Operating Engineers, Local 18

National Labor Relations Board - Board DecisionsJun 25, 1969

176 N.L.R.B. 1070 (N.L.R.B. 1969)

1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Local No. 18, AFL- CIO (Bertke Electric Company, Inc.) and John L . Bertke and Local Union No. 317, International Brotherhood of Electrical Workers, AFL-CIO, Party to the Dispute . Case 9-CD-140 June 25, 1969 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, BROWN, AND ZAGORIA This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge by John L. Bertke, an individual, alleging that International Union of Operating Engineers , Local No. 18, AFL-CIO, hereinafter called the Respondent Union or the Engineers, violated Section 8(b)(4)(D ) of the Act. A duly scheduled hearing was held before John R. McGill, Hearing Officer, on December 10, 1968, and January 29 and 30, 1969 . All parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses , and to adduce evidence bearing upon the issues . The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed . Briefs were filed by all parties and have been duly considered. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. Upon the entire record in this case , the Board makes the following findings: 1. THE BUSINESS OF THE COMPANY The parties stipulated that the Employer, Bertke Electric Company, Inc., an Ohio corporation with its principal offices in Cincinnati, Ohio, is engaged in the electrical contracting business; that during the past 12 months, a representative period, it purchased goods valued in excess of $50,000 which were shipped from points outside the State of Ohio directly to its locations within that state. The parties further stipulated, and we find, that Bertke Electric Company, Inc., is 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 the Respondent Union and Local Union No. 317, International Brotherhood of Electrical Workers, AFL-CIO, hereinafter called Local 317 or 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 Prior to the events giving rise to the dispute herein, Bertke Electric entered into several contracts with the Dayton Power & Light Company, the Columbus & Southern Ohio Power Company, and the Cincinnati Gas & Electric Company, joint owners of the J.M. Stuart Generating Station, pursuant to which Bertke undertook certain electrical contracting work involved in the construction of the aforementioned station. The only contract with which we are here concerned covers the construction of certain 138-KV and 345-KV switchyards. In the performance of this work, which involves the construction of transmission towers, Bertke Electric uses a pole-line truck (A-frame) and a hi-reach truck (hydraulic crane). Both pieces of equipment, which are owned by Bertke Electric, are used to pick up and sort pieces of steel prior to their assembly into the towers. In addition, the line truck is used to set the poles upon which temporary lines are installed, and the high-reach truck is used to hoist steel sub-assemblies in place. The latter piece of equipment is also used to hoist workmen who join these subassemblies and install disconnects or transformers on the poles comprising part of the temporary electrical systems. The operation of this equipment is assigned to Bertke's employees who are represented by Local 317, pursuant to an agreement between the Local and the American Line Builders Chapter, National Electrical Contractors Association, covering "outside work." On September 20, 1968, Bertke began using the above-described equipment at the project site. Shortly thereafter, a large group of workers assembled and protested that the operation of this equipment belonged to the Engineers. Simultaneously, the equipment was shut down. John Bertke, a company vice president and the project manager at the Stuart Station, inquired as to whether the Respondent Union had a steward at the jobsite with whom he could discuss the matter. He was informed that there was no steward but that the Engineers did have a master mechanic on the job. Shortly thereafter, the two men were introduced. Following some discussion, Bertke told the master mechanic, one Herbert Otworth, who was then employed by another jobsite contractor, that he would not operate the equipment the rest of the day if there could be obtained from the Engineers a formal claim to the disputed work. He also urged Otworth to get the men standing in the yard to return to work. Otworth agreed. He advised the men that the equipment would not be used, and persuaded them to return to work. On the following day, the Company received a formal demand for disputed work from the business manager of the Respondent Union. Thereafter, on 176 NLRB No. 148 OPERATING ENGINEERS , LOCAL 18 September 23, 1968, Bertke filed the charges giving rise to this proceeding. Bertke did not attempt to use the equipment again until November 25, 1968 . On that date, Clifford Farwell , assistant district representative for the Respondent Union , was present at the construction site. Observing the situation, he inquired of Otworth who was operating the equipment in issue . When Otworth advised him of the facts, and that the Engineers were ready to leave , Farwell , according to his own testimony, stated that he would "give them the pleasure of leaving ." Thereafter , Otworth was obser ved waving the men off the job. B. The Work in Dispute The work here in dispute involves the operation of any pole-line truck (A-frame) and any hi-reach truck (hydraulic crane ) used by Bertke Electric Company , Inc., at the J.M. Stuart Generating Station jobsite in Adams County , Ohio, except when the aforesaid equipment is used to pull electrical equipment and handle reels. C. The Contentions of the Parties Bertke Electric contends that its assignment of disputed work is required by the terms of the Commercial Line Agreement between Local 317, International Brotherhood of Electrical Workers, and the American Line Builders Chapter , NECA, to which Bertke is bound . The Company also contends, among other things, that its work assignment is consistent with industry and area practices and is further supported by considerations of efficiency and economy. The position of the Electrical Workers accords with that of the Company . Further , it asserts that it is not bound by determinations of the National Joint Board for Settlement of Jurisdictional Disputes , which had previously rendered a decision favorable to the Engineers in the dispute here involved. The Respondent Union asserts that there is insufficient evidence to show that it or any of its agents engaged in unlawful threats or coercion in violation of Section 8(b)(4)(D ) of the Act in support of its demands for the disputed work, and accordingly , that the notice of hearing issued in this case should be quashed . Alternatively, the Respondent Union contends that the decision of the Joint Board is binding upon all parties to this proceeding , and, in any event , that it results in an award which is consistent with our determinations in these matters. D. Applicability of the Statute 1071 Before the Board may proceed 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 . In this case , as detailed above, the Engineers formally claimed the disputed work contemporaneously with the September 20 incident at the project. More particularly , however , when Bertke attempted to use its own employees to perform the disputed work on November 25, Union Representative Farwell , who was present at the construction site , announced that he would give the Engineers the "pleasure of leaving" immediately before they were waved off the project by Otworth in the presence of Farwell. The Respondent Union urges that the Board, in determining the sufficiency of evidence tending to show unlawful conduct , must overlook this incident which occurred on November 25, because the charge giving rise to this proceeding antedated such conduct . We find that the charge , itself alleging unlawful conduct on September 20, and "thereafter," is sufficiently broad to encompass the incident described above. Further, we find that the incident on November 25 was fully explored at the hearing, on which occasion all parties had full opportunity to ascertain the facts . We find good reason to believe that a violation of Section 8(b)(4)(D ) has occurred. It would serve no useful purpose to ignore the conduct which occurred on November 25 and , by doing so , avoid our responsibility to determine the underlying dispute. Only by making an affirmative award of the work here in issue can we reduce the likelihood of continued unlawful conduct and thereby promote stability in labor relations . We believe this to be in keeping with the mandate entrusted to us by Section 10(k) of the Act. We find no merit in the contention of the Respondent Union that the Joint Board decision, awarding the work in dispute to the Engineers, is binding on all parties . An agreement upon methods for the adjustment of disputed work bars a Board determination of Section 10(k) cases, only if all parties to the dispute are parties to the agreement. The Electrical Workers is not a party to the contractual agreement between the project owners and Bertke Electric regarding the disposition of such disputes, nor did it join in the submission to the Joint Board or participate in that proceeding. We therefore conclude that there was no agreement for voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. On the basis of the entire record , we find there is 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. 1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. The Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to various relevant factors. As the Board has stated, its determination in a jurisdictional dispute case is an act of judgment based upon common sense and experience in the weighing of these factors.' The following factors are relevant in making a determination of the dispute before us.' 1. Collective-bargaining agreements The Company does not employ individuals who are represented by the Engineers . The Company does employ individuals represented by the Electrical Workers, pursuant to a Commercial Line Agreement negotiated between the American Line Builders Chapter , NECA, and Local 317, IBEW, to which the Company is bound . This agreement, particularly Safety Rules No. 17 and 20, which pertain to the operation of certain vehicles, is broad enough to cover the work here in question . In these circumstances , the aforementioned agreement is one factor favoring an award to employees represented by Local 317. 2. Company practice The record shows that on two previous occasions, namely, at the Green River and Beckjord powerplant projects, the Company's pole-line and hi-reach trucks were operated by company linemen who are represented by the Electrical Workers. 3. Area and industry practice Evidence pertaining tc these factors favors the Electrical Workers. In those cases where contractors used their own equipment , such as here in issue, that equipment was operated by individuals represented by the Electrical Workers. Only on those occasions where a contractor obtained the use of rented equipment was such equipment operated by individuals represented by the Respondent Union, and on those occasions the individuals involved were employed by the lessors of the equipment, rather than by the electrical contracting companies engaged in the construction work. 'International Association of Machinists, Lodge No 1743, AFL-CIO (J A. Jones Construction Company), 135 NLRB 1402. 'Other factors normally considered as relevant , such as skills involved and certifications , are of no aid in the resolution of the instant dispute. Neither union supports its claim in whole or in part on the basis of a Board certification and insofar as it appears , the employees represented by the Engineers and the Electrical Workers are equally skilled in the performance of the disputed work. 4. Efficiency and economy The record shows that the equipment here involved is not in continuous operation when used to unload and assemble steel or in the erection or the transmission towers. If individuals represented by the Respondent Union operated this equipment they would be unable to perform other work when the equipment is idle. The linemen, employed by the Company and represented by the Electrical Workers, can be and are used to perform line work during such periods of idleness. It is clear from the foregoing that assignment of the work in question to individuals represented by the Engineers would increase costs without increasing efficiency. Thus, the factors of economy and efficiency favor assignment of the disputed work to the Electrical Workers. Conclusions Based upon the entire record, and after full consideration of all relevant factors, we conclude that employees represented by the Electrical Workers are entitled to the work here in dispute. Our present determination is limited to the particular jobsite where this dispute arose. In making this determination, we are assigning the disputed work to employees who are represented by the Electrical Workers, but not to the Electrical Workers 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 case, the National Labor Relations Board makes the following Determination of Dispute: A. Employees employed by Bertke Electric Company, Inc., as linemen and currently represented by Local Union No. 317, International Brotherhood of Electrical Workers, AFL-CIO, are entitled to operate any pole-line truck (A-frame) and hi-reach truck (hydraulic crane) used by Bertke at the J.M. Stuart Generating Station jobsite in Adams County, Ohio. B. International Union of Operating Engineers, Local No. 18, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Bertke Electric Company, Inc., to assign the above-described work to individuals who are currently represented by International Union of Operating Engineers, Local No. 18, AFL-CIO. C. Within 10 days from the date of this Decision and Determination of Dispute, International Union of Operating Engineers, Local No. 18, AFL-CIO, shall notify the Regional Director for Region 9, in writing, whether or not it will refrain from forcing or requiring Bertke Electric Company, Inc., to assign the work in dispute to individuals whom it OPERATING ENGINEERS , LOCAL 18 1073 represents , rather than to employees of Bertke 317, International Brotherhood of Electrical Electric Company , Inc., represented by Local No . Workers, AFL-CIO.