Local 540, Electrical Workers

30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 540, International Brotherhood of Electrical Workers, AFL-CIO and Local 521 , Laborers' Inter- national Union of North America, AFL-CIO and M and G Garaux Construction , Inc. Case 8-CD-203 April 23, 1971 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN Following the filing of a charge by the Laborers' on August 5, 1970, and an amended charge on September 14, 1970, alleging a violation of Section 8(b)(4)(D) of the National Labor Relations Act, as amended, a hear- ing pursuant to Section 10(k) of the Act was held before Hearing Officer William E. Powers on October 27, 1970. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bear- ing upon the issues. Thereafter, briefs were filed by the Laborers and the Electrical Workers. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection 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 parties stipulated, and we find, that M and G Garaux Construction, Inc., is engaged in commerce within the meaning of the Act. 2. The parties stipulated, and we find, that the Labor- ers and the Electrical Workers are labor organizations within the meaning of the Act. 3. The dispute a. Background and facts concerning the dispute The Employer is a subcontractor responsible for the installation of a plastic telephone conduit in trenches it excavated at the construction site located on the prop- erty of Hercules Engine Company, a division of White Motor Company, in Canton, Ohio. The Employer is a member of the Labor Relations Division of the Ohio Contractors' Association, to which it has given bar- gaining authority. By virtue of its membership, the Employer is signatory to the Ohio Highway-Heavy Agreement between the Association and the Laborers' District Council of Ohio of the Laborers' International ' The other parties herein are referred to respectively as the Employer and the Electrical Workers. Union of North America . The jurisdictional section of the agreement between the Association and the Labor- ers contains a clause which provides that "sewer, water works and utility construction work is defined as in- cluding construction of ... telephone and television conduit." The Employer, which employs no electri- cians, assigned the work of excavating the trenches and installing the conduit to its employees represented by the Laborers . The record shows that electricians em- ployed by White Motor installed conduits for lights on the parking area of the White Motor property and that electricians installed a similar telephone conduit on the construction site. On August 4, 1970, the Employer began installing the telephone conduit . Approximately 1 hour after the work commenced two men who identified themselves as electricians approached the Employer's foreman and advised him that the laborers would not be allowed to install the conduit . The electricians lined both sides of the trench, some leaning and standing on the conduit, successfully preventing further installation work. On August 11 , 1970, when the Employer resumed install- ing the conduit, the steward for the Electrical Workers informed the Employer's foreman that the laborers would not be allowed to continue working. The Em- ployer continued to install the conduit and about noon on August I l the electricians began to picket the job- site. The pickets stayed throughout the remainder of the day, and resumed picketing the next day , August 12. The Employer's vice president, Garaux, testified that he had a conversation with the business manager of the Electrical Workers, Scott, in November 1969 in which Scott conceded that the laborers could install telephone conduit and agreed that the installation work was not electricians' work . Garaux further testified that later, in a telephone conversation they had during the course of the dispute, Scott denied making this statement. b. The work in dispute,- the positions of the parties The Laborers contends that the Electrical Workers violated Section 8(b)(4)(D) of the Act by causing a work stoppage in an effort to have the Employer assign the work in dispute , the installation of plastic telephone conduit in trenches , to individuals represented by the Electrical Workers. The Laborers further contends that the work has been assigned to employees represented by the Laborers, and that such work should properly be awarded to members of the Laborers in view of (a) the collective-bargaining agreement; (b) Employer and area past practice; (c) considerations of skill , efficiency, and economy ; and (d) the fact that the assignment to the Electrical Workers would require the layoff or ter- mination of employees represented by the Laborers. The Employer has taken a position basically consistent with that adopted by the Laborers. 190 NLRB No. 6 LOCAL 540, ELECTRICAL WORKERS 31 The Electrical Workers contends that the work in dispute should be assigned to its members. In support of its contention, the Electrical Workers cites a decision by the National Joint Board in this case on October 30, 1970, and various other decisions of the National Joint Board in which the Joint Board has awarded work similar to the work in dispute to its members. The Electrical Workers further contends that both Unions are subject to the decisions of the National Joint Board since both Unions are members of the AFL-CIO through their International Unions and since the con- stitution of the AFL-CIO Building Trades Depart- ment, of which both are members, provides for deter- mination of jurisdictional disputes by the National Joint Board. The Electrical Workers further contends that the Employer's refusal to abide by such decisions does not necessarily give this Board jurisdiction over the dispute, and that in fact this Board has no jurisdic- tion over the dispute since the dispute has been resolved by the Joint Board Decision, which is binding on the contending labor organizations. The Electrical Work- ers filed with the Regional Director a motion to quash the notice of hearing which the Regional Director de- nied and from which denial the Electrical Workers has appealed. c. The applicability of the statute The testimony of the Employer's vice president, Ga- raux, establishes that on August 11, 1970, the steward for the Electrical Workers informed the Employer's foreman that the laborers would not be allowed to continue installing the conduit; that electricians com- menced picketing at the construction site on August 11 and continued picketing on August 12; and that in November 1969 Garaux was told by the Electrical Workers' business manager, Scott, that the laborers could install telephone conduit but during the course of the instant dispute Scott denied ever having made the statement. On these facts, we are satisfied that there is a reasonable cause to believe that the Electrical Work- ers threatened to and did strike and that an object of such action was to force the Employer to assign the disputed work of installing conduit to individuals represented by the Electrical Workers rather than to employees represented by the Laborers. On the basis of the entire record in this case, 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 prop- erly before the Board for determination.' ' For the reasons stated in section III, D, of Lather's Union Local 104 (Associated General Contractors), 186 NLRB No. 70, we find no merit in the Electrical Workers contention that this Board does not have jurisdiction to determine the instant dispute. Its appeal from the Regional Director's denial of its motion to quash the notice of hearing is accordingly denied. d. The merits of the dispute Of the three laborers employed by the Employer at the jobsite, only one laborer was engaged in installing conduit. Garaux testified that the installation would take 1 day to complete and that the pipelayer, after completing the installation of the conduit, would be assigned other work such as pouring concrete and tamping and backfilling the trench, which were duties expected of other laborers. Garaux further testified that no skill or training was required for the installation of the conduit and that whatever knowledge was neces- sary could be acquired by the employee in 10 to 15 minutes on the job. Moreover, the evidence indicates that less than 20 percent of the laborers' time was actually used to install and couple the conduit and that the remainder of their time was spent in preparation duties. These duties entailed the actual excavation of the trench, encasing the conduit, and filling, tamping, and grading the trench; work to which the Electrical Workers makes no claim. The Employer asserts that in view of these facts it is more efficient and economical to assign the disputed work to the Laborers. As set forth above, the contract with the Laborers to which the Employer is bound applied to the construc- tion of telephone conduit. Garaux testified that during the last 10-12 years he observed numerous instances in which other local contractors utilized the services of laborers to install plastic telephone conduit similar to the type involved in this dispute. The president of another local construction company testified about sev- eral occasions in which his company used laborers to install plastic telephone conduit. He specifically tes- tified that he had seen laborers installing plastic tele- phone conduit at two locations in the Canton area and at two locations in the Akron area. Neither of the labor organizations involved herein has been certified by the Board nor is there evidence indicating that a Board certification covers the disputed work. The record discloses no evidence of agreements among all the parties for the submission of work dis- putes to the National Joint Board. Moreover, the prior Joint Board decisions relied on by the Electrical Work- ers do not involve the installation of plastic telephone conduit. Upon the record as a whole, and after consideration of all relevant factors involved, we believe that the assignment of the work in dispute to the employees of the Employer should not be disturbed. We shall there- fore determine the dispute before us by awarding the installation of plastic telephone conduit to the em- ployees of the Employer represented by the Laborers. We do not, however, award the work to the Laborers or its members. This determination is limited to the particular controversy giving rise to this dispute. 32 DECISIONS OF NATIONAL DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Re- lations Act, as amended, and upon the basis of the foregoing findings, the National Labor Relations Board hereby makes the following Determination of Dispute: 1. Employees of the Employer represented by Local 521, Laborers' International Union of North America, AFL-CIO, are entitled to perform the work of install- ing plastic telephone conduit at the construction site located on the property of Hercules Engine Company in Canton, Ohio. 2. Local 540, International Brotherhood of Electrical Workers, AFL-CIO, is not entitled by means pro- LABOR RELATIONS BOARD scribed by Section 8(b)(4)(D) of the Act to force or require M and G Garaux Construction, Inc., Canton, Ohio, to assign such work to individuals represented by the aforesaid labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 540, International Brotherhood of Electrical Workers, AFL-CIO, shall notify the Regional Director for Region 8, in writing, whether or not it will refrain from forcing or requiring M and G Garaux Construction, Inc., by means pro- scribed by Section 8(b)(4)(D) to assign the work in dispute in a manner inconsistent with the above deter- mination.