Operating Engineers, Local 450

National Labor Relations Board - Board Decisions

Apr 26, 1971

190 N.L.R.B. 94 (N.L.R.B. 1971)

94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers, Local
No. 450 , AFL-CIO and Hydrocarbon Construction
Company and International Brotherhood of Electri-
cal Workers, Local 716. Case 23-CD-270
tion 2(6) and (7) of the Act, and that it will effectuate
the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
April 26, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following a
charge filed by Hydrocarbon Construction Company,
herein called Hydrocarbon, alleging that International
Union of Operating Engineers, Local No. 450, AFL-
CIO, herein called Operating Engineers, had violated
Section 8(b)(4)(D) of the Act. A duly scheduled hear-
ing was held in Houston, Texas, before Hearing Officer
Willard I. Boss on January 11 and 12, 1971, at which
International Brotherhood of Electrical Workers, Lo-
cal 716, AFL-CIO, herein called IBEW, intervened.
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. Thereafter, Hydrocarbon, IBEW, and the
Operating Engineers filed briefs with the National La-
bor Relations Board.
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 Hearing Officer's rulings
made at the hearing and finds that they are free from
prejudicial error. They are hereby affirmed.
Upon the entire record in this case, including the
briefs, the Board makes the following findings:
1. THE BUSINESS OF THE COMPANIES
Hydrocarbon Construction Company is a Texas cor-
poration engaged in general contracting work. During
the past 12 months, a representative period, Hydrocar-
bon purchased goods and materials from sources out-
side the State of Texas of a value exceeding $50,000.
Electrical Constructors, Inc., herein called ECI, is a
Texas corporation engaged in the electrical contracting
business. During the past year, ECI received at the
Shell Chemical Company construction project in Deer
Park, Texas, involved herein, goods and materials
valued in excess of $50,000, which goods and materials
were received from points outside the State of Texas.
We find, in accordance with the foregoing, and the
stipulation of the parties, that Hydrocarbon and ECI
are engaged in commerce within the meaning of Sec-
190 NRLB No. 20
The parties stipulated , and we find, that t1re Operat-
ing Engineers and the IBEW are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts
On and prior to December 1, 1970, Hydrocarbon
was engaged in the construction of a new chemical
processing unit at the Shell Chemical Company plant
in Deer Park, Texas. The unit under construction was
being built to produce vinyl chloride monomer, and the
Hydrocarbon construction project was popularly re-
ferred to as the VCM-S Offsite Job. Hydrocarbon, on
December 1, 1970, employed approximately 90 em-
ployees engaged in the work of running various pipe-
lines and installing other equipment necessary for the
VCM-S job.
On and prior to December 1, 1970, ECI was per-
forming certain electrical construction work on the
VCM-S job under a subcontract from Hydrocarbon.
On December 1, 1970, ECI began a portion of its job
involving the laying of groundwire to be attached to
one of the metal vessels under construction on the
VCM-S job. In order to lay this groundwire, it was
necessary for ECI to dig a ditch approximately 2 feet
deep and 6 inches wide, in which to run and splice the
wire, and then cover the wire. ECI determined that this
ditch would be dug with a piece of small ditching or
trenching equipment, about the size of a power lawn
mower, called a "Ditch-Witch," and that such ditching
machine would be operated by its electricians, who
were represented by IBEW.
When, on December 1, 1970, the operating engineers
employed by Hydrocarbon learned that the members of
IBEW, employed by ECI, were operating the "Ditch-
Witch," they left their equipment and engaged in a
work stoppage, claiming that they were entitled, under
their contract with Hydrocarbon, to perform the dig-
ging or trenching work.
On December 2, 1970, a meeting was held between
representatives of the Unions, William Nicholson, Hy-
drocarbon's general superintendent, and Ronald An-
derson, ECI's project manager . The Operating Engi-
neers asserted that they were entitled to the work of
operating the trenching machine by virtue of their con-
tract with Associated General Contractors (AGC),
Houston Chapter, of which Hydrocarbon is a member.
(ECI is not party to, nor otherwise bound by, any
agreement with the Operating Engineers.) The IBEW,
on the other hand, tendered letters from electrical con-
OPERATING ENGINEERS, LOCAL 450 95
tractors , showing that such contractors had used elec-
tricians , represented by IBEW , to operate the "Ditch-
Witch ." Nothing was resolved , and the Operating En-
gineers again engaged in a work stoppage.
On December 3, Hydrocarbon 's general superin-
tendent, William Nicholson , called the Operating Engi-
neers hiring hall and requested a new crew of operating
engineers , but was later advised by the Operating Engi-
neers that although the jobs had been posted no one
had applied therefor . On the evening of December 3,
the work of operating the "Ditch -Witch" at the jobsite
was completed , and on the next morning , December 4,
a full crew of operating engineers returned to work.
The representatives of the Operating Engineers and the
IBEW met on January 6, 1971, at which . time they
discussed matters of mutual interest , as discussed more
fully infra.
D. 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.
The charge herein alleges a violation of Section
8(b)(4)(D) of the Act. The uncontroverted testimony
establishes that on December 1, 2, and 3, 1970, the
Operating Engineers engaged in a work stoppage at the
Shell Chemical Company construction project in Deer
Park, Texas, with an object of forcing assignment of the
disputed work to employees it represented, rather than
to employees represented by the IBEW. We conclude,
under these circumstances, that there is reasonable
cause to believe that a violation of Section 8(b)(4)(D)
has occurred, and that the dispute is properly before
the Board for determination pursuant to Section 10(k)
of the Act.'
B. The Work in Dispute
The dispute in the proceeding involves the work of
operating a trenching, or ditchdigging, machine known
by the brand name of "Ditch-Witch" at the Shell
Chemical Company construction project in Deer Park,
Texas.
C. The Contentions of the Parties
The Operating Engineers claims that it is entitled to
the disputed work on the basis, inter alia, of its contract
with Hydrocarbon and other factors such as economy,
safety, and skill required, as well as industry, area, and
employer practice. Moreover, it is claimed that at the
January 6, 1971, meeting the two Unions had agreed to
set up machinery for the resolution of this dispute,
namely, through the offices of their International repre-
sentatives, and that, therefore, this matter is not prop-
erly before the Board. IBEW, on the other hand, claims
that ECI's assignment of the disputed work to it is
proper by virtue of its contract with ECI, and that the
relevant factors in determining this work dispute, such
as skills, efficiency, and area and industry practice,
militate in its favor. Hydrocarbon states that ECI prop-
erly made the work assignment to its electricians,
represented by the IBEW, and that the relevant factors
favor such assignment , and that, in any event, the work
has been satisfactorily completed by the electricians, in
whose favor ECI made the assignment. The position of
ECI, as stated at the hearing, is that it has always
employed its electricians to perform the trenching work
and to operate the "Ditch-Witch," and that this is in
full conformity with area practice.
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. The
following factors are relevant in making a determina-
tion of the dispute before us:
1. Collective-bargaining agreements
Hydrocarbon, the general contractor of the Shell
Chemical Company project, is a member of Associated
General Contractors (AGC), Houston Chapter, which
has a contract with the Operating Engineers. Article II,
section 2, of this contract states that "All work subcon-
tracted by a party to this Agreement that may be per-
formed by any of the classifications herein listed shall
be paid for at the rates and performed in accordance
with the terms and conditions set forth in this Agree-
ment." In article VII, Wages and Classifications, under
the heading of "Engineers-Heavy Equipment," there is
listed "Trenching Machine (all sizes)." Hydrocarbon
subcontracted the electrical work on the project to
' We find no merit in the contention of the Operating Engineers that the
two Unions involved herein , at the January 6, 1971, meeting had agreed to
set up machinery to resolve the instant dispute, and that, therefore, this
matter is not properly before Board. In this connection , we note that Gra-
ham Kemp , the IBEW business manager, testified without contradiction that
the January 6 meeting was not called for any specific purpose, that the work
of operating the "Ditch-Witch" was not specifically discussed , but only
touched on , that the work assignment in dispute was not resolved , that the
IBEW never surrendered its claim to operating the "Ditch-Witch," and that
it still claimed the right to perform this work . On these facts , Plasterers Local
Union 79[Southwestern Construction Co.] v. N.L.R.B., enforcement denied
440 F . 2d 174 (C.A.D.C.), cert. granted 401 U.S. 973 relied on by Operating
Engineers , is clearly distinguishable . In any event , as ECI at no time sig-
nified its intent to be bound by the interunion discussions , and since we
respectfully disagree with that court's views in the cited case, we would find
the instant dispute cognizable under Section 10(k) even if both Unions had
agreed to an alternate means of adjustment.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Electrical Constructors, Inc. (ECI), a member of the
National Electrical Contractors Association (NECA),
Houston Chapter. NECA has a contract with IBEW,
which, in pertinent part, defines the scope of work
covered thereunder as "all electrical construction, al-
teration-maintenance repair and extension of any and
all electrical systems on plants, buildings, or properties,
"including, inter alia, jobsite handling, erection, instal-
lation, electrical connections, and all welding and cut-
ting in connection with electrical work."
As indicated above, ECI, the electrical subcontractor
herein, assigned the work of operating the trenching
machine known as the "Ditch-Witch" to its own em-
ployees represented by IBEW. While the Operating
Engineers bases its claim partly on its contract with
Hydrocarbon, it is not the validity of Hydrocarbon's
assignment that is here in issue.' Since ECI, the subcon-
tractor, assigned the work to employees represented by
the only labor organization with which it had a collec-
tive-bargaining agreement, it appears that ECI's work
assignment to its own employees was not improper and
clearly was not in derogation of any obligation existing
as between ECI and Operating Engineers.
2. Area and industry practice
There was conflicting evidence as to area and indus-
try practice. The IBEW submitted a number of letters
from electrical contractors in the area, reflecting that
they used members of the IBEW to operate the "Ditch-
Witch" in connection with electrical jobs they had han-
dled, while, on the other hand, the Operating Engineers
presented evidence indicating that certain contractors
used the Operating Engineers for such work. The
record in its entirety supports the view that electrical
contractors in the area generally use electricians, repre-
sented by IBEW, to operate the "Ditch-Witch,"
whereas the general contractors use operating engi-
neers to perform such work.
3. Employer assignment and preference
The record is clear that, at least for the past 11 years,
ECI has used its own electricians, represented by
IBEW, to operate the "Ditch-Witch," not only at the
present jobsite but also in all other places where ECI
has engaged in electrical construction.
4. Skills
The Operating Engineers urges the Board to con-
sider the asserted greater skill and experience of its
members as persuasive of its entitlement to the work
assignment. However, the record clearly establishes
' The charge, though filed by Hydrocarbon, refers only to ECI's assign-
ment, and the notice of hearing, likewise, names ECI as the "Employer."
that no particular skill is required to operate the
"Ditch-Witch."
5. Efficiency and economy
The record indicates that the wage scales for mem-
bers of the Operating Engineers and the IBEW are
somewhat comparable. However, on this particular
project, the record shows that ECI used the "Ditch-
Witch" only intermittently. It therefore appears that it
was more practical and economical for ECI to use one
of its regularly employed electricians to operate the
machine, rather than to hire an operating engineer and
thus fragment a task more efficiently performed by a
single craft.
Conclusions as to the Merits of the Dispute
Upon consideration of all the pertinent factors, we
conclude that employees of ECI, represented by IBEW,
are entitled to the work in dispute. Employees of ECI,
represented by IBEW, are fully capable of performing
the work in dispute, and it appears that both Hydrocar-
bon and ECI, which assigned them the work, are sa-
tisfied with the quality of their work and the efficiency
gained through employing them. Moreover, the instant
assignment of the disputed work to IBEW is consistent
with the provisions of the collective-bargaining agree-
ment between ECI and IBEW, and the past practice of
ECI conforms to area and industry practice, and is not
in derogation of any ECI obligation to the Operating
Engineers . We conclude, therefore, that ECI' s assign-
ment of the disputed work to employees represented by
IBEW shall not be disturbed. We shall, accordingly,
determine the existing jurisdictional dispute by decid-
ing that electricians represented by IBEW, rather than
operating engineers, are entitled to the work in dispute.
In making this determination, we are assigning the
disputed work to the employees of ECI, who are repre-
sented by IBEW, but not to the IBEW or its members.
The 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 Re-
lations Act , as amended , and upon the basis of the
foregoing findings , and the entire record in this pro-
ceeding , the National Labor Relations Board hereby
makes the following determination of dispute:
1. Employees employed by Electrical Constructors,
Inc., currently represented by International Brother-
hood of Electrical Workers , Local 716, AFL-CIO, are
entitled to the work of operating the trenching machine
known by the brand name of "Ditch-Witch" at the
Shell Chemical Company construction project at Deer
Park , Texas.
OPERATING ENGINEERS, LOCAL 450 97
2. International Union of Operating Engineers, Lo-
cal No. 450, AFL-CIO, is not entitled, by means pro-
scribed by Section 8(b)(4)(D) of the Act, to force or
require Electrical Constructors, Inc., to assign the
above-described work to employees represented by it.
3. Within 10 days from the date of this Decision and
Determination of Dispute, International Union of Op-
erating Engineers, Local No 450, AFL-CIO, shall
notify the Regional Director for Region 23, in writing,
whether or not it will refrain from forcing or requiring
Electrical Constructors, Inc., by means proscribed by
Section 8(b)(4)(D) of the Act, to assign the work in
dispute to employees represented by it, rather than to
employees represented by International Brotherhood
of Electrical Workers, Local 716, AFL-CIO.