Local 487, Operating Engineers

National Labor Relations Board - Board Decisions

Apr 26, 1971

190 N.L.R.B. 98 (N.L.R.B. 1971)

98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 487, International Union of Operating Engi-
neers, AFL-CIO and Peoples Gas System , Inc. and
Rob-El Construction Corp . Case 12-CD-163
April 26, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
This is a proceeding pursuant to Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by Peoples Gas System, Inc., hereinafter
called Peoples, alleging that Local 487, International
Union of Operating Engineers, AFL-CIO, hereinafter
called the IUOE, had violated Section 8(b)(4)(D) of the
Act by engaging in certain proscribed activity with an
object of forcing or requiring Peoples and/or Rob-El
Construction Corp., hereinafter Rob-El or Employer,
to assign the work in dispute to employees represented
by the IUOE, rather than to a group of unrepresented
employees employed by the Employer. Pursuant to no-
tice, a hearing was held before Hearing Officer Howard
1. Grossman on February 2, 1971. The Employer, Peo-
ples, and the IUOE appeared at the hearing and were
afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence bear-
ing on the issues. The IUOE filed with the Board a
petition to revoke subpena ' and a motion to quash
notice of hearing.2
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 rulings of the Hearing Officer made at the hear-
ing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, the Board makes
the following findings:
1. THE BUSINESS OF THE EMPLOYERS
The parties stipulated, and the record shows, that
Peoples is a Florida corporation which is licensed as a
public utility and has its principal office and place of
business in Miami, Florida, where it is engaged in the
distribution and sale of natural gas and liquid pe-
troleum products and the sale and installation of gas
appliances. During the year preceding the hearing,
Peoples purchased and received goods and materials
valued in excess of $50,000 directly from points and
places located outside the State of Florida and its gross
volume of sales exceeded $250,000.
The Employer is also a Florida corporation which
entered into a subcontract with Peoples to lay gas
mains and service lines to a condominium complex
called Biscayne Village. The value of the subcontract
was $6,000 or $7,000.
As Peoples is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act, we find that it
will effectuate the policies of the Act to assert jurisdic-
tion herein.'
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that the IUOE
is a labor organization within the meaning of Section
2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
Biscayne Village Associates , hereinafter referred to
as BVA ,° at all times material herein was engaged in the
construction of a condominium complex called Bis-
cayne Village , located in the vicinity of North Miami
Beach. The complex consists of six apartment build-
ings , a shopping center, a golf course and clubhouse,
and a medical building . Goodnor Construction Co., the
operational counterpart of Arlen Operating Company
(primarily a financial entity ), is in charge of construc-
tion of the shopping center . BVA contracted with Peo-
ples to provide natural gas mains and gas service lines
to the complex and to supply natural gas service there-
after . Peoples subcontracted the work of laying the gas
mains and service lines to the Employer whose em-
ployees are not members of a union.
On November 12, 1970,5 the Employer began work
under the contract , moving a Ford backhoe machine on
the jobsite . The Employer's job foreman, Jimmy Ayers,
was approached by a steward , presumably from the
IUOE, and told that his operator could not unload the
backhoe machine because it was a union job. There-
upon , Ayers and the other employees left the jobsite.
When they returned the following day , November 13,
the same steward repeated substantially the same thing.
Later, William Martz , who identified himself as a busi-
ness agent for the IUOE, told Ayers he could not run
' As the hearing is closed and the record is adequate without the tes-
timony of William Martz, president of the IUOE, who failed to appear in
response to a subpena requiring his presence, we find it unnecessary to pass
upon IUOE's petition to revoke subpena.
' In view of our decision herein, we deny the IUOE's motion to quash
notice of hearing.
' See Local 173, Wood, Wire and Metal Lathers' International Union.
AFL-CIO (Newark & Essex Plastering Co.). 121 NLRB 1094, and cases
cited therein at fn. 5.
BVA is a joint venture composed of The Chase National Bank of New
York, Arlen Operating Company (both New York corporations), and Do-
narl, Inc., a Florida corporation.
' All dates indicated are in 1970.
190 NLRB No. 21
LOCAL 487, OPERATING ENGINEERS 99
the equipment on the job without union operators.
Martz said the 175 to 250 operating engineers, who
were working for other subcontractors on the job,
would walk off and shut it down, adding that they
would "come off the equipment mad because they
would then lose a day's work." Again, the Employer's
employees left the jobsite.
After working without incident on the next Monday
and Tuesday, November 16 and 17, the IUOE steward
on the following day, Wednesday, November 18, ap-
proached employee Leroy Brewer who operated the
Employer's ditching machine and asked him if he had
an Operating Engineers book. When Brewer answered
negatively, the steward told him he had to get off the
machine and could not run it unless he had a book.
On arriving a short while later, Martz told Ayers
that he thought Ayers understood that he could not
work on the job unless men from the IUOE were run-
ning the equipment. When Ayers protested that it was
a public right-of-way, Martz replied, "We are going to
have to shut the digging, shut the job down." During
this discussion other operating engineers on the job had
ceased working.
It appears that Martz thereafter saw Armond J.
Moore, Goodnor's construction superintendent, on the
concourse at Biscayne Village and told him that Good-
nor would have to get Rob-El's employees off the job
and stop them from working or there would be nobody
on the job. Martz then had a conversation with Edwin
P. Champion, assistant gas engineer for Peoples, and
John Zarli, Goodnor's project manager, in the latter's
field office. It appears from the record that Moore was
also present. Zarli introduced Martz to Champion as a
business agent for the Operating Engineers, stating that
there was trouble concerning the operation of the
equipment. Martz said that "he would not have no [sic]
man on the job if the contractor stayed on the job."
Zarli suggested that the conflict be resolved by paying
a member of the IUOE to operate Rob-El's equipment.
Martz said that he did not care how it was worked out,
as long as IUOE personnel operated the equipment.
Later the same day, Moore told Ayers he would have
to leave. Whereupon, Ayers, after checking with his
office, took his crew and left.
On the following day, Thursday, November 19, Ay-
ers returned with a crew, Robert D. Hall, the Em-
ployer's president, and Hugh Doran and a Mr. Bout-
zilo of Peoples. While the Employer's employees were
operating the backhoe and ditching machines, about 15
unidentified men came from a nearby bar and walked
in front of the equipment. One of the men struck the
ditching machine with a shovel, breaking the gas con-
nection and cutting the electrical and sparkplug wires.
After the men left, the Rob-El employees returned to
work, using only the backhoe machine.
On November 20, a BVA official sent a wire to Peo-
ples requesting that it stop work at the jobsite and
remove its contractor immediately. The wire indicated
that BVA would install the gas line itself. On the same
day, BVA telephoned Peoples specifically requesting
the latter not to work at the project on Monday or
Tuesday, November 23 and 24, in order that BVA
might iron out difficulties between the IUOE and Rob-
El.
B. The Work in Dispute
The Biscayne Village project involves the installation
of an 8-inch natural gas line from Biscayne Boulevard
about 2,000 feet down the concourse drive leading into
Biscayne Village. The backhoe machine is used to un-
load pipe and the Cleveland ditching machine digs a
ditch.about 4-1/2 feet deep and 14 inches wide. The
dispute involves the use of these machines in installing
gas mains in the dedicated public street right-of-way.
C. Contentions of the Parties
The IUOE contends that it does not claim the work
in dispute and, accordingly, no dispute exists as to the
assignment of such work within the meaning of Sec-
tions 8(b)(4)(D) and 10(k) of the Act. It therefore urges
that the Board quash the notice of hearing issued in the
instant case.
The Employer and Peoples contend, on the other
hand, that IUOE engaged in a course of conduct which
was wholly inconsistent with that disclaimer. Accord-
ingly, its disclaimer, which was made during the hear-
ing, is ineffective to deprive the Board of jurisdiction to
determine the dispute. It urges the Board to determine
the dispute and award the work to the unrepresented
employees of Rob-El.
D. Applicability of the Statute
Before the Board may proceed to a determination 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 is clear and uncontroverted that the
IUOE threatened Rob-El, Goodnor, and Peoples with
closing the job down if Rob-El 's unrepresented em-
ployees continued to operate the backhoe and Cleve-
land ditching machines. Disputing the IUOE's dis-
claimer, the record shows further that the IUOE
sought either to have Rob-El assign the work to mem-
bers of the IUOE or to have Peoples reassign the work
to a subcontractor who employed members of the
IUOE. We therefore find, contrary to the IUOE's con-
tentions, that there is reasonable cause to believe that
a violation of Section 8(b)(4)(D) has occurred, and the
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dispute is properly before the Board for determination
under Section 10(k) of the Act.
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of disputed work after giv-
ing due consideration to various relevant factors.'
However, certain of the usual factors considered by the
Board in these cases, such as Board certifications, in-
dustry practice, arbitration or jurisdictional awards,
and provisions of collective-bargaining agreements and
International constitutions, are not developed in the
record and therefore are not available for determining
the instant dispute on such basis.
construction work, he is not prone to cut underground
utility lines because of his familiarity with the pull of
the wheel when it hits such a line . An inexperienced
operator on utility construction might not have the feel
for such a pull nor recognize that the machine has
struck a utility line. Doing damage to other under-
ground utilities is a major concern of Rob-El.
4. Arbitration or jurisdictional awards
Rob-El has never been involved in an arbitration
before the National Joint Board for the Settlement of
Jurisdictional Disputes of its right to assign the dis-
puted work nor agreed to submit to the National Joint
Board or any other arbitral body claims with regard to
such work.
1. Company and area practice
Rob-El's normal practice is to have its own em-
ployees do all the work on a particular job. It also
appears that most of the employers in the area who are
engaged in utility construction work normally operate
with unrepresented employees.
2. Efficiency, economy, and flexibility of operations
The assignment made by Rob-El to its own em-
ployees is the most economical. Rob-El specializes in
utility construction work and its employees are ex-
perienced in such work. Its employees are employed on
a regular full-time basis and are available to switch
back and forth on various jobs during the course of the
day. Thus, when one of the machines is not operating,
the employee performs other tasks. Moreover, the ma-
chine operators perform field maintenance on the ma-
chines, such as replacing fuel lines, hydraulic hoses,
and sparkplugs. Consequently, an assignment other
than as made by the Employer would severely affect the
efficiency and flexibility of operations of the Employer
by restricting its ability properly to allocate its present
work force.
3. Skill of the employees
The record shows that Rob-El's employees are as
skillful as operating engineers observed operating such
equipment and are better qualified to do such work
than casual employees whom Rob-El may obtain thru
the IUOE. Rob-El's employees are trained and do a
good workmanlike job on the backhoe and Cleveland
ditching machines. As Rob-El's ditching machine oper-
ator, along with its other employees, is trained in utility
6 N.L.R.B. v. Radio & Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers (Columbia Broadcasting
Systems), 364 U.S. 573; International Association of Machinists, Lodge No.
1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402,
1411.
Conclusions
Upon the record as a whole, and after full considera-
tion of all relevant factors involved, we believe that the
work in dispute was properly assigned to the unrepre-
sented employees of Rob-El. However, it does not ap-
pear from the evidence that similar disputes involving
Local 487, IUOE, are likely to recur in the future, and,
accordingly, we limit our determination and award to
the particular construction project involved in this pro-
ceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Re-
lations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this proceed-
ing, the National Labor Relations Board hereby makes
the following determination of the dispute:
1. Employees employed by Rob-El Construction
Corp. are entitled to perform the duties of operating the
Employer's backhoe and Cleveland ditching machines
in the installation of the 8-inch natural gas line from
Biscayne Boulevard into Biscayne Village.
2. Local 487, International Union of Operating Engi-
neers, AFL-CIO, is not entitled by means proscribed
by Section 8(b)(4)(D) of the Act to force or require
Rob-El Construction Corp. and/or Peoples Gas Sys-
tem, Inc., to assign the above-described work to its
members.
3. Within 10 days from the date of this Decision and
Determination of Dispute, Local 487, International
Union of Operating Engineers, AFL-CIO, shall notify
the Regional Director for Region 12, in writing,
whether or not it will refrain from forcing or requiring
Rob-El Construction Corp. and/or Peoples Gas Sys-
tem, Inc., by means proscribed by Section 8(b)(4)(D) of
the Act, to assign the work in dispute to its members
rather than to employees employed by Rob-El Con-
struction Corp.