Operating Engineers, Local No. 369

National Labor Relations Board - Board Decisions

Aug 28, 1974

213 N.L.R.B. 99 (N.L.R.B. 1974)

OPERATING ENGINEERS , LOCAL NO. 369 99
International Union of Operating Engineers, Local
No. 369 and Campbell-South Painting Corporation
and International Brotherhood of Painters and Al-
lied Trades, Local Union No. 49. Case 26-CD-102
Employer is engaged in interstate commerce within
the meaning of the Act. Accordingly, we find that it
will effectuate the purposes of the Act to assert juris-
diction herein.
August 28, 1974
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
charges filed by Campbell-South Painting Corpora-
tion of Memphis, Tennessee, herein called the Em-
ployer, alleging that International Union of Operating
Engineers, Local No. 369, herein called Local 369 or
Respondent, has violated Section 8(b)(4)(D) of the
Act. The charge alleges in substance that the Respon-
dent engaged in certain proscribed activity with an
object of forcing the Employer to assign certain work
to employees represented by Respondent rather than
to employees of the Employer who are represented by
International Brotherhood of Painters and Allied
Trades, Local Union No. 49, herein called the Paint-
ers or Local 49.
Pursuant to notice, a hearing was held before Hear-
ing Officer Armin J. Moeller, Jr., on April 22, 1974.
The employer and Respondent appeared at the hear-
ing and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce
evidence bearing on the issues.' Thereafter, the Em-
ployer filed a brief in support of its position.
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 rulings made by the
Hearing Officer at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
Campbell-South Painting Corporation is a Tennes-
see corporation engaged in the industrial painting
business. The parties stipulated, and we find, that the
'Although Local 49 was served with a copy of the charge and notice of
hearing, it made no appearance at the hearing . However , James Witham, an
employee of the Employer and a member of Local 49 , appeared at the
hearing and claimed the work for himself and the other members of Local
49 presently working at the Employer's jobsite.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Interna-
tional Brotherhood of Painters and Allied Trades, Lo-
cal Union No. 49, and International Union of
Operating Engineers , Local No. 369, are labor organi-
zations within the meaning of the Act.
III. THE DISPUTE
A. The Work in Dispute
The disputed work involves the operation of air
compressors which develop volume and/or velocity in
excess of 125 cubic feet per minute (cfm) for sand-
blasting at the Thomas E. Maxson Waste Water
Treatment Plant , South Plant, 2685 Steam Plant
Road , in Memphis, Tennessee.
B. The Background Facts
The Employer has a collective-bargaining agree-
ment with Local 49, and since it came into existence
6 years ago, the Employer has employed members of
Local 49 exclusively to operate air compressors used
in its industrial painting and sandblasting operations.
Sandblasting is done on concrete or on steel in order
to prepare the surface for a new coat of paint. The
immediate dispute arose out of the Employer's 2 sand-
blasting of steel clarifiers at the Thomas E. Maxson
Waste Water Treatment Plant.
Around March 1, 1974,' the Employer brought
model 315, 365, and 600 air compressors ° to the job-
site. On March 5, one picket appeared at the entrance
to the Manhattan Construction Company S site at the
Thomas E. Maxson Waste Water Treatment Plant,
carrying a sign with the following legend:
Does not employ members of the Operating En-
gineers-And is not doing engineers' work under
union working conditions on this job- Please
help us maintain our union wages and working
conditions I.U.O.E., Local 369.
2 The actual subcontractor is Marmac , Inc. However , Campbell-South and
Marmac are conceded to be, in effect , the same company for purposes of this
proceeding.
7 All dates are 1974 unless stated differently.
The model numbers refer to the capacities of each machine in terms of
its volume and/or velocity . Sandblasting operations require a volume or
velocity of over 125 cfm.
3 Manhattan Construction was the general contractor at the Thomas E.
Maxson Waste Water Treatment Plant.
213 NLRB No. 21
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 8, Campbell-South's president, George
C. Morvan, Jr., visited Larkin Brown, business agent
of Local 369, and asked him and his assistant what it
would take to have the picket removed, to which Lar-
kin replied that Campbell would have to hire an oper-
ating engineer. However, during the period of the
picketing and at all times thereafter, members of Lo-
cal 49 continued to perform the disputed work. In
mid-March, the picketing was terminated.
C. Contentions of the Parties
Campbell-South Painting Corporation, the Em-
ployer and Charging Party, contends that Respondent
has violated Section 8(b)(4)(D) of the Act by exerting
coercive pressure on the Employer to compel it to
assign the disputed work to members of Local 369.
The Employer further contends that the work is prop-
erly assigned to its own employees who are repre-
sented by Local 49 in view of (a) area and industry
practice; (b) economy and efficiency; and (c) its con-
tract with Local 49.
The Respondent contends that no jurisdictional
dispute exists within the meaning of Section 10(k) of
the Act, since, by virtue of its international constitu-
tion and by actual adjustment of the work dispute
through intraunion agreement, it has been granted
jurisdiction. In support of this contention, Respon-
dent introduced an unsigned memorandum of under-
standing which was purportedly reached by the
international unions of Local 49 and Local 369 and
dated April 22, 1973, in which Painters disclaimed the
disputed work, and a document signed by Local 369
business manager, Brown, and Local 49 former busi-
ness representative, H. S. "Red" West, together with
a telegram dated April 4 from the general president of
the Painters, S. Frank Raftery, which affirmed the
memorandum of understanding. Respondent further
argues that the disputed work is normally and regu-
larly performed by its members in the area, and that
it has collective-bargaining agreements with compa-
nies employing its members to perform this work. The
Employer maintains, however, that, since it was not a
party to these agreements , it is not bound by them.
D. Applicability of the Statute
Before the Board may proceed with the determina-
tion of a 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.
The record clearly shows that on March 5, 1974, the
Respondent posted a picket at the Thomas E. Maxson
Waste Water Treatment Plant, South Plant, with a
sign protesting the fact that the Employer did not
employ members of Local 369 under "union condi-
tions." Respondent's purpose to have the disputed
work assigned to employees represented by it rather
than to Campbell-South's employees represented by
Local 49 is clear from Brown's response that to have
the picket removed the Employer would have to hire
an operating engineer. In this connection,
Respondent's business agent, Brown, confirmed this
objective by testifying, "we was trying to get an oper-
ating engineer to work at our conditions." According-
ly, we find reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred.
We find no merit in Respondent's contention that
all parties have agreed to an actual settlement of the
dispute, either through the memorandum of under-
standing, the agreement between Brown and West, or
the telegram from the general president of the Paint-
ers. Whatever obligations the internationals imposed
upon themselves and whatever disposition the repre-
sentatives of Local 49 and Local 369 reached, there is
no evidence that the Employer agreed to be bound by
any of these agreements. The Employer specifically
denies any such obligation. In the circumstances, we
find that the Employer is not a party to any agreement
providing for the adjustment of this dispute and that
no agreed-upon method exists.'
Additionally, we find that Respondent's reliance on
the memorandum of understanding as proof that Lo-
cal 49 disclaimed the disputed work is misplaced. In
this regard the Board has held that such disclaimers
are ineffective where, as here, the employees repre-
sented by the disclaiming organization continued to
perform the disputed work? Accordingly, we reject
Respondent's contention that there was a disclaimer.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after giving
due consideration to all relevant factors.
1. Certification and bargaining agreements
The evidence does not indicate a Board certifica-
tion relative to the disputed work.
The record shows that the Employer has a collec-
tive-bargaining agreement with Local 49, and that the
' N. L. R. B. v. Plasterers Local Union No. 79, Operative Plasterers' and Ce-
ment Masons' International Association , AFL-CIO, 404 U.S. 116 (1971).
' See, e.g., Laborers' International Union of North America Local 935, AFL-
CIO (Interstate Drywall, Inc.), 191 NLRB 467 (1971); Local 926, International
Union of Operating Engineers (High Point Sprinkler Company of Atlanta), 191
NLRB 603 (1971).
OPERATING ENGINEERS, LOCAL NO. 369 101
Employer assigned the disputed work to its own em-
ployees based on its interpretation of that contract.
Neither Respondent nor its parent International has
any such agreement with the Employer. Consequent-
ly, we find that this factor favors awarding the disput-
ed work to the employees of the Employer.
2. Employer's past practice , assignment , and area
practice
The record discloses that most, if not all, of the
Memphis area industrial painting contractors of simi-
lar size to the Employer employ members of Local 49
exclusively to operate any air compressors used for
sandblasting. Further, the record shows that, since its
inception 6 years ago, the Employer has assigned
sandblasting work exclusively to its own employees
represented by Local 49. Thus, the Employer' s assign-
ment in the instant dispute appears to be consistent
with its past practice. Accordingly, we find area and
past practice and the Employer's assignment are fac-
tors favoring the employees represented by Local 49.
3. Skills, economy, and efficiency
The record discloses that both members of Local 49
and Local 369 have performed sandblasting work.
Thus James Witham, a member of Local 49 and an
employee of Campbell-South who appeared at the
hearing to claim the work for himself and members of
Local 49, testified that the work of operating the com-
pressors which are used in sandblasting consists of
pushing a button to start and pulling the choke out to
stop it. He also said that the same effort is required
to operate the lower cfm (cubic feet per minute) spray-
paint compressor, which is not in dispute. In addition,
an air compressor operator may also fill the sandpot
at approximately 45-minute intervals as the supply of
sand is exhausted and check the air hose lines while
the compressor is operating to see that they are in
good repair. However, the work of filling the sandpots
is sometimes performed by members of the Laborers'
Union.
The record also discloses that the Employer does
not employ members of, or have a contract with, any
other union than Local 49. Consequently, the assign-
ment of the disputed work to members of Local 369
would inhibit the efficient transfer and utilization of
its employees, since members of Local 369 could not
perform the painting work which constitutes the
greater part of the Employer's operation.
Thus, while the actual operation of the air compres-
sors appears to be relatively simple and can be per-
formed effectively by members of either the
Respondent or the Employer, the factors of efficiency
and economy favor the Employer's assignment to its
own employees.
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 pro-
ceeding, the National Labor Relations Board hereby
makes the following Determination of Dispute:
1. Employees of Campbell-South Painting Corpo-
ration of Memphis, Tennessee, currently represented
by International Brotherhood of Painters and Allied
Trades, Local Union No. 49, are entitled to perform
the work of operating all air compressors that develop
a greater volume and/or velocity than 125 cfm and
used in Employer's operations at the Thomas E. Max-
son Waste Water Treatment Plant, South Plant, 2685
Steam Plant Road, Memphis, Tennessee.
2. International Union of Operating Engineers,
Local No. 369, is not entitled by means proscribed by
Section 8(b)(4)(D) of the Act to force or require
Campbell-South Painting Corporation of Memphis,
Tennessee, to assign the above-described work to em-
ployees represented by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, International Union
of Operating Engineers, Local No. 369, shall notify
the Regional Director for Region 15, in writing,
whether or not it will refrain from forcing or requiring
Campbell-South Painting Corporation of Memphis,
Tennessee, to assign the work in dispute in a manner
inconsistent with this determination.