Local Union 354, IBEW

LOCAL UNION 354, IBEW 599 Local Union 354, International Brotherhood of Electri- cal Workers, AFL-CIO and F G Johnson Compa- ny, Incorporated Case 27-CD-139 November 29, 1972 II THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that IBEW is a labor organization within the meaning of Section 2(5) of the Act DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, 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 F G Johnson Company, Incorporated, herein called Employer, alleging that Local Union 354, International Brotherhood of Electrical Workers, AFL-CIO, herein called IBEW, violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to employees represented by IBEW rather than to employees represented by Laborers Local Union No 79, herein called Laborers Pursuant to notice, a hearing was held before Hearing Officer Jerry C Legler on June 5, 1972 The Employer and IBEW appeared at the hearing' and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues The Employer and IBEW presented oral argument at the hearing in lieu of filing briefs Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel The Board has reviewed the rulings of the Hearing Officer 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 I THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Employer is a Utah corporation engaged in concrete core drilling, sawing, and breaking, and that its annual gross volume of business with firms meeting the Board's jurisdictional standards is in excess of $50,000 per year Accordingly, we find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein 1 Laborers despite adequate notice , made no appearance at the hearing 2 IBEW s contract with Wasatch effective January 1 1971 incorporates by reference the areawide collective bargaining agreement between the III THE DISPUTE A Background and Facts Wasatch Electric Company, herein called Wasatch, is an electrical contractor at the Fashion Place Mall in Murray, Utah In early spring 1972 Wasatch engaged the Employer as a subcontractor to cut chases or trenches in concrete for the installation of electrical conduit The extent of the work to be performed was not defined at that time, and work was done on the basis of oral orders by Wasatch's superintendent at the jobsite Wasatch's employees at the jobsite were represented by IBEW, the Employ- er's employees were unrepresented Article II, section 9(b), of the Wasatch-IBEW contract2 provides The subletting, assigning or transfer by an individual employer of any work in connection with electrical work to any person, firm or corporation not recognizing the IBEW or one of its local unions as the collective bargaining representative of his employees on any electrical work in the jurisdiction of this or any other local union to be performed at the site of the construction, alteration, painting, or repair of a building, structure or other work, will be deemed a material breach of this agreement Shortly after the Employer commenced work for Wasatch, Les Miller, IBEW steward on the project, asked the Employer's president, Ferral Johnson, whether he had obtained union clearance Johnson replied affirmatively 3 The following day Miller advised Johnson that it was necessary to obtain union clearance from IBEW Johnson and his sole employee at the Wasatch jobsite that day then left Several days later Johnson contacted Jack Anderson, IBEW's business agent, seeking a resolution of the matter Anderson informed Johnson that he would have to consult with his International representative Hearing nothing further from Anderson, Johnson sent one of his employees, Steve King, to the project several days later Upon receiving a telephone call from King reporting that Miller had stopped him, Johnson went to the project to speak with Miller Miller again advised him that he had to have union clearance from IBEW When Johnson stated he had not obtained such clearance, Miller informed Was- atch's supervisors, in Johnson's presence, that if National Electrical Contractors Association inc , and IBEW 3 The record clearly discloses that Johnson was referring to a past agreement with Laborers 200 NLRB No 92 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Johnson's men were permitted to continue working on the project, IBEW members would walk off the job One of the supervisors then advised Johnson to discontinue work until the matter was resolved Johnson again contacted Anderson in an effort to obtain clearance for the Wasatch work On February 24, 1972, Johnson and Anderson entered into a proposed agreement which provided that the Em- ployer would comply with the terms of the Wasatch- IBEW contract Both Johnson and Anderson under- stood this agreement was conditioned upon its approval by IBEW's executive board Sometime later Anderson advised Johnson that the executive board had refused to ratify the proposed agreement because the work had been "set aside for journeymen electricians " The Employer's employees worked on the project for several days afterward until Wasatch informed Johnson that he could no longer work on the project because he had failed to obtain IBEW clearance Wasatch presented testimony that it owns equip- ment for the work in dispute and once a job is in full swing it usually brings in its equipment and men represented by IBEW In the initial phases of a project, however, it will often engage a subcontractor for reasons of economy Wasatch further testified that it completed the disputed work with its own employees because the project had progressed beyond the initial stages B The Work in Dispute The work in dispute consists of concrete core drilling, sawing, and breaking for the installation of electrical conduit C Contentions of the Parties IBEW contends that this proceeding is not proper- ly before the Board It argues first that because Laborers has made no claim for the work, this case does not present a dispute involving competing claims which is necessary under Section 10(k) of the Act It further takes the position that, as it was merely seeking to enforce the terms of its collective- bargaining agreement with Wasatch, its objective is not proscribed by Section 8(b)(4)(D) Lastly, IBEW contends that this case is moot because the work which gave rise to this proceeding has been complet- ed Alternatively, IBEW claims the work on the basis of its collective-bargaining agreement with Wasatch, area and industry practice, and an award rendered in 1926 by the National Joint Board for the Settlement of Jurisdictional Disputes The Employer contends that this proceeding is properly before the Board and that the factors of relative skills and efficiency and economy of opera- tions favor an award of the disputed work to its own unrepresented employees The Employer further contends that its assignment is consistent with its past practice and area practice D Apphcabihty of the Statute Before the Board may proceed with a determina- tion of dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and that there is no agreed-upon method for the voluntary settlement of the dispute As stated above, IBEW's steward advised Johnson that the Employer would have to obtain IBEW clearance to continue working on the project, and subsequently threatened Wasatch personnel, in Johnson's presence, that if the Employer continued to work without such clearance IBEW members would walk off the job Furthermore, IBEW's business agent claimed the work for journeymen electricians in a conversation with Johnson Based upon the foregoing and the record as a whole, we find that IBEW sought, at least in part, to force or require the assignment of the disputed work to employees represented by it, and, therefore, its objective is proscribed by Section 8(b)(4)(D) We find without merit IBEW's contention that because Laborers has not claimed the work a jurisdictional dispute does not exist Although the charge alleges that IBEW sought to have the Employer assign the work to members of IBEW "rather than to employees represented by Laborers Local Union No 79, to whom the work has been assigned," in fact, Laborers did not appear at the hearing and apparently does not claim to represent the Employer's employees, and any prior contractual relationship between the Employer and Laborers seems to have been abandoned by both parties The Employer's employees, however, continued to per- form the work to the satisfaction of both the Employer and Wasatch, until the Employer was removed from the job It is well established that Section 8(b)(4)(D) encompasses competing claims between a union and a group of unrepresented employees 4 Further, we find without merit IBEW's contention 4 N L R B v Radio & Television Broadcasting Engineers Union Local al Brotherhood of Electrical Workers AFL-CIO (Sarrow Suburban Electric 1212 [Columbia Broadcasting System] 364 US 573 574 (1961) Pipeliners Co Inc) 157 NLRB 715 719 International Brotherhood of Electrical Local No 798 of the United Association of Journeymen and Apprentices of the Workers AFL-CIO and its Local 639 (Bendix Radio Division of The Bendix Plumbing and Pipefitting Industry of the United States and Canada AFL-CIO Corporation) 138 NLRB 689 692 (Moon Pipeline Contractors Inc) 177 NLRB 872 874, Local 25 Internation LOCAL UNION 354, IBEW that since it was seeking to enforce the subcontract- ing provisions of its collective-bargaining agreement with Wasatch, its conduct was not for an objective proscribed by Section 8(b)(4)(D) 5 We find that a concurrent objective of IBEW in attempting to force changes in the subcontracting arrangement between Wasatch and the Employer was to force or require the assignment of the disputed work to employees represented by it rather than the Employer's unrepre- sented employees The fact that one basis for IBEW's claim was its contract with Wasatch does not detract from the jurisdictional nature of the dispute 6 Relying upon the testimony of Wasatch's president that the disputed work has been completed, IBEW asserts that the dispute is moot Although the particular work which gave rise to this proceeding has been completed, the underlying jurisdictional dispute has not been resolved We find, therefore, that the dispute is not moot 7 The parties stipulated, and we find, that there is no current agreed-upon method for the voluntary settlement of the dispute to which both parties are bound Accordingly, the matter is properly before the Board for determination E Merits of the Dispute 3 Area and industry practice 601 IBEW presented testimony that the vast majority of concrete core drilling for the installation of electrical conduit in the Salt Lake City area and the industry has been performed by journeymen electri- cians The record discloses, however, that most of this core drilling work is performed by journeymen electricians employed by large electrical contractors The Employer presented testimony that several other small firms specializing in concrete core drilling in the Salt Lake City area use personnel not qualified as journeymen electricians The evidence relating to area practice is, therefore, inconclusive IBEW further asserts that an award by the National Joint Board in 1926 recognized the nation- wide jurisdictional claim of its International to the cutting of concrete for the installation of electrical conduit Although that award is not binding on the Employer, we consider it as a factor in determining the proper assignment of the work in dispute However, in view of all the circumstances, including the absence of any showing in the record as to the basis for the National Joint Board determination, we are of the opinion that the National Joint Board award should not be accorded controlling weight Section 10(k) of the Act requires the Board to make 4 Relative skills and efficiency and an affirmative award of the disputed work after giving due consideration to various relevant factors economy of operations 1 Certification and collective-barga ring agreements Neither of the labor organizations herein involved has been certified as the collective-bargaining repre- sentative for a unit of the Employer's employees The Employer has no collective-bargaining agreement with IBEW Although the Employer initially took the position that it has a collective-bargaining agreement with Laborers, it did not introduce such an agree- ment into evidence at the hearing, and its president testified that it does not currently abide by its terms The factor of collective-bargaining agreements is, therefore, not helpful to our determination 2 Employer's assignment and practice The Employer, since it began operations in July 1971, has consistently assigned the work in dispute to its unrepresented employees The Employer's prac- tice, therefore, favors the Employer's assignment Since the Employer began its operations, it has had as few as one and as many as eight employees Johnson prefers to make a personal selection of his employees, as they are entrusted with the safekeeping of the Employer's trucks and equipment overnight Most of the Employer's employees have had no prior experience in concrete core drilling Johnson personally orients the employees to the operation of the equipment over a period of 24 hours, and later assigns them to more experienced men for 2 to 3 weeks of on-the-job training It is undisputed that the Employer's employees possess the necessary skills and experience to perform the work The Employer's drills and saws are custom made for 1-man operation Although the Employer con- cedes that journeymen electricians would be capable of operating these machines, it asserts that they would need a few hours' additional training to perform the work efficiently and to avoid damage to the equipment IBEW adduced no evidence to establish that it would be more efficient and 5 Cf Local 5 United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada AFL-CIO (Arthur Vennert Company) 145 NLRB 1580 1589 6 United Brotherhood of Carpenters and Joiners of America Local No 753 AFL-CIO (Blount Bros Corporation) 175 NLRB 496 497 7 Cf Local Lodge 2040 of the International Association of Machinists and Aerospace Workers AFL-CIO (Sterling Brewers Inc ) 172 NLRB No 230 fn 10 United Brotherhood of Carpenters and Joiners of America AFL-CIO and its Agent Cecil Shuey (Wendnagel & Company) 116 NLRB 1063 1067, United Brotherhood of Carpenters and Joiners of America Local 581 and Horace Dagnan Its Business Agent (Ora Collard) 98 NLRB 346 348 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD economical to utilize employees represented by it We find that the factors of relative skills and efficiency and economy of operations favor the Employer's assignment Conclusion Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that the Employer's unrepresented employ- ees are entitled to the work in dispute We reach this conclusion upon the following facts The Employer assigned the disputed work to its employees, the assignment is consistent with the Employer's past practice and is not inconsistent with area practice, the Employer's employees possess the requisite skills to perform the work, and such assignment appears to be both efficient and economical Accordingly, we shall determine the dispute before us by awarding the work in dispute at the Fashion Place Mall project, Murray, Utah, to the Employer's unrepresented employees In consequence, we also find that IBEW is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer to assign the disputed work to employees represented by it 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 makes the following Determination of Dispute 1 The unrepresented employees of F G Johnson Company, Incorporated, are entitled to perform the work of concrete core drilling, sawing, and breaking for the installation of electrical conduit on the Wasatch jobsite at the Fashion Place Mall project in Murray, Utah 2 Local Union 354, International Brotherhood of Electrical Workers, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require F G Johnson Company, Incorpo- rated, 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 Union 354, International Brotherhood of Electrical Workers, AFL-CIO, shall notify the Regional Director for Region 27, 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 to employees represented by IBEW, rather than to the Employer's unrepresented employees