and balancing all rele-
vant factors . The following factors are asserted in support of the
claims of the parties herein :
1. Company and industry practice. Mr. Glyen Farmer, the general
manager and secretary-treasurer of the Employer, testified that its
assignment of the disputed work on the Omaha Kellogg project has
always been in conformance with its established practice of assigning
the particular work in dispute to the laborers and the oilers. More-
over, representatives of two other companies engaged in similar con-
struction testified, with minor exceptions, that it was the uniform
practice in the industry not only in the Omaha, Nebraska, area but in
most of the States in the Midwest and Southwest, and in some States
outside of these areas, to assign the particular work in dispute to the
laborers and oilers. Furthermore, no evidence was presented that the
work of operating equipment of the type used on the Omaha Kellogg
project had ever been assigned to piledrivers who are represented by
the Carpenters. We find that the factor of employer and industry
practice definitely favors the employees who are represented by the-
Laborers and the Operating Engineers.
2. The eScient operation of the Employer's business. Glyen
Farmer testified that were piledrivers to be assigned the disputed
work they would nonetheless not replace any of the 'present
employees. The disputed work is only a portion of the work per-
formed by the laborers and oilers during a drilling operation. Thus,
in addition to hiring piledrivers, the Employer would also have to'
hire the same number of laborers and oilers to perform the remainder
of their duties. Furthermore, as the drilling proceeds as a continuous
operation, one hole being drilled after another throughout the day,
the oilers and laborers would have to be retained full time to be avail-
able to perform their duties as they become necessary. Accordingly,
from the viewpoint of economy, compliance with the Respondents'
request would result in the increase of Employer's payroll costs by
the salary of a piledriver for each rig, while not increasing the work
output of the job crew. We find therefore that the factors of effi-
ciency and economy favor the use of employees who are represented
by the Laborers and Operating Engineers.rl^
61nternational Association of Machinists, Lodge No. 1743 (J. A. Jones Construction
Company). 135 NLRB 1402
9 N.L.R.B. v. Radio A Television Broadcast Engineers Union, Local 1212, etc. (Colum-
bia Broadcasting System), 364 U.S. 573.
OMAHA CARPENTERS DISTRICT COUNCIL, ETC. 997
3. Conclusions as to the merits of the dispute. On the basis of the
record as a whole, particularly the evidence as to employer and
industry practice, and the economy and efficiency ' of the operation,
and in the absence of other evidence as to factors that would favor
the Carpenters, we shall determine the jurisdictional dispute herein
by awarding the disputed work of flagging, spotting, and aligning
the dragline and maintaining and repairing the tools and accessories
at the site to employees who are represented by the Operating
Engineers , and the work of hooking on the service line to the'casings
for their insertion and removal from the shaft and aligning the
casings during their insertion into the shaft to employees who are
represented by the Laborers.? Ili making these determinations we are
assigning the disputed work to oilers who are represented by Local
571, Operating Engineers and to laborers who are represented by
Local 1140, Laborers, but not to these Unions or their members.
In view of the above, we find that Respondent Union and its agent
Don Bastemyer were not and are not entitled by means proscribed by
Section 8(b) (4) (i) and (ii) (D) to force or require Bel-Toe Founda-
tion Co. to assign the disputed work to the Carpenters rather than
to the Laborers and Operating Engineers.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing, and the entire -record in the case,
the Board makes the following Determination of Dispute pursuant
to Section 10 (k) of the Act.
1. Employees engaged as laborers , currently represented by Local
1140,, International Hod Carriers', Building and Common Laborers'
Union of America, AFL-CIO, are entitled to perform the work of
hooking on the dragline service line to the casings for their insertion
and removal from the shaft and aligning the casings during their
insertion into the shaft.
2. Employees engaged as oilers or operating engineers, currently
represented by Local 571, International Union of Operating Engi-
neers, AFL-CIO, are entitled to perform the work of flagging, spot-
ting, and aligning the dragline and maintaining and repairing the
tools and accessories at the site.
7 The Employer 's foundation construction work on the Omaha Kellogg project has been
completed We reject the Employer 's contention that the Board ' s determination be em-
ployerwide in scope . Our assignment is to be regarded as limited to the facts and cir-
cumstances of the controversy which gave rise to this proceeding , and shall cover the
assignment by the Bel-Toe Construction Company of (1) the work in dispute between
Omaha Carpenters District Council and Local 571, International Union of Operating
Engineers , AFL-CIO, in any area where their geographical jurisdictions coincide and
(2) the work in dispute between Omaha Carpenters District Council and Local 1140,
International Hod Carriers ', Building and Common Laborers ' Union of America , AFL-CIO,
in any area where their geographical jurisdictions coincide. International Union of Oper-
ating Engineers, Local 66 (Frank P . Badalato & Son), 135 NLRB 1392 at 1401.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Omaha Carpenters District Council and its agent Don Baste-
myer are not entitled, by means proscribed by Section 8(b) (4) (D)
of the Act, to force or require the Employer to assign the above work
to piledrivers represented by the Carpenters.
4. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Omaha Carpenters District Council and its agent
Don Bastemyer, shall notify the Regional Director for Region 17, in
writing, whether or not they will refrain from forcing or requiring
Bel-Toe Foundation Co., by means proscribed by Section 8 (b) (4)
(D), to assign the work in dispute to its members rather than to
laborers and operating engineers employed by the Employer, and
represented by the Laborers Union and Operating Engineers
respectively.
Kern's Bakery, Inc . and Milk, Ice Cream Drivers and Dairy Em-
ployees Local Union #783, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of Amer-
ica. Cases Nos. 9-CA-3015 and 9-CA-3115. January 14, 1965
DECISION AND ORDER
On September 11, 1964, Trial Examiner A. Bruce Hunt issued his
Decision in the above-entitled proceeding, involving two unconsoli-
dated cases with the same parties, finding that the Respondent had
engaged in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with these cases to a
three-member panel [Chairman McCulloch and Members Fanning
and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in these cases , and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner as modified herein.
In Case No. 9-CA-3015 the Trial Examiner found, and we agree,
that General Manager Hart 's interrogation of applicant Bill Sams
as to whether employees at Sams' previous place of employment were
represented by a union constituted interrogation of Sams as to his
own union membership and therefore violated Section 8(a) (1) of the
150 NLRB No. 87.