Casler Electric Co.

586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Notify the Regional Director for Region 30, in writing, within 20 days from the date of receipt of this Trial Examiner's Decision, what steps the Respondent has taken to comply herewith.'° "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, an in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL bargain, upon request, with Teamsters and Chauffeurs Union, Local No. 328, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of all the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, or other terms and conditions of employment, and, if an under- standing is reached, embody it in a signed agreement. The bargaining unit is: All of our production and maintenance employees, including truckdrivers, but excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. WE WILL NOT interrogate employees as to their union interests and activities in a manner constituting interference, restraint, or coercion within the meaning of Section 8 (a) (1) of the Act. WE WILL NOT threaten employees with reprisals or promise or grant them bene- fits for the purpose of influencing their union activities or sympathies. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist Teamsters and Chauffeurs Union, Local No. 328, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by the provi- sions of Section 8(a) (3) of the Act, as amended. GAFNER AUTOMOTIVE & MACHINE, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, Room 230, 744 North Fourth Street; Milwaukee, Wisconsin, Telephone No. 272-8600, Extension 3866. , International Union of Operating Engineers Local No. 571 AFL- CIO and V. E. Casler and M. W. Casler d/b/a Casler Electric Company and International Brotherhood of Electrical Work- ers Local No. 1525, AFL-CIO. Case No. 17-CD-79. January 3, 1966. DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10 (k) of the National.: Labor Relations Act, as amended, following the filing of charges under 156 NLRB No. 64. INT'L UNION OF OPERATING ENGINEERS LOCAL 571 587 Section 8 (b) (4) (D) of the Act by V. E. Casler and Al. W. Casler d/b/a Casler Electric Company, herein called Casler or the Employer alleging that International Union of Operating Engineers, Local No. 571, AFL-CIO, herein called Respondent had induced and encouraged employees to cease work in order to force or require Casler to assign the disputed work to members of the Respondent rather than to employees represented by International Brotherhood of Electrical Workers, Local No. 1525, AFL-CIO, herein called IBEW. A hear- ing was held before Hearing Officer Robert L. Uhlig on October 12, 13, and 14, 1965. All parties who appeared at the hearing were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing upon the issues. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. A brief was filed by the Respondent and has been duly considered. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. Upon the entire record in the case, the Board makes the following findings : 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that Casler is a partnership with its prin- cipal office and place of business located at 1501 Seventh Street, Sioux City, Iowa, where it is engaged as an electrical contractor performing fabricating and assembly'work including erection of power substations for municipal and other governmental utilities. In the course and con- duct of its business operations, the Employer annually performs serv- ices valued in excess of $50,000 in States other than Iowa, wherein it is located. The Employer also annually purchases goods or services from outside the State of Iowa in excess of $50,000. We find that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that both Local 1525, IBEW, and the Respondent are labor organizations within the meaning of Section 2 (5) of the Act. M. THE DISPUTE A. The work in dispute On or about February 10, 1965, Casler contracted with the city of Fremont, Nebraska, to furnish and install equipment which would involve additions and remodeling of two of its powerplant substations. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The dispute herein occurred at one substation known as the Fal-Tex site. It arose over the operation of a truck-mounted power hoist referred to as a "high reach," used by Casler in its operations. C. I. Girdler Construction Company, a subcontractor at the Fal-Tex site and hereinafter referred to as "Girdler," was also affected by the dispute. The machine, manufactured by the Elliott Manufacturing Company of Omaha, Nebraska, was specially designed in part by Casler to meet the particular needs of the electrical contracting trade. The primary purpose of this machine, which can lift up to six men, 45 feet in the air, is to hoist men in a basket to perform electrical work. It is also used to hoist light-weight electrical equipment into the air for placement. The machine which is mounted on a truck and powered by the truck engine, can be operated from the basket in the air, or from the side of the truck on the ground. Casler's employees are electrical workers and Casler assigned an electrician to operate the "high reach" machine. Members of the Respondent, who were employed by Girdler, claimed that machine should be operated by engineers and engaged in a work stoppage to protest Casler's assignment. The work stoppage occurred on June 22 and ended on June 26, 1965, when the city of Fremont persuaded Casler to remove the "high reach" equipment from the Fal-Tex site. B. Evidence of conduct violative of Section 8(b) (4) (i) (D) On June 16, 1965, Virgil Cash, business agent of the IBEW, was approached by Orva Metzler, business manager of the Respondent, at the Fal-Tex site. Metzler informed Cash that the electricians should not be doing the work, that the engineers would walk off the job if the electricians should continue to operate the "high reach" equipment, and that the matter should be submitted to their respective Inter- nationals for settlement. On June 18, 1965, Cyril Pottebaum, foreman for Casler, had a conversation with Jim Gilpin, business agent of the Respondent, and was advised by Gilpin that he (Pottebaum) was going to have "trouble" because engineers should be operating the "high reach" equipment. Gilpin thereafter contacted Cash and they agreed to submit the matter to their respective Internationals, Cash also agreeing that the electricians would not use the equipment pend- ing the resolution of the dispute by the Internationals. On June 21, Cash received a telegram from the IBEI\T International advising him that electrical workers were to continue to work the "high reach" equipment.' The following day, Donald Clark, foreman for Girdler and a member of the Respondent, observed the "high reach" machine 1 The record affirmatively indicated that the Internationals never (lid resolve the dis- pute between themselves INT'L UNION OF OPERATING ENGINEERS LOCAL 571 589 being operated by electricians and decided to walk off the job.2 Clark testified that he was at no time induced or encouraged to walk off by the Respondent Union. Metzler testified that he was informed by Clark of the walkoff and that he promptly ordered Clark and the other engineers to return to work, but they refused. Metzler, however, admitted that he neither knew of any disciplinary action taken by the Respondent against the engineers who participated in the walkoff nor did he know of any replacements dispatched by the Respondent to Girdler during the work stoppage. Furthermore, the record indi- cates that Metzler telephoned Casler a few hours after the work stoppage occurred and requested that he employ engineers to operate the "high reach" equipment, advising him that the engineers would not return as long as the "high reach" equipment was run by electrical workers. C. Applicability of the statute Before the Board proceeds with the determination of dispute pur- suant 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. Although the Respondent does not deny that it actively sought to have the work being done by members of the IBEWV assigned to its own members, it contends that it has not resorted to prohibited methods in pressing for the work assignment on behalf of its members, specifi- cally disclaiming any responsibility for the work stoppage. Both Metzler and Gilpin testified that they knew nothing about the walkoff in advance and that they neither aided nor abetted the walkoff. But the record reveals that Respondent's union steward was among the employees that engaged in the walkoff and that Metzler telephoned Casler after the work stoppage requesting that work be assigned to his men. In view of Respondent's claim to the work, its admonishing state- ments of impending trouble made in this regard, the subsequent strike action because of the work assignment, followed immediately by a renewed demand for a reassignment to Respondent's members, we find that the work stoppage was called to further this objective. More- over, even if the Respondent had not actually authorized it in advance, we are of the view that the Respondent ratified the work stoppage inasmuch as its subsequent conduct in this connection was consistent with the violation alleged. We therefore, conclude that there is reasonable cause to believe that a violation of Section 8(b) (4) (i) (D) has occurred and that the dispute is properly before the Board for determination under Section 10 (k) of the Act. 2 According to his testimony , he walked off on his own initiative , and as a foreman ordered the five other engineers at the site including the steward to leave the job. How- ever, the job superintendent for Girdler Informed Casler Foreman Pottebaum that the operating engineers walked off the job. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 various relevant factors. The following factors are asserted in support of the claims of the parties herein : 1. Skills and safety of operations Both the IBEW and the Respondent contend that the disputed work involves skills and training unique to their respective trades. The record indicates that Casler specially designed the "high reach" equip- ment for the work Casler does as an electrical contractor . Casler was of the view that the machine should be operated by a trained electrician inasmuch as such skills are necessary for safe operation. In this respect, the record indicated that the operator must have knowledge of energized conductors , hot wires, etc., and know what steps to take in case of an emergency or a line power failure. Further, the operation of the machine around or near electrical lines and other equipment was shown to be dangerous not only to the operator but to other employees and such knowledge was a prerequisite to the safe operation of the machine .3 Although the Respondent urges that its members have through the years operated similar equipment in the truck-mounted power hoist category and therefore have developed the skills necessary to operate the "high reach" machine herein, it is clear that the special nature of the work in the instant case calls for more than the application of these traditional skills. In these circumstances, the factors of skill s and safety of operation needed to perform the dis- puted work favor the IBEW. 2. Contracts The only collective-bargaining agreement directly relevant here is one between Casler and the IBEW, covering Casler's employees. But the contract does not expressly mention the "high reach" equipment and its language is ambiguous as to coverage of the disputed work. Therefore, we do not regard the contract as a determinative factor. Although Respondent asserts that the disputed work is covered by an agreement entered into between the Associated Contractors Employer Association of Omaha, Nebraska, Inc., and itself, there is no evidence in the record that Casler was a member of that Association. In these circumstances , we find that the Respondent had no contractual claim against Casler respecting the work in dispute. 3 Casler stated that it was not sufficient merely to avoid physical contact by the "high reach" with hot wires Under some conditions if any part of the machine comes into a certain "tolerance," an electrical explosion could occur and people as far as 50 feet away could be injured INT'L UNION OF OPERATING ENGINEERS LOCAL 571 591 3. Efficiency and economy Casler asserts that the assignment was motivated by good business judgment and that efficiency and economy dictate that the disputed work be done by the IBEW. The record showed that Casler's entire business was tailored to electrical endeavors and electrical employees. Casler was able to obtain well-qualified employees from the IBE117 inasmuch as they have all served apprenticeships in that particular trade. There was also evidence that the "high reach" equipment may be operated only a few minutes or few hours a day. Therefore, if the work were assigned to a member of the Respondent Union, Casler would be able to have this employee actually working only when the "high reach" machine was in operation. He would then be forced to pay "stand by" time while the equipment was idle. Therefore, the Employer's assignment of the disputed work to its electrical employees is consistent with efficiency and economy. 4. Custom and practice The Respondent operates all hoisting equipment in the general building construction trade in Nebraska except equipment used by electrical contractors which members of the IBEW operate. The record indicates that general contractors in the area frequently sub- contract their electrical work and that while they use various types of hoisting equipment they are not familiar with the operation of the "high reach" machine. Casler testified that it has always been the custom and practice for his company to use electrical workers to perform this work. Thus, it is clear that practice favors the claim of the IBEW to the work. E. Conclusion, as to the Merits of the dispute On the basis of the record as a whole,4 and on an appraisal of all the relevant considerations , we believe that the work in dispute should be awarded to the electrical employees of the Casler Electric Com- pany. The fact that Casler's assignment conforms to its past practice and is not inconsistent with its collective-bargaining contract with the IBEW, the fact that Casler's employees have sufficient skill to do the work and are thoroughly familiar with the dangers inherent in such work, and the consequent economy and efficiency of operation, lead us to conclude that Casler's assignment of the work should not be disturbed. In addition, the Employer is satisfied with the results achieved by its assignment and desires no change. Therefore, we shall determine the present dispute by assigning the disputed work to employees of Casler presently represented by the IBEW, rather than 4 The parties stipulated that Casler Electric Company and the International Brother- hood of Electrical workers were not bound by the National Joint Board 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the engineers who are represented by the Respondent Union. In making this determination, we are not assigning the disputed work to Local 1525, IBEW, or its members. 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 hereby makes the following Determination of Dispute. 1. Employees employed by Casler Electric Company, currently represented by International Brotherhood of Electrical Workers,, Local No. 1525, AFL-CIO, are entitled to operate the "high reach" hoist equipment operated by Casler Electric Company at the sub- station at the Fal-Tex site, Fremont, Nebraska. 2. International Union of Operation Engineers, Local No. 571,. AFL-CIO, is not and has not been entitled, by means proscribed by Section 8(b) (4) (D) of the Act, to force or require Casler Electric 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. 571, AFL-CIO, shall notify the Regional Director for Region 17, in writing, whether it will or will not refrain from forcing or requiring the Employer, by means proscribed by Section 8(b) (4) (D), to assign the work in dispute to engineers, rather than to the employees of Casler Electric Company. Concren, Inc., d/b/a Great Scot Super Market , and d/b/a Prechtel and Osburn Co., and d/b/a Prechtel Co.; John B. Prechtel, a Sole Proprietorship, d/b/a Prechtel Co., and d/b/a Prechtel and Osburn Co.; John B. Prechtel and James A. Osburn, a Partnership, d/b/a Prechtel and Osburn Co. and Retail Store Employees Union, Local 550, Retail Clerks International Asso- ciation, AFL-CIO and Douglas Lockhart, David Byrd and R. Michael Myers, a Committee, Party of Interest and Great Scot Employees' Planning Committee, Party of Interest and Great Scot Employees' Independent Union, Party of Interest and Great Scot Employees' Committee, Party of Interest. Case No. 25-CA-1928. January 5,1966 DECISION AND ORDER On February 19, 1965, Trial Examiner John F. Funke issued his Decision in the above-entitled proceeding, finding that Respondent Conren, Inc., and John B. Prechtel , had engaged in and were engaging 156 NLRB No. 43.