Laborers' International, Local 576

LABORERS' INTERNATIONAL, LOCAL 576 Laborers' International Union of North America, Laborers' Local Union No. 576, AFL-CIO, and Its Agent, James E. Stewart and Marine Electric Company, Inc. and Local No. 369, International Brotherhood of Electrical Workers, AFL-CIO. Case 9-CD-136 November 7, 1968 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN This is a proceeding under Section 10 (k) of the National Labor Relations Act, as amended , following the filing of charges by Marine Electric Company, Inc.,' alleging that Laborers ' International Union of North America , Laborers' Local Union No. 576, AFL-CIO ,' and its agent James E. Stewart, had violated Section 8(b)(4)(D ) of the Act by threatening, coercing , or restraining the Employer with an object of forcing or requiring the Employer to assign certain work to employees represented by Laborers ', rather than to employees represented by Local No. 369, International Brotherhood of Electrical Workers, AFL-CIO.3 A hearing was held before James K. L. Lawrence , Hearing Officer, on August 13 and 14, 1968. All parties appeared at the hearing and 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 . Briefs filed by the Employer, Laborers, and IBEW have been duly considered. 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 connection with this case to a three- member panel. Upon the entire record in this case , the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER Marine Electric Company, Inc., a Kentucky corpo- ration, is engaged in the business of electrical engi- neering and electrical contracting in the State of Kentucky, and surrounding States. In the past fiscal year, the Employer purchased goods from points outside the State of Kentucky in excess of $50,000, I Herein called Employer or Company. 2 Herein called Laborers. 3 Herein called IBEW. 4 The disputed work has historically been performed by journeymen electricians and indentured apprentices represented by IBEW. However, as noted , when they were not available the Employer has used workers 649 and during the same period sold to customers outside the State of Kentucky goods and services in excess of $50,000. The parties stipulated, and we find, that Marine Electric Company, Inc., is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Laborers and IBEW are labor organizations within the meaning of Section 2(5) of the Act. III THE DISPUTE A. The Work in Dispute The work in dispute, as stipulated by the parties at the hearing, consists of the trenching by hand and the back filling by hand in connection with laying electri- cal conduit on the Employer's jobsite at 1-71 Zorn Avenue. B. Facts as to the Dispute The Company's on-site employees have historically been represented under contract between the IBEW and the Louisville Electrical Contractors Association, of which the Company is an employer-member. The Company, at no time, has engaged in collective bargaining or signed an agreement with the Laborers. In connection with its contracts for electrical work, the Employer frequently is required to dig trenches which, after installation of electrical conduit, must be refilled. This work almost invariably has been assigned to its employees represented by the IBEW. However, when such employees have been unavailable, the Employer has upon occasion utilized laborers repre- sented by the Respondent Laborers. The instant dispute occurred in connection with a project on which the Employer initially hired laborers because it was under the mistaken belief that employees repre- sented by IBEW were not available.' Thus, on May 1, 1968, the Employer began trenching on the 1-71 project at Zorn Avenue. Due to the shortage of indentured electrical apprentices and journeymen on the job, the Employer requested four laborers to perform the disputed work. On May 6, 1968, three more laborers were hired. That day Clay Hampton, president of Laborers, spoke to Sam Storm, president of the Company, and requested that represented by Laborers. This occurred in connection with the project in which the dispute arose, but when the Employer was informed that ground men also represented by IBEW, were available to perform the work in dispute , the Employer assigned the disputed work to the latter group. 173 NLRB No. 97 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Storm sign a collective-bargaining agreement. Storm refused indicating that he had a contract with IBEW and that signing with Laborers would violate that agreement. Storm phoned IBEW's Business Manager Joseph A. Pompei, that afternoon and related his conversation with Hampton. Pompei, on May 7, informed the Company that execution of an agree- ment with Laborers would violate the IBEW contract, particularly the provision requiring the Company to secure additional men from IBEW. At Pompei's suggestion, "groundmen" represented by IBEW, were hired to perform the disputed work and they replaced the laborers on May 8. On May 15, Hampton and James S. Stewart, Laborers' business manager, met with the Employer's representatives. Stewart protested the reassignment of the work to IBEW, arguing that his Union was entitled to the disputed work under various awards and agreements, and then stated that he was "going to start fighting for our jurisdiction and our work." While denied by Stewart, Employer's representative Storm testified that Stewart also said that "there were going to be a lot of work stoppages in this locality if something is not done about it (the disputed work)." C. Contentions of the Parties The Employer and IBEW contend that a jurisdic- tional dispute exists and that the disputed work should be assigned to members of IBEW, based on the Employer's contract with IBEW, company and area practice, and safety, efficiency and economy. Laborers contends that the initial assignment of the backfilling was appropriate because of the Employer's past practice, industry and area practice, skills in- volved, Joint Board awards, and considerations of economy. D. Applicability of the Statute Before making a determination of the dispute, the Board is required to find that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated. We are satisfied that there is adequate support for such finding in this case, particularly in the light of Stewart's admission that on at least one occasion during a discussion concerning the disputed work, he informed the Charging Party that he was going to start fighting for Laborers' jurisdiction and Laborers' work if the disputed backfilling of the trenches was not assigned to its members as well as the controverted testimony attributing direct threats of work stoppages to Stew- art on or about May 15, 1968. Upon the basis of the above and the entire record before us, we find that Laborers and its agent Stewart threatened to strike with an object of forcing Marine Electric Company, Inc., to assign work to employees represented by Laborers rather than to employees represented by IBEW. Accordingly, we find reason- able cause to believe that Respondent Laborers and its agent Stewart violated Section 8(b)(4)(D), and that the work assignment in dispute is properly before the Board for determination under Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work, after giving due consideration to various relevant factors. The factors hereinafter set forth bear on the issue of work assignment before us. 1. Collective-bargaining agreements and certifications Neither labor organization has been certified by the Board as the representative of any group of em- ployees entitled to perform the disputed work. As indicated, Laborers is not a party to a collective-bar- gaining agreement with the Employer. The recogni- tion clause of the current agreement between the IBEW and the Employer provides that the latter shall recognize the IBEW "as the sole and exclusive collective-bargaining agent of all persons while di- rectly employed by the employer ...... Further, article III, section 1, provides that: The Employer ... agrees to notify the Union when additional or replacement employees are needed. The Union agrees to furnish applicants to perform the necessary work when so notified, upon a nondiscriminatory basis within forty-eight (48) hours after receiving the request from the em- ployer .... Additionally, article VI, Section 6, defines the work covered thereby as follows: The handling and installing of all electrical equip- ment and materials shall be the jurisdiction of employees covered by this agreement, except in the employer's established place of business. As the Employer and IBEW have a collective-bar- gaining contract in effect whereby IBEW is recognized as the exclusive representative of all the Employer's employees engaged on jobsite electrical work, as the work in dispute is a necessary incident to the installation of electrical equipment, and as the Em- ployer does not have a collective-bargaining agree- ment with the Laborers, the contract supports the claim of IBEW. 2. Company, area, and industry practice As indicated, the Employer in the past has cus- tomarily assigned the trenching and backfill work to journeymen and apprentice electricians. However, on three occasions, when such employees were not LABORERS' INTERNATIONAL, LOCAL 576 available, members of Laborers were used. The evidence concerning area practice shows that certain contractors have collective-bargaining agreements with Laborers and use employees represented by that union to perform this work, but it also appears that a majority of the work performed in the area involves the use of IBEW members. The industry practice appears to be mixed, and though the Laborers cites an agreement between it and IBEW executed in 1940 as supporting its claim, that agreement covered the utility industry, and in no event is binding upon the instant Employer. Furthermore, although certain Joint Board determinations tend to support Laborers' claim, these decisions are not binding upon the Employer, as the Employer has not submitted to the jurisdiction of that body. The Joint Board determina- tions therefore merely constitute evidence of industry practice, which on the basis of the instant record we find to be mixed. Accordingly, and as the Employer, area and industry practice fail to reveal a composite pattern whereby one or the other group of competing labor organizations has been used predominately to perform the disputed work, we find that these factors favor neither union. 3. Skill, efficiency, economy, and safety factors The work involved is unskilled and can be per- formed by either of the competing groups. There is some indication that journeymen and apprentice electricians operate with more skill than laborers in determining the size, direction, and positions of the trenches, and the use of these IBEW classifications would be more compatible with safety factors; however, it is not clear that these advantages would benefit the Employer through the use of IBEW's groundmen classification. Furthermore, as either the group represented by Laborers or IBEW can perform the trenching work at equal cost, these factors favor neither union. Conclusions as to Merits of the Dispute On the basis of the foregoing, the usual factors of industry, area, or employer practice, skill, efficiency, safety, and economy, offer no clear guide to resolu- tion of the instant dispute. On the other hand, the 5 Cf. Electrical Workers Local 369 (Henderson Electric Co., Inc.) 161 NLRB 45, where an award was made to those employees who 651 Employer has assigned the work to its employees represented by IBEW under its current contract with that union, and this assignment is consistent with its customary practice of utilizing such employees where available. In these circumstances and in the absence of countervailing evidence supporting an assignment to the Laborers Union, we shall determine the dispute by awarding the work of trenching and backfilling by hand on the Employer's 1-71 Zorn Avenue jobsite to employees of the Employer who are currently repre- sented by the IBEW, but not to that union or its members.' The present determination is limited to the particular controversy which gave rise to this proceeding. 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 Dis- pute: 1. Employees employed as electricians , apprentice electricians, and groundmen, by Marine Electric Com- pany , Inc., currently represented by Local No. 369, International Brotherhood of Electrical Workers, AFL-CIO, are entitled to perform the work of trenching by hand and backfilling by hand on the Employer's I-71, Zorn Avenue, jobsite. 2. Laborers' International Union of North Amer- ica, Laborers' Local Union No. 576, AFL-CIO, and its agent James E. Stewart, are not and have not been entitled by means proscribed by Section 8(b)(4)(D) of the Act, to force or require the Company to assign the above-described disputed work to laborers repre- sented by that Union. 3. Within 10 days from the date of this Decision and Determination of Dispute , Laborers ' Interna- tional Union of North America, Laborers' Local Union No. 576, and its agent, James E. Stewart, shall notify the Regional Director for Region 9, in writing, whether they will or will not refrain from forcing or requiring the Company , by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to laborers rather than to electricians. performed the disputed work and were covered by a collective-bar- gaining agreement between the Employer and Laborers Union.