Electrical Workers Local 369

ELECTRICAL WORKERS LOCAL 369 45 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Rela Lions Act as amended we hereby notify our employees that WE WILL NOT interfere with nor suggest to our employees which union they should select as their bargaining representative or assist or give support to the Laborers Union or to any other labor organization of our employees WE WILL upon request bargain collectively with Teamsters Local No 524 affiliated with International Brotherhood of Teamsters Chauffeurs Warehouse men and Helpers of America Independent as the exclusive representative of all of our employees in the bargaining unit described below with respect to rates of pay wages hours of employment and other terms and conditions of employ ment and if an understanding is reached embody such understanding in a signed agreement Said bargaining unit is All employees of Respondent at its Wapato Washington plant excluding office clerical employees professional employees laboratory technicians guards and supervisors as defined in the Act WE WILL NOT recognize the Laborers Union or any successors thereto for the purpose of dealing with us concerning grievances labor disputes wages rates of pay hours of employment, or conditions of work WE WILL NOT in any manner interfere with, restrain or coerce our employees in the exercise of their right to self organization to form labor organizations join or assist the labor organization named above or any other labor organi zation to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act as modified by the Labor Management Reporting and Disclosure Act of 1959 All of our employees are free to become or remain or refrain from becoming or remaining members of the above named or any other labor organizations except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act as modified by the Labor Management Reporting and Disclosure Act of 1959 HOPCON 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 provisions they may communicate directly with the Board s Regional Office 327 Logan Building 500 Union Street Seattle Washington 98101 Telephone 583-4583 Electrical Workers Local 369, International Brotherhood of Elec- trical Workers, AFL-CIO, and Its Agent, George F Wode and Rodger J Henderson (Henderson Electric Co, Inc) and Con struction and General Laborers Local Union #576, Laborers' International Union of North America, AFL-CIO Case 9-CD- 85 October 18,1966 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by Rodger J 161 NLRB No 6 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Henderson on November 9, 1965, alleging that Electrical Workers Local 369, International Brotherhood of Electrical Workers, AFL- CIO, herein called IBEW, and Its Agent George F Wode, have violated Section 8(b) (4) (D) of the Act A hearing was held before Hearing Officer Donald G Logsdon, on May 11 and 12, 1966 All parties appeared at the hearing and were afforded a full opportunity to be heard, to examine and cross examine witnesses, and to adduce evidence bearing on the issues The rulings of the Hearing Officer are free from prejudicial error and are hereby affirmed Briefs filed by Rodger J Henderson (Henderson Electric Co, Inc) and IBEW have 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 [Chairman McCulloch and Mem bers Brown and Zagoria] Upon the entire record in this case, the Board makes the following findings I THE BUSINESS OF THE RESPONDENT All parties stipulated that Henderson Electric Co, Inc, the Employer named in the charge filed herein by Rodger J Henderson, its president (hereinafter referred to as Henderson), is a Kentucky corporation engaged in the electrical contracting business. During the past fiscal year it performed services valued at more than $50,000 outside the State of Kentucky, and during the same period it also purchased, directly from firms located outside the State of Ken tucky, goods valued in excess of $50,000 Accordingly, we find, in accord with the stipulation of the parties, that Henderson Electric Co, Inc., is engaged in commerce within the meaning of the Act,, and that it will effectuate the policies of the Act to assert jurisdic tion herein. 11 THE LABOR OROANI'LATIONS INVOLVED The parties stipulated, and we find, that IBEW and Construction. and General Laborers Local Union #576, Laborers' International Union of North America, AFL-CIO, herein called Laborers, are labor organizations within the meaning of Section 2(5) of the Act III THE DISPUTE A Work in zuue The work in dispute, as stipulated by the parties at the hearing, concerns the assignment of the operation of walk behind trenching machines, such as those known by the trade names Ditch Witch and ELECTRICAL WORKERS LOCAL 369 47 Arps, when used for digging trenches in which electrical cables, con- duit, or conductors are to be laid.' B. Background The Employer employs principally members of the two above- mentioned unions, neither of which has been certified by the Board as representative of any unit of its employees. The Employer's elec- tricians have been represented by IBEW since 1919. The current con- tract was negotiated by IBEW and the National Electrical Contrac- tors Association's Louisville chapter (hereinafter called NECA) of which the Employer is a member; it is effective from May 1, 1965, until April 30, 1967. The Employer's laborers have been represented since 1958 by Laborers, and their current' contract is effective from July 1, 1965, until June 30, 1968. Prior to 1960 or 1961, the Employer subcontracted its trenching work, principally to a Louisville general contractor by the name of Skilton Const'ruc'tion Co., which employed laborers to dig'the trenches, first with pick and shovel and then with trenching machines sim- ilar to those in issue. About 1961 'the Employer acquired two walk- behind trenching machines known as the Ditch Witch and the Arps, and since then most of its trenching work has been done by its own laborers with these machines. In 1963 the Employer was installing lights on highway 1-65, its trenching Work being done in this man- ner, when Wode, business manager of IBEW, visited 'the job and told Henderson he would "pull [his] shop" unless the 'trenching work was assigned to employees represented by IBEW. This was the first time IBEW hadclaimed this work. Despite Wode's protest,'the work was completed by the laborers. Other jobs involving such trenching were completed by the Employer's laborers without interference from the IBEW until it undertook a job installing lights on the Watter- son Expressway in Louisville in the summer of 1965. Vigorous pro- test by Wode at that time was accompanied by a 4- or 5-day IBEW work stoppage. Laborers advised Henderson by letter that they were not relinquishing their claim to the trenching 'work, and Henderson, in order to 'complete the job without penalty, assigned a member of IBEW to watch the laborers dig the trenches. Throughout the summer and autumn of 1965, the 'Employer was installing lights on another job known' as Standiford Field Air Base in Louisville, the trenching work being done by laborers with walk- behind trenching machines. On October '28 Wode visited the jobsite and, in the presence of an electrician employee, told Noonan, the I The parties stipulated that the operation of trenching machines , which require the operator to sit on them , is normally performed by members of the International Union of Operating Engineers and is not here in issue. 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer's vice president, that the members of IBEW would not install the cables unless the trenches were dug by IBEW members. Wode also told jobsite foreman, O'Leary, "You are not to install any cable in the trenches," and informed Noonan, ". . . you put electri- cians on the trenches and there won't be any problem." The job was shut down from October 28 until November 8, 1965. On November 7, 1965, Henderson advised IBEW by letter that in order to complete the job he was, under protest, assigning the trenching, work to IBEW. Although Henderson contacted an individual member of the National Joint Board for the purpose of ending the work stoppage ,on November 8, 1965, he advised the Joint Board by telegram that he was not submitting the dispute to it for determination. Henderson filed the instant charge on November 8, 1965. IBEW referred its claim to this work to a joint conference com- mittee established by its current contract with the Employer. That committee, in turn, referred the claim to the Council on Industrial Relations for the Electrical Construction Industry of the United States and Canada, herein called CIR. On February 16, 1966, the Council rendered a decision, which is discussed below. 1. Contentions of the parties The Employer contends that a jurisdictional dispute exists and that the disputed work should be assigned to members of the Labor- ers, based on company practice, economy, and efficiency of operation. IBEW contends there is no jurisdictional dispute, but any award of the work involved should be made to IBEW members because the work is covered by its contract as determined by the CIR; IBEW further contends that its claim is supported by industry practice. Laborers claims the work on the basis of the past practice and the Employer's assignment. 2. Applicability of the statute In accordance with the requirements, of Section 10(k) of the Act, the -Board must first ascertain whether there is reasonable cause to believe that a violation of Section 8 (b) (4) (D) of the Act has occurred. The record shows that on several occasions during the summer and fall of 1965, IBEW and Wode threatened to strike, and struck, the Employer with the object of forcing it to assign to IBEW members the work of digging electrical cable trenches with walk-behind trenching machines, and that this work was claimed and being per- formed by members of Laborers. IBEW does not deny this, but claims that the Employer was required by its contract to assign the work to IBEW members. However, this argument is relevant only ELECTRICAL WORKERS LOCAL 369 49 to the merits of a jurisdictional dispute and not to whether or not such a dispute exists,' and we shall treat it as such herein Accord- ingly, we find that there is reasonable cause to believe that Respond- ent IBEW and its Agent Wode violated Section 8 (b) (4) (D) C 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 all relevant factors The following factors are asserted in support of the claims of the parties herein 1 Collective-bargaining contracts IBEW claims that article 10, section 2 of its NECA contract cov- ers the disputed work, and that the CIR so determined IBEW con tends great weight should be given the CIR determination in order to stabilize conditions in the electrical contracting industry of which IBEW and the Employer are an "integral part" but Laborers are "only incidental " The Employer contends the award of the CIR is not controlling inasmuch as Laborers was not a party to that proceeding Article 10, section 2 of the contract between IBEW and NECA reads as follows "All power threading and power driven machines shall be operated by workmen in their proper classifications " It is plain that this provision makes no specific reference to walk behind trenching machines, and does not assign the operation thereof to elec tricians Although the trenching machine is a power driven machine and the contract refers to "power driven machines," the evidence shows that the contract was not intended to cover all power driven machines, since several types of power driven machines are operated by employees other than IBEW members Examples of these are gasoline saws, tamps, and jack hammers used by members of Labor ers, and heavy power driven machines used by Operating Engineers Moreover, the record shows that trenching machines such as the Ditch Witch and the Arps did not come into use by electrical con tractors until some years after the initial insertion of this language in prior contracts The February 16,1966, decision of the CIR consists of the following In this specific case as set out in Article X Section 2 of the exist ing approved agreement, power driven machines shall be oper- ated by workmen employed under the terms of the agreement f See Sheet Metal Workers International Association Local 162 (Lusterlits Corp) 151 NLRB 195 Local No 496 United Brotherhood of Carpenters and Joiners of America, AFL-CIO (J L Williams 4 do) 151 NLRB 758 264-188-67-vii 161-5 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This language is so general in nature that it appears to be simply a paraphrase of the contract provision itself, and therefore is not help- ful in deciding the issue before us 8 The Employer's collective bargaining agreement with Laborers similarly fails to include specific language covering the disputed work Accordingly, as neither contract includes a specific assignment of the work in controversy, we find that this factor favors neither union 2 Employer and area practice Z he Employer's practice in the past was to subcontract this work to Skilton, who had employed laborers to dig trenches, fist with pick and shovel, and then by operating the trenching machines Thereafter, in 1960 or 1961, the Employer ceased subcontracting this work by assigning operation of the trenching machines to laborers in its employ The IBEW did not protest the Employer's practice in this regard until late 1963 or early 1964, when IBEW threatened a work stoppage unless the work was assigned to employees represented by it Thereafter, no further claim for the work was made by IBEW until the summer of 1965, when, pursuant to threats and a work stop page by electricians lasting 3 or 4 days, the Employer assigned an electrician to watch the laborers dig trenches Again, in the fall of 1965 on another project, IBEW protested the Employers use of laborers to perform trenching, and, after a work stoppage, the Employer assigned the disputed work to electricians represented by IBEW As to the Louisville area practice, the record discloses that some electrical contractors use electricians represented by IBEW to operate the walk behind trenching machines while others use mem bers of Laborers The overall picture as to area practice is therefore mixed It is apparent, therefore, that the Employer's practice favors awarding the work to Laborers, whereas the area practice favors neither union 3 Skill, efficiency, economy, and safety factors As to skill, IBEW admits that skill is not essential in the opera- tion of walk behind trenching machines, but contends that knowledge of drawings and specifications is required to determine the size and direction of the trench to be dug, and that only electricians possess such knowledge The evidence, however, reveals that trenching is con ducted under the supervision of a foreman who physically lays out the trench from written plans which are never referred to by the operator of the trenching machine on the job regardless of his classi- a We note also that Laborers was not a party to the proceeding before the CIR and in view of its obviously vital interest in the work in dispute we find no merit in IBRw s contention that acceptance of that decision as determinative herein could stabilize condi tions in the electrical contracting industry ELECTRICAL WORKERS LOCAL 369 51 fication It therefore appears that the laborers, as demonstrated by experience, are qualified to perform the disputed work, while the greater skills of the electricians are not required As to efficiency and economy, the Employer employs both laborers and electricians continuously and both are therefore on hand to do trenching when needed As to safety, the evidence is clear that mem bers of either union can and have operated trenching machines in the past with due regard for the safety of men and equipment These Iactors, therefore, favor neither union Conclusions as to Merits of the Dispute It appears fiom the foregoing that none of the relevant factors favors IBEW alone Thus, although the practice of some electrical contractors in the area favors making the award to IBEW, the prac tice of others favois an award to the Laborers Moreover, the Employer in assigning the work to either union may demonstrably operate economically, efficiently, and with safety, and the contiacts between the Employer and the contesting parties do not furnish a clear cut guide for deciding the issue herein However, we shall award the work to the employees represented by Laborers We do so particu lai ly because the greater skill possessed by the electricians is not required, and the laborers have demonstrated their ability to perform the work to the complete satisfaction of the Employer, who has expressed its desire to retain them in the work in accordance with its past practice Further, upon consideration of the conditions under which the Employee modified its practice of assigning the disputed work to laborers in 1965,4 and IBEW's delay in protesting that assignment for sever al yeas s, these factors also lend support to the Laborers' claim Accordingly, xe shall determine the dui isdictional dispute by deciding that the employees represented by Laboieis aee entitled to perform the woik in dispute 8 In making this deteimina tion, we are aw ai duig the work to the employees of the Employer who are currently repo esented by Laborers, but not to that union or its niembeis 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 * The E W ,Scripps Company The Cleveland Press 156 NLRB 227 s Contrary to the contention of IBEW we do not consider this award inconsistent kith the Board s decision in International Union of Operating Engineers Local Union 12 (George E Miller Electric Co) 144 NLRB 9 awarding the operation of a Ditch Witch to employees of Miller represented by a local of IBEW rather than to employees represented by a local of International Union of Operating Engineers The Board specifically limited its determination of that dispute to the particular controversy which gave rise to that proceeding which was clearly distinguishable on its facts 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD entire record in this proceeding, the National Labor Relations Board makes the following determination of dispute. 1. Employees employed as laborers by Henderson Electric Co., Inc., currently represented by Construction and General Laborers Local Union #576, Laborers' International Union of North Amer- ica, AFL-CIO, are entitled to perform the work of operating walk- behind trenching machines when used for digging trenches in which electrical cables, conduit, or conductors are to be laid. 2. Electrical Workers Local 369, International Brotherhood of Electrical Workers, AFL-CIO, and George F. Wode, its agent, are not and have not been entitled, by means proscribed by Section 8 (b) (4) (D) of the Act, to force or require Henderson Electric Co., Inc., to award the above work to members of Electrical Workers Local 369, International Brotherhood of Electrical Workers, AFL-CIO. 3. Within 10 days from the date of this Decision and Determina- tion of Dispute, Electrical Workers Local 369, International Brother- hood of Electrical Workers, AFL-CIO, and its agent, George F. Wode, shall notify the Regional Director for Region 9, in writing, whether they will or will not refrain from forcing or requiring the Employer, by means proscribed by Section 8(b) (4) (D) of the Act, to award the work in dispute to its members rather than to members of Construction and General Laborers Local Union #576, Laborers' International Union of North America, AFL-CIO. Daniel Construction Company, Inc. and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada , AFL-CIO, Peti- tioner. Case 11-RC-1.153. October 18,1966 SUPPLEMENTAL DECISION Pursuant to a Decision and Direction of Election issued by the National Labor Relations Board on September 21, 1961,1 as amended on October 19, 1961, an election was conducted on November 16, 1961, among the employees in the unit found appropriate by the Board.2 The Petitioner, having lost the election, filed objections to the elec- tion and unfair labor practice charges. Upon the issuance of a com- i Daniel Construction Company, Inc., 133 NLRB 264. a All journeymen plumbers and pipefitters, pipefitter welders, and pipefitter helpers em- ployed by the Company in building and construction work in the States of North Carolina, South Carolina, Tennessee, Alabama, Georgia, and Florida (Greenville division), exclud- ing all other building trades craftsmen , engineers, draftsmen, foremen (working and non. working), general foremen, clerical employees , professional employees, watchmen, guards, and supervisors as defined in the Act. 161 NLRB No. 13.