Wisconsin Contractors, Inc.

National Labor Relations Board - Board Decisions

Jun 22, 1970

183 N.L.R.B. 872 (N.L.R.B. 1970)

872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wisconsin Contractors , Inc. and Local Union No.
6-111 Oil, Chemical and Atomic Workers, af-
filiated with the Oil , Chemical and Atomic Work-
ers International Union . Case 30-CA-1010
June 22, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On October 30, 1969, Trial Examiner William
W. Kapell issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. The Trial Ex-
aminer also found that the Respondent had not en-
gaged in certain other alleged unfair labor prac-
tices. Thereafter, the General Counsel filed excep-
tions and a brief in support thereof; the Respondent
filed cross-exceptions to certain parts of the Trial
Examiner's Decision.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made 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
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner as modified herein.
The Trial Examiner found, and we agree, that the
Respondent's failure to post the M-4 jobs pursuant
to the collective-bargaining agreement changed the
contractual terms and conditions of employment
without complying with the requirements of Section
8(d) of the Act, thereby violating Section 8(a)(5)
of the Act. However, he further found that the as-
' Hereinafter referred to as 0 C A W or the Union
2 The Trial Examiner found the operation of the M-4's and the Midwest
plow was unit work, yet despite this finding he concluded that the Respon-
dent was warranted in departing from its past practice relative to trial
periods (a 30-day trial period ) in operating new machines because of the
greater safety problems involved in the operation of the M-4's The
General Counsel excepts, contending the Respondent 's unilateral depar-
ture from its past practice with respect to trial periods , which was not in-
cluded as a separate allegation in the complaint, violated 8 ( a)(5) Since
this issue is encompassed within the overall issue of whether Respondent
unilaterally assigned new jobs to nonunit people prior to notifying the
Union and to affording it an opportunity to bargain about the matter, we
treat it within that broader context
'The Respondent did not setup a new corporation or negotiate separate
working agreements for what it referred to as a new division Nor, except
signment of the operation of the M-4's and the
Midwest plow to nonunit personnel did not violate
Section 8(a)(5) and (1) of the Act. In reaching this
conclusion the Trial Examiner found that the
Respondent had bargained to impasse with the
Union' over whether the M-4 work belonged to the
unit and whether any of the Union's members were
capable of performing the work.' The General
Counsel excepts to that finding. We find merit in
the General Counsel's exception.
In late 1968 the Respondent decided to expand
its operations with heavy equipment capable of
plowing in up to 4-inch plastic pipe (a new develop-
ment in the art) and 4-inch cable for electric and
telephone companies. Two M-4 tanks and a Mid-
west Static Mainline plow were acquired for this
purpose. In conjunction with its plan to expand its
operation or form a new division3 the Respondent
hired James Hicks, a graduate engineer with exten-
sive experience in road and building construction
work.
Although the new equipment is larger and more
powerful than the equipment previously operated
by the O.C.A.W., the M-4's were to be used to pull
the Midwest plow in a manner similar to that in
which O.C.A.W. had used the smaller tractors to
pull the PT-90 and Ulrich vibrating plow. The Trial
Examiner concluded that by reason of the similarity
of function and purpose the M-4 was properly unit
work.
On April 2, 1969, one of the M-4's was used for
the first time on an unplanned emergency basis.4
The M-4 was operated by a nonunit employee,
Redell,5 over the O.C.A.W.'s protest. On April 8, at
the O.C.A.W.'s request, a meeting was held to
discuss the operation of the M-4's. At this meeting
Kunze, the president of the O.C.A.W. local, com-
plained that Respondent was breaching its contract
by using non-O.C.A.W. welders to operate the
M-4's, that this work was unit work, and that there
were seven O.C.A.W. members on layoff status.
Soetenga, Respondent's general manager and vice
president, denied that the contract covered the
operation of the M-4's, claimed the O.C.A.W. had
for a discussion with union officials concerning the feasibility of the Union
providing men for a specific job at Tamms, Illinois, did the Respondent
discuss its intentions or long-range plans with respect to the new work until
after the operation of the M-4's had been assigned to the nonunit em-
ployees
' As we view this case it is unnecessary to adopt the Trial Examiner's
distinction between normal and emergency operations
5 Over the years Respondent employed welders who were not members
of 0 C A W , but were hired because of 0 C A W 's inability to provide
sufficient welders These welders perform shop maintenance work and
weld pipe on jobs only They did not otherwise perform unit work At the
time of the hearing the Respondent employed two such welders, the above-
mentioned Redell ( a member of both the Plumbers and the Operating En-
gineers) and Peyer ( a member of the Plumbers)
183 NLRB No. 84
WISCONSIN CONTRACTORS, INC.
no one qualified to run the M-4's, and affirmed his
decision to assign Redell to operate the M-4's.
When Kunze demanded that the jobs be posted and
O.C.A.W. members be given the 30-day trial period
to familiarize themselves with the M-4's in ac-
cordance with the contract and past practice,
Soetenga refused , asserting that the contract ap-
plied only to the laying of gas pipe and not to un-
derground cable work . At two other meetings held
on May 19 and July 30 , the Respondent adhered to
its position.
We are unable to agree with the Trial Examiner
that the Respondent bargained in good faith to im-
passe . At the meetings with the Union the Respon-
dent insisted only that the contract with O.C.A.W.
did not cover nongas work in spite of the fact that
the unit employees had been doing nongas work of
a similar nature since 1965 .6 Prior to this time, the
Respondent had never questioned the application
of the contract to its nongas work . In these circum-
stances , we hold that the Respondent 's contention
was not advanced in good faith.
At the meetings with O .C.A.W., the Respondent
also stated that O.C.A.W. had no members
qualified to operate the new equipment. The
Respondent, however , had never in the past
questioned the ability of the O .C.A.W. unit em-
ployees when it acquired new equipment . Rather,
the Respondent had utilized the posting provisions
of the contract and the trial period as established
by past practice . The Respondent 's refusal to abide
by the contract and past practice further evidences
its bad faith . This is not to say that Respondent was
obligated to assign an O . C.A.W. member to the
M-4 if none were qualified . It is only to say that the
O.C.A.W. members were entitled to an opportunity
to qualify to operate the new equipment similar to
that they had been given when Respondent
acquired new equipment in the past.7
Moreover , it appears clear that , at the time of its
dicussions with the Union, the Respondent had no
intention of using O .C.A.W. people to operate the
" Despite the changes in operation, Respondent 's successive renewal
contracts with 0 C A W remained unchanged
' In this regard it should be noted that 0 C A W member Ranker, who
had operated an M-4 in World War II and had been operating similar
although smaller and less sophisticated equipment for Respondent, was not
given an opportunity, the contract notwithstanding , to qualify on the M-4
On the other hand Redell, an Operating Engineer who had never operated
an M-4 and who had spent at least the last 8 years as a welder, was assgined
to the job. The issue is not whether Ranker could have operated the M-4
but whether, pursuant to the contract and past practice, he should have
been given the opportunity
"The General Counsel contended the Respondent had decided to use
member, of the Operating Engineers long before April 2, 1969 The
Respondent argues that the portion of the record relied on by the General
Counsel refers only to the prospective job at Tamms, Illinois, as did all
testimony with respect to contacting the Operating Engineers However,
the record does not support the Respondent 's contention , since the above-
873
M-4's even if qualified . In fact the record reveals
Respondent had decided as early as January or
February 1969 to use members of the Operating
Engineers to operate the M-4's and the Midwest
plow. Soetenga testified that in January 1969 he
(and Hicks ) had decided that members of the
Operating Engineers would operate the M-4's and
the plow;' he further testified he had advised Hicks
to contact the Operating Engineers prior to April 2
(an agreement with the Operating Engineers was
signed on April 24).
In our opinion the Respondent 's overall conduct
did not meet the requirements of the statutory bar-
gaining duty to bargain in good faith . It neither pro-
vided adequate notice nor otherwise afforded the
Union an opportunity to engage in meaningful bar-
gaining prior to the assignment of the M-4's or
thereafter . Accordingly , we find the Respondent's
unilateral assignment of nonunit employees to
operate the M-4's and the Midwest plow violative
of Section 8(a)(5) of the Act.
ADDITIONAL CONCLUSIONS OF LAW
5. By failing to notify the Union and affording.
the Union an opportunity to bargain about the
filling of newly created unit jobs, the Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
THE REMEDY
The Trial Examiner ordered the Respondent to
cease and-desist from changing the terms and con-
ditions of employment by failing to post job vacan-
cies or newly created jobs, and to post his attached
notice to that effect. In addition to that remedial
provision we will order the Respondent to bargain
with the Union over the filling of job vacancies or
newly created jobs where it may be necessary, in
the future, to deviate from past practice. For, in our
mentioned statement by Soetenga was not made with reference to the
Tamms job Moreover , Sdetenga testified that Hicks' contract with the
Operating Engineers just prior to April 2 was not with regard to the Tamms
job but in anticipation of development of the new division
Likewise, Hicks' testimony indicated Respondent had decided not to use
O C A W people on the M-4's He testified that although, to his
knowledge , none of the 0 C A W people were qualified to operate the
M-4 tractor , "there are a number of people that could be trained to
operate the equipment " Hicks' testimony revealed his feeling toward the
O C A W , which he testified he had never heard of until he came to
Respondent He testified that with the companies he had previously been
associated with hiring was done by calling the various unions ( Carpenters,
Operating Engineers , etc ) and telling them what you needed When the
dispatched employees arrived, if they had some qualifications you accepted
them and watched them operate , if they were not qualified you sent them
back Yet Hicks was not willing to give the 0 C A W members the same
opportunity in spite of the 0 C A W contract
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opinion, it is clear that effectuation of the policies APPENDIX
of the Act requires that the Respondent be directed
to cease and desist from failing to notify the Union
before making any future decision to remove work
from the unit represented by the Union, and also to
bargain upon request with the Union with respect
to any such proposed decision insofar as it affects
rates of pay, wages, hours of employment, and
other terms and conditions of employment.
Finally, the mere posting of job vacancies or
newly created jobs will not suffice herein in view of
the past practice of giving eligible employees an op-
portunity to try out on the job for a 30-day period.
Since this practice was unilaterally changed by
Respondent, the O.C.A.W. members were deprived
of an opportunity to qualify for the M-4 jobs.
Therefore, we will order that the Respondent pro-
vide a qualifying period for interested O.C.A.W.
applicants and the award of backpay (the dif-
ference between their regular rate and the M-4
rate, if any) to the O.C.A.W. members who qualify
as M-4 operators.9
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
herein, and hereby orders that Respondent,
Wisconsin Contractors, Inc., Lake Geneva, Wiscon-
sin, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order, as so modified:
1. Add the following as paragraph 1(b) and re-
letter the following paragraph accordingly:
"(b) Unilaterally filling newly created unit jobs
without prior notification to the Union and prior to
affording the Union an opportunity to bargain with
respect to such jobs."
2. Add the following as paragraph 2(a) and re-
letter the following paragraphs accordingly.
"(a) Upon request, meet and bargain with the
O.C.A.W. over any removal of work from the
established unit , job vacancies , and newly created
jobs, and provide the opportunity for unit members
to qualify for the M-4 jobs as provided in The
Remedy section of this Decision."
3. Substitute the attached notice for the notice
attached to the Trial Examiner's Decision.
s This does not mean that the Respondent must allow all 0 C A W em-
ployees an opportunity to qualify on the M -4 For under the Respondent's
past practice job assignments on new equipment were made after it decided
which employees had the potential to acquire sufficient operating skill
within a 30-day trial period It means only that Respondent may not disre-
gard potentially qualified unit employees as it did herein
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT assign newly created unit work
to nonunit members without prior notification
to Local Union No. 6-111 O.C.A.W. and prior
to providing the Union an opportunity to bar-
gain with respect to such jobs.
WE WILL NOT make changes in the existing
rates of pay , wages, or other terms and condi-
tions of employment so as to alter the existing
rates of pay, wages, or other terms and condi-
tions of employment , without giving prior
notice to and bargaining with the Union over
any proposed changes , and the effects of such
changes on employees.
WE WILL , upon request , bargain collectively
with Local Union No. 6-111 O .C.A.W. with
respect to the filling of job vacancies or newly
created jobs.
WE WILL, in accordance with past practice,
provide an opportunity for O.C.A.W. members
to qualify as M-4 operators and award
backpay, if appropriate , to O.C .A.W. members
who so qualify.
WE WILL NOT change the terms and condi-
tions of employment by failing to post job
vacancies or newly created jobs as heretofore
required.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce our em-
ployees in the exercise of their rights under the
Act.
WISCONSIN
CONTRACTORS, INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
WISCONSIN CONTRACTORS, INC. 875
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, Second Floor, Commerce Building,
744 North Fourth Street, Milwaukee, Wisconsin
53203, Telephone 414-272-3861.
duly considered. On the entire record3 in the case,
and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. COMMERCE
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM W. KAPELL, Trial Examiner. Case
30-CA-1010, a proceeding under Section 10(b) of
the National Labor Relations Act, as amended,
herein called the Act, was heard in Lake Geneva,
Wisconsin, on August 28 and 29, 1969,' with all
parties participating pursuant to notice on the com-
plaint' issued on August 8 by the Regional Director
for Region 30, alleging violations of Section
8(a)(1) and (5) by Wisconsin Contractors, Inc.,
hereafter referred to as the Company or Respon-
dent. The complaint alleges in substance that since
on or about April 8, Respondent has refused and
continues to refuse to bargain in good faith with
O.C.A.W. by unilaterally removing bargaining unit
work from unit employees and assigning such work
to employees outside the unit without any prior
notification to or bargaining with the Union and
without observing the contractual job posting provi-
sions of their current collective-bargaining agree-
ment in violation of Section 8(a)(1) and (5) of the
Act. Respondent in its duly filed answer admitted
that at all times material herein it has recognized
and bargained with O.C.A.W. as the exclusive bar-
gaining representative of an approptiate unit of all
its production and maintenance employees per-
forming local gas pipeline installation work, and
that, on April 2, 3, 7, 8, and 21, it assigned the
operation of an M-4 tractor to an employee not a
member of the unit represented by the Union under
emergency circumstances to extricate trucks and
equipment of the Wisconsin Electric Power Com-
pany from a swampy area, and denied that
O.C.A.W. has unit members qualified to operate
the M-4 tractor or that the operation of the M-4's
was work included within the scope of their collec-
tive-bargaining agreement, as claimed by the
Union, and pleaded further that disagreement over
the assignment of the work in question gave rise to
a jurisdictional dispute necessitating a 10(k) hear-
ing which must be determined before the within
proceeding can be processed.
All parties were afforded full opportunity to be
heard, to introduce relevant evidence, to present
oral argument, and to file briefs. Respondent and
the General Counsel filed briefs which have been
Respondent, a Wisconsin corporation, maintain-
ing its principal office in Lake Geneva, Wisconsin,
where it is engaged in the business of laying un-
derground cable and pipelines made purchases of
machinery and equipment from points located out-
side the State of Wisconsin in excess of $8,000 dur-
ing the past year, and during the same period, in
the course and conduct of its business, it performed
services in excess of $50,000 for Wisconsin
Southern Gas Company, Inc , a public utility
providing gas service to industries and homes
throughout southern Wisconsin. During the past
year, said gas company had gross sales in excess of
$500,000 and purchased and received, in interstate
commerce, goods and service valued in excess of
$50,000 from points located outside Wisconsin.
Respondent admits, and I find, that at all times
material herein it has been engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that at all times
material herein O.C.A.W. has been a labor or-
ganization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent was organized as an independent
company in 1951 to take over the installation of
short main extensions and services for the Wiscon-
sin Southern Gas Company, hereafter referred to as
the Gas Company, a Wisconsin public utility
located in Lake Geneva, Wisconsin. Prior to
Respondent's organization, such work had been
performed by the Gas Company. For many years
Respondent virtually performed only such work. In
the last several years such work gradually saturated
the area and its expansion rate declined, although it
still remained Respondent's principal source of
revenue, totaling about 86 percent of its gross in-
come pursuant to a blanket contract on a cost-plus
basis. As a consequence of the failure of the work
to expand, Respondent since about 1965 began
doing underground installation work (trenching for
' All dates hereafter refer to the year 1969 unless otherwise noted
2 Based on a charge filed on April 25, by Local Union No 6-1 11 Oil,
Chemical and Atomic Workers, affiliated with the Oil, Chemical and
Atomic Workers International Union, hereafter referred to as 0 C A W
' Pursuant to General Counsel's stipulated motion, the transcript has
been corrected as requested
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
laying electric cable) for Wisconsin Electric Power
Company in'the Lake Geneva area . This work is
performed on a blanket contract unit price rather
than on a cost-plus basis. More recently, a similar
arrangement was entered into witb Wisconsin Bell
Telephone Company. The work for the Gas Com-
pany and the above two utilities has been limited to
a geographical area consisting of Walworth,
western Racine, and western Kenosha Counties.
However , on occasion Respondent has done larger
cross-country jobs on a competitive bid basis, such
as the 1965 11-mile telephone cable trenching job
between Evansville and Jamesville, Wisconsin, the
1966 trenching job across Delevan Lake, and the
1968 1,500- to 1,800-foot open trenching job for
the electric company in Waukesha. In each of these
jobs the O.C.A.W. members did not handle the
electric or telephone cable but trenched or plowed
the ground so that the utility employees could ac-
tually lay the cable. The equipment used in the
above operations included a back hoe (a case trac-
tor with a device on the back for digging well holes
for setting pipe), a Cleveland trencher (a revolving
wheel digger on caterpillar tracks for digging an
open trench), a Parsons trencher (a chain digger on
caterpillar tracks for digging an open trench), a
Davis digger (a chain digger of various sizes), Ul-
rich PT-90 and Davis plows (vertical vibrating
plows), small tractors, and various size trucks.'
These machines are classified in the construction
trades as small utility equipment.
At the time Respondent began operating in 1951,
it took over and hired a number of Gas Company
employees who were familiar with the work and
had been members of O.C.A.W. Respondent, since
that time, recognized and has entered into a series
of collective-bargaining agreements with the
O.C.A.W. as the representative of a unit consisting
of production and maintenance employees. The
most recent agreement became effective on March
1, 1968, and will expire on February 28, 1970.5
The work described above was performed exclu-
sively by unit members. During the years, Respon-
dent also employed welders who were neither mem-
bers of nor became members of O.C.A.W., and
were initially hired because of O.C.A.W.'s inability
to provide qualified welders.' These welders per-
form maintenance work in the shop and also
welded pipe on jobs. Currently, Respondent em-
ploys two such welders-Richard Redell,' hired in
1961, and James Peyer,8 hired in 1965.
" In trenching the machine makes an open ditch in which pipe or cable is
laid and the ditch is then backfilled In plowing, the machine makes a v-
shaped trench without removing any earth, the pipe or cable is then laid
and the trench is closed by the machine and made smooth by being rolled
The recognition clause of the current contract provides
The Company hereby recognizes the Union as the exclusive bargaining
representative of all production and maintenance employees to whom
this contract applies for the purpose of bargaining in respect to rates of
pay, wages , hours, or other working conditions
Respondent also employed welders who were members of O C A W
B. Respondent Plans To Expand its Operations
In 1968 Respondent decided to expand its opera-
tions with heavy equipment capable of plowing in
up to 4- inch plastic pipe ( a new development in the
market ) and 4 -inch cable ' or wire for electric and
telephone companies , a type of work in great de-
mand and in short supply. Respondent formed a
new division , hired James Hicks , a graduate en-
gineer with extensive experience on road and build-
ing construction work and with the heavy equip-
ment used in such work , purchased two M-4
tanks , 1° and rented on a purchase option plan a
Midwest Static Mainline plow , capable of perform-
ing the new type of work. This equipment is much
larger , more powerful , and more sophisticated than
the machines previously operated by Respondent.
Before placing the M-4 tanks in operation they
were modified by Redell" under the direction of
Hicks . The M-4's were to be used to pull the Mid-
west plow in the manner similar to that in which the
smaller tractors had been previously used by
O.C.A.W. members of the production and main-
tenance unit to pull the PT-90 and Ulrich vibrating
plows.
C. The Respondent Embarks on its New Work
In response to an emergency request of Wiscon-
sin Electric Power Company to pull its equipment
through and from a swampy area , Respondent on
April 2 dispatched Redell with an M-4 to do the
job. The following morning as Redell prepared to
drive out of Respondent 's yard with an M-4 on a
lowboy trailer to continue the previous day's work,
he was accosted by O.C.A.W. Steward Edward
Baumeister and asked whether he knew that its
members were on layoff status. As Redell replied in
the affirmative , Foreman Robert Kirkman appeared
and joined in the conversation . Baumeister also
asked him whether he knew O .C.A.W. members
were on layoff status and who was going to operate
the M-4. When Kirkman replied that Redell would,
Baumeister asked whether that was right inasmuch
as Redell was not an O .C.A.W. member. According
to Kirkman , corroborated by Redell, he told Bau-
meister to produce an O.C.A.W. man if he had one
capable of operating the M-4 . Baumeister there-
upon walked to the shop about 40 feet away where
a group of O.C.A.W. employees were congregated.
After waiting several minutes during which Bau-
' Currently a member of Local 722 of the Plumbers and Pipefitters and
Local 139 of the Operating Engineers
A member of the Plumbers and Pipefitters
Much smaller cable had previously been laid in its trenching and plow-
ing operations
Used by the military during World War 11
The gun turrets and ammunition box were removed, the transmission
was modified, and a rear deck was installed In the performance of this
work Redell , assisted by employee Glen Ranker, once or twice actually
drove the tanks in Respondent's yard
WISCONSIN CONTRACTORS, INC.
meister did not return and Redell remained in the
yard, Kirkman directed Redell to proceed to the
job. 12
Pursuant to O.C.A.W.'s request a meeting with
Respondent was held on April 8 to discuss the
operation of the M-4's. Edward Kunze, the
O.C.A.W. president , Glen Ranker , the O.C.A.W.
vice president of Respondent 's O.C.A.W. em-
ployees, and Baumeister appeared for O.C.A.W.,
while Henry Soetenga , general manager and vice
president , and James Hicks , company engineer, ap-
peared for Respondent . Kunze complained to
Soetenga that Respondent was breaching their bar-
gaining contract by using non -O.C.A.W. welders to
operate the M-4's and the Midwest plow , that this
work was unit work , and that there were seven
O.C.A.W. members in layoff status awaiting recall.
Soetenga denied that the bargaining contract
covered the operation of the M-4's, claimed that
O.C.A.W. did not have anyone qualified to operate
them , asserted that he would not jeopardize the
safety of the employees of the Electric Company,
or risk damaging an expensive piece of equipment
by permitting an unqualified man to operate the
M-4, and also affirmed his adherence to Kirkman's
initial decision to assign Redell to operate the M-4.
When Kunze claimed that Ranker had had previous
experience on the same equipment while in military
service , Soetenga requested that Ranker submit a
letter attesting to his experience with this- type of
equipment ." Kunze also demanded that Respon-
dent post the job of operating the new equipment
on the bulletin board in compliance with their con-
tract , and that O.C.A.W. members be given a 30-
day trial period in which to familiarize themselves
with the operation of the machines , as had been
their practice in the past . Soetenga refused , assert-
ing that their contract applied only to the laying of
gas pipe and not to underground cable work. Prior
to this time however , Respondent had never
questioned the application of the contract to its
nongas work . On May 19, the same parties met
again and reiterated and adhered to their respective
positions regarding the operation of the new heavy
equipment . At this meeting Soetenga also requested
O.C.A.W. to submit its grievances in writing, which
has never been done . On July 30, the parties met to
discuss an unrelated grievance but they again re-
stated their respective positions relative to the
disputed work.14
Beginning in April and subsequently , Respon-
dent , in addition to assisting the Wisconsin Electric
IS I do not credit Baumeister 's denial that Kirkman indicated to him that
if he had someone available who could not operate the M -4, he (Kirkman)
would let him operate it
" Nothing was ever submitted, and Baumeister admitted that he was not
personally familiar with Ranker's qualifications to run the M-4's
" It appears that Respondent contemplated undertaking its first large-
scale adventure in the new type of work several months prior to any of the
above discussions between the par ties Thus, in the late fall of 1968,
Soetenga had explored the possibilities of bidding on a rather extensive un-
derground cable laying job for the city of Tamms, Ilhmos, about 350 miles
877
Company in pulling its equipment from a swampy
area as indicated above, used non-O.C.A.W. em-
ployees, including new employees as well as the two
non-O.C.A.W. welders, to operate the M-4's as
prime movers for the Midwest plow on jobs involv-
ing a 3-mile telephone cable installation, an electric
cable installation of 1,000 yards, and a 37-mile toll
cable for the Wisconsin Telephone Company
between Watertown and Madison, Wisconsin.
It also appeared that prior to April 2, Respondent
had contacted the Operating Engineers in connec-
tion with the availability of men to operate the
M-4's in anticipation of its newly expanded work,
and on April 24 Respondent signed a bargaining
contract with that Union.
D. Employee Qualifications for Operating an M-4
Redell, who was assigned to operate an M-4,
testified that he had never operated one before,
that he had worked on modifying and rebuilding
them following their purchase by Respondent, and
that he had performed the maintenance work on
them. Hicks testified that in assigning personnel to
operate M-4's, he considered the man's previous
experience in operating similar equipment and his
personal observation of the man's work, that he re-
garded Redell's prior operation of D-7, 8, and 9's,
caterpillar tractors, as the best prerequisite for
operating an M-4, and that on these grounds he as-
signed Redell to operate an M-4. Hicks also
pointed out that the ability to start an M-4 or even
run it while not in actual operation on a job was not
comparable to the ability to operate it on a job, and
that its operation on a job also increased the risk of
injury to personnel as well as the extent of potential
damage as compared to the operation of smaller
equipment.
Ranker, an O.C.A.W. member classified as an
operator, testified that he had operated the Davis
1000 (a tractor) without any prior training as he
had with other new machines purchased by
Respondent in the past, that about 17 years ago he
operated an M-4 hauling artillery and ammunition
while in military service, and that he helped Peyer
(a nonunit welder) start an M-4 in the yard, and he
actually drove it out of the shop into the yard. He,
however, never claimed to be qualified to run an
M-4 and had so advised Soetenga but believed he
was potentially qualified to and could operate one
within the 30-day trial period, if given the opportu-
nity.
from the Lake Geneva area During trips to Tamms he discussed the
prospective job with local construction trade union representatives who
claimed jurisdiction over the work He also discussed the job with represen-
tatives of 0 C A W and its International regarding the use of its members
in the Tamms area , but obtained no commitment as to their jurisdiction
over the job other than that he could not force any 0 C A W members to
work on the job in that area After successfully bidding for the job, it was
dropped because of the city's inability to finance the work due to the condi-
tion of the municipal bond market , and the nascent jurisdictional question
never matenali7ed to the point of requiring a resolution
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John Umnus, an O.C.A.W. member classified as
an operator, testified that he had previously
operated Respondent's lighter equipment in
trenching, and that he could learn to operate the
M-4's if given the opportunity as was done with
other employees, including the newly hired em-
ployees, Swanson and Olsen.
E. The Contentions of the Parties
The General Counsel contends that the operation
of the M-4's is unit work , and that without consult-
ing O . C.A.W., Respondent unilaterally assigned this
work to non -O.C.A.W. unit personnel , thereby
changing the terms and conditions of employment
in derogation of its duty to bargain and to post said
jobs, in violation of Section 8(a)(1) and ( 5) of the
Act. Respondent takes the position that the work in
question is neither unit work nor covered by their
contract , that , nevertheless, it bargained with
O.C.A.W. concerning the work , that O .C.A.W. was
unable to furnish qualified members to perform the
work , and that its disagreement with O .C.A.W.
gave rise to a jurisdictional dispute which must be
resolved before the within proceeding may be
processed.
F. The Conclusions
1. The jurisdictional contention
I find that the facts herein do not disclose a "ju-
risdictional dispute" as contemplated in Sections
8(b)(4)(D) and 10(k) of the Act. There was no
competition for the disputed work between unions
or groups of employees in the sense envisioned by
Congress in those sections. Here, the Employer
created the dispute by assigning the work to non-
O.C.A.W. employees rather than to employee-
members of that Union as it demanded. As the
court stated in Pennello v. Local Union No. 59,
Sheet Metal Workers International Association [E. I
Dupont de Nemours & Co.], 195 F. Supp. 458 (D.C.
Del.), the application of Sections 8(b)(4)(D) and.
10(k) was confined to disputes "between rival
groups of employees" and not to disputes between
an employer and a union as such. See also Highway
Truck Drivers and Helpers, Local 107 (Safeway
Stores Inc.), 134 NLRB 1320, 1322-23. I, ac-
cordingly, conclude that there is no merit to
Respondent's contention that there is a jurisdic-
tional dispute involved herein which precludes
processing the within proceeding unless and until a
10(k) determination is made with regard to the
work in question.
2. The changes in Respondent's work and the
effect on the production and maintenance unit
Initially, Respondent's production and main-
tenance employees were engaged solely in perform-
ing trenching and related work for the Gas Com-
pany. In fact, some of its employees originally were
transferred from that Company to Respondent
when it was organized, and Respondent's bargain-
ing contracts with O.C.A.W. appear to match the
Gas Company's contracts with O.C.A.W. Beginning
about 1965, Respondent began trenching and plow-
ing for the laying of cable for electric and
telephone companies. Meanwhile, from about 1951
and continuing to the present time, Respondent has
hired non-O.C.A.W. welders, members of the
Pipefitters and the Operating Engineers, with the
consent of O.C.A.W. whenever it was unable to
supply them upon request. The current roster of
employees shows that members of the Laborers
union are also employed. These non-O.C.A.W.
members were hired to perform specialized produc-
tion or maintenance work which they did in concert
with the O.C.A.W. production and maintenance
members. Despite these changes in operation and
hiring practices, Respondent's successive renewal
contracts with O.C.A.W. remained unchanged. 15
As indicated above, Respondent for the past
several years has been engaged in digging and plow-
ing trenches for the laying of gas pipe or small elec-
tric or telephone cable, which has been performed
by its production and maintenance employees. Dur-
ing that period Respondent on occasion has
purchased new and more sophisticated equipment
to perform that work. This equipment was regarded
as small utility equipment, as was its other equip-
ment, and the production and maintenance em-
ployees, who were assigned to operate the new
equipment, were, when feasible, given a 30-day
trial period in which to familiarize themselves with
its operation in accordance with the past practice
of Respondent. The M-4's, following their modifi-
cation, became in reality heavy tractors more power-
ful than Respondent's other tractors, and capable
of pulling heavier and more powerful trenchers or
plows required in the laying of up to 4-inch plastic
pipe or electric cable. Neither the purpose nor the
nature of Respondent's work was changed, only the
power of its new equipment was greatly increased.
The production and maintenance unit already con-
tained employees of various skills, such as operat-
ing small tractors, trenchers, and trucks. The opera-
tion of the M-4's would require an additional skill.
I, therefore, conclude that by reason of the similari-
ty of function and purpose, the operation of the
M-4's properly belongs in the production and
maintenance unit. However, the higher sophistica-
tion, increased power, and larger size of the M-4's
presented a greater safety problem in their opera-
tion than the other smaller machines used by
Respondent. Their operation involved not only the
" Apparently , 0 C A W made no attempt to exercise its contractual
rights under the "Maintenance of Membership " provision ( which in effect
was also a union - security provision ), and the non -O C A W employees
doing production or maintenance work retained their own union affilia-
tions, and did not become members of O C A W
WISCONSIN CONTRACTORS, INC.
safety of their operators and the utility employees
working in the immediate vicinity but also the
possible damage to this very expensive equipment.
In view of these factors, the assignments to operate
the M-4's were made to employees, who appeared
to management to be the most capable of operating
them immediately on jobs, rather than to risk en-
trusting their operation to employees who may have
had the potential to acquire sufficient operating
skill in a 30-day trial period. 1, accordingly, find
that these conditions warranted Respondent in de-
parting from past practices relative to trial periods
in operating new machines
3. The posting requirement
In connection with "Job Vacancies," the con-
tract provides:
Job vacancies or newly created jobs shall be
posted on the bulletin board at all offices for
one [(I )] week. Rates of pay and hours of
work shall be clearly stated in the notice.
As found above, Respondent regarded the opera-
tion of the M-4's as newly created jobs to which it
assigned incumbent unit-members as well as newly
hired employees. Regardless of whether or not
Respondent concluded that none of its employees
except Redell and Peyer were competent to com-
pete for the new jobs, the aforesaid provision
required that the jobs be posted. Respondent's
failure to do so changed the contractual terms and
conditions of employment without complying with
the requirements of Section 8(d) of the Act, in
violation of Section 8 (a)(5).
4. The alleged failure to bargain
If, as claimed by the General Counsel , and as has
been found above, the new jobs were unit work,
then it would follow that there was an obligation to
bargain about the new assignments . Although
Respondent contended that the jobs involved were
not unit work and, therefore , was under no obliga-
tion to bargain with O.C.A.W., it, nevertheless, on
several occasions discussed the matter with
O.C.A.W. and argued to impasse not only whether
the work belonged to the unit, but also the com-
petency of O.C. A.W. members to operate the
M-4's.'6 O .C.A.W. took the position during these
negotiations that the disputed work was unit work
which had to be assigned to O.C. A.W. unit-mem-
bers.
For almost two decades the parties have main-
tained a generally amicable bargaining relationship.
There is no suggestion that the charges which are
the subject of the instant proceeding were other
than economically motivated . Nor does it appear
"While the initial assignment to Redell to assist the Electric Power
Company extricate its equipment from a swampy area was made prior to
any discussion with the Union concerning the assignment , I do not regard
this emergency work as regular operations involving trenching and plow-
879
that Respondent acted in bad faith in discussing the
dispute with O.C.A.W. and adhering to its position.
Also, it must be noted that Respondent has been
willing to meet and discuss the dispute, which
should be entitled to some weight in an evaluation
of its overall conduct. Based on the totality of the
evidence, I conclude that the General Counsel has
failed to prove by the preponderance of the
evidence that Respondent failed to bargain in viola-
tion of Section 8(a)(5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with Respon-
dent's operations described in section 1, above,
have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow
thereof.
Upon the foregoing findings of fact and upon the
entire record, I make the following:
CONCLUSIONS OF LAW
1. At all times material herein , Respondent has
been engaged in commerce as an employer within
the meaning of Section 2(6) and (7) of the Act.
2. At all times material herein , O.C.A.W. has
been a labor organization within the meaning of
Section 2 (5) of the Act.
3. By failing to post the jobs to operate the
M-4's Respondent changed the conditions and
terms of employment without complying with Sec-
tion 8 (d) of the Act in violation of Section 8(a)( I )
and (5).
4. Respondent has not engaged in other alleged
unfair labor practices not specifically found herein.
THE REMEDY
Having found that Respondent engaged in an un-
fair labor practice in violation of Section 8(a)(1)
and (5) of the Act, I shall recommend that it cease
and desist therefrom and take certain affirmative
action designed to effectuate the policies of the
Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and the entire record in this
case, I recommend that Wisconsin Contractors,
Inc., its officers, agents, successors, and assigns,
shall:
mg, which is in issue herein Discussions relative to M-4 assignments did
take place prior to any M-4 operations on regular lobs See Hartmann Lug-
gage Company, 145 NLRB 1572, as to the effect of the prediscussion as-
signment
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Changing the terms and conditions of em-
ployment by failing to post job vacancies or newly
created jobs within the meaning of Section 8(a)(5)
and 8(d).
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Post at its plant in Lake Geneva, Wisconsin,
copies of the attached notice marked "Appen-
dix."'' Copies of said notice, on forms provided by
the Regional Director for Region 30, after being
" In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals , the words in the notice reading "Posted by Order of the Na-
duly signed by its representative, shall be posted by
it immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 30,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith."'
IT IS FURTHER RECOMMEND that the complaint be
dismissed insofar as it alleges that Respondent has
violated the Act other than as found herein.
tional Labor Relations Board " shall be changed to read " Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith "