IBEW, Local 77

IBEW , LOCAL 77 International Brotherhood of Electrical Workers, Local Union No. 77, AFL-CIO and Copenhagen Inc. and International Union of Operating En- gineers, Local No. 701, AFL-CIO; Joint Council of Teamsters No. 37, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; Long- view-Kelso Building Trades Council ; Washington District Council of Laborers International Brotherhood of Electrical Workers, Local Union No. 77, AFL-CIO and Public Utility District No. 1 of Cowlitz County, Washington and Copenhagen Inc. and International Union of Operating Engineers, Local No. 701, AFL-CIO; Joint Council of Teamsters No. 37, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America; Longview-Kelso Building Trades Council; Washington District Council of Laborers. Cases 19-CD-151 and 19-CD-152 June 22, 1970 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS MCCULLOCH, BROWN, AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Copenhagen Inc., herein called Copenhagen, and by Public Utility District No. 1 of Cowlitz County, Washington, herein called PUD, alleging that International Brotherhood of Electri- cal Workers, Local Union No. 77, AFL-CIO, herein called IBEW, violated Section 8(b)(4)(D) of the Act. A duly scheduled hearing' was held before Hearing Officer Patrick H. Walker on November 24, 25, and 26 and December 16, 1969, and Janua- ry 14, 15, 27, and 28, 1970. All parties appearing were afforded full opportunity to be heard, to ex- amine and cross-examine witnesses, and to adduce evidence bearing upon the issues . Thereafter, Copenhagen, PUD, IBEW, and International Union of Operating Engineers , Local No. 701, AFL-CIO, party to the dispute, herein called Engineers, filed briefs. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel. ' The IBEW moved to quash the notice of consolidated hearing on grounds of vagueness The motion is hereby denied as the parties had adequate opportunity to be informed of the issues and to present evidence thereon. 887 The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in these cases and the briefs, the Board makes the following findings: I. THE BUSINESS OF THE COMPANY The parties stipulated that Copenhagen is an em- ployer engaged in the construction industry and an- nually conducts business outside the State of Oregon valued in excess of $50,000. The parties further stipulated, and we find, that Copenhagen is engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act, and it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that IBEW is a labor organization within the meaning of Section 2(5) of the Act. It was further stipulated that the following parties in interest are labor organizations: the Engineers; Joint Council of Teamsters No. 37, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, herein called Teamsters; Longview-Kelso Building Trades Council, herein called Building Trades; and Washington District Council of Laborers, herein called Laborers. III. OTHER PARTIES It was stipulated , and we find, that PUD is a per- son engaged in commerce within the meaning of Section 2(1) and Section 8(b)(4) of the Act.2 IV. THE DISPUTE A. Background Facts In early 1969, PUD decided to replace 30 miles of overhead electric transmission lines with un- derground cable by the plowing method. The plow- ing is accomplished with a cable plow, a piece of equipment which is attached to a crawler-tractor or other pulling piece, and which plows a narrow slit and simultaneously places the cable at the required depth. Plowing is a faster and more economical method of burying cable than trenching (in which a wide ditch is first dug, the cable then laid in the ditch, and the ditch later backfilled). As PUD had ' IBEW and PUD contend that PUD is also an employer within the mean- ing of the Act As the work in dispute was performed by Copenhagen, resolution of that issue is not necessary to our decision and we do not pass upon it 183 NLRB No. 88 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no plowing equipment and no employees with plowing experience, it decided to contract out the work. PUD called for competitive bidding on the plowing and all supporting activities except hookup and splicing of the cable. PUD planned that part of the project would be a joint project with the telephone utility. Putting both telephone and elec- tric cable in at once was more economical and in some cases required by local ordinance. PUD awarded the contract to Copenhagen, whom it con- sidered to be the lowest qualified bidder.' Copenhagen's employees were represented by Engineers, Teamsters, and Laborers. PUD's em- ployees were represented by IBEW. IBEW claimed that its members had the right to perform the work, and threatened to refuse to do the hookups and splices assigned them by PUD unless Copenhagen obtained IBEW clearance. Copenhagen did not get clearance, and IBEW threatened to strike and physically prevent Copenhagen from doing the job. IBEW did not claim the work for PUD's employees, but for other of its members employed by electrical contractors. When the hearing began, Copenhagen had completed about 80 percent of the project. There is no dispute that the work was adequately per- formed. On the work performed, the cable plow was pulled by a D-6 Caterpillar and run by an operator and a reel tender. Other equipment in- cluded as many as four backhoes for trenching where the plow could not operate, for digging splice pits, and for preparing road crossings. To go under a roadway, a conduit was pushed under the road. Copenhagen used a smaller Cat for restora- tion work. At times the crew included men to per- form a variety of tasks including hand digging, blasting, pipe pushing, and flagging. Field main- tenance on the equipment was performed by the heavy equipment operators. Copenhagen obtained its operators from the hiring hall in Portland, Oregon. Some were basic core employees who were employed throughout the year. Other employees were obtained from Teamsters and Laborers hiring halls in Longview, Washington. B. The Work in Dispute This proceeding arises out of a dispute over the assignment of plowing approximately 40 miles' of underground electric cable in rural Cowlitz County, Washington. The work consists of cable laying by plowing and the supporting activities of ripping, backtrenching, blasting, digging splice pits, laying road crossing conduit, hauling various materials to 8 Under Washington law, on projects over $5,000, PUD must award the contract to the lowest qualified bidder be placed as required along the transmission lines, and restoration. The purely electrical work of hookups, splices, and energizing was to be per- formed by PUD's own employees and is not in dispute. C. Contentions of the Parties IBEW claims the work for its members and that either the contract should have been awarded to an IBEW contractor or that Copenhagen should have obtained clearance. IBEW bases its claim on area practice, efficiency, superior skills, and its standard contract which specifically includes cable plowing. It also contends that cable plowing is a substitute for overhead transmission which is traditional IBEW work. Engineers contends that it, together with the Teamsters and Laborers, should be awarded the work in dispute. In its brief it argues that area prac- tice establishes a functional distinction between overhead and underground work; that the purely electrical aspect of underground work is distinct from the plowing operation; that the work is tradi- tionally that performed by Engineers; that the as- signment is consistent with Copenhagen's past prac- tice and contracts; and that it has superior skills. PUD contends that the Board should uphold Copenhagen's assignment of the work. It takes the position that its award of the work to Copenhagen, the lowest qualified bidder, should not be disturbed. Copenhagen contends that the work should be awarded as it was assigned because the work skills involved are more closely aligned with those of em- ployees represented by the assigned Unions than IBEW; the assignment conformed to past practice, to area practice, and to its contracts; and that the current work force is experienced, efficient, and capable of plowing cable quickly without increased costs, damage to cable or right of way, or injury. At the hearing, Teamsters stated it favored Copenhagen's assignment. It did not file a brief. Laborers, although represented at the hearing, made no formal statement of position, nor did it file a brief. D. Applicability of the Statute Before the Board may proceed with a determina- tion 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. a About 10 miles was added after the project was underway IBEW , LOCAL 77 889 The record establishes, as IBEW recognizes in its brief, that IBEW made various threats against PUD and Copenhagen. As soon as represen- tatives of IBEW learned that Copenhagen was low bidder, the representatives informed PUD that, if it awarded the contract to a non-IBEW contractor, its employees would not make the hookups and splices . They also threatened that if employees of Copenhagen appeared to plow cable, PUD em- ployees would walk off the job. After the contract was awarded, IBEW representatives told PUD that PUD's employees would not report for work, picket lines would be set up, and IBEW would physically remove Copenhagen's employees from the county. About the same time, Copenhagen was told that in order to perform the work, it would have to ex- ecute a contract with IBEW and either obtain its employees from IBEW or its employees would have to join IBEW. On the basis of the foregoing, we find that there is reasonable cause to believe that violations of Sec- tion 8(b)(4)(D) have occurred, and that the dispute is properly before us for determination pur- suant to Section 10(k) of the Act. There is no evidence of an agreed-upon method of settling this dispute. E. 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 fac- tors 5 1. Collective-bargaining agreements There is no evidence indicating that a Board cer- tification covers the disputed work. At the time of the dispute and for several years past, PUD has recognized IBEW as collective-bar- gaining representative of its employees. The con- tract provides the following: 2.5 Contractors. The [PUD1 shall make ap- propriate provision in any agreement entered into with any contractor or subcontractor for the furnishing of work to the [PUD], that such contractor or subcontractor shall conform with the current and prevailing union schedule of wages and working conditions. PUD did not have the equipment, nor its employees the skill, to perform the work in dispute. The con- tract includes no language assigning or preserving the work for PUD employees. There is no conten- tion or evidence that PUD violated the wage stan- dards clause of its agreement with IBEW through Copenhagen's performance of the work in dispute. In addition PUD employees were assigned to per- form hookups and splices. The IBEW standard contract with line construc- tors specifically covers cable plowing, However, Copenhagen is not party to an agreement with IBEW. Moreover, PUD's agreement with IBEW is not the standard line constructor's contract. For several years past and at the time of the dispute, Copenhagen has voluntarily recognized and executed agreements with Engineers, Team- sters , and Laborers. Although none of these con- tracts specifically provides for cable plowing, Copenhagen has recognized only these unions to perform this type of work. By virtue of these con- tracts, Copenhagen awarded the work in question to its employees and refused to enter into contrac- tual arrangements with IBEW. Accordingly, as Copenhagen's employees are represented by and covered by contracts with Engineers, Teamsters, and Laborers, and since it has no employees represented by IBEW, we find that the collective- bargaining agreements favor an award of the work in dispute to Copenhagen's employees. 2. Company, area, and industry practice For several years Copenhagen has been engaged in plowing cable in Washington and Oregon. Much of its work has been plowing telephone cable. How- ever, the evidence is clear that there is no signifi- cant difference between plowing telephone and electric cables. Copenhagen has consistently as- signed the work to employees represented by En- gineers, Teamsters, and Laborers. It has, on occa- sion, hired fill-in employees from outside these unions. However, assignment of the work to em- ployees represented by Engineers, Teamsters, and Laborers is consistent with its past practice. Much evidence was introduced with respect to cable plowing operations in Washington and Oregon. Cable plowing companies generally operate in both States. Some of the contractors recognize IBEW exclusively. Others recognize En- gineers and other unions . Some are nonunion. Thus, we find that the industry practice in the area is mixed and does not favor awarding the disputed work to any one union. I N L R B v Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood o f Electrical Workers ( Columbia Broadcast- ing System ), 364 U S 573 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Skills and efficiency ployees who are represented by these unions, but not to the labor organizations or their members. The evidence shows that both the members of the unions recognized by Copenhagen and the members of IBEW possess the skills and experience necessary to complete efficiently the work in dispute. Thus, relative skills is a neutral factor. 4. Replacement of traditional craft work IBEW claims that plowing cable replaces over- head transmission lines, which is traditional electri- cal craft work. We do not find merit in this claim. Both telephone and electric utilities have for years put cable underground, first solely by trenching and more recently by plowing. Trenching was often per- formed by non-IBEW contractors. Plowing also has been performed by non-IBEW contractors. The practice in the area is to treat plowing as a distinct operation from traditional electric craft work. Hookups and splices in a cable plowing operation are treated as traditional craft work. 5. Conclusion Based upon the entire record, and after full con- sideration of all relevant factors, we conclude that employees represented by Engineers, Teamsters, and Laborers are entitled to the work in dispute. We base our decision primarily on the facts that Copenhagen, the Employer, assigned the work to employees represented by these unions, and such assignment was consistent with Copenhagen's past practice and its labor contracts. Our present deter- mination is limited to the particular work over which the dispute arose . In making this determina- tion , we are awarding the disputed work to em- 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 these cases, the National Labor Relations Board makes the following determination of dispute: 1. Individuals employed by the Employer, Copenhagen Inc., and represented by International Union of Operating Engineers , Local No. 701, AFL-CIO; Joint Council of Teamsters No. 37, af- filiated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America; and Washington District Council of Laborers , are entitled to perform the work of plow- ing underground cable , including supporting activi- ties except hookups and splices, in the rural Cowlitz County, Washington, project of Public Utility Dis- trict No. 1 of Cowlitz County, Washington. 2. International Brotherhood of Electrical Work- ers, Local Union No . 77, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Public Utility District No. 1 of Cowlitz County, Washington, or Copenhagen Inc., to assign such work to individuals represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute , International Brotherhood of Electrical Workers, Local Union No. 77, AFL-CIO, shall notify the Regional Director for Region 19, in writing , whether or not it will refrain from forcing or requiring Public Utility District No. 1 of Cowlitz County, Washington, and Copenhagen Inc., by means proscribed by Section 8(b)(4)(D), to assign the work in dispute in a manner inconsistent with the above determination.