IBEW, Local 153

934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 153, International Brotherhood of Electrical Workers, AFL-CIO and Commercial Electronics, Inc. and Local 1225, International Brotherhood of Electrical Workers, AFL-CIO. Case 25-CD-128 June 26, 1972 DECISION AND DETERMINATION OF DISPUTE By CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Commercial Electronics, Inc., herein called the Employer, alleging that Local 153, International Brotherhood of Electrical Workers, AFL-CIO, herein called Local 153, had violated Section 8(b)(4)(D) of the Act. The charge alleges in substance that Local 153 engaged in certain pro- scribed activity with an object of forcing or requiring the Employer to assign the work in dispute to employees represented by Local 153 rather than to .employees of- the Employer who are represented by Local 1225, International Brotherhood of Electrical Workers, AFL-CIO, herein called Local 1225. Pursuant to notice, a hearing was held before Hearing Officer Frederick G. Winkler on April 11, 1972. All parties appearing at the heanng were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evi- dence.l Thereafter, the,Employer and Local '153 tiled briefs,in support of their respective positions. 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. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The Employer, an Indiana corporation with its principal place of business in Indianapolis, is engaged in the business of supplying and installing closed circuit television equipment and other elec- tronic systems. The parties stipulated, and we find, that the Employer is engaged in interstate commerce within the meaning of Section 2(6) and (7) of the Act. 1 Although Local 1225 was served with a copy of the charge and the notice of hearing , it made no appearance at the hearing However, its representative testified as a witness for Local 153 2 Although its expiration date was December 31, 1971, it was extended Accordingly, we find that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS The parties stipulated, and we find, that Local 153 and Local 1225 are labor organizations within the meaning of Section 2(5) of the Act. 111. THE DISPUTE A. Background and Facts of the Dispute On August 12, 1970, Workinger Electric, Inc., an electrical contractor, subcontracted to the Employer the installation of a closed circuit television system at the new high school in Elkhart, Indiana. The work, which is performed on a periodic basis, involves mounting and connecting loudspeakers, micro- phones, outlets, and amplifiers. As the Employer guarantees its products and workmanship, it utilizes expensive audio-acoustical and testing apparatus to assure the effective operation of the system. Pursuant to its collective-bargaining agreement with Local 1225,2 the representative of its'employees, the Employer on March 9, 1972, assigned a segment of the above-described work at the Elkhart project to employees John Cazee, Tom Brooks, and David Colip. At the jobsite, where they were starting to install a TV outlet, they were met by Raymond Rink, the assistant manager of Local 153, who stated to them that it had jurisdiction in the Elkhart area and that they were not to do any more work until they cleared through Local 153. Rink then placed a telephone call to Lloyd Robinson, the business manager of Local 153, to whom Colip complained about not being permitted to work. Robinson replied that Local 153 had men out of work and that, with the exception of one of the Employer's supervisors, these men would have to be used to perform the disputed work.3 When Colip, Cazee, and Brooks attempted to continue working on instructions from the Employer, Rink forbade them to do so, saying that they "could not turn another screw." They thereupon left the jobsite. On March 16, the IBEW International wrote to the Board's Regional Office that Local 153 had "Sound, Public Address and Radio-Television Service juris- diction" in Elkhart and a itumber of other counties in Indiana. On March 28, Robert L. Riggs, president and business manager of Local 1225, sent Robinson a telegram stating that, "the handling and installation pending completion of negotiations for a new agreement 3 Robinson testified that Local 153 had a number of technicians available for work because of their strike against another contractor 197 NLRB No. 133 IBEW, LOCAL 153 935 of a closed circuit television system in Elkhart County Indiana is exclusively within the jurisdiction of Local Union 153 IBEW." On March 28, a Section 10(1) hearing took place before the United States District Court for the Northern District of Indiana, South Bend, Indiana.4 Before the close of the hearing, the parties agreed, with the approval of the court, that the employees of the Employer "shall be allowed to perform work [on the project] without any interference by . . . Local 153, in violation of Section 8(b)(4)(i)(ii), subpara- graph (D) of the National Labor Relations Act, pending a hearing by the N.L.R.B. and determina- tion." Thereafter, Colip, Caiee, and Brooks worked at the project on two occasions without interference from Local 153. On April 10, they appeared before the Trial Board of Local 153 where they were tried for working at Elkhart on March 9 and were informed that Local 153 would file additional charges against them for their acceptance of subse- quent work assignments on the project. Cazee testified at the instant hearing that he wished to continue working on the Elkhart job. B. The Work in Dispute As stated above, the work in dispute involves tasks pertaining to the installation of a closed circuit television system at Elkhart, Indiana. C. Contentions of the Parties Local 153 asserts that its motion to quash the notice of hearing and dismiss the complaint, which was referred to the Board by the Hearing Officer, should be granted, under the Board's Safeway decision,5 because Local 1225 disclaimed the work involved herein. The Employer contends that the work should be assigned to its own employees because (1) it is bound to make this assignment under its contract with Local 1225, and (2) it is the prevailing practice in the industry for sound contractors to use their own regular employees who are given special training and develop expert skills. employees to perform the work on the Elkhart project without interference by Local 153 in violation of Section 8(b)(4)(D), pending a 10(1) hearing and decision by the Board. Section 10(k) of the Act empowers the Board to hear and determine the dispute out of which an 8(b)(4)(D) charge has arisen. However, before the Board proceeds, it must be satisfied that there is reasonable cause to believe that a dispute in violation of Section 8(b)(4)(D) has occurred. As noted above, Local 153 contends that there was no dispute cognizable under Sections 10(k) and 8(b)(4)(D) of the Act on the ground that Local 1225 renounced its claim to the work ' in question. The Supreme Court stated in its CBS decisions that a jurisdictional dispute under Section 8(b)(4)(D) is a dispute between "two or more groups of employees over which is entitled to do certain work." Relying on that definition, the Board stated in Safeway, supra, that it is "the Board's responsibility and duty to decide which of two or more employee groups claiming the right to perform certain work tasks is right and then specifically to award such tasks in accordance with its decision." In Moon Pipeline Contractors,7 where, as here, it was contended that there must be competing claims of two unions before the Board could act pursuant to Section 10(k), the Board held as follows: While that is certainly the usual situation, it is too restrictive an interpretation of Section 8(b)(4)(D) because the Board is also authorized to proceed under Section 10(k) "where the individual employees to whom the jobs were assigned claim the work. That is, the polarity contemplated in Section 8(b)(4)(D) is pre- served, and the injury Congress sought to prevent is present, whether two unions or a union and a group of employees stake competing claims to the disputed work." In view of the foregoing, we find that Local 1225's disclaimer did not extinguish the jurisdictional dispute between Local 153 and the employees of the Employer who desire to continue working on the Elkhart project. Accordingly, we deny Local 153's motion to quash the notice of hearing and to dismiss the complaint.8 D. Applicability of the Statute The charge alleges a violation of Section 8(b)(4)(D) of the Act. As stated above, the United States District Court in a 10(1) proceeding approved the agreement of the parties permitting the Employer's 4 Case 72-S-62 5 Highway Truckdrivers & Helpers Local 107, Teamsters (Safeway Stores, Inc), 134NLRB 1320 8 N L R B v Radio & Television Broadcast Engineers, Local 1212 (Columbia Broadcasting System), 364 US 573, 579, 585. 7 Pipeliners Local No 798 of the United Association of Journeymen and 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 factors. The Apprentices of the Plumbing and Ripeffuing Industry of the United States and Canada, AFL-CIO (Moon Pipeline Contractors, Inc.), 177 NLRB 872, 874. 8 Contrary to Local 153, the Supreme Court, in N.LR.B v. Plasterers Local Union No. 79, et a! (Texas State Tile & Terazzo), 404 U S 116, affirmed the principle that "the applicability of 8(b)(4)(D) is premised on conflicting claims of unions or groups of employees for the same )ob." 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD following factors are relevant in making a determina- tion of the dispute before us: 1. Collective-bargaining agreements The Employer, a sound contractor, for a number of years has had collective-bargaining contracts with Local 1225 which provide that all of its work on sound or audio equipment and apparatus shall be assigned to its employees. Local 153 and a number of other sound contractors in Elkhart and other counties in Indiana and Michigan are parties to a collective-bargaining contract which provides for installation of sound and television equipment and "simple testing" but not major service repair work. 2. Company and industry practice The Employer originally operated by using its own men as supervisors and obtaining other men through various IBEW hiring halls. However, as a result of the poor workmanship of such temporary workers, the Employer adopted the policy of hiring and training its own employees in order to familiarize them with its products and installation and testing techniques. Although Local 153 asserts that its members possess the skill to perform most of the disputed work on the Elkhart project, it concedes that they are not able to handle some, of the instrumentation thereon. It is also the prevailing practice among sound contractors to have their own regular employees because of the skills and training required in this type of work. 3. Skills, efficiency, and economy Although the Employer's use of its own regular employees may be more costly than "pick-up labor" because of higher wages and travel expenses, the advantage of having its own skilled and trained work force nevertheless makes it economically feasible to have such personnel in view of the better quality of their workmanship, more efficient operation, and the enhancement of the Employer's reputation as a specialized contractor. F. Conclusion Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that the Employer's employees, who are represented by Local 1225, are entitled to perform the work in dispute. We base this conclusion upon the Employer's assignment of the disputed work to its employees ; the fact that this assignment is consistent with its own past practice and that of other sound contractors; the further fact that the Employer's employees have the requisite skills and training and are familiar with all facets of the work; and the attendant efficiency of operating with the Employer's own regular work force. We shall therefore determine the dispute before us by award- ing the work on the Elkhart project to the Employer's employees, who are represented by Local 1225, 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 by Commercial Electron- ics, Inc., represented by Local 1225, International Brotherhood of Electrical Workers, AFL-CIO, and claiming the work in dispute, are entitled to perform such work at the Workinger Electric project at Elkhart, Indiana. 2. Local 153, International Brotherhood of Elec- trical Workers, AFL-CIO, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Commercial Electronics, Inc., to assign the above work to employees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 153, Interna- tional Brotherhood of Electrical Workers, AFL-CIO, shall notify the Regional Director for Region 25, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute in a manner inconsistent with this determina- tion.