Local 40, IBEW

LOCAL 40, IBEW Local 40, International Brotherhood of Electrical Workers, AFL-CIO' and F & B/Ceco of California, Inc. and Jack Rollins and Charles H. Joffe Produc- tions, a Joint Venture of Heywood Productions, Inc., Hillary Productions, Ltd., and Brodsky/Gould Pro- ductions and Studio Transportation Drivers, Local No. 399, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America2 Case 31-CD-75 October 20, 1972 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended , following a charge filed by F & B/Ceco of California, Inc., herein called Ceco, alleging that Local 40, Interna- tional Brotherhood of Electrical Workers , AFL-CIO, herein called Electrical Workers, had violated Section 8(b)(4)(D) of the Act. The charge alleges , in sub- stance, that the Electrical Workers, by including and encouraging employees to engage in a refusal to work on materials supplied by Ceco and perform services for Jack Rollins and Charles H. Joffe Productions, herein called Employer, violated the Act in that one of the purposes of the action was to force the Employ- er to assign certain work to its members rather than to members of Studio Transportation Drivers, Local No. 399, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called Teamsters . Pursuant to notice, a hearing was held in Los Angeles, California, before Hearing Officer Norman L. McCracken on May 18 and 19, 1972. All parties appeared and were afforded full op- portunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the is- sues . Thereafter, Ceco and the Electrical Workers filed briefs which have been duly considered by the Board. 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 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 names of the unions appear as amended at the heanng 2 The names of the unions appear as amended at the heanng I THE BUSINESS OF THE EMPLOYER 903 The parties stipulated that F & B/Ceco of Cali- fornia, Inc., is a corporation engaged in the rental of mobile studios to motion picture producing compa- nies. In the course and conduct of its business, Ceco furnishes services directly outside the State of Califor- nia in value exceeding $50,000 annually. The parties further stipulated that Jack Rollins and Charles H. Joffe Productions, a Joint Venture of Heywood Productions, Inc., Hillary Productions, Ltd., and Brodsky/Gould Productions, is engaged in the production of a motion picture. In the course and conduct of its business, the Employer has performed services directly outside the State of California in val- ue exceeding $50,000 annually. We find that the Employers are 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 Elec- trical Workers and Teamsters are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background Ceco is presently engaged, inter alia, in the rental of mobile self-propelled units called "Cecomobiles," containing all necessary equipment to film a motion picture on location away from permanent studio loca- tions. Except for a towed generator, all equipment is transported in, and operated from, the unit, described as approximately the size of a city bus. At the time of the hearing, Ceco operated three such units equipped with towed generators. The Electrical Workers claims the work of operating these towed generators, de- scribed as being about 500-amp capacity on a four- wheel trailer, at the distant locations. The units are driven to and from jobsites by members of the Team- sters, which has disclaimed the work of operating the generators. The Electrical Workers does not have a collective-bargaining agreement with Ceco, but, until December 1971, dispatched employees to Ceco for operating these generators. The parties agreed that in actual practice the operators were not generally em- ployed by Ceco but were on the payroll of the produc- er who rented the unit. Ceco, however, retained control over the operator. In late 1971, Ceco modified the generators by removing and replacing certain con- trols in order to render them almost fully automatic, thus eliminating the necessity for constant monitor- 199 NLRB No. 128 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing. According to Charles Stivers, manager of rentals for Ceco, in order to run the Cecomobile generator, the operator has to open three doors on the roof, start the generator with a starter key as in a car, and pull one lever and push one button for power. Ceco stated that it made the modifications in order to make the unit competitive with another similar self-contained mobile studio called the "Cinemobile," in many re- spects similar to the Cecomobile but containing a gen- erator within the unit itself. On January 5, 1972, Ceco furnished one of its Cecomobiles to Rollins and Joffe to film on location in downtown Los Angeles a film called "Everything You Always Want to Know About Sex, But Were Afraid to Ask." On January 5, Russel Bartley, busi- ness manager for the Electrical Workers, appeared at the location and told Boris Malden of Ceco that they had to have a generator operator to run the generator, that the changes made in the generator were not suffi- cient to warrant the elimination of the generator oper- ator, and that it was the same generator that Electrical Workers had been running 15 years ago. Bartley also contacted Jack Grossberg, associate producer for Rollins and Joffe, and threatened to establish a picket line if Grossberg did not immediately sign a contract covering people who would run the generator. Ceco and Rollins and Joffe were both picketed by the Elec- trical Workers. After 3 days on location, the Cecomo- bile was replaced by a Cinemobile unit. The operator of the Cecomobile, a member of the Teamsters, was actually in the employ of Rollins and Joffe, although he was procured by Ceco. B. The Work in Dispute As heretofore stated, the work in dispute is the starting and operation of mobile generators which supply the necessary power for the operation of Ceco- mobiles, motor vans containing lighting, sound, cam- era, and other equipment needed to produce motion pictures and television films in Los Angeles County, California. C. Position of the Parties The Charging Party, Ceco , asks that the Board find that the Electrical Workers has violated the Act by picketing Rollins and Joffe and Ceco in an attempt to force the assignment of work to a member of the Electrical Workers . Ceco further requests that the Board uphold its assignment of the work to a member of the Teamsters. The Electrical Workers contends that there is no jurisdictional dispute because the picketing had a work preservation objective, and furthermore there is no dispute between two unions as to which one is entitled to do the work. The latter contention is based on the disclaimer of the Teamsters with respect to the work in dispute. D. The Applicability of the Statute Before the Board may proceed to a determina- tion of a dispute pursuant to Section 10(k) of the Act, it must be satisfied there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. We find no merit in the Electrical Workers' con- tention that no jurisdictional dispute exists because all picketing had a work preservation objective, and also its other contention that there is no dispute between two unions as to which one is entitled to do the disput- ed work. With respect to the work preservation argu- ment, it is clear that the Electrical Workers had no collective-bargaining relationship with either Ceco oY Rollins and Joffe prior to the time of the dispute, although in the past, Electrical Workers had dis- patched men to Ceco, on occasion, to operate the manual generator. However, since the conversion to automatic generators in late 1971, Ceco had not re- quired the services of a member of the Electrical Workers. Thus, the instant situation is unlike those in which employees represented by a union were termi- nated during the term of an existing collective-bar- gaining agreement and the union picketed in order to obtain reeemployment of the terminated employees.; The instant picketing was rather an attempt by the Electrical Workers to force assignment of the work in dispute to its members .4 We also reject the contention of the Electrical Workers that no dispute exists because the Teamsters has disclaimed the work. The applicability of Section 10(k) is not dependent upon "the existence of a dis- pute between two or more groups of employees ac- tively competing for the work assignment." Local 1291, International Longshoremen's Association, AFL- CIO (Pocahontas Steamship Company), 152 NLRB 676, 679. As in Pocahontas, The Teamsters' purported disclaimer imposes no hardship and involves no sacri- fice or "giving up" by its members, because employ- ment of a Teamster member would still be required for the operation of the vehicle. Moreover, Teamster members have been operating portable generators in spite of attempts by the Teamsters to discipline such members. Furthermore, a Teamster member ap- peared willing to operate the Cecomobile generator at the time the dispute arose. We hold that, under the circumstances of this case, the Teamsters' purported disclaimer was not ef- fective to extinguish the jurisdictional dispute be- 3International Longshoremen's and Warehousemen 's Union Local 8 (Waterway Terminals Company), 185 NLRB No. 35 ° Local 46, Wood, Wire and Metal Lathers International Union, AFL-CIO, et a! (Precrete, Inc), 140 NLRB 1,7. LOCAL 40, IBEW tween members of the Electrical Workers relating to the work of operating the portable generators. We therefore find that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that the 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 that the Board make an affirmative award of the disputed work after giving due consideration to the various relevant fac- tors involved.5 The following factors are relevant in making a determination of the dispute before us. 1. The collective-bargaining agreements Neither Union is the certified bargaining repre- sentative of any employees of Ceco or Rollins and Joffe. Both Teamsters and Electrical Workers have standard contracts in the industry. However, Ceco is not a signatory to the Electrical Workers standard contract,6 although it has used Electrical Workers in the past to operate generators. In 1970, a dispute arose under the 1965 Electrical Workers' standard contract when another producer assigned a Teamster to oper- ate a Cinemobile, including a generator. The arbitra- tor held that the Electrical Workers' demand that the producers assign generator operators to Cinemobile units on location was not arbitrable in light of the "technological change" provisions of the contracts. The Cinemobile had clearly made it possible for the driver to perform the functions formerly performed by generator operators. The arbitrator concluded that the Cinemobile was a new technological device for the purpose of performing work by employees (generator operators) represented by the Union under the Agree- ment, which directly resulted in a change in the num- ber of employees employed under the Agreement. As such, its introduction was held not subject to arbitra- tion. The current relevant provision is paragraph 78 of the Electrical Workers' standard contract. Because Ceco is not a signatory to the Electrical Workers' standard contract, and, because of the above-mentioned arbitration award concerning the Cinemobile, we find that the contract offers no guide- lines as to which group of employees is entitled to the work in dispute. 2. Company and area practice Prior to the advent of the modified Cecomobile, 5 International Association of Machinists, Lodge No 1743, AFL-CIO (J. A Jones Construction Co.), 135 NLRB 1402. 6 Moreover, it is not clear whether Ceco is a signatory to the standgrd Teamster contract 905 Ceco employed generator operators who were mem- bers of the Electrical Workers. Since late 1971, when the modifications of the Cecomobile were completed, Ceco has not utilized a generator operator on any of its automatic generators. The only other company en- gaged in renting mobile units containing automated generators is Cinemobile, which, pursuant to the aforementioned arbitration award, has its units oper- ated entirely by a member of the Teamsters. As previ- ously noted, the only significant difference between the Cinemobile and the Cecomobile is that the Ceco- mobile generator is towed, whereas the Cinemobile generator is contained in the unit. Employer and area practice, therefore, favors an award to employees rep- resented by Teamsters. 3. Economy and efficiency Members of the Teamsters have performed the work in dispute in the past. Training of the Cecomo- bile driver in the operation of the generator required little time, and the actual operation of the generator requires little further time or attention beyond start- ing and stopping. A Ceco representative testified that it modified the generator in order to stay competitive with Cinemobile, and that the cost of employing a generator operator would be greater than the profit which it realizes in its rentals. We find that these factors, efficiency and economy, also favor the Company's assignment. Conclusions as to the Merits of the Dispute Having considered all pertinent factors present herein we conclude that employees represented by the Teamsters are entitled to perform the work in dispute. This award is consistent with the Company' s assign- ment, company and industry practice, and it pro- motes efficiency and economy of operation. Our present determination awards the work to the employ- ees who are represented by the Teamsters, but not to that Union or its members. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations 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 represented by Studio Transporta- tion Drivers, Local No. 399, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, are entitled to perform the start- ing and operation of mobile generators which supply the necessary power for the operation of Cecomo- 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD biles, motor vans containing lighting, sound, camera, and other equipment needed to produce motion pic- tures and television films in Los Angeles County, Cal- ifornia. 2. Local 40, 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 F & B/Ceco of California, Inc., and/or Jack Rollins and Charles H. Joffe Productions, a Joint Venture of Heywood Productions, Inc., Hillary Pro- ductions, Ltd., and Brodsky/Gould Productions, to assign such work exclusively to individuals repre- sented by the aforesaid labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute , Local 40, Internation- al Brotherhood of Electrical Workers, AFL-CIO, shall notify the Regional Director for Region 31, in writing, whether or not it will refrain from forcing or requiring F & B/Ceco of California, Inc., and/or Jack Rollins and Charles H. Joffe Productions , a Joint Venture of Heywood Productions , Inc., Hillary Pro- ductions. Ltd., and Brodsky/Gould Productions, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute in a manner inconsistent with the above determination.