IBEW, Local 322

IBEW, LOCAL 322 1121 ent's demand, but was motivated solely by his aversion to paying any part of his dues obligations and would not have complied even with a proper demand. I do not believe that the decided cases require that a failure to tender under such circumstances be excused, or that such a result would be consistent with the congressional policy underlying Section 8(b)(2) and proviso (B) in Section 8(a)(3). That policy, as we have seen, was not to protect free riders against excessive union demands, but rather to insure that employees who were willing to pay their financial obligations were not discharged for improper reasons. It is one thing to dispense with the statutory requirement of objective proof-in the form of a tender-of an employee's willingness to pay his fair share of union representation, where the union's conduct deters him from satisfying this requirement. It is quite a different matter to require no proof at all of such willingness to pay, or to deem immaterial the proof in the record that the employee was in fact unwilling to pay for reasons unrelated to the terms of the union's request. Accordingly, in view of all the foregoing considerations, I find that, by causing Kilfoyle's discharge, Respondent did not violate Section 8(b)(2)18 or (1) (A) of the Act, and I will recommend that the complaint be dismissed. RECOMMENDED ORDER It is ordered that the complaint herein be, and it hereby is, dismissed.19 18 Had the record shown that the Company, in discharging Kilfoyle, had reasonable grounds for believing that his discharge was sought, at least in part, because of his re- tusal to pay for The Log, it would be arguable that such discharge fell within the inter- diction of proviso (A) of Section 8(a) (3), and that, by causing such illegal discharge, Respondent violated Section 8(b)(2). However, General Counsel disclaimed any ieliance on such a theory, and the record does not, in any event, warrant a finding that the Company had reason to believe that Aubusson had demanded that Kilfoyle pay for The Log (Even if one credits Kilfoyle's testimony that he told the master of his vessel that Aubusson had asked for "105 dollars," this would hardly constitute notice that this sum included $5 for The Log ) Moreover, the considerations cited above that militate against extending the protection of Section 8(b) (2) to "free riders" would still be applicable to One cannot condemn too strongly the conduct of Respondent's agents in this case in giving admittedly false testimony in their efforts to defeat Kilfoyle's claim. That Kilfoyle, as I have found, resorted to like measures is no justification However, this is a matter for consideration by another forum. International Brotherhood of Electrical Workers, Local 322 1 and Ets-Hokin & Galvan/Hood Corporation (A Joint Venture)' and International Union of Operating Engineers 3 and Inter- national Hod Carriers, Building and Common Laborers of America.4 Case No. 27-CD-53. November 27, 1964 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the Act, following a charge filed by Ets-Hokin & Galvan/Hood Corporation, herein called the Employer, alleging that the International Brotherhood of Elec- trical Workers, Local 322, herein called IBEW, had violated Section 'Appearances were also made on behalf of the International Brotherhood of Electrical Workers, Locals 1525 and 111. 2 The naive of the Joint venture appears as amended at the hearing. 3 Counsel appearing on behalf of the International Union of Operating Engineers, also represented its Locals 320, 9, and 571 4 Counsel appearing on behalf of the International Hod Carriers, Building and Common Laborers of America, also represented its Locals 880 and 1219. 149 NLRB No. 112. 770-070-65- yol 149--72 1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8(b) (4) (D) of the Act. Pursuant to notice, a hearing was held before Hearing Officer Allison E. Nutt on July 24, 1964. The Employer, the IBEW, the International Union of Operating Engi- neers, herein called Engineers, and the International Hod Carriers, Building and Common Laborers of America, herein called Laborers,5 appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evi- dence bearing on the issues. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. 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 [Members Fanning, Brown, and Jenkins]. Upon the entire record in this case, the Board makes the following findings : 1. The business of the Employer The parties stipulated that Ets-Hokin & Galvan/Hood Corporation is a Joint Venture of Ets-Hokin & Galvan, Inc., a California corpo- ration, and Hood Corporation of Whitter, California. The Joint Venture is participating in the installation and testing of certain electrical systems at or near Warren Air Force Base, Cheyenne, Wyoming, pursuant to one or more contracts with the United States Air Force, having a gross value in excess of $6,000,000. Performance of these contracts is essential to the national defense. We find that the Company 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. 2. The labor organization involved The parties stipulated, and we find, that the IBEW, the Engineers, and the Laborers are labor organizations within the meaning of Sec- tion 2(5) of the Act. 3. The dispute a. Background facts In May 1963, the Employer began performing on a defense con- tract which called for the installation of approximately 2,200 miles of underground cable establishing a communications network connecting about 200 missile bases in Wyoming, Nebraska, and Colorado. In May 1964, the Air Force issued a contract-change notice calling for the installation of several thousand marker poles along the right-of- way of the cable. The poles are approximately 9 inches in diameter, 16 feet long, and are set 5 feet into the ground. The marker poles carry a small metal sign to warn construction crews and repair men g The Engineers and the Laborers intervened and are parties to the dispute. IBEW, LOCAL 3 2 2 1123 of the location of the cable. No electrical conductors, wires, or appa- ratus are attached to the poles,, which are being erected after the cables have been laid and the right-of-way restored. The Employer submitted a contract bid to the Air Force on a cost- plus basis using wage rates of the Engineers- and Laborers, and assigned the work to those crafts. Work on the marker pole installa- tion began on July 7, 1964. Five-man crews composed of a teamster driving the truck, an engineer operating the auger used to dig the post holes, and three laborers unloading the poles from the trucks, setting the poles, and tamping the earth around the poles, were used. On July 9, 1964, an IBEW representative notified the Employer and the Air Force that unless the Laborers and Engineers were replaced with IBEW members, the IBEW men would not work July 10. On July 10, 55 IBEW members refused to work, thereby generating a general shutdown. On July 13, 1964, the Employer filed charges against the IBEW, alleging violation of Section 8(b) (4) (ii) (D). On that day the IBEW directed its members to return to work, and on July 14, work resumed. The IBEW has not withdrawn its claim for the work, and the Employer has not changed its assign- ment of the work. b. Contentions of the parties The Engineers and Laborers assert that the work in dispute is iden- tical with that which their crafts have traditionally performed in outside construction work, and that it cannot be considered electrical work. They further claim that IBEW, as a member of the building trades department of the AFL-CIO, is bound by the decision of the National Joint Board for Settlement of Jurisdictional Disputes which, in similar controversies, has awarded the work to the Engi- neers and Laborers. The IBEW claims that the work in dispute is covered by its certi- fication following a consent election in Case No. 27-RC-2248, dated June 13, 1962. Evidence of certification was rejected by the Hearing Officer because it applied, to members of the Wyoming Division, Mountain States Line Constructors Chapter, NECA, and the Employer's representative testified that they had not been a member of the NECA, in Wyoming. The IBEW also asserts that it is not bound by decisions of the National Joint Board insofar as they apply to line construction work which it claims is the nature of the work in dispute. The Employer claims that the work is not electrical in nature, and cannot be considered line construction work. It further contends that the work is identical to work performed by the Engineers and 1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Laborers in outside construction work. The Employer also denies that it has ever been bound by the IBEW-NECA certification upon which the IBEW relies. c. Applicability of the statute The charge, which was duly investigated by the Regional Director, alleges a violation of Section 8(b) (4) (D) of the Act. The Regional Director was satisfied upon the basis of such investigation that there was reasonable cause to believe that a violation had been committed and directed that a hearing be held in accordance with Section 10(k) of the Act. The record is clear, and it is not disputed, that after the Employer assigned the disputed work to the Engineers and Laborers the IBEW notified the Employer and the Air Force that if they were not given the work, the IBEW would not work on the project. It is also clear that the 55 members of the IBEW refused to work from July 10 through July 13, 1964, in support of their claim for the disputed work. Accordingly, on the basis of the entire record, we find there is a reasonable cause to believe that a violation of the Act has occurred and that the dispute is properly before the Board for determination. d. Merits of the dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to the various relevant factors; and the Board has held that its determination in a jurisdictional dispute case is an act of judgment based upon common sense and experience and a balancing of such factors.- (1) Skills involved There is no skill , knowledge, or experience required for setting the marker poles. The operation of the auger used to drill the holes for the marker poles does require a certain skill , but one in which IBEW members and Engineers are both qualified. (2) Certifications and collective-bargaining agreements The IBEW certification in Case No. 27-RC-2248 is not appli- cable in this dispute. It applies to members of the Wyoming Divi- sion, Mountain States Line Constructors Chapter , NECA, a multi- employer association of which the Employer is not a member. 6 N L R B v Radio & Televtston Broadcast Engineers Union, Local 1212, etc. ( Columbia Broadcasting System ), 364 U S. 573; International Association of Machinists, Lodge No. 1743 (J. A. Jones Construction Company), 135 NLRB 1402. IBEW, LOCAL 322 1125 However, the Employer did assent to give effect to the IBEW's contract with the NECA. Although the scope of work covered by the agreement includes wood pole construction work, the contract parenthetically defines wood pole construction as "power, telephone, radio, television, etc." The agreement makes further reference to work on wood pole structures "where used for the purpose of carry- ing electrical wires, conductors or equipment." The marker poles are in no way physically connected to the cable, and do not carry or support any electrical apparatus of any nature. They are installed in an operation separate from the laying of the cable. Therefore, we find that the disputed work is not within the scope of work covered by the IBEW-NECA contract agreed to by the Employer. (3) Area practice The function of the pole itself has been a major factor in the work assignment, with Communication Workers working on the communi- cation line projects, and the IBEW on the power line projects. The area practice insofar as marker poles are concerned has not been standard. Both the IBEW and the Engineers and Laborers have done similar work in the past. The testimony indicates, however, that the predominant area practice has been to use the Engineers and Laborers on work such as that which is in dispute. (4) Joint Board decision There is no decision concerning the exact work in dispute on this project. (5) Assignment made by Employer The work in dispute was not included in the original contract and was therefore not considered in the prejob conference with the unions at which the breakdown of work was established. At the pre- job conference, it was decided that the IBEW would lay the cable, do the splicing, test pressurization, and any work connected with the cable installation. The Engineers would build the right-of-way, dig the trench, do the backfilling, and run all equipment pertinent to the installation of the cable in regard to earth work. The Laborers would clean the trenches, build temporary and permanent gates, and shade the cable in situations in which equipment could not perform that operation. Subsequent to the receipt of the contract change notice from the Air Force calling for the installation of the marker poles, the Employer submitted a bid on a cost-plus basis using the wage rates 1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Engineers and Laborers. The Employer then assigned the work to those crafts. Setting the marker poles, repairing fences damaged during the laying of the cable, and installing permanent gates in fences which run across the right-of-way are all done by the same crew of Engineers and Laborers. Upon consideration of all pertinent factors in this case, we shall assign the disputed work to employees represented by the Engineers and the Laborers. We have given weight to the evidence that the predominant area practice has been to assign such work to these crafts; that the marker poles in question are in no way physically connected to the cable and that the installation of these poles is a separate and distinct operation from the laying of the cable; that the IBEW-NECA contract does not cover the disputed work; and that the marker pole crew is also engaged in fence repair work and gate building as was originally assigned these crafts at the prejob conference. Our present determination is limited to the particular controversy which gave rise to this proceeding. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings and the entire record in this proceeding, the Board makes the following determination of dispute pursuant to Section 10(k) of the Act: 1. Engineers and laborers employed by Ets-Hokin & Galvan/Hood Corporation, who are represented by the International Union of Operating Engineers, Locals Nos. 9, 326, and 571, and the Interna- tional Hod Carriers, Building and Common Laborers of America, Locals Nos. 880 and 1219, respectively, are entitled to perform the work of installing marker poles along the communication cable right- of-way interconnecting about 200 U.S. Air Force missile bases in Wyoming, Nebraska, and Colorado. 2. International Brotherhood of Electrical Workers, Local No. 322, AFL-CIO, is not entitled, by means proscribed by Section 8(b) (4) (D) of the Act, to force or require Ets-I-Iokin & Galvan/Hood Cor- poration to assign the above work to employees who are currently represented by it. 3. Within 10 days from the date of this Decision and Determina- tion of Dispute, International Brotherhood of Electrical Workers, Local 322, AFL-CIO, shall notify the Regional Director for Region 27, in writing, whether or not it will refrain from forcing or requir- ing the Employer, by means proscribed by Section 8 (b) (4) (D), to assign the work in dispute to electrical workers rather than to engineers and laborers.