Operating Engineers, Local 701

National Labor Relations Board - Board Decisions

Apr 8, 1971

189 N.L.R.B. 568 (N.L.R.B. 1971)

568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers, Local No.
701, AFL-CIO and Roofing Contractors Associa-
tion, Inc. and, United Slate, Tile and Composition
Roofers, Damp and Waterproof Workers Associa-
tion, Local Union No. 49 . Case 36-CD-71
April 8, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
meaning of the Act and that it will effectuate the
purposes of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The record shows and we find that International
Union of Operating Engineers , Local No. 701,
AFL-CIO, and United Slate , Tile and Composition
Roofers, Damp and Waterproof Workers Associa-
tion, Local Union No. 49, are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
This proceeding is brought under Section 10(k) of
the National Labor Relations Act, as amended,
following a charge filed by the Roofing Contractors
Association, Inc., alleging that Local No. 701 of they
Operating Engineers had violated Section 8(b)(4)(D),
of the Act. Pursuant to notice a hearing was held at
Portland, Oregon, on October 14 and November 5,11
1970, before Hearing Officer Patrick H. Walker. All!
parties appeared at the hearing and were affored full
opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing
upon the issues . Thereafter, the Association, Engi-
neers Local 701, and Roofers Local 49 filed briefs.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has delegat-
ed its powers in connection with this case to a three-
member panel.
The rulings of the Hearing Officer made at the
hearing 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 EMPLOYER
The Employer, Roofing Contractors Association,
Inc., has some 15 members engaged in the Portland,
Oregon, area in making new roofs and repairing
existing roofs. It represents its members for purposes
of collective bargaining and has entered into associa-
tionwide contracts with Roofers Local 49, the most
recent such agreement being effective from January 1,
1970, to December 31, 1971. The record shows that
the members of the Association together annually
make purchases from outside the State of Oregon far
in excess of $ 50,000, and that Buckeroo-Thermoseal,
Inc., an association-member and the company whose
operations gave rise to the dispute here involved,'
alone has purchases annuallyin excess'of $150,000 from
outside the State of Oregon. Accordingly, we find that
the Employer is engaged in commerce within the
Background and Applicability of the Statute
Buckeroo-Thermoseal, Inc., a roofing contractor,
was engaged during July 1970 under a subcontract
with Sivers Construction Co., a general contractor, in
installing a roof on a building being constructed in
Portland, Oregon, for the Cotter Manufacturing
Company. To raise materials to the roof for use by its
employees, Buckeroo used a forklift which it owned
and to which it assigned as operators its own
employees represented by Roofers Local No. 49.
Towards the end of July a representative of Engineers
Local 701 demanded that an employeee represented
by his union be assigned to operate the forklift.
A meeting was held with respect to this matter on
July 31, 1970, attended by representatives of the
Association, Buckeroo, another roofing company,
Engineers Local 701, and Roofers Local 49. At that
meeting Joy, an Engineers Local 701 representative,
claimed that forklift operation was engineer's, not
roofer's, work, and, according to Employer witnesses,
threatened to picket if an engineer were not put on the
Buckeroo forklift on the Cotter Manufacturing job.
Further, after requesting and receiving a list of all
companies in the Association, Joy stated that his local
would picket every job on which a "roofer" was
operating a forklift. At the hearing, witnesses for
Engineers Local 701 who had attended the July 31
meeting acknowledged that Joy asserted engineer
jurisdiction over forklift operations and that he stated
he would take appropriate action if an engineer were
not put on the forklifts; these witnesses added,
however, that they did not recall his mentioning the
word "picket" or "strike."
In any event, sometime following the meeting a
representative of the gengral contractor on the Cotter
Manufacturing job told Buckeroo it would, and in
fact it did, operate the forklift with its own employee
who was a member of Local 701. Engineers Local 701
contends there is no dispute in view of the stated
position of the Roofers International Union that it
1 Snyder Roofing and Sheet Metal Corporation also was specifically to force a reassignment of the disputed work . However, there is no
named in the charge as an employer subject to direct threats by Local 701 evidence of such a threat to Snyder with respect to any specific job.
189 NLRB No. 101
OPERATING ENGINEERS, LOCAL 701 669
"does not claim operation of forklifts as this is
properly within the jurisdiction of the Operating
Engineers." Nevertheless, despite the statement of its
International, Roofer's Local 49 claims the work in
question for the employees it represents. Consequent-
ly, as there are conflicting claims concerning which
employees shall do the forklift work, we find there
exists a jurisdictional dispute under Section
8(b)(4)(D). Compare Local 1291, International Long-
shoremen's Assocation, AFL-CIO (Pocahontas Steam-
ship Company), 152 NLRB 676, 679-680. Local 701
also takes the position that this is not a dispute for
Board resolution as both the Operating Engineers and
the Roofers International unions are members of the
Joint Board for Adjustment of Disputes of the
Building and Construction Trade Industry. However,
neither the Association nor its member employers
have, insofar as the record shows, approved or
entered into any voluntary agreement to submit
jurisdictional disputes to the Joint Board for adjust-
ment. Consequently, we find no merit in Local 701's
contention. See Lathers Union Local 104, The Wood,
Wire and Metal Lathers International Union, AFL-
CIO (Associated General Contractors of America). 186
NLRB No. 70, stating the Board's disagreement with
Plasterers Local Union No. 79 (Southwestern Con-
struction) v. N. L. R. B. 440 F.2d 174, June 30, 1970
(C.A.D.C.), the case cited by Local 701 in support of
its position.
In view of the foregoing we find there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated, and that the dispute over forklift operations
is properly before this Board for resolution.
The Parties' Positions and Merits of the
Dispute
Local 701 bases its claim to the disputed work, first,
upon its contract with the Oregon-Columbia Chapter
of the Associated General Contractors of America,
Inc., which specifies that forklifts shall be operated by
operating engineers and that only subcontractors
signatory to the agreement shall be engaged and that
nonsignatory subcontractors shall agree to its terms
before beginning work on any construction site.
However, neither the Roofers Association nor its
members have signed the above contract nor have
they otherwise agreed to any of its provisions.
Consequently, though the referred-to contract provi-
sions may impose some obligation on Sivers Con-
struction Company, the general contractor, they do
not bind in any manner the Association and its
members. Therefore, the agreement does not cover
the disputed work.2
Second, Local 701 asserts that local practice and
efficiency support its claim . However, in predicating
its claim on such grounds, Local 701 makes it
clear-both through its witnesses at the hearing and in
its brief-that it is not claiming all forklift work on
construction sites . Rather it contends there are two
different situations involved: one concerning large
construction jobs where there is need for the continu-
ous use of a forklift to serve the general contractor
and all subcontractors and, two, others concerning
roofing jobs where the use of a forklift is needed only
for an hour or so a day to lift roofing material. Local
701 concedes that there is with respect to the latter
type situation a long history of Roofers Local 49
doing the "occasional" forklift work and that the
balance of efficiency and economy favors assignment
of the work to roofers. Consequently, it does not now
claim such occasional forklift operations, but limits its
claim to the large construction jobs where there is
need for a full-time forklift operator. Local 701
contends that, at these large sites , both local practice
and economy and efficiency favor assigning forklift
operations to employees it represents.
However, aside from some general conclusionary
statements of certain of Local 70 l's witnesses, there is
no evidence showing any consistent or established
practice of operating engineers using forklifts on any
type of job for raising roofing materials. Furthermore,
to the extent that its contentions deal with the
inefficiency of using a roofer and roofing company
forklifts to service all subcontractors on a large job,
they are clearly irrelevant, for Local 49 does not claim
and its members have not been assigned such work.
Local 49's position is that employees it represents
are entitled to operate on all construction sites
forklifts used by roofing companies for the purpose of
lifting roofing supplies.3 In support of its claim, Local
49 relies on its contract with the Association,
established practice, considerations of economy and
efficiency, and the employing company's assignment
of the work to its members. The Association, in
support of the assignment of the work to roofing
employees, takes essentially the same position as
Local 49.
The contract urged here by Local 49 is that
mentioned above between it and the Association. It is
applicable to the member companies of the Associa-
tion, including Buckeroo, and covers, inter alia. "the
handling, hoisting, and placing" of roofing materials
2 See Local 294, International Brotherhood of Teamsters, Chauffeurs, lift roofing materials if the roofing company has no forklift on thejob for
Warehousemen and Helpers of America (Sage Brothers Painting Co., Inc ), such purpose . In short , Local 49's claim would seem limited to the
163 NLRB 1066, 1068. operation of forklifts supplied by roofing companies for the purpose of
3 Local 49 apparently makes no claim to the operation of a forklift used lifting roofing materials to their own employees.
generally on a construction site during such times as it may be employed to
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"either by hand or machinery ...." Though the
agreement does not specifically cover forklift opera-
tions neither does it specifically refer to hoisting by
other types of machinery which Local 701 concedes is
within Roofers jurisidiction. Nor does the contract
make any distinction in coverage with respect to size
of job. Consequently, we believe it apparent that the
contract covers the work in dispute, and thus supports
Local 49's claim to such work.
As for employer practice, the record shows that
Buckeroo-Thermoseal has always assigned one of its
own employees represented by Local 49 to operate its
forklift and that a similar practice has been followed
with few, if any, exceptions by the other Association
roofing companies which use forklifts. There is,
furthermore, no evidence that assignment of forklift
operations by the roofing concerns has been related
to, or affected by, the size of the construction job
involved. Such practice shows-at least in the absence
of any contrary evidence-that there are available the
necessary roofing employees with the requisite skills
for operating forklifts. With respect to efficiency,
employee witnesses testified that it is advantageous to
have a person operate the forklift who is fully familiar
with roofing materials, as such an employee will with
far less instruction be capable of hoisting up the
necessary materials at the proper time. Nevertheless,
the evidence fails to establish any essential advantage
in terms of efficiency or economy in assigning the
disputed work to one group of employees or the other.
CONCLUSIONS
It is clear from the foregoing that Local 701 has
failed to substantiate its claim to the disputed work.
Rather the relevant factors such as the agreement
between Local 49 and the Association , Buckeroo's
individual practice as well as the local associationwide
practice support the Roofers' claim to the work. As
for considerations of efficiency and economy, they
favor the case of neither Union. Consequently, we
conclude that Buckeroo's assignment of the disputed
work to its employees represented by Local 49 should
not be disturbed. We shall determine the existing
jurisdictional dispute by awarding to employees
employed by Buckeroo-Thermoseal and represented
by Local 49 the operation of their employer's forklifts
for purposes of moving and hoisting roofing materi-
als. The Association requests that the Board make a
broad determination proscribing Local 701 from
unlawfully attempting to force an assignment in the
future of work like that involved in this proceeding.
However, no rationale has been advanced for our
issuing such a determination. Consequently, the
determination here shall apply only to the disputed
work at the Cotter Manufacturing Company jobsite,
Portland, Oregon.
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
makes the following Determination of Dispute:
1. Employees of Buckeroo-Thermoseal, Inc., rep-
resented by United Slate, Tile and Composition
Roofers, Damp and Waterproof Workers Associa-
tion, Local Union No. 49, are entitled to operate their
employer's forklifts for the purpose of moving and
hoisting various roofing materials at the Cotter
Manufacturing Company construction site, Portland,
Oregon.
2. International Union of Operating Engineers,
Local No. 701, AFL-CIO, is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force or
require the Company to assign the above work to its
members.
3. Within 10 days from the date of this Decision
and Determination of Dispute International Union of
Operating Engineers, Local No. 701, AFL-CIO, shall
notify the Regional Director for Region 36, in writing,
whether it will refrain from forcing or requiring the
Company, by means proscribed by Section
8(b)(4)(D), to assign the work in dispute to Operating
Engineers rather than to the Company's employees
represented by the Roofers Local No. 49.