Operating Engineers, Local 926,

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1101 (N.L.R.B. 1981)

OPERATING ENGINEERS. LOCAL 926
International Union of Operating Engineers, Local
926 and Oliver B. Cannon, Inc. and Interna-
tional Brotherhood of Painters and Allied
Trades. Case 10-CD-291
September 30, 1981
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Oliver B. Cannon, Inc.,
herein called the Employer, alleging that Interna-
tional Union of Operating Engineers, Local 926,
herein called IUOE or the Operating Engineers,
had violated Section 8(b)(4)(D) of the Act by en-
gaging in certain proscribed activity with an object
of forcing or requiring the Employer to assign cer-
tain work to its members rather than to employees
represented by International Brotherhood of Paint-
ers and Allied Trades, herein called the Painters.
Pursuant to notice, a hearing was held before
Hearing Officer Stephen E. Hise on August 21 and
September 8, 1980. The Employer and Respondent
appeared at the hearing and were afforded full op-
portunity to be heard, to examine and cross-exam-
ine witnesses, and to adduce evidence bearing on
the issues.
' Although the Painters did not appear at the hearing, Guy Turpin, a
general representative of the Painters, testified. Turpin, accompanied by
counsel, was present throughout the hearing. "representing the General
President of the International Brotherhood of Painters and Allied
Trades."
The Employer has filed a motion to reopen the record to admit an affi-
davit by Virgil R. Williams, containing evidence regarding the circum-
stances surrounding the assignment of the operation of an air compressor
by another painting contractor at the site of the instant dispute. and an
affidavit of the Employer's counsel, Mark E. Edwards, concerning his in-
ability to contact Williams before or during the second day of the instant
hearing. The Employer contends that, inter alia, the information con-
tained in Williams' affidavit resolved certain matters discussed at the
hearing, and since the "strict rules of evidence are not to be followed in
hearings pursuant to Section 10(k)," citing Bricklayer Local Union No. I
of Missouri. Bricklayers, Masons and Plasterers International Union, .4FL-
CIO (St. Louis Home Insulators. Inc.), 209 NLRB 1072 (1974), its motion
should be granted by the Board. Also, while not expressly covered by
the motion, the Employer attached to its brief to the Board a letter dated
December 26. 1979, setting forth certain policies allegedly followed by
the Impartial Jurisdictional Disputes Board (IJDB), apparently in the
hope that the letter would he construed by the Board as falling within
the scope of its motion and considered in the Board's resolution of this
matter. As to Williams' affidavit, we note that, while hearings pursuant to
Sec. IO(k) are nonadversary proceedings, the Employer was nonetheless
free to subpena Williams as a witness, but for unexplained reasons failed
to do so. Further, the Employer has presented nothing which would indi-
cate that the evidence it seeks to introduce through Williams' affidavit
was unobtainable at the time of the hearing through some other source or
that this evidence is vital to the outcome of the instant proceeding As to
the IJDB letter, we note it is dated some 8 months prior to commence-
ment of the hearing and that the Employer has offered no evidence
which would indicate that the existence of the letter was unknown or un-
available to it at the time of the hearing. Accordingly, we shall deny the
Employer's motion
258 NLRB No. 143
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 au-
thority in this proceeding 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 af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer, a Pennsylvania corporation with its princi-
pal place of business in Philadelphia, is a painting
contractor. During the past year, the Employer
purchased goods from outside the State having a
value of $50,000. The parties also stipulated, and
we find, that the Employer is engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act and it will effectuate the purposes of the
Act to assert jurisdiction herein.
11. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Interna-
tional Union of Operating Engineers, Local 926,
and International Brotherhood of Painters and
Allied Trades are labor organizations within the
meaning of Section 2(5) of the Act.
111. THE DISPUTE
A. The Work in Dispute
The work in dispute involves the operation of air
compressors used in the Employer's cleaning, sand-
blasting, and painting maintenance work at the
Rome, Georgia, facility of the Georgia Kraft Com-
pany, Krannert Division.2
B. Facts and Background
The Employer contracted to perform certain re-
painting work for the Georgia Kraft Company at
its paper mill in Rome, Georgia. In repainting, old
paint is removed by sandblasting and new paint
sprayed on the surface thus prepared. Both oper-
ations require compressed air, supplied by engine-
driven machines called air compressors. The oper-
ation of this machine requires filling it with fuel,
water, and oil, pushing a button to turn it on,
checking the water and oil levels periodically
while the machine is operating, and pushing a
2 The record establishes that the Employer contracted to perform con-
struction as well as maintenance painting at the Rome. Georgia, facility.
and that. at the time the instant dispute arose. the construction work had
been completed. We herefore find that the instant dispute is limited to
the operation of air compressors to perform maintenance work
1101
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
button to turn it off. The Employer's employees,
all of whom are represented by the Painters, per-
form these tasks as part of their jobs, which consist
mainly of sandblasting and painting.
At the time the Employer was working on the
Georgia Kraft site, other contractors were doing
both construction and maintenance work at the
same site; some of these contractors employed
members of the Operating Engineers. The parties
agree that sometime in March 19803 the Employer
was requested by Respondent Operating Engineers
to assign an operating engineer to operate the air
compressors. On July 1, the Operating Engineers
posted a picket at the Georgia Kraft facility, the
sign stating that the Employer was unfair; members
of the Operating Engineers then stopped work for
various contractors at the site. At the instigation of
Georgia Kraft, the Employer shut down the air
compressors until the jurisdictional dispute could
be resolved; members of the Operating Engineers
then resumed work at other parts of the site. Fol-
lowing an agreement with the Operating Engineers
to submit the dispute to the Board, the Employer
later resumed work with painters operating the air
compressors.
On May 15, Frank Raftery, the general president
of the International Brotherhood of Painters and
Allied Trades, had authorized James R. Love to
adjust this dispute with M. C. Hargett, a repre-
sentative of the Operating Engineers. Hargett testi-
fied that on June 12 Love agreed that members of
the Operating Engineers should perform the disput-
ed work. But Raftery later reversed that position,
in a telegram dated July 29, where he informed an
agent of the Board that the Painters had not relin-
quished its claim to the work. During this time and
thereafter, members of the Painters continued to
perform the disputed work.
C. The Contentions of the Parties
The Employer contends that it has assigned the
work to employees represented by the Painters in
accordance with industry practice and its collec-
tive-bargaining agreement and for reasons of effi-
ciency. The Employer denies that it is bound to
submit the dispute to the Impartial Jurisdictional
Disputes Board (IJDB).
The Operating Engineers contends that its mem-
bers are entitled to perform the work in accord-
ance with industry practice and the "green book"
of the AFL-CIO Building Trades Department. It
further contends that the Employer was bound by
two collective-bargaining agreements to submit the
dispute to the IJDB.
' All dates are in 1980 unless otherwise indicated.
The Painters did not appear. However, the rep-
resentative of the Painters general president testi-
fied and claimed the work as properly that of the
members represented by the Painters. Also, in a
telegram dated July 29, 1980, the Painters general
president, Raftery, stated that his Union did not re-
linquish its claim to the work in dispute here.4
D. Applicability of the Statute
1. The 8(b)(4)(D) violation
Before the Board may proceed with a determina-
tion of the 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 and that the parties have not agreed upon
a method for the voluntary adjustment of the dis-
pute.
We find reasonable cause to believe that a viola-
tion of Section 8(b)(4)(D) occurred when the Oper-
ating Engineers picketed the Georgia Kraft facility
in July and the operating engineers at the site
walked out. Accordingly, the dispute is properly
before the Board for determination under Section
10(k) of the Act.
2. Voluntary adjustment
It appears on the whole record that there is no
agreed-upon method for the resolution of this dis-
pute. The Operating Engineers contends that the
Employer is signatory to two national agreements
providing for resolution of jurisdictional disputes
by the IJDB: the National Agreement between the
Operating Engineers and Oliver B. Cannon, Inc.
(IUOE National Agreement), and the National In-
dustrial Construction Agreement (NICA). Howev-
er, there is no evidence that the Employer was sig-
natory to the NICA at the time of this dispute;
and, while the Employer was apparently a party to
the IUOE National Agreement at the time of the
dispute, the record establishes that said agreement
applies by its terms to "construction" painting and
does not mention "maintenance" painting, which is
the subject of this dispute, s and which is routinely
distinguished in the industry from construction
painting, even though the function of the air com-
pressors in each type of work is the same. Accord-
' See fn I. above; see also International Union of Operating Engineers.
Local ANo. 369 (Campbell-South Painting Corporalion). 213 NLRB 99, fn I
(1974), finding that a member may claim work for himself and other
memhers.
s The Employer maintains that it canceled its agreement with the Op-
erating Engineers, hut the record shows that it did not do so until Sep-
tember 8, the second day of the hearing in this case-several months
after the dispute arose, his cancellation would not retroactively relieve
the Employer of an agreement to suhmit disputes under that contract to
the Impartial Board. if indeed the conltract was applicable to the actual
dispute in question
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OPERATING ENGINEERS, LOCAL 926
ingly, we find that article I of the IUOE National
Agreement, which "covers all construction work
done by the Employer," does not pertain to the
disputed maintenance work.
The Operating Engineers further contends that
the Employer, in seeking a state court injunction
against its picketing, claimed that the IUOE was
bound to submit the dispute to the IJDB,6 and that
the Employer is thereby estopped from now deny-
ing that it is bound to submit the dispute to the
IJDB. However, the Employer's argument in that
case was only that the IUOE was bound by an
agreement with the Georgia branch of the Associ-
ated General Contractors of America-an agree-
ment to which the Employer is not a party-to
submit the dispute to the IJDB. We do not find
that the Employer's argument in the prior injunc-
tion proceeding binds it to submit this dispute to
the IJDB.
The Operating Engineers also contends that the
Employer is bound by an oral understanding of
June 12, between M.C. Hargett, representing the
IUOE, and James Love of the Painters, that mem-
bers of the Operating Engineers were entitled to do
the work in question. But there is no evidence that
the Employer participated in, or agreed to be
bound by, any agreement which may have been
reached between these two Unions. Accordingly,
we find that, even if the Unions had reached agree-
ment, the Employer would not be bound thereby.
Nor do we find that the Painters, by the purported
June 12 agreement, has disclaimed the work in dis-
pute. As noted above, after the conversation be-
tween Love and Hargett, Love's superior, Raftery,
informed the Board in writing that the Painters had
not relinquished its claim, and it appears that mem-
bers of the Painters have continued to do the work
in dispute. In these circumstances, we find no ef-
fective disclaimer of the disputed work by the
Painters. Local Union No. 459, Laborers Internation-
al Union of North America, AFL-CIO (Cord North
American Moving and Storage), 224 NLRB 690, 691
(1976); Truck Drivers Union Local 170, affiliated
with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (Asso-
ciated General Contractors of Massachusetts, Inc.),
216 NLRB 236 (1975); Local 926, International
Union of Operating Engineers (High Point Sprinkler
Company of Atlanta), 191 NLRB 603, 605 (1971).
Based on the foregoing, we find that there is no
agreed-upon method for the voluntary adjustment
of this dispute, and that the Painters has not dis-
6 The transcript or this proceeding. Oliver B. Cannon Son. Inc.
Buddy Coleman and Ivan Wxotemn (Superior C. Floyd County, GA No
16719, July 3. 1980). is in evidence.
claimed the disputed work. The dispute is thus
properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of the disputed work
after giving due consideration to various factors.'
The Board has held that its determination in a ju-
risdictional dispute is an act of judgment based on
commonsense and experience reached by balancing
those factors involved in a particular case.R We
have considered the following factors:
1. Certification and bargaining agreements
The evidence does not indicate a Board certifica-
tion relative to the disputed work.
No collective-bargaining agreement brought to
our attention mentions specifically the operation of
air compressors, but the Maintenance Repaint
Agreement between the Painters and the Employer
specifically covers "maintenance painting and other
work related and incidental thereto." The collec-
tive-bargaining agreement between the Employer
and the Operating Engineers was ultimately can-
celed, but in any event applied only to construction
work rather than maintenance. We therefore find
that the collective-bargaining agreements favor an
award to the employees represented by the Paint-
ers.
2. Employer and area practice
The record discloses that most, if not all, paint-
ing contractors in the southeastern United States,
including the Employer, assign the operation of air
compressors differently on maintenance jobs than
on construction jobs. On construction jobs, the op-
eration of compressors smaller than 185 cubic feet
has sometimes been assigned to painters, while the
operation of larger compressors generally has been
assigned to employees represented by the Operat-
ing Engineers. However, on maintenance jobs, the
compressors are always operated by painters. Thus,
we find this factor favors an award to employees
represented by the Painters.
3. Skills, economy, and efficiency
Employees represented by the Painters or the
Operating Engineers are equally experienced in and
qualified for the operation of air compressors.
However, the operation of air compressors is rela-
tively simple and generally does not require full-
'7 L. R. B. Radio & ITclevirlon Broadca t Engincerl tnn., Local 1212.
Intrnatwnalu Brotherhd of Electrical Workcr .41l.--CIO [Colunmbla
Broadcavting Svm'l, 3l]. 4 U1 S 573. (1961)
Internation al 4 iociatiot, o .Mlachiztwi. Ldge .\o. 17.43. 411 -CO fJ.
.4. Ji Cn ( litrutiont Co. ). 135 N L RH 1402 ( 162).
1103
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time attention. The Employer employs only indi-
viduals represented by the Painters and it appears
that those employees can sandblast and paint and
still effectively tend the air compressors as re-
quired. Further, because sandblasting and painting
are within the exclusive jurisdiction of the Painters,
it is work which employees represented by the Op-
erating Engineers are precluded by their contract
with the Employer from performing. Thus, the
Employer would have no work for operating engi-
neers other than running the compressor. Accord-
ingly, we find that while the factor of skill favors
neither group of employees, the factor of economy
and efficiency favors an award to employees repre-
sented by the Painters.
4. Employer preference
The Employer assigned the work in dispute to,
and prefers that it be performed by, employees rep-
resented by the Painters; this factor, while not de-
termative, favors an award to these employees.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that employees of the Employer who are
represented by International Brotherhood of Paint-
ers and Allied Trades are entitled to perform the
work in dispute. We reach this conclusion relying
on the fact that the assignment of the operation of
the air compressor for use in the Employer's clean-
ing, sandblasting, and painting maintenance work is
more economical and efficient and is consistent
with the collective-bargaining agreements, employ-
er and area practice, and the Employer's prefer-
ence. In making this determination we are not
awarding the work in question to that Union or to
its members. The present decision is limited to the
particular controversy which gave rise to this pro-
ceeding. 9
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 Oliver B. Cannon, Inc., who are
represented by International Brotherhood of Paint-
ers and Allied Trades are entitled to operate the air
compressors used in the cleaning, sandblasting, and
painting maintenance work of Oliver B. Cannon,
Inc., at the Rome, Georgia, plant of Georgia Kraft
Company, Krannert Division.
2. International Union of Operating Engineers,
Local 926, is not entitled by means proscribed by
Section 8(b)(4)(D) of the Act to force or require
Oliver B. Cannon, Inc., to assign the disputed work
to employees represented by that labor organiza-
tion.
3. Within 10 days from the date of this Decision
and Determination of Dispute, International Union
of Operating Engineers, Local 926, shall notify the
Regional Director for Region 10, in writing,
whether or not it will refrain from forcing or re-
quiring the Employer, by means proscribed by Sec-
tion 8(b)(4)(D) of the Act, to assign the disputed
work in a manner inconsistent with the above de-
termination.
'The Employer requests a broad award applying to this and similar
work disputes arising between it and the Operating Engineers. While the
Employer correctly cites the standard for issuing such an award. Interna-
tional Brotherhood of Electrical Workers, AFL-CIO. Local 104 (Standard
Sign and Signal Co., Inc.), 248 NLRB 1144, 1147-48 (1980), it has not
demonstrated that "a broad order [sic] is indispensable to the fashioning
of a meaningful award here." While the Operating Engineers in this case
did use proscribed means to force the assignment of the disputed work to
employees it represented, it did so for a very brief period, and soon
thereafter cooperated with the Employer to allow work to continue on
the Georgia Kraft Rome site while the parties submitted their dispute to
the Board for determination. The Employer has not shown that the Op-
erating Engineers is likely to engage in further unlawful conduct in order
to obtain work similar to that in dispute.
1104