Operating Engineers Local 17, 17A, 17B

National Labor Relations Board - Board Decisions

Jan 13, 1981

254 N.L.R.B. 71 (N.L.R.B. 1981)

OPERATING ENGINEERS, LOCAL 17, 17A, 17B
International Union of Operating Engineers, Local
17, 17A, 17B and Sullivan and Humes and
Painters District Council No. 4. Case 3-CD-
518
January 13, 1981
DECISION AND ORDER QUASHING
NOTICE OF HEARING
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Sullivan and Humes, herein
called the Employer, alleging that International
Union of Operating Engineers, Local 17, 17A, 17B,
herein called the Respondent or Operating Engi-
neers, had violated Section 8(b)(4)(D) of the Act
by engaging in certain proscribed activity with an
object or forcing or requiring the Employer to
assign certain work to its members rather than to
employees represented by Painters District Council
No. 4, herein called Intervenor or Painters.
Pursuant to notice, a hearing was held before
Hearing Officer Yona Rozen on May 27 and June
4, 1980. All parties appeared and were afforded full
opportunity to be heard, to examine and cross-ex-
amine 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 Na-
tional Labor Relations Board has delegated its au-
thority 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. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer is a New York corporation with its princi-
pal place of business in Buffalo, New York, and
having a worksite at the Waterfront Hotel where it
is the painting subcontractor for the John W.
Cowper Company, Inc. During the past 12 months,
Sullivan and Humes has furnished services within
New York State to Cowper, valued in excess of
$300,000. John W. Cowper Company, Inc., is a
New York State corporation engaged in general
construction contracting and having its principal
place of business in Tonawanda, New York.
During the past 12 months John W. Cowper Com-
pany, Inc., has purchased and received at its Wa-
terfront Hotel site goods and materials valued in
254 NLRB No. 9
excess of $50,000 directly from points outside the
State of New York. The parties also stipulated, and
we find, that the Employer is engaged in com-
merce within the meaning of Sectin 2(6) and (7) of
the Act. Accordingly, we find it will effectuate the
purposes of the Act to assert jurisdiction herein.
11. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the Op-
erating Engineers and Painters are labor organiza-
tions within the meaning of Section 2(5) of the
Act.
111. THE DISPUTE
A. Background and Facts of the Dispute
In 1979 Sullivan and Humes was awarded a sub-
contract to paint the Waterfront Hotel in Buffalo,
New York, by John W. Cowper Company, Inc.,
the general contractor.
The subcontract between Sullivan and Humes
and John W. Cowper required Sullivan and Humes
to furnish all labor, material, and equipment; install
the Aristex ceilings; patch the concrete walls; caulk
the concrete walls; prime and seal any walls
throughout the building; and furnish or install the
vinyl wall covering where shown on the drawings.
To this end, it was necessary for Sullivan and
Humes to use an air compressor to spray the Aris-
tex ceiling. The work involving the compressor
was approximately 12 percent of the total time
spent on performing the required work. The only
work involved in attending to the compressor was
to turn it on and off, approximately once and "pos-
sibly twice" a day and, on a rare occasion, to make
some repairs.
Sullivan and Humes has a collective-bargaining
agreement with the Painters, and it employs mem-
bers of the Painters. It does not have a collective-
bargaining agreement with any other union. Pursu-
ant to its collective-bargaining agreement with the
Painters, Sullivan and Humes assigned the work of
turning the compressor on and off to one of its em-
ployees, a member of the Painters.
Sometime after Sullivan and Humes commenced
its painting subcontract and work on the compres-
sor, Patrick Harrigan, a business agent for the Op-
erating Engineers, approached Frederick McAvinn,
Cowper's superintendent at the Waterfront Hotel.
Harrigan claimed the work of operating the com-
pressor on behalf of the Operating Engineers and
demanded that an operating engineer be assigned to
the compressor.' According to McAvinn, Harrigan
I Cowper is a member of the Construction Industry Employers' Asso-
ciation (CIEA) and, therefore, bound by the Operating Engineers' collec-
Continued
71
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insisted that it was an Operating Engineer's
job and he inferred that if we didn't put an
Operating Engineer on it, there might possibly
be, well, walking the street, as he put it.
Harrigan then spoke with James Maloney, the
labor relations manager and project manager of
Cowper. According to Maloney, Harrigan again
demanded the work and stated that
if we did not have an Operator on the com-
pressor, that they would be out on the street
on Monday.
After these statements were made, Cowper as-
signed an operating engineer to the compressor.
Harrigan testified that he did not threaten to strike
immediately, but that he told McAvinn that if
Cowper did not assign an operating engineer this
would be a strike issue in the next contract negotia-
tions.
B. The Work in Dispute
The work in dispute involves the operation of
the air compressor to spray the Aristex ceiling at
the Waterfront Hotel project.
C. The Contentions of the Parties
The Employer contends that the work in dispute
should be awarded to the employees represented
by the Painters because of the collective-bargaining
agreement between the Employer and the Painters,
employer preference and past practice, relative effi-
ciency, and prior Board decisions.
The Employer also contends that the Operating
Engineers' business agent threatened to call a strike
if an operating engineer was not assigned the work
and that there is no agreed-upon method for the
voluntary adjustment of the dispute. Thus, while it
is undisputed that all parties have agreed in their
respective collective-bargaining agreements and in-
terunion agreements to be bound by an award of
the Impartial Jurisdictional Dispute Board (IJDB),
when the Painters submitted the dispute to the
IJDB, the Operating Engineers refused to partici-
pate. In any event, according to the Employer, the
IJDB is no longer available to resolve the dispute,
since the project has been completed, and the
IJDB does not decide disputes on completed pro-
jects. Finally, because of the asserted frequency of
disputes about operation of the compressor, the
Employer requests a broad order encompassing all
compressor work within the Operating Engineers'
geographical jurisdiction.
tive-bargaining agreement with the CIEA. Sec. 3 of this agreement pro-
vides in relevant part:
The operation of compressors on sandblasting and gunniting on old
or new work is the work of the Operating Engineer.
The Painters, like the Employer, argues that the
jurisdictional factors weigh in favor of an award to
the employees it represents. It reiterates that it sub-
mitted the dispute to the IJDB, but the Operating
Engineers refused to participate.
The Operating Engineers contends that the dis-
pute is not jurisdictional, but rather a contractual
one between Cowper and the Operating Engineers.
It also argues, as the other parties concede, that the
parties have agreed upon a method for the volun-
tary adjustment of the dispute, and that therefore
the Board is without authority to proceed with the
dispute.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of a dispute pursuant to Section 10(k) of the
Act, it must be satisfied both that there is reason-
able cause to believe that Section 8(b)(4)(D) has
been violated and that the parties have not agreed
upon a method for the voluntary adjustment of the
dispute.
The Operating Engineers contends that an
agreed-upon method for the voluntary resolution of
the dispute exists, and that the failure or refusal of
the parties to submit the dispute does not satisfy
the requirements of Section 10(k). We agree.
First, there is no issue here as to whether all of
the parties have agreed to submit jurisdictional dis-
putes to the IJDB, since, at the hearing, the parties
all stated that, under their respective collective-bar-
gaining agreements and contracts, they had agreed
to use the IJDB. Accordingly, we find that an
agreed-upon method exists for the voluntary ad-
justment of the dispute.
Second, this finding is not affected by the failure
and/or refusal of the parties to use the IJDB pro-
cedure. In United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Indus-
try of the United States and Canada, Local Union
No. 447, AFL-CIO (Capitol Air Conditioning, Inc.),
224 NLRB 985 (1976), we held that the Board did
not have authority to resolve the dispute where the
parties had agreed to submit jurisdictional disputes
to the IJDB, but had not done so. Here, the record
shows that, although the Painters made a prelimi-
nary submission to the IJDB, the parties have made
no effort to obtain a final resolution before the
IDJB of the dispute on its merits. Thus, the parties
still have available to them a voluntary method for
resolution of the dispute. Accordingly, we refuse to
decide the dispute.
The Employer also contends that the require-
ments of Section 10(k) are met since the project in-
volving the disputed work has been completed, and
under IJDB rules, the IJDB will not resolve dis-
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OPERATING ENGINEERS, LOCAL 17, 17A, 17B
putes on completed projects. Without passing on
this contention, we note that there has been no
IJDB ruling to this effect. Under Capitol Air Condi-
tioning, 224 NLRB at 988, the Employer is there-
fore without standing to raise this claim. Accord-
ingly, since all parties are bound to submit this dis-
pute to the IJDB, we shall quash the notice of
hearing issued herein.
ORDER
It is hereby ordered that the notice of hearing
issued in this proceeding be, and it hereby is,
quashed.
MEMBER JENKINS, dissenting:
For the reasons fully set forth in my dissent in
Capitol Air Conditioning, Inc., supra, the decision
relied on by my colleagues in the majority, I would
proceed to determine the dispute. Here, as in Cap-
itol Air Conditioning, the quashing of the notice of
hearing leaves the Employer trapped without re-
course between the disputing unions. In my view,
this result is contrary to the purpose of Sections
10(k) and 8(b)(4)(D) of the Act. I, therefore, re-
spectfully dissent.
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