Electrical Workers, Local Union #122

538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Electrical Workers, Local Union #122, and its Agents Russell Williams and W. A. Christman and The Anaconda ; Company and International Brotherhood of Boilermakers , Iron Ship- builders, Blacksmiths, Forgers and Helpers, Local Un- ion #602 . Case 19-CD-155 II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Electri- cians and the Boilermakers are labor organizations within the meaning of the Act. May 19, 1970 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, BROWN, AND JENKINS This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, following the filing of charges by The Anaconda Company (herein- after called the Employer), alleging that International Brotherhood of Electrical Workers, Local Union #122, and its Agents Russell Williams and W. A. Christman (hereinafter called Electricians), violated Section 8(b)(4)(D) of the Act. The charge alleges, in substance, that the Electricians threatened and coerced the Employ- er with an object of forcing or requiring the Employer to assign certain work to its members rather than to members of International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Local Union #602 (hereinafter called Boilermakers). Pursuant to notice, a hearing was held before Hearing Officer Robert F. Stange on February 4, 1970. All parties were represented at the hearing and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing on the issues. Thereafter the Electricians and the Boilermak- ers filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in con- nection with this case 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 affirmed. Upon the entire record in this case, the Board makes the following findings. 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that The Anaconda Company is a Montana corporation with its principal place of business in Anaconda, Montana, with a refinery in Great Falls, Montana. It is engaged in the mining and produc- tion of metals, and produces, fabricates, ships, and sells in. interstate, commerce products and materials val- ued in excess of $1 million annually. The parties further stipulated, and we find, that The Anaconda Company is an employer engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. III. THE DISPUTE A. Background and Facts of the Dispute The Anaconda Company operates cranes or hoists used for stripping zinc in its refinery in Great Falls, Montana. The hoists were converted from hand-operated to electric-powered in approximately 1951 or 1952. At that time, it was necessary to install cable trays to support electric cables that feed the electric power to the hoists in the zinc room of the refinery. When these cable trays were originally installed in approximately 1951 or 1952, they were fabricated and installed by employees represented by the Boilermakers. From 1952 until 1959, maintenance work on the cable trays was performed by the Boilermakers. In 1959, it became necessary to make some repairs on the cable trays. At that time, a decision was made by the Employer regarding the assignment of future work on the trays. The fabricating of the baskets and the installations of a major nature would be done by the Boilermakers. However, the replacing of a section of the tray would be considered normal maintenance, and the Electricians would be allowed to do this. The decision was communicated to both the Electricians and the Boilermakers. As a result, in 1959, the units were installed by the Boilermakers, and the Electricians put in and connected the electrical cable. From 1959 to 1969, normal maintenance was performed by the Electricians. In the summer of 1969, the Employer decided to replace the cable trays, which had become worn and corroded. Employees represented by the Boilermakers were assigned and performed the work of cutting and removing with a torch the framework and the cable trays. On or about July 14, 1969, the Employer assigned a composite crew of Boilermakers and Electricians to perform the work of installing the new cable trays. The Boilermakers were putting in the support beams, called I-beams, raising the trays, and welding them into place, and the Electricians were putting in the electrical cable. The installation of the trays required extensive welding and burning work. The Electricians objected to any of the basket or cable tray work being performed by the Boilermakers. Following the Electricians' objections, the Employer changed the work assignment so that the Boilermakers continued to put in the heavy supporting structures, but the Electricians started to lift the trays into position, as well as install the cables. The Boilermakers then protested, and the Employer reverted to its original work assignment. Following the reassignment, the installation of cable trays covering one quarter of the building was completed within 2 or 3 weeks. Thereafter, the Electricians threat- 182 NLRB No. 84, ELECTRICAL WORKERS, LOCAL UNION #122 ened to remove its members from the plant if any future installation of cable trays was assigned to any craft other than the Electricians. The installation of the trays for the remaining three quarters of the building came to a halt and now awaits the determination of this dispute B. The Work in Dispute The work which gave rise to this proceeding is the installation of certain cable trays in the zinc tank room, at the Employer's Great Falls, Montana refinery. The cable trays are made up of two, 3-inch channels, approxi- mately 2 feet apart, inside of which are located 4 x 4 mesh 316th inch wire. The trays are set up between trolleys which support the hoists used in stripping zinc, and they are attached by angle to the support beams. The cable trays are used solely to support electric cable carrying power to electrical motors that operate the hoists in the zinc tank room. The work of 'installing the cable trays requires extensive welding and burning. C. The Contentions of the Parties It is the position of the Employer that it had properly assigned the work to the Boilermakers on the basis of past assignments and its obligation under the collec- tive-bargaining agreement. The Electricians contend that the only purpose and function of the cable trays is to carry electrical cables, and therefore the work is within its jurisdiction. Further- more, as the Electricians have been responsible for the maintenance and repair work on these trays, the Electricians contend that the collective-bargaining agree- ment requires that the two youngest electrical workers be assigned to perform this type of work. On the other hand, the Electricians do not claim the work of installing the heavy support beams. The Boilermakers contend that the installation of the cable trays belongs exclusively within its jurisdiction, basing this contention on the terms of the collective- bargaining agreement and the historical assignment of the work by the Employer. In addition, the Boilermakers contend that they alone are qualified to perform the work, which requires extensive welding and burning. The Boilermakers do not claim any electrical work. D. Applicability of the Statute Before the Board may proceed with a determination 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. The record establishes that on September 22, 1969, the business manager for the Electricians sent a letter to the Employer, such letter containing a threat of a strike, with an object of forcing or requiring the reassignment of the installation of the cable trays to employees represented by the Electricians rather than to employees represented by the Boilermakers; none of these Unions have been certified by the Board. An 539 actual strike is unnecessary to establish a violation of Section 8(b)(4)(D); threats of a strike are enough if, as here, they are made for a purpose of unlawfully forcing the reassignment of work.' A&cordingly, we find 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 us for determination pursuant to Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the' disputed work after giving due consideration to various relevant factors. As the Board has stated, its determination in a jurisdic- tional dispute case is an act of judgment based upon common sense and experience in the weighing of these factors.' The following factors are relevant in making determination of the dispute before us. 1. The collective-bargaining agreements The Employer is bound by a multiunion agreement between it and the many craft unions representing its employees. Both the Boilermakers and the Electricians are parties to this agreement. The agreement contains no specific jurisdictional provisions which are significant in determining this dispute. However, article 7, section 1, of the agreement provides as follows: Section 1. Local rules and regulations covering working practices and conditions of labor or employees which have been established by custom or local agreement and were in effect January 1, 1944, shall not be changed during the life of this agreement without mutual consent. Such future changes in local rules and regulations shall be reduced to writing. . . . The Boilermakers introduced evidence that prior to January 1, 1944, the Boilermakers performed the welding and cutting operations for the Employer, and that they had not released this jurisdiction to any large extent. In addition, it appears that an agreement between the Employer and the Boilermakers dated October 2, 1962, was introduced. This agreement provided only for the very limited use of the oxy-acetylene torch by the other crafts. The Electricians were to use the heating tip only for such work as bus bar soldering and electric motor repair work confined to stripping motors. The Electricians, on the other hand, contend that a paragraph in a bilateral agreement, which provides that "the two youngest journeymen will work in the Zinc Tank Room except in cases where the younger men have special training or abilities, such as linemen, which are required in other areas," is evidence favoring assignment to the Electricians. Upon consideration of the various provisions, we find that the foregoing agreements favor an award to IUOE, No 428, etc (Ets-Hokin Corporation), 153 NLRB 572 ' Ipternational Association of Machinists, Lodge No 1743, AFL- CIO (J A. Jones Construction Company), 135 NLRB 1402, 1410 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Boilermakers The 1962 agreement between the Employer and the Boilermakers, implying jurisdiction to Boilermakers over torch work, appears to cover the work in dispute, and the provision noted above, on which the Electricians rely does not specify this work, but merely states that the two youngest journeymen will work in the Zinc Tank Room," presumably to perform such electrician's work as may exist at that location 2 Company and area practice It is clear that when major installations of cable trays were undertaken in 1951 or 1952, and the repair of same was performed in 1959, the installation work was performed solely by Boilermakers The Electricians have performed only maintenance work on the trays since 1959 The installation work of a capital nature, however, has always been awarded by the Employer to the Boiler makers No evidence was introduced regarding area practice Employer practice, therefore, favors an award to the Boilermakers 3 Relative skills As noted earlier, the installation of the cable trays requires extensive torch burning and welding The Boiler- makers are especially skilled in this work, and perform all the welding and burning for the Employer at its Great Falls plant, with minor exceptions Electricians do some welding but it is limited to work on electric motors While testimony was adduced to the effect that Electricians are learning welding in the apprentice- ship program, the Boilermakers appear to be more qual- ified for the welding work involved The degree of skills is a significant factor favoring an award to the Boilermakers 4 Employer's preference The Employer favors an award to the Boilermakers The Employer's preference is another factor which sup- ports an assignment to the Boilermakers Conclusions Based upon the entire record , and after full consider- ation of all relevant factors, we conclude that the employ- ees represented by International Brotherhood of Boiler makers, Iron Shipbuilders , Blacksmiths , Forgers and Helpers, Local Union #602 are entitled to the work in dispute Our present determination , to award the work to the employees who are represented by the Boilermakers , but not to that Union or its members, is limited to the particular controversy which gave rise to this proceeding DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Rela- tions Act, as amended, and upon the basis of the forego- ing findings and the entire record in this proceeding, the National Labor Relations Board hereby makes the following Determination of Dispute I Employees of The Anaconda Company, who are represented by International Brotherhood of Boilermak- ers, Iron Shipbuilders, Blacksmiths, Forgers and Help- ers, Local Union #602 are entitled to perform the work of installing basket or cable trays, which support electri cal cable, at the Employer's Great Falls refinery, when such installation is in the nature of capital work as opposed to routine maintenance work necessary for the continued operation of the system 2 International Brotherhood of Electrical Workers, Local Union #122, is not entitled, by means proscribed by Section 8(b)(4)(D), to force or require The Anaconda Company to assign the above-described work to electri clans represented by it 3 Within 10 days from the date of this Decision and Determination of Dispute, International Brotherhood of Electrical Workers, Local Union #122, shall notify the Regional Director for Region 19, in writing, whether or not it will refrain from forcing The Anaconda Compa- ny, by means proscribed in Section 8(b)(4)(D), to assign the work in dispute to employees represented by it rather than to employees represented by International Brotherhood of Boilermakers, Iron Shipbuilders, Black smiths, Forgers and Helpers, Local Union #602