Intl. Union of Operating Engineers, Loc. 66

National Labor Relations Board - Board Decisions

Oct 20, 1967

167 N.L.R.B. 950 (N.L.R.B. 1967)

950 DECISIONS OF NATIONAL
International Union of Operating Engineers, Local
66, AFL-CIO (Green Construction Company and
Winston Bros. Company) and Constructors As-
sociation of Western Pennsylvania and Laborers'
International Union of North America, Construc-
tion , General Laborers' Union, Local 824,
AFL-CIO, Party to the Dispute. Case 6-CD-219
October 20, 1967
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
This is a prQceeding under Section 10(k) of the
National Labor Relations Act, as amended , follow-
ing a charge filed by Constructors Association of
Western Pennsylvania , hereinafter called the As-
sociation , under Section 8(b)(4)(D ). The charge al-
leges, in substance , that International Union of
Operating Engineers , Local 66 , AFL-CIO,
hereinafter called the Operating Engineers or
Respondent , threatened and restrained Green Con-
struction Company and Winston Bros . Company,
hereinafter jointly called the Employer , members of
the Association , with an object of forcing or requir-
ing the Employer to assign particular work to em-
ployees represented by the Operating Engineers
rather than to employees represented by Laborers'
International Union of North America, Construc-
tion , General Laborers' Union , Local 824,
AFL-CIO, hereinafter called the Laborers. Pur-
suant to notice , a hearing was held before Hearing
Officer Donald J. Myers on May 23 , 1967. All
parties appeared at the hearing and were afforded
full opportunity to be heard , to examine and cross-
examine witnesses , and to adduce evidence bearing
on the issues . The rulings of the Hearing Officer
made at the hearing are free from prejudicial error
and are hereby affirmed . The Employer and the
Operating Engineers have filed briefs which have
been duly considered.
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.
Upon the entire record in this case , the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
Green Construction Company, an Iowa corpora-
tion, with its principal offices located in Des
Moines, Iowa, is engaged in heavy construction
work on highways. During the past 12-month
period, it performed work outside the State of Iowa
for which it received in excess of $50,000. Winston
Bros. Company, a Minnesota corporation, with its
principal offices located in Minneapolis, Minnesota,
LABOR RELATIONS BOARD
is engaged in heavy construction work on highways.
During the past 12-month period, it performed
work outside the State of Minnesota for which it
received in excess of $50,000. Green Construction
Company and Winston Bros. Company have
operated under a Joint Venture Agreement for a
number of years and continue to do so. During the
past 12-month period they jointly performed ser-
vices in excess of $1 million, and during that same
period performed services outside the State of
Pennsylvania for which they received in excess of
$50,000. The parties stipulated, and we find, that
Green Construction Company and Winston Bros.
Company, the Employer herein, are engaged in
commerce within the meaning of the National
Labor Relations Act, as amended, and are subject
to the jurisdiction of the National Labor Relations
Board.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated and we find that the
Operating Engineers and the Laborers are labor or-
ganizations within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
A. The Work in Issue; Background Facts
Under its joint venture agreement, the Employer
is engaged in a highway construction project for the
Commonwealth of Pennsylvania. The Employer is
a member of the Association, through which it has
contracts with the Laborers and the Operating En-
gineers covering the project. The project is located
on Section 47, Interstate Highway 80, Clinton
County, Pennsylvania, and on Section 40-42, In-
terstate Highway 80, Centre County, Pennsylvania.
The work on Section 47 is near Lock Haven, while
that on Section 40-42 is near Milesburg, some 20
miles distant.
At issue is the right to perform the work of an em-
ployee category known as drill runner's helper at
the Section 47 and Section 40-42, work sites. The
duties of the drill runner's helper include spotting,
cleaning, and capping of holes and assisting drill
operators in changing steel bits and drill steels on
truck-mounted rotary drills, used in drilling holes in
rock for blasting purposes.
For several years, the Employer has used, and
continues to use, wagon and so-called Air-trac
drills, the air pressure for which is supplied by
separately situated compressors. These drills are
manned by a two-man crew consisting of a drill
operator and a helper, both of whom, by agreement
between the Laborers and the Association, are
members of the Laborers. Sometime prior to 1954,
Association members commenced using rotary
drills, which combine the compressor and the drill
into an integral functional unit on a single-truck
167 NLRB No. 128
INTL. UNION OF OPERATING ENGINEERS, LOC. 66 951
chassis. This change of design in the rotary drill of
necessity required that the drill operator, in addition
to drilling, assume the functions of a compressor
operator, an employee category traditionally
represented by the Operating Engineers. In recog-
nition of that fact, the Laborers, since 1954, have
renounced their claims to the work of the rotary
drill operators in favor of the Operating Engineers,
but have continued to claim the work of the helper,
known as the drill runner's helper, in opposition to
the contrary claim of the Operating Engineers to
this work, thereby giving rise to the instant dispute.
The job on Section 40-42 commenced in January
1966, and was expected to be completed in about
30 days. Rotary drills commenced operating there
in March 1966. The job on Section 47 started about
December 1966, and is expected to be completed
about November 1968. Rotary drills commenced
operating there in May 1967. On May 18, 1967, an
agent of the Operating Engineers made a demand
on the Employer that the drill runner's helpers at
Section 47 be replaced by members of the Operat-
ing Engineers and further stated that he would
remove all members of the Operating Engineers
from the Employer's jobs unless such demand was
granted. On May 19, the Operating Engineers
steward at Section 40-42 asked the Employer
whether members of the Operating Engineers were
going to be hired as helpers and, when told they
would not, told the members of the Operating En-
gineers to leave the job. All members of the Operat-
ing Engineers at both sections ceased work. The
stoppage ended on May 23, 1967, following the fil-
ing of the instant charge on May 22, 1967.
B. Contentions of the Parties
The Operating Engineers claims its members are
entitled to the disputed work of the drill runner's
helper on the grounds that a provision in the current
contract between the Operating Engineers and the
Association indicates the understanding of the
parties that the disputed work belongs to members
of the Operating Engineers; that at a meeting in
November 1966, the parties resolved the issue in
favor of the Operating Engineers; and that the em-
ployment of an Operating Engineer would be more
efficient for the Employer. The Laborers claim the
work of the drill runner's helpers on the ground that
their above-described functions properly constitute
work of the type customarily performed by mem-
bers of the Laborers, and that the Employer's as-
signment of this work to the Laborers tends to
promote the efficiency of its operations. The Em-
ployer and the Association claim that neither labor
organization has met the burden of showing that the
Employer's assignment of the disputed work to the
Laborers was improper, and that the Employer's
work assignment conforms with its past practice
and tends to promote efficiency in its business.
C. Applicability of the Statute
Before the Board proceeds 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.
As stated above, the uncontroverted record
testimony establishes that Respondent engaged in
a strike for the purpose of inducing the Employer to
assign the disputed work to members of the Operat-
ing Engineers. Accordingly, we find, on the entire
record, that there is reasonable cause to believe that
violation of Section 8(b)(4)(D) has occurred and
that the dispute is properly before the Board for
determination under Section 10(k) of the Act.
D.Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of the disputed work
after due consideration of various relevant factors.'
The following factors, set forth in the contentions
of the parties, are asserted in support of their
respective claims.
1. Contract and bargaining agreements
The Operating Engineers claims that the follow-
ing provision in its current contract with the As-
sociation accords it jurisdiction over the work in
dispute:
The Contractor shall recognize the jurisdic-
tion of the Operating Engineer when assistance
is required on that equipment coming under
their jurisdiction.
In support of its claim, the Operating Engineers,
conceding that the provision does not specifically
cover the instant work dispute, contends that it was
nevertheless intended to avoid the type of jurisdic-
tional dispute which has herein arisen. We find the
provision of relatively minor significance, in view
of the concededly inconsistent hiring practices of
the Association members, some of whom, including
the Employer, consistently hire members of the
Laborers, while others consistently hire members
of the Operating Engineers, as drill runner's help-
ers. We likewise accord little or no weight to a
letter dated January 18, 1967, signed by the As-
sociation president, which, the Operating Engineers
contends, evidences an agreement of the parties at
a November 1966 meeting that the majority of the
work of the helpers is of the type performed by
members of the Operating Engineers, and that the
work should therefore be assigned to Operating En-
gineers members. The record strongly supports the
' International Association of Machinists, Lodge No 1743 (J A Jones
Construction Co), 135 NLRB 1402
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laborers, the Employer's, and the Association's
claim that no such agreement was arrived at, and
the Association concededly is without authority to
make legally binding work assignments in its mem-
bers' behalf. In the above circumstances, we find
that the alleged contract and bargaining agreements
do not favor the claim of either party.
2. Efficiency of operations
The Operating Engineers contends that union
membership for both men on the drill crew would
promote the efficiency of the Employer's opera-
tions by faciliating the replacement of the drill
operator by the helper, as needed. The Employer
and the Laborers contend that, as a helper, a
member of the Laborers can not only move up to
the drill operator's job, just as a member of the
Operating Engineers can do, but in addition can
provide more flexibility, and therefore more effi-
ciency, in the Employer's operations, by performing
laborer's work with the blasting crews, comprising
members of the Laborers who work in close prox-
imity to the drilling operations, or elsewhere as
needed. Inasmuch as the Employer's and the
Laborers positions involve persuasive considera-
tions of practical operating efficiency, rather than
purely jurisdictional considerations, as appears to
be the case with the Operating Engineers position,
we find that the factor of efficiency of operations
tends to favor the Laborers claim to the disputed
work.
3. Company practice
The Employer, both in Pennsylvania and at its
other work sites throughout the United States, has
consistently hired two-man crews, comprising
members of the Operating Engineers as the drill
operators and members of the Laborers as drill
runner's helpers. In these circumstances, we find
that this factor of consistently applied company
practice favors the claim of the Laborers.
Other factors customarily considered by the
Board in resolving work disputes2 are lacking or are
insufficiently persuasive in the instant case. Thus,
there is no Board certification relative to the
disputed work, industry practice in the heavy con-
struction industry in western Pennsylvania regard-
ing the assignment of Laborer or Operating En-
gineer members as helpers on rotary drills is here
conceded to be too inconsistent to constitute a per-
suasive factor in favor of either union, there have
been no awards of the disputed work by arbitrators
or joint boards, and the nature of the work and the
skills involved concededly permit the satisfactory
performance thereof by members of either union.
Conclusions as to the Merits of the Dispute
Upon consideration of all pertinent factors ap-
pearing in the entire record, we shall assign the
work in dispute to the drill runner's helpers
represented by the. Laborers. The Employer's as-
signment of this work to the Laborers is consistent
with its own consistent past practice and the effi-
cient operation of its business, factors which we
have hereinabove found to favor the Employer's
position. These factors, together with the absence
of a cogent reason favoring a contrary result,
demonstrate in these circumstances the superior
claim of the employees represented by the Laborers
to the work in dispute. Accordingly, we shall deter-
mine the existing jurisdictional dispute by deciding
that employees of the Employer who are
represented by the Laborers are entitled to the
work performed by drill runner's helpers on the
Employer's work projects at Section 47, Interstate
Highway 80, Clinton County, Pennsylvania, and
Section 40-42, Interstate Highway 80, Centre
County, Pennsylvania. In so doing, we are asigning
this work to employees of the Employer who are
represented by the Laborers, but not to that Union
or its members. Or present determination is limited
to the particular controversy which gave rise to this
proceeding.
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
proceeding, the National Labor Relations Board
hereby makes the following determination of the
dispute.
1. Employees employed by Green Construction
Company and Winston Bros. Company at its
highway construction project at Section 47, In-
terstate Highway 80, Clinton County, Pennsyl-
vania, and at Section 40-42, Interstate Highway 80,
Centre County, Pennsylvania, who are currently
represented by Laborers'- International Union of
North America, Construction, General Laborers'
Union, Local 824, AFL-CIO, are entitled to per-
form all of the functions currently performed by the
classifications of employees known as drill runner's
helpers, including the spotting, cleaning, and cap-
ping of holes and assisting the drill operator in
changing steel bits and drill steels on truck-mounted
rotary drills.
2. International Union of Operating Engineers,
Local 66, AFL-CIO, is not entitled, by means
proscribed by Section 8(b)(4)(D) of the Act, to
force or require the Employer to assign the work
described above to employees represented by it.
2 International Association of Machinists , Lodge No 1743 (J. A Jones
Construction Co.), supra
INTL. UNION OF OPERATING ENGINEERS, LOC. 66 953
3. Within 10 days from the date of this Decision requiring Green Construction Company and Win-
and Determination of Dispute, International Union ston Bros. Company, by means proscribed by Sec-
of Operating Engineers, Local 66, AFL-CIO, shall tion 8(b)(4)(D), to assign the work in dispute to em-
notify the Regional Director for Region 6, in writ- ployees represented by it.
ing, whether or not it will refrain from forcing or