Local 499, Int'l Brotherhood Electrical Workers

870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case , it is recommended that the Respondent, Chevrolet Motor Division, General Motors Corporation , its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Maintaining in effect a rule which prohibits employees from engaging in solicitation in connection with union activities during their nonworking hours on Respondent's premises. (b) Maintaining in effect a rule prohibiting its employees when they are on nonworking time in a nonworking area from distributing any written material on behalf of any labor organization , or against any labor organization that is not sponsored by the contracting Union. 2. Take the following affirmative action which is found will effectuate the policies of the Act: (a) Notify the Regional Director for the Twenty-first Region, in writing, within 20 days from the receipt of this Intermediate Report and Recommended Order what steps have been taken to comply herewith.3 It is further recommended that unless within 20 days from the date of the receipt of this Intermediate Report and Recommended Order Respondent notifies said Regional Director, in writing, that it will comply with the foregoing recommenda- tions, the Board issue an order requiring Respondent to take the aforesaid action. 3 In the event this Recommended Order be adopted by the Board, the provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order," what steps Respondent has taken to comply herewith." Local 499, International Brotherhood of Electrical Workers, AFL-CIO and Iowa Power and Light Company. Case No. 18- CD-28. September 26, 1963 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the National Labor Relations Act, following the filing of a charge alleging violations of Section 8(b) (4) (D) of the Act. A hearing was held before Hearing Officer Charles J. Frisch on May 14, 15, and 16, 1963. All parties who appeared at the hearing were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evi- dence bearing upon the issues. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Briefs were filed by Iowa Power and Light Company, herein called the Company; Local 499, International Brotherhood of Electrical Workers, AFL-CIO, herein called the IBEW; and Local 33, United Association of Journeymen and Apprentices of the Plumb- ing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, herein called the Plumbers. Upon the entire record in the case, the Board 1 makes the following findings : 'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. 144 NLRB No. 80. LOCAL 499, INT'L BROTHERHOOD ELECTRICAL WORKERS 871 1. We find that the Company, an electric and gas public utility with its principal place of business in Des Moines, Iowa, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein, the parties having stipulated that the Company annually makes purchases from out-of-State suppliers in excess of $50,000 and has gross revenues in excess of $1,000,000 per year. 2. We find that the IBEW and the Plumbers are labor organiza- tions within the meaning of Section 2(5) of the Act. 3. The dispute A. The disputed work; background facts The Company is engaged in a multimillion dollar moderniza- tion program of its powerplant facilities at a location called Des Moines Power Station No. 2, or DPS-2, its main generating system. For this purpose, the Company purchased a new high-pressure boiler which is designed to replace six existing low-pressure boilers. The new boiler, referred to as boiler No. 6, has been erected outside and adjacent to the plant by a contractor not involved in this proceeding. To put this boiler in operating service, the Company has contracted with Power Service Corporation, herein called Power Service, to install and to connect or tie-in the boiler with existing facilities. This involves running a large steam "header" or pipe through the existing plant and properly connecting it with existing piping and equipment and otherwise tying the new boiler into the existing system. Routing of the new "header" through the plant necessarily results in situations where existing piping "interferes" with the course of the new piping or its appurtenances. Because the new pipe was precut as delivered to the site, it was essential to reroute or temporarily move existing facilities when interferences occurred, rather than to change the course of the new piping. The installation also involved connections or tie-ins with existing equipment. Although, initially, there was some controversay concerning tie-ins, all parties now agree that this work belongs to the pipefitters. The dispute herein concerns inter- ference work, i.e., the rerouting or removal of existing facilities neces- sitated by the installation of boiler No. 6. This disputed work is currently assigned to pipefitters, represented by the Plumbers and employed by Power Service, a subcontractor. The maintenance em- ployees employed by the Company and represented by the IBEW claim the interference work.2 ' The Company is also constructing a new, separate , unitized boiler-turbine unit at I)PS-2, referred to as project 7-11. This project has also been contracted to Power Service. However, there is no present dispute between the pipefitters and the mainte- nance employees with regard to project 7-11, as no significant interference work is involved. 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The IBEW is the certified bargaining representative for all of the Company's physical or production and maintenance employees, in- cluding the employees in DPS-2, and has had contractual relations with the Company for over 10 years. Recent contracts between the Company and the IBEW, including the existing contract, provide for the retention of work by the Company's own employees where the local is able to supply crews.' The IBEW did not object to the Company's subcontract with Power Service for the installation of boiler No. 6, as this project was viewed as new construction. However, the Company and the IBEW were aware that questions would arise concerning interference work. Consequently, a series of meetings were held in July and August 1962, prior to the Company's award of a subcontract to Power Service on October 8, 1962. In August 1962, representatives of the IBEW and the Plumbers also met in an attempt to resolve differ- ences in work assignments which had arisen on project 7-11 and might arise with regard to boiler No. 6. No clear agreement resulted from these meetings concerning boiler No. 6, but it dispute with regard to 7-11 was resolved. Subsequent meetings by all of these parties over grievances were also held from November 1962 to March 1963, but again no significant agreements were reached. However, between October 1962 and March 1963, some interference work on boiler No. 6 was performed by maintenance employees represented by the IBEW and some by pipefitters represented by the Plumbers. On February 13, 1963, as a result of an IBEW claim to certain alleged interference work being performed by pipefitters, the Com- pany directed that maintenance employees perform such work. The next day, the pipefitters engaged in a work stoppage, but returned to work on the following day. Immediately after this work stoppage, at the Company's direction, no interference work was performed until March 11, 1963, at which time the Company informed the IBEW and Power Service that pipefitters employed by the latter would thereafter perform all interference work. Subsequently, further discussions were had between the Company and the IBEW concerning the disputed work, but no agreement was reached. Between March 19 and 22,1963, the maintenance employees went out on a strike called by the IBEW. On March 20, the Company filed the instant charge, alleging that the IBEW engaged in conduct proscribed by Section 8(b) (4) (D) of the Act. B. Applicability of the statute Section 10(k) of the Act empowers the Board to hear and determine the dispute out of which a Section 8 ('b) (4) (D) charge has arisen. Be- 'Article VI, section 10, of this agreement provides: The Company will not let out to contractors the operation, maintenance , repair and normal construction of equipment owned or operated by the Company until the Business Manager of the Local Union has been duly notified and every reasonable effort has been made to provide Company crews for the performance of such work. LOCAL 499, INT'L BROTHERHOOD ELECTRICAL WORKERS 873 fore making such determination, however, the Board is required to find that there is reasonable cause to believe that that section of the Act has been violated. While the IBEW concedes that it engaged in a work stoppage, it contends that its object was not unlawful, as the IBEW was merely protesting the Company's violation of the contract provision concern- ing subcontracting of work. As the record is clear that an object of the IBEW's conduct was to force the Company to change its assign- ment of work to the pipefitters, we find, on the entire record, 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 under Section 10(k) of the Act.4 C. Merits of the dispute The Board is required to make an affirmative award of disputed work after giving due consideration to various relevant factors actors. 5 The dominant factors presented in this case are the several agreements between the various parties; skills of the competing employee groups; company and area practice; and efficiency of operations. Contracts: As stated above, the IBEW is the certified bargaining representative of the Company's employees, including the maintenance crew employed at DPS-2, who have been covered by collective-bargain- ing contracts between the Company and the IBEW. We note that the subcontracting clause in the collective-bargaining agreement be- tween the Company and the IBEW provides for the retention of "maintenance, repair and normal construction" work in the bargaining unit. Although the maintenance employees are not classified as pipe- fitters, the record is clear that their job description as mechanics re- quires them to engage in pipework and the record discloses that they have performed such work when necessary for maintenance of opera- tions. On the other hand, Power Service also has a collective-bargain- ing agreement with the Plumbers covering the job classification of pipefitters. During the Company's initial negotiations with Power Service, prior to the formal agreement executed on October 8, 1962, the Company intended to have the latter's pipefitters perform all inter- ference work, but this position was modified after Company and IBEW discussions during July and August 1962, which resulted in the mainte- nance employees doing some of the disputed work. However, contrary to the assertions of the parties, there is no evidentiary support that * Local 110, Sheet Metal Workers International Association , AFL-CIO ( Brown and Williamson Tobacco Corporation), 143 NLRB 947. B N L R B. v. Radio & Television Broadcast Engineers Union Local 1212, International Brotherhood of Electrical Workers, AFL-CIO (Columbia Broadcasting System ), 364 U S 573; International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any other meaningful agreements were reached by the various parties during the many, aforementioned meetings and discussions. Skills and work involved: At the hearing, the Company conceded that the maintenance employees were qualified to perform interference work, i.e., the rerouting and the temporary removal of existing pipe. On the other hand, the IBE«7 concedes that these employees are not qualified to do certified welding, and it has agreed that the pipefitters may perform such work. The record does not establish the volume of certified welding that is performed, but does indicate that such work is mainly required for tie-in jobs, which the parties agree is not in dispute. It appears further that the maintenance employees are cap- able of performing normal welding operations in connection with their customary work. Past practice : The record is clear that the construction and installa- tion of other boilers on previous occasions at DPS-2 did not involve any significant amount of interference work. Additionally, there is no probative evidence concerning area practice with regard to this par- ticular work. Therefore, neither company nor area practice furnishes any practical assistance for purposes of determining this dispute. Efficiency: The Company asserts that it would be more efficient to have pipefitters perform the interference work.' It contends that its maintenance employees have sufficient, normal work on hand to keep them busy; that less delays would be encountered in the progress of the project, if pipefitters were permitted to do the work; and that its contract with Power Service is on a fixed-cost basis, thereby making it more economical to have pipefitters do the work. As already noted, however, maintenance employees have performed interference work and the evidence does not demonstrate that it conflicts with other work which they perform at DPS-2. Moreover, the Company uses its own employees to tap or drain pipes which need to be rerouted or re- moved. Although it is conceivable that some delays may result on occasions when the pipefitters are required to wait for the maintenance employees to correct interferences, it does not appear that such delays would be substantial, that pipefitters do not have other tasks to perform during such periods, or that the delays cannot be eliminated by ap- propriate scheduling of work. With regard to the cost factor, the record shows that the Company has the privilege of renegotiating with Power Service or to make an equitable adjustment concerning work not performed by the pipefitters. On the basis of the record as a whole, and on appraisal of all the relevant considerations,' we believe that, as the customary function of the plant's maintenance employees is to maintain normal operation of e The Plumbers' position is comparable to that of the Company. We have also considered the constitutions of the AFL-CIO, 1961, and of the Plumbers, but neither document is of meaningful assistance to resolve the instant dispute. EDRO CORPORATION, ANASCO GLOVES, INC., ETC. 875 the power system and as the interference work essentially involves the rerouting and temporary removal of existing facilities without any material disruption to normal operations, it is more equitable and logical to use regular maintenance employees for interference work. In addition, the contractual rights of the maintenance employees under the Company-IBEW bargaining agreement and their demonstrated ability to do the interference work are of persuasive significance. We, therefore, find that the maintenance employees are entitled to perform the work in dispute. Accordingly, we shall determine the dispute by deciding that the Company's maintenance employees are entitled to perform the interference work at DPS-2-the rerouting and temporary removal of existing pipes-with regard to boiler No. 6; and that the pipefitters are entitled to perform tie-ins to existing pipes as well as the certified welding on this project. Our determination is limited to the particular dispute which gave rise to this proceeding. In making this determination, we are assigning the disputed work to the respec- tive employees represented by the IBEW and the Plumbers, but not to these labor organizations or their members. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings and upon the entire record in the case, the Board makes the following determination of dispute, pursuant to Section 10 (k) of the Act : 1. Maintenance employees employed by Iowa Power and Light Com- pany, who are represented by Local 499, International Brotherhood of Electrical Workers, AFL-CIO, are entitled to perform interference work-the rerouting and temporary removal of existing pipes-with regard to the boiler No. 6 project at Des Moines Power Station No. 2. 2. Pipefitters employed by Power Service Corporation, who are represented by Local 33, United Association of Journeymen and Ap- prentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, are entitled to perform the necessary tie-ins to existing pipes and certified welding with regard to the above- mentioned project. Edro Corporation, Anasco Gloves, Inc., and their agent , Cecilia Vega de Bravo and Amalgamated Clothing Workers of Amer- ica, AFL-CIO. Cases Nos. 24-CA-1662 and 24-CA-1684. Sep- tember 27, 1963 DECISION AND ORDER On June 3, 1963, Trial Examiner Sidney D. Goldberg issued his Intermediate Report in the above-entitled proceedings, finding that Respondents had engaged in and were engaging in certain unfair labor 144 NLRB No. 79.