IBEW Local 26

IBEW LOCAL 26 261 International Brotherhood of Electrical Workers, Lo- cal No. 26, AFL-CIO and Taylor Woodrow Blitman Construction Corporation and Electric Utility Em- ployees Union. Cases 5-CD-169, 5-CD-170, 5- CD-171, and 5-CD-173 January 31, 1972 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Pepco is a public utility company engaged in the supply and installation of various classes of electrical service and power to customers in the Greater Wash- ington metropolitan area. It is incorporated in the Dis- trict of Columbia and the Commonwealth of Virginia, and it annually does a gross volume of business in excess of $250,000. Taylor and Pepco concede, and we find, that they are each an employer engaged in commerce within the meaning of the Act, and that it will effectuate the poli- cies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following charges filed by Taylor Woodrow Blitman Construc- tion Corporation (herein referred to as Taylor) and Electric Utility Employees Union (herein referred to as EUEU), alleging that Respondent, International Brotherhood of Electric Workers, Local 26, AFL-CIO (herein referred to as Local 26) has violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the as- signment of certain work described below to employees represented by Local 26 rather than to employees of Potomac Electric Power Company (herein referred to as Pepco). A hearing was held before Hearing Officer John L. Kluttz on October 28, 1971. All parties' ap- peared at the hearing and were afforded full oppor- tunity to be heard, to examine and cross-examine wit- nesses, and to adduce evidence bearing on the issues. EUEU and Pepco filed briefs in support of their posi- tions and they have been duly considered. 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 au- thority in this proceeding to a three-member panel. The Board has reviewed the rulings made by the Hearing Officer 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 EMPLOYERS Taylor is a Delaware corporation having its principal office in New York, New York, and is engaged in the construction of a shopping mall in the city of Rockville, Maryland. In the course of its operation at Rockville, Maryland, Taylor annually receives goods and materi- als directly from outside the State of Maryland valued in excess of $50,000. ' Pepco was permitted to intervene at the hearing. 195 NLRB No. 39 We find that EUEU and Local 26 are labor organiza- tions within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Dispute The disputed work involves the installation of trans- formers and the extending of primary feeders to service termination facilities at sites selected by the customer either within or outside the customer 's building. B. Background Pepco supplies electrical power to customers in the District of Columbia and in certain areas in nearby Maryland and Virginia. Part of the service provided by Pepco includes the installation of cables, transformers, and related equipment and the connection thereof to equipment owned by the customer. Prior to 1967, Pepco customarily installed the equipment in vaults located outside the customer's building. The installa- tion work was performed by Pepco's cable pullers and cable splicers, represented by EUEU. In 1967, Pepco began providing "rooftop" installa- tion service by which the same equipment was installed in facilities located at the top of the customer's building rather than outside the building. The advantage of a rooftop installation, according to Pepco, is that it al- lows Pepco to supply a larger electrical load require- ment with a smaller loss of electrical power. Rooftop installations are primarily used in large office and apartment buildings which require large power sources for elevators and air conditioners. The rooftop installa- tion work is performed by the same classifications of Pepco employees as is the outside installation work, that is, cable pullers and cable splicers represented by EUEU. During the latter part of 1970, two representatives of Local 26, Noone and Moseley, met with Pepco Vice President Dannattell, and informed Dannattell that the installation of any electrical facilities beyond the cus- tomer's building line was, in their opinion, within the 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD province of Local 26 members to perform. Dannattell replied that it was Pepco's policy to perform all instal- lation services up to the point at which the customer's disconnecting device is located, usually the current transformer cabinet, and this is true whether the instal- lation is a rooftop or outside installation. Noone and Moseley responded that if Pepco insisted on perform- ing rooftop work inside the building line, they would "have to pursue the matter further." On June 30, 1971, another meeting was held among Noone, Moseley, and Dannattell, during which the Lo- cal 26 representatives repeated their belief that the roof- top installation work should be performed by Local 26 members rather than Pepco employees. Specific refer- ence was made to work at the East-West Towers in Bethesda, Maryland, which was scheduled to begin within a few days of the meeting. When Dannattell repeated that the work properly belonged to Pepco employees, the Local 26 representatives replied that they would "have to see by what other means they could pursue the matter." On July 6, 1971, members of Local 26 began picket- ing at the East-West Towers jobsite and at Pepco's main office building in Washington. The pickets at the East-West site carried signs containing the following language : "Unfair to Local 26 IBEW-Potomac Elec- tric Power Company wages and working conditions are substandard for work of type being performed within this building." Similar signs were displayed at the Pepco office building. Picketing at both locations con- tinued until July 15, 1971, at which time Dannattell met with representatives of Local 26, the general con- tractor, and the electrical subcontractor for the East- West project. Dannattell was informed that all building trades employees had walked off the job as a result of the picketing, and that the project was being delayed. Local 26 again stated that the disputed work should be performed by its members. Dannattell agreed to con- sider subcontracting the rooftop work to the electrical subcontractor, but no final decision was reached. The next day, Pepco employees were ordered off of the project site, and subsequently Pepco agreed to subcon- tract the rooftop work. On August 17, 1971, members of Local 26 began picketing at the Landsburgh building in the Rockville Town Shopping Mall in Rockville, Maryland, where Pepco was scheduled to install rooftop service. The signs carried by the pickets again protested Pepco's allegedly substandard wages and working conditions, When Pepco employees arrived to perform their work, they were ordered off the jobsite by the general contrac- tor. Picketing continued until August 20. On September 5, 1971, Local 26 members picketed the Thomas Edison Building in Washington. When Pepco employees arrived to make a rooftop installa- into the record in the present proceedings tion, a crane operator, who was needed to lift the equip- ment to the roof, walked off the job. C. Contentions of the Parties Pepco urges that the disputed work be assigned to its employees represented by EUEU because: ( 1) Pepco has a collective-bargaining agreement with EUEU en- compassing the disputed work ; (2) Pepco employees have always performed the disputed work ; (3) Pepco employees are experienced in performing such work; (4) assignment of the work to Pepco employees pre- serves the integrity of Pepco's system; (5) assignment of the work to Pepco employees is necessary to insure the personal safety of the Pepco employees who main- tain the system; (6) installation by Pepco employees insures reliability of service ; (7) assignment to Pepco employees will result in greater efficiency ; and (8) when others perform the work, Pepco still must supervise the installation, provide the equipment , and perform all necessary maintenance. EUEU takes a position consistent with that urged by Pepco. Although Local 26 did not file a brief with the Board, nor did Local 26 call any witnesses during the 10(k) proceedings, its position throughout the related 10(1) proceedings' was that Local 26 has made no claim for the disputed work . Moreover Local 26 maintains that it has engaged in no unlawful conduct but rather pick- eted solely for the purpose of protesting Pepco's sub- standard wages and working conditions. 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 be- lieve that Section 8(b)(4)(D) of the Act has been vi- olated. We find that the incidents recited above provide rea- sonable cause to believe that Local 26 engaged in pick- eting and other prohibited conduct with an object of forcing or requiring Pepco to assign the disputed work to members of Local 26 rather than its own employees represented by EUEU. Respondent's claim that its sole object was to protest Pepco's substandard wages and working conditions is belied by Respondent's repeated verbal demands for the work and the record evidence that it little knew, or cared, about the wages and condi- tions of Pepco's employees. At the least, assignment of the work in dispute was one of Respondent's objects. Thus, we find that the dispute is properly before the ' The related proceedings under Section 10(1) of the Act were stipulated IBEW LOCAL 26 263 Board for determination pursuant to Section 10(k) of the Act.' E. Merits of Dispute 1. Past practice Pepco has been performing the installation of trans- formers, cables, and related equipment since 1934. Since that time, the work has been performed by Pep- co's own employees. In 1967, Pepco began installing the same equipment in facilities located on the roof of customers' buildings when such an installation was ad- vantageous. The same employees perform the rooftop installation as had previously performed, and are still performing, similar work outside the customer's build- ing. Since 1967, Pepco has completed approximately 17 rooftop installations using its own employees, and ap- proximately seven more such installations are pending completion. In only three instances has Pepco com- pleted rooftop installations with other than its own employees.` Prior to the incidents giving rise to the current dis- pute, Local 26 had made no claim to the disputed work. Thus, it is clear that Pepco has maintained a practice of assigning the disputed work to its own employees. 2. Skills and training It is uncontroverted that Pepco employees possess sufficient skills to perform the disputed work, having done so since 1934. Moreover, there is nothing in the record to indicate that the work must be performed by electricians. We conclude, therefore, that Pepco em- ployees are competent to perform the work. 3. Efficiency and economy As indicated above, the same employees perform rooftop service as perform work on installations out- side the customer's building. Because the employees can perform both types of installation, they can easily be transferred from rooftop to outside job, or vice versa, when the situation warrants. The installation of transformers and cables is one part of the integrated electrical power service supplied by Pepco and performed by Pepco employees. When the installation is made by Pepco employees, the integ- rity of the entire system is maintained, and Pepco em- ployees working on other parts of the system are famil- iar with the installation and are secure in knowing that ' Contrary to Local 26's contention that it has made no claim for the disputed work, we find its conduct, described above, to be sufficient evidence of such a claim to place the dispute properly before the Board ' Of these three, two were projects involved in the current dispute, and the third was a building housing IBEW's headquarters the installation was performed according to Pepco standards and procedures. Whether or not Pepco employees install the equip- ment, it is still owned by Pepco. In those instances in which Pepco subcontracted the disputed work, Pepco still purchased, supplied, and maintained the equip- ment. Also, when the work is subcontracted, a Pepco supervisor must be present to insure proper installa- tion. No such supervisor need be present when Pepco employees perform the work. From the foregoing, and in the absence of evidence to the contrary, we conclude that the assignment of the disputed work to Pepco employees will result in greater efficiency and economy than assignment of the work to members of Local 26. 4. Certification and contracts EUEU has been the certified bargaining representa- tive for all Pepco employees, including cable pullers and cable splicers, for over 30 years. IBEW does not represent any Pepco employees. Pepco and EUEU are currently parties to a collec- tive-bargaining agreement, effective through May 31, 1972, covering the employees who perform the dis- puted work. We find, therefore, that Pepco's assignment of the disputed work to its own employees is consistent with EUEU's certification and with Pepco's collective-bar- gaining agreement with EUEU. 5. Pepco's assignment of work As indicated, Pepco assigned the disputed work to its own employees, based on business considerations, in- cluding consideration of the efficiency and economy resulting therefrom. CONCLUSIONS In view of all of the above and the record as a whole, we conclude that the work in dispute should be awarded to Pepco employees, and we shall determine the dispute in favor of Pepco employees represented by EUEU. In making this determination, we are awarding the work in issue to Pepco employees represented by EUEU, and not to EUEU or its members. Accordingly, we find that Local 26 was not, and is not, entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Pepco to assign the dis- puted work to its members rather than to Pepco em- ployees represented by EUEU. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD SCOPE OF DETERMINATION Pepco, in its brief, requests that the Board determine the dispute by awarding the disputed work to its own employees, and further requests that the Board deter- mination apply to the entire geographic area in which Pepco operates, that is, the Greater Washington met- ropolitan area. In the past it has been the Board's policy to make an award broad enough to encompass the geographic area in which an employer does business, wherever jurisdic- tions of the competing unions coincide, in circum- stances where there is an indication that the dispute is likely to recur.' In view of the fact that Local 26 has picketed at least three locations at which Pepco em- ployees have attempted to perform the disputed work, Local 26 has made several demands for the disputed work, and Pepco has future commitments to perform the disputed work, we believe that there is a substantial likelihood that this dispute will be repeated. Therefore, our determination in this case applies to all similar disputes occurring within the Greater Washington metropolitan area, wherever the jurisdictions of Local 26 and EUEU coincide. ' Local 299, Sheet Metal Workers' International Association . AFL-CIO (Metalab Equipment Company), 173 NLRB 1329, and cases cited therein at fn. 4 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 and the entire record in this case, the National Labor Relations Board makes the following determination of dispute. A. Employees of the Potomac Electric Power Com- pany currently represented by Electric Utility Em- ployees Union are entitled to perform the following work: All work involving the installation of transformers and the extending of primary feeders to service termination facilities at sites selected by customers either within or outside the customer's building within the Greater Washington metropolitan area. B. International Brotherhood of Electrical Workers, Local No. 26, AFL-CIO, is not entitled by means pro- scribed by Section 8(b)(4)(D) of the Act to force or require Potomac Electric Power Company to assign the above-described work to employees represented by Lo- cal 26. C. Within 10 days from the date of this Decision and Determination of Dispute, International Brotherhood of Electrical Workers, Local No. 26, AFL-CIO, shall notify the Regional Director for Region 5, in writing, whether or not it will refrain from forcing or requiring Potomac Electric Power Company to assign the work in dispute to its members rather than to employees of Potomac Electric Power Company represented by Electric Utility Employees Union.