Operating Engineers Local 3 (Oskins Electric)

National Labor Relations Board - Board Decisions

Aug 10, 1992

308 N.L.R.B. 154 (N.L.R.B. 1992)

154
308 NLRB No. 30
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 ‘‘Outside work’’ is the work involved in bringing electricity to
within 5 feet of a building. ‘‘Inside work’’ encompasses all electrial
work inside and within 5 feet of a building.
2 There is an agreement between Local 1186 and Local 3 under
which Local 1186 agreed to refer Local 3 operators to operate heavy
excavation equipment if Local 1186 operators were unavailable.
There is no evidence that the Employer was a party to this agree-
ment; but, on occasion, the Employer has employed Local 3 opera-
tors referred by Local 1186.
3 The disclaimer states:
Operating Engineers Local Union No. 3 hereby disclaims the
work of the operation of equipment which performs the excavat-
ing function for underground electrical installation for Oskins
Electric at the Goodfellows’ jobsite on the island [sic] of Ha-
waii.
4 On March 5, 1992, Operating Engineers Local 3 filed a brief in
support of motion to quash and against broad order. On March 18,
the Employer’s reply brief in opposition to Operating Engineers
Local 3, AFL–CIO brief in support of motion to quash and against
broad order was rejected by the Executive Secretary. The Employ-
er’s brief later was received after reconsideration by the Executive
Secretary. On March 30, Operating Engineers Local 3 filed an oppo-
Operating Engineers Local 3, AFL–CIO and Oskins
Electric Co., Inc. Case 37–CD–53
August 10, 1992
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed by International Brotherhood of Electrical Work-
ers Local 1186, AFL–CIO, alleging that the Respond-
ent, Operating Engineers Local 3, AFL–CIO, violated
Section 8(b)(4)(D) of the National Labor Relations Act
by engaging in proscribed activity with an object of
forcing the Employer to assign certain work to em-
ployees the Respondent represents rather than to em-
ployees represented by IBEW Local 1186. The hearing
was held February 20, 1992, before Hearing Officer
Thomas W. Cestare.
The National Relations Board has delegated its au-
thority 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 Hawaii corporation, is an electrical
contractor at construction sites throughout the State of
Hawaii, where it annually purchases and receives
goods and materials in excess of $50,000 from whole-
sale suppliers who directly received these items from
points outside the State of Hawaii. The parties stipu-
late, and we find, that the Employer is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act and that Operating Engineers Local 3 and
IBEW Local 1186 are labor organizations within the
meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Since 1989 the Employer has been engaged in ongo-
ing work under a contract to install electric and com-
munication lines at a construction site known as the
South Kohala Resorts project. As part of this work,
known as ‘‘outside’’ work,1 employees must operate
backhoes and other excavation equipment to dig the
trenches for the underground lines. The Employer has
used IBEW Local 1186-represented employees or em-
ployees referred through Local 1186’s hiring hall,2 to
operate the excavation equipment.
On July 16, 1991, Maitland Akau, business agent for
Operating Engineers Local 3, contacted the Employer
and Goodfellow Brothers, the general contractor, and
claimed the work of operating the excavation equip-
ment for employees represented by Local 3. On that
day, and nearly every day until early August, Akau
told the Employer or Goodfellow’s project manager
that he would put up a picket line and ‘‘shut down the
job’’ by pulling members of Local 3 off the South
Kohala Resorts project unless employees represented
by Operating Engineers Local 3 were assigned the dis-
puted work.
On August 2, Akau reiterated his threat to ‘‘shut
down the job.’’ In order to avert the threatened strike,
the Employer’s president, Jack Oskins, agreed to hire
two employees represented by Local 3 through the
Local 3 hiring hall to perform the excavation work. At
the time of the hearing, the Employer’s subcontract
was approximately 90 percent complete, with full com-
pletion scheduled for April 1992. Employees rep-
resented by Operating Engineers Local 3 have per-
formed the disputed work since August.
B. Work in Dispute
This disputed work involves the operation of equip-
ment which is used to perform the excavating function
for underground electrical installation at the Good-
fellow worksite at South Kohala Resorts on the Island
of Hawaii, State of Hawaii.
C. Contentions of the Parties
Operating Engineers Local 3 did not participate in
the 10(k) hearing. Rather, minutes before the start of
the hearing, Local 3 filed by facsimile transmission, a
document entitled ‘‘Disclaimer’’3 and moved to quash
the hearing. The hearing officer accepted the docu-
ments but denied the motion to quash, reserving the
issue for the Board.4
155OPERATING ENGINEERS LOCAL 3 (OSKINS ELECTRIC)
sition to the employer’s motion for reconsideration and on March 31
it filed a motion to strike the reply.
The Board’s Rules and Regulations Sec. 102.90 provide that no
reply brief shall be filed except on special leave of the Board. We
regard the Employer’s motion for reconsideration as an adequate re-
quest for leave to file and we accept the Employer’s brief as a brief
in opposition to the Operating Engineers’ motion to quash. It is ap-
propriate for the Employer to address factual arguments made by
Local 3 for the first time in its posthearing brief, which was submit-
ted pursuant to a simultaneous-filing schedule for all parties. Accord-
ingly, we deny Operating Engineers Local 3’s motion to strike it as
a reply brief.
Member Raudabaugh would grant Local 3’s motion to strike the
employer’s reply brief. He notes that receipt of the brief is contrary
to the provisions of Rule 102.90. Under that rule, a reply brief may
be accepted only if special leave to file same is requested and grant-
ed. In the instant case, there was no such request, and thus the brief
was properly rejected. Similarly, the motion for reconsideration of
that rejection should be denied. Instead, the majority, somewhat mi-
raculously, converts the motion for reconsideration into an original
request for leave to file the brief, and the majority then granted the
request. In Member Raudabaugh’s view, the majority has effectively
nullified the rule. In addition, he notes that all issues raised in the
reply were ripe for discussion at, and immediately after, the hearing.
In fact, the employer’s posthearing brief raises these issues. In these
circumstances, Member Raudabaugh would not ignore the rule and
thus would not accept the reply brief.
5 In making our determination, we do not rely on testimony relat-
ing to the substance of settlement negotiations.
6 General Building Laborers (Georgia-Pacific), 209 NLRB 611,
612 (1974); Sheet Metal Workers Local 55 (Gilbert L. Phillips), 213
NLRB 479, 480–481 (1974).
7 See Mine Workers (Con-Serv), 299 NLRB 865, 868 (1990); Plas-
terers Local 502 (Advance Terrazzo), 272 NLRB 810, 811 (1984);
Laborers Local 910 (Brockway Glass), 226 NLRB 142, 143 (1976).
The Employer and Local 1186 argue that Local 3’s
purported disclaimer is untimely and a sham designed
to avoid an authoritative ruling on the merits of the
dispute. The Employer asserts that more than 90 per-
cent of the Employer’s work has been completed and
that, since early August, the Employer has allowed
Local 3-represented employees referred by Local 3 to
perform the work, in order to avoid a threatened work
stoppage. The Employer also argues that the purported
disclaimer is not co-extensive with the work in dispute
because it disclaims only the work at the South Kohala
Resorts project. The Employer argues that Local 3
claims the disputed work not only at the South Kohala
Resorts project but at all the Employer’s present and
future projects.
As to the merits of the dispute, the Employer and
IBEW Local 1186 contend that employees represented
by Local 1186, or referred from its hiring hall, are en-
titled to perform the disputed work by virtue of the
collective-bargaining agreement between them. The
Employer and Local 1186 also contend that the Em-
ployer’s practice has been to use IBEW Local 1186-
represented employees to perform the disputed work
and that it clearly prefers them for reasons of econ-
omy, efficiency, and safety. The Employer also argues
that the Board’s award of the disputed work should
cover all the Employer’s jobsites and not be confined
to the South Kohala Resorts project because Akau’s
statement that ‘‘We can’t allow you to continue grow-
ing’’ without Local 3 operators and statements made
during settlement negotiations5 imply that his threats
extend beyond the South Kohala Resorts site. Local 3
contends that, if its motion to quash the hearing is de-
nied, the Board should confine its award of the dis-
puted work to the South Kohala Resorts project.
D. Applicability of the Statute
Although it is well settled that an effective renunci-
ation of work in dispute dissolves a jurisdictional dis-
pute,6 the Board will refuse to give effect to ‘‘hollow
disclaimers’’ interposed for the purpose of avoiding an
authoritative decision on the merits.7 We find that
Local 3’s 11th-hour disclaimer is a hollow disclaimer
in view of the fact that, at the time of the hearing, the
disputed work was 90 percent complete and, since Au-
gust 1991, it had been performed by employees rep-
resented by Local 3. In short, there was nothing left
for Local 3 to disclaim. See Carpenters Local 56
(Jeremiah Sullivan Sons), 269 NLRB 98, 99 (1984);
Plumbers Local 703 (Airco Carbon), 261 NLRB 1122,
1124 (1982). Accordingly, we find that Local 3’s pur-
ported disclaimer is ineffective, and we deny its mo-
tion to quash the 10(k) hearing.
As to whether a dispute exists, the record contains
uncontradicted testimony that Local 3’s business agent
Akau threatened that if the Employer did not replace
Local 1186-represented employees with Local 3-rep-
resented employees to perform the disputed work, he
would ‘‘pull [all Local 3 members] off the job,’’ vir-
tually shutting down the project, and that, as a result
of these threats, made daily over the course of a 2- to
3-week period from July 16 through early August, the
Employer hired employees represented by Local 3 to
perform the disputed work.
We find reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred and that there exists
no agreed-upon method for voluntary adjustment of the
dispute within the meaning of Section 10(k) of the
Act. Accordingly, we find that the 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
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 in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The Employer is signatory to the Inside Agreement, which re-
quires it to abide by the terms of the Outside Agreement in the in-
stallation of underground duct work.
9 Accordingly, we deny the Employer’s and Local 1186’s request
that this award apply to the operation of heavy equipment used in
the installation of electrical material by Oskins Electric in perpetuity
or, in the alternative, during the term of the existing collective-bar-
gaining agreement, as there is not enough probative evidence on the
record before us to justify a broad order at this time.
The following factors are relevant in making the de-
termination of the dispute.
1. Collective-bargaining agreements
The Employer has had successive collective-bargain-
ing agreements with Local 1186 since 1976.8 The cur-
rent collective-bargaining agreement, extended by mu-
tual agreement until 1995, provides that the ‘‘Employ-
ees covered by this agreement shall do all electrical
construction, erection, installation, handling, and mov-
ing work on the job site’’ and requires that the Em-
ployer obtain all its employees, including ‘‘heavy
equipment operators’’ who perform the disputed work,
through the Local 1186 hiring hall. The Employer is
not a party to a collective-bargaining agreement with
Operating Engineers Local 3. We therefore find that
the factor of collective-bargaining agreements favors
an award of the work in dispute to employees rep-
resented by IBEW Local 1186.
2. Employer preference and past practice
The Employer’s president, Jack Oskins, testified that
it has been the Employer’s preference to assign the
disputed work to IBEW Local 1186 members or em-
ployees referred through Local 1186’s hiring hall and
that it is the Employer’s preference to continue to do
so. Accordingly, we find that the Employer’s pref-
erence and past practice favor awarding the disputed
work to employees represented by IBEW Local 1186.
3. Area practice
The record discloses that, in 1972, Local 3 and
Local 1186 entered into an agreement that Local 1186
would refer employees represented by Local 3 to jobs
requiring operation of excavation equipment. As part
of that agreement, heavy equipment operators who
were members of Local 1186 were ‘‘grandfathered’’
and were thus exempt from the agreement. The record
does not disclose evidence from which we can deter-
mine the number of ‘‘grandfathered’’ Local 1186
members, and there is some evidence that this agree-
ment was in the process of being renegotiated between
the two unions. Accordingly, we find that this factor
does not favor an award to employees represented by
either union.
4. Relative skills
It is undisputed that Local 1186-represented employ-
ees are cross-trained not only to operate the excavation
equipment but also to perform other functions incident
to the electrical installation. There also is no dispute
that employees represented by Local 3 are not trained
in electrical installation. On the other hand, it is undis-
puted that employees represented by Local 3 have the
skills necessary to operate the excavation equipment,
the specific work at issue. It is therefore immaterial
that the Local 3-represented employees are not trained
in other facets of electrical installation. Indeed, Oskins
testified that he has used Local 3-represented employ-
ees, referred by Local 1186, to perform the disputed
work and employees represented by Local 3 have per-
formed the work since August. Accordingly, we find
that this factor does not favor an award to employees
represented by either union.
5. Economy and efficiency of operations
Notwithstanding our above finding that the relative
skills of employees represented by Local 3 and Local
1186 do not favor an award to employees represented
by either union, Oskins testified without contradiction
that IBEW Local 1186-represented employees are more
versatile than Local 3-represented employees because
they are trained not only to operate the excavation
equipment, but to perform some of the electrical instal-
lation work as well. Accordingly, this factor favors an
award of the disputed work to employees represented
by IBEW Local 1186.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by IBEW Local 1186
are entitled to perform the work in the dispute. We
reach this conclusion relying on collective-bargaining
agreements, employer preference and past practice, and
economy and efficiency of operations. In making this
determination, we are awarding the work to employees
represented by International Brotherhood of Electrical
Workers, Local 1186, AFL–CIO, not to that Union or
its members. The determination is limited to the con-
troversy that gave rise to this proceeding at the South
Kohala Resorts project.9
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of Oskins Electric Co., Inc. rep-
resented by International Brotherhood of Electrical
Workers, Local 1186, AFL–CIO are entitled to operate
the equipment which performs the excavating function
for underground electrical installation at the Good-
fellow worksite at South Kohala Resorts on the Island
of Hawaii, State of Hawaii.
157OPERATING ENGINEERS LOCAL 3 (OSKINS ELECTRIC)
2. Operating Engineers Local 3, AFL–CIO is not en-
titled by means proscribed by Section 8(b)(4)(D) of the
Act to force Oskins Electric Co., Inc. to assign the dis-
puted work to employees represented by it.
3. Within 10 days from this date, Operating Engi-
neers Local 3, AFL–CIO shall notify the Officer-in-
Charge for Subregion 37 in writing whether it will re-
frain from forcing the Employer, by means proscribed
by Section 8(b)(4)(D), to assign the disputed work in
a manner inconsistent with the determination.