Electrical Workers, Local 743

764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Electrical Workers, Local Union No. 743, AFL-CIO and Bender & Shoemaker, Inc. and United Association of Jour- neymen and Apprentices of the Plumbing and Pipe- fitting Industry of the United States and Canada, Plumbers Local No. 42, AFL-CIO. Case 4-CD- 218 September 28, 1970 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by Bender & Shoemaker, Inc.,' alleging that International Brotherhood of Elec- trical Workers, Local Union No. 743, AFL-CIO,' had violated Section 8(b)(4)(D) of the Act. Pursuant to notice, a hearing was held before Hearing Officer Charles E. Mitchell on various dates between May I and 21, 1970.' The Electrical Workers and Bender appeared at the hearing' and were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, Bender and the Electrical Workers filed briefs. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its power in connection with this case to a three- member panel. The Board has reviewed the rulings of the Hearing Officer made at the hearing, and finds that they are free from prejudicial error. The rulings are hereby affirmed. The Board has considered the parties' briefs and the entire record in this case, and hereby makes the following findings: 1. THE BUSINESS OF THE COMPANY Bender & Shoemaker, Inc., a Pennsylvania corpora- tion having its principal place of business in Reading, ' Herein called Bender ' Herein called Electrical Workers ' All dates are 1970 unless other indicated United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Plumbers Local No 42, AFL-CIO, herein called Plumbers, did not enter a formal appearance at the hearing, although its president and business agent testified under subpena on behalf of Bender. Pennsylvania, is engaged in the sale , installation, and servicing of commercial and industrial refrigeration, air conditioning, and heating systems. During its most recent fiscal year, the total volume of its sales and services to firms which in turn made sales to customers outside the State of Pennsylvania exceeded $50,000. In the same period, the total dollar volume of its purchases from firms which in turn purchased those goods from outside the State of Pennsylvania exceeded $50,000. We find that Bender 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 United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Plumbers Local No . 42, AFL- CIO, and International Brotherhood of Electrical Workers, Local Union No. 743, AFL-CIO, are labor organizations within the meaning of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The dispute involves the assignment of the task of installing control wiring for the heating, air condi- tioning, and ventilating system being constructed by Bender at the National Shirt Shops store in the Berk- shire Mall shopping center located in Wyomissing, Pennsylvania. The charge filed by Bender on February 25 alleges, inter alia, that electricians employed by Acme Electric Co.,' one of the electrical contractors at the Berkshire Mall site, and represented by the Electrical Workers, walked off the job with an object of compelling Bender to assign the task of installing control wiring, then being performed by its employees represented by the Plumbers, to electricians represent- ed by the Electrical Workers. The record reveals that Bender contracted with Feingersch & Prowler, architects, to provide the com- plete heating, air conditioning, and ventilating system for National Shirt Shops' Berkshire Mall store. The contract, inter alia, required Bender to furnish and install an air-cooled condenser unit for air condition- ing; and electric heater; all requisite ducts, pipes, wiring controls, and drains; and, a day-nite thermostat complete with all switches, controls, and wiring. It specifically stated that Bender "shall do all winng from disconnect switch (furnished by others) and shall do all control wiring." Except for power wiring, ' Herein called Acme 185 NLRB No. 106 ELECTRICAL WORKERS, LOCAL 743 which Bender subcontracted to an electrical contractor and about which there is no dispute, and the disputed control wiring, Bender used its own employees repre- sented by the Plumbers to install the system.' About 1952 Bender voluntarily recognized the Plumbers as the collective-bargaining representative of its employees. The record indicates that all collec- tive-bargaining contracts between Bender and the Plumbers have contained a "Jurisdiction of Work" clause similar to the following clause from the agree- ment covering the period involved herein: Section 6. Employees covered by this agreement will not be allowed to install any electrical work other than what is specified herein. All single- phase of electrical work pertaining to the mainte- nance of, repairing of, installation of a complete refrigeration or air conditioning system. All wir- ing for control and motors up to and including one (1) inch conduit pipe with a distance of twenty (20) feet to the disconnection switch. All three phase electrical work up to and includ- ing the disconnect switch and all other electrical that does not pertain to either refrigeration or air conditioning systems shall be installed by a Union employing electrical contractor. The record also reveals that on occasion Bender has subcontracted control-wiring work to electrical con- tractors instead of doing the work itself. The Electrical Workers did not acquiesce to the above-quoted clause and, in fact, in May 1968, demanded of Bender that all electrical work pertaining to refrigeration and air conditioning be turned over to its members. The record indicates that control wiring is used to activate or deactivate the various components of the system in response to temperature changes; wiring for a thermostat would be considered control wiring. Power wiring is used to supply power to the various components and carries three-phase electricity rather than the singlephase electricity in control wiring. Bender's president, Jacob Bender, corroborated Plumbers' Business Agent Snyder's testimony that prior to Bender's beginning the National Shirt Shops project, the latter advised Bender to try to subcontract the control wiring task to an electrical contractor, if Bender could get guaranteed workmanship. Snyder also testified that he told Bender that if a bid were not received, the Plumbers would do the work for Bender. Bender testified that he tried to get a bid for the work from Acme but decided to do the work himself with his employees represented by the Plumbers upon receiving no response from Acme. ' Although they have been represented by the Plumbers for approximate- ly 18 years, Bender's employees are not "plumbers" in the traditional sense since they do electrical and mechanical work in installing and servicing the system, as well as pipefittmg 765 The record reveals that sometime during the past 3 years representatives of the Plumbers and Electrical Workers have discussed the problem involved herein without reaching an accord. On January 23, Bender Supervisor Spohn directed employee Jack Bortz to go to the National Shirt Shops site and begin installing thermostat and control wiring. Before Bortz could begin working, Michael Curtier, a job steward for the Electrical Workers at Berkshire Mall employed by Acme, approached and stated that Bortz was not allowed to do the wiring. Bortz left the jobsite without doing any winng that day. Bortz returned on February 5 to do the control wiring and, despite Curtier's threat that the electri- cians would walk off the job if he did the work, worked that day without incident. The next morning, February 6, Bortz commenced installing thermostat wire at the jobsite. When Curtier saw Bortz doing the wiring, Curtier told several electricians working in the area to stop what they were doing and go drink coffee. They complied with this order. Curtier testified at the hearing herein that it was not time for the electricians' regular coffee break but that "safety factors" required their stopping work while a non-electrician did electrical work. A few minutes later, Acme's general foreman, Dauksis, while walking through the store with Curtier, in Bortz' presence, stated that he would shut off the lights if Bortz kept working. At this point Bortz left the jobsite and the electricians resumed working. Following the work stoppage, Bender subcontracted the control wiring job to Laurel Electric Co., which completed the winng at the site. B. The Contentions of the Parties Bender contends that the Electrical Workers violat- ed Section 8(b)(4)(D) of the Act by exerting coercive pressure directly upon Bender, and indirectly upon the owner of the Berkshire Mall project, to compel Bender to assign the installation of control wiring task previously given to Bender's employees represent- ed by the Plumbers, to electricians; viz, by Electrical Workers' job steward Curtier's February 5 threat to Bortz that the electricians would walk off the job if Bortz continued to install the control wiring, and the subsequent February 6 walkout by the electri- cians at the National Shirt Shops store. Bender also contends that the work should be awarded its employ- ees represented by the Plumbers since their collective- bargaining agreement allows them to do such work, the employees are specifically trained to do such wiring for heating, air conditioning and ventilating systems, the area and industry practice is to assign 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such work to them, and considerations of economy and efficiency warrant awarding the work to its employees represented by the Plumbers. The Electrical Workers asserts that the charge should be dismissed because it did not authorize the work stoppage and threats by Curtier and is not responsible for them. Alternatively, it contends that the Plumbers disclaimed any interest in the work and, therefore, the complaint should be dismissed because there is no jurisdictional dispute. Finally, the Electrical Workers would have us award the disputed work to its members because, it contends, electricians have the requisite higher skill for the task, industry practice is to have them do such work, and it is more efficient to have all electrical work done by electricians. C. Applicability of the Statute Before the Board may proceed with the determina- tion of a 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) of the Act has been violated. Contrary to the contention of the Electrical Work- ers, we find that the circumstances under which job steward Curtier threatened to have the electricians walk off the job on February 5 and the subsequent February 6 work stoppage, which Curtier ordered, clearly establish a prima facie case supporting the alleged violation of Section 8(b)(4)(D). We find no merit in the Electrical Workers contention that because it did not authorize the job steward's conduct it is not responsible for the consequences, especially since the record reveals that the Electrical Workers has been disputing the Plumbers' doing this work for several years.' Moreover, while the Plumbers did not enter a formal appearance at the hearing herein and did not submit a brief, we do not agree with the Electrical Workers assertion that the former union had dis- claimed any interest in the disputed work and that, therefore, there is no dispute for resolution herein. Although the Plumbers' business agent did tell Bender, before the latter began the National Shirt Shops pro- ject, to try to get an electrical contractor to do the control wiring, when Bender could not get a bid for the job, its employees represented by the Plumbers attempted to do the work. We have held that a disclaimer is not necessarily dispositive of a jurisdictional dispute, especially where, as here, ^' Local Union No 272, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Prestress Erectors, Inc), 172 NLRB No 19 members of the allegedly disclaiming union continue to perform the disputed work. We find, therefore, that even assuming the Plumbers initially disclaimed the work, the jurisdictional dispute is still viable since its members subsequently attempted to perform the control wiring task and were only prevented from completing the work by the conduct of representatives of the Electrical Workers.' Finally, the Electrical Workers contends in its brief that the National Joint Board for the Settlement of Jurisdictional Dispute is in the process of settling the instant dispute. We find nothing in the record to support that claim and conclude that there has been no voluntary agreed-upon method for the adjust- ment of the dispute within the meaning of Section 10(k) of the Act. From the above, and the entire record herein, we find, contrary to the Electrical Workers, that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated and that the dispute is properly before the Board for determination. D. Merits ofthe Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to all relevant factors. In International Association of Machinists, Lodge No. 1743 (JA. Jones Construction Co.),9 the Board set forth the following criteria to be considered in the making of an affirmative award in a Section 10(k) proceeding: The Board will consider all relevant factors in determining who is entitled to the work in dispute, e.g.;,the skills and work involved, certifications by the Board, company and industry practice, agreements between unions and between employ- ersand unions, awards of arbitrators, joint boards, and the AFL-CIO in the same or related cases, the assignment made by the employer, and the efficient operation of the employer's business.10 1. Company and area practice The record reveals that even before Bender's employees were represented by the Plumbers, they were doing control wiring for heating, ventilating, air conditioning, and refrigeration systems similar ' See, for example, Building and Construction Trades Council of Las Vegas and Local 525, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, A FL-CIO (Charles J Dorfman and Underground Engineering Contractors Association ), 173 NLRB No 208, and cases cited therein ' 135 NLRB 1402. 10 Id at 1410-11 ELECTRICAL WORKERS, LOCAL 743 767 to that which section 6 of the current collective- bargaining agreement (supra) permits them to per- form. Bender introduced several of its contracts for projects in the Reading, Pennsylvania area which, like the current National Shirt Shops agreement, required it to install the control wiring. However, as noted above, Bender has on occasion subcontracted the control wiring job to electrical contractors. On the other hand, the Electrical Workers called several electrical contractors who testified that their men do control wiring for heating and air conditioning contractors. This agrees with Bender's admission that on occasion it has subcontracted the control wiring work to electrical contractors, but does not establish that Bender's practice of using its employees represent- ed by the Plumbers to install control wiring is an exception to the practice in the Reading, Pennsylvania, area. We conclude that the evidence is insufficient to establish that the industry or area practice is to have electrical, rather than heating-air conditioning contractors' employees install control wiring for the type of projects involved herein. Thus, industry or area practice is a neutral factor in deciding which group of employees should be awarded the disputed work. However, Bender's company practice of having its employees do the control wiring, as permitted by its contract with the Plumbers, is a factor support- ing an award to these employees. concerning the Bender employee's control wiring work were introduced in evidence. The Electrical Workers asserted that its members were endangered by working alongside non-electri- cians doing electrical work. In fact, Curtier testified that considerations of safety led him to call the Febru- ary 6 walkout at the National Shirt Shops store. However, the record fails to show an instance during the period involved herein where an electrician's safety was jeopardized by working alongside any of Bender's employees while they were doing control wiring. There is no proof, moreover, that Bender's employees lacked the requisite training and skill to perform the control wiring safely or, as the Electrical Workers contend, that they failed to coordinate the control wiring work with the other electrical tasks at the jobsite. We find that Bender's employees perform the con- trol wiring work as safely and efficiently as electricians and that Bender can service its systems more efficiently and economically by using its employees rather than having to call an electrician merely to determine if the control wiring is functioning properly. This is an additional factor supporting assignment of the disputed work to Bender's employees represented by the Plumbers. 4. Certification by the Board 2. Employer's preference The fact that Bender clearly prefers an award to its employees represented by the Plumbers is a factor which supports the assignment to it. 3. Efficiency and economy of operation The record reveals that Bender's employees are trained for the specific task of installing and servicing a complete heating , ventilating, and air conditioning system, whereas electricians, while capable of installing control wiring, have no training in the other skills necessary to install and service such a system. Bender contends that its employees' multi-faceted skills, including the ability to install and service control wiring, make for more efficient and economical opera- tions. This is especially important because one man can handle the servicing of an entire installation, whereas an electrician would have to be called each time merely to check one phase of the system, control wiring, if electricians were awarded the disputed work. Bender also introduced evidence that problems arose with the system when it subcontracted the control wiring work to electrical contractors; no complaints Since the record reveals that neither the Electrical Workers nor the Plumbers holds a Board certification for the employees and job classifications involved herein, this is a neutral factor not supporting assign- ment of the disputed work to either electricians or the Bender employees represented by the Plumbers. 5. Agreement between the unions While the record indicates that the two unions involved herein have discussed the jurisdictional prob- lem, there is no evidence that they have agreed on a solution. Accordingly, this is not a factor in the instant proceeding. 6. Skills and work involved As indicated above, except for the Electrical Work- ers unsupported contention that safety factors require awarding the work to electricians, the record reveals that both electricians and Bender's employees possess the requisite skills to install control wiring and both have, in fact, done so in the Reading, Pennsylvania, area. This is a neutral factor not supporting assignment of the disputed work to either group of employees. 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS On all the evidence, we determine the instant juris- dictional dispute in favor of Bender's employees repre- sented by the Plumbers, and find that the employees of Bender represented by the Plumbers, rather than electricians represented by the Electrical Workers, are entitled to perform the work of installing control wiring at the National Shirt Shop store in the Berk- shire Mall shopping center located in Wyomissing, Pennsylvania. Company practice, employer prefer- ence, and efficiency and economy of operation favor this result. 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 case, the National Labor Relations Board hereby makes the following determination of dispute. 1. Employees who are employed by Bender & Shoe- maker, Inc., as installers of heating, ventilating, and air conditioning equipment and who are currently represented by United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada , Plumbers Local Union No. 42, AFL-CIO, are entitled to per- form the work of installing control wiring at the National Shirt Shop store in the Berkshire Mall shop- ping center in Wyomissing , Pennsylvania. 2. International Brotherhood of Electrical Workers, Local Union No. 743, AFL-CIO, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require the Employer to assign the above work to electricians who are represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Brother- hood of Electrical Workers, Local Union No.' 743, AFL-CIO, shall notify the Regional Director for Region 4, in writing, whether it will refrain from forcing or requiring the Employer, by means pro- scribed in Section 8(b)(4)(D), to assign the work in dispute to employees represented by Electrical Workers Local No. 743, rather than to employees represented by United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada , Plumbers Local No. 42, AFL-CIO.