International Brotherhood Of Electrical Workers, Local 134

216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Electrical Workers, Lo- cal Union # 134 and Movers Association of Greater Chicago and Fernstrom Storage and Van Company and Local 705, International Brotherhood of Team- sters. Case 13-CD-227 August 3, 1973 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, JENKINS, AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by the Movers Association of Greater Chicago (herein called Association) alleging a viola- tion of Section 8(b)(4)(D) of the Act by International Brotherhood of Electrical Workers, Local Union # 134 (herein called Local 134). Pursuant to a notice, a hearing was held on January 10, 11, 15, 30, and 31 and February 1 and 13, 1973, in Chicago, Illinois, before Hearing Officer William T. Coleman. The Charging Parties, Local 134 and Local 705, Interna- tional Brotherhood of Teamsters (herein called Team- sters) as well as International Business Machines Corporation (herein called IBM), 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. 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 rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the basis of the entire record 2 in this case, the Board makes the following findings: I THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that Fernstrom Storage and Van Company (herein called Fernstrom or Employer) is an Illinois corporation with its home office and principal place of business at 5600 North River Road, Rosemont, Illinois; that it is engaged in i IBM was named in the notice of hearing and appeared solely to argue its motion to quash the notice as to it The Hearing Officer referred the motion to the Board for ruling In view of the entire record , including IBM's brief in support of its motion to the Board , the motion is hereby granted, inasmuch as the record shows that IBM's interest in this matter is only indirect, being limited to legal ownership of the machines , the moving of which is the disputed work herein 2 The motion of the Charging Parties to correct the transcript to comport with the testimony is hereby granted the transportation of goods and other commodities across state lines; and that, during the past calendar year, the Fernstrom Storage and Van Company has obtained gross revenue in excess of $50,000 from the transportation of goods and commodities across the Illinois state line. II THE LABOR ORGANIZATION The parties stipulated, and we find, that Local 134 and the Teamsters are labor organizations within the meaning of Section 2(5) of the Act. III THE DISPUTE A. Background and Facts of the Dispute A large portion of the Employer's business consists of delivering business equipment from storage in its warehouse to various customers of IBM and other manufacturers of similar equipment. The record shows that these deliveries are normally from ware- house to final resting place in the consignee's office, which is usually a computer room. To perform this work Fernstrom utilizes several crews of employees composed of a driver, a helper or "bookman" who handles the paper work on the job, and an additional helper if needed. All employees in the Employer's crew are represented by the Teamsters. The instant dispute arose during a delivery by Fernstrom of certain IBM equipment from its ware- house to an IBM consignee's new location in a Chica- go building.3 When Fernstrom's crew arrived at the building, employees of Continental Electrical Con- struction Co. (herein called Continental),4 who are represented by Local 134, refused to allow them to bring the equipment up from the receiving dock to its final resting place in the computer room on the fifth floor, claiming it was their work. The record shows that on September 20, 1972,5 three Fernstrom employees arrived at 233 North Michigan Avenue with a load of IBM equipment to be delivered to the fifth floor computer room of Hos- pital Services Corporation. In the course of attempt- ing to find IBM's customer representative in the building, Fernstrom's bookman, Hammond, was in- formed by Local 134's steward, Lamb, that Local 134 employees were entitled to bring the equipment up 3 The Employer requests that the Board take an areawide view of the dispute and enter a broad order Local 134, on the other hand, contends that the complaint and notice of hearing limit the dispute to Fernstrom's employ- ees and the particular move involved in the above incident For reasons stated infra, we view the dispute as involving delivery of business equipment throughout the Chicago area 4 Continental is an electrical subcontractor under contract with the compa- ny managing the building. s All dates hereafter are in 1972, unless otherwise indicated 205 NLRB No. 43 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 134 from the dock to the fifth floor. Hammond disagreed and thereafter both men made several phone calls to their respective Unions and the Employer in an effort to resolve the matter. The record shows that the Teamsters business agent disclaimed the work but that the Employer did not. Although contested by Local 134, there is evidence that Fernstrom finally directed Hammond and crew to attempt to complete the delivery but to stop short of physical violence. There is further evidence that Local 134's steward, Lamb, made threats of using physical force to stop the Fernstrom crew and in fact the crew turned the load over to the Local 134 employees who then completed the move. B. The Work in Dispute This dispute concerns the assignment of the work involved in moving computers and other related busi- ness equipment from the receiving dock to their final resting place within buildings in the Chicago area. C. Contentions of the Parties Fernstrom, together with the Association, Local 134, and IBM, filed briefs . IBM's brief dealt only with its motion to dismiss. (See fn . 1, supra.) Local 134 has two basic contentions. It claims that the Board should not make an award, as there is no reasonable cause to believe that Section 8 (b)(4)(D) has been violated , and that the dispute has been set- tled by a voluntary agreement between it and the Teamsters . Based on this latter contention, it has moved that the proceeding be dismissed . Finally, it argues that, if the Board should decide otherwise, the various factors involved favor an award of the work in dispute to employees whom it represents. Fernstrom and the Association claim that there is reasonable cause to believe that Section 8 (b)(4)(D) has been violated and that , since rival groups of em- ployees (i.e. those represented by Local 134 and the Teamsters) continue to claim the disputed work de- spite the disclaimer made by the Teamsters, Local 134's motion to dismiss the proceeding should be de- nied. The Employer further claims that its assignment of the work to employees represented by the Team- sters should be upheld. D. Applicability of the Statute Before the Board may proceed to a determination of a 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. We find no merit in Local 134's claim that the 217 proceeding be dismissed because of the Teamsters' disclaimer of the work in dispute. We take cognizance of evidence as to the demand of the employees of the Employer as well as employees of other members of the Association, in the record, for the work in dispute, and we therefore find that these employees' demands effectively nullify the effect of the disclaimer.' We likewise find, contrary to the contention of Local 134, that the effect of the claims of these employees for the disputed work, as opposed to Local 134's claim, is to create a "dispute" as contemplated in Section 10(k) of the Act. We have found elsewhere in this decision that the scope of the dispute herein is not limited to the partic- ular event on September 20, which immediately pre- ceded the instant charge. Based on that finding, we here find that Local 134's claim that the case is moot, inasmuch as all the moving of business equipment into 233 North Michigan Avenue has been accom- plished and the employees represented by Local 134 have left the site, is without merit. For the same rea- son, we find Local 134's claim, that the Hearing Offi- cer erred by allowing testimony into the record concerning other occasions wherein the same two groups of employees have had similar problems caused by the underlying dispute, is also without mer- it. Accordingly, we find that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that the matter 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 the Board to make an affirmative award of disputed work after taking into account the evidence supporting the claims of the parties and balancing all relevant factors' We shall set forth below those factors which we find relevant in determining the dispute herein. 6 United Steelworkers of America, AFL-CIO and its Local No 4454 (Conti- nental Can Company, Inc), 202 NLRB No 78, In 8 and cases cited therein 7 In making this determination , we find Local 134's claim that there is insufficient evidence in the record to establish reasonable cause to believe Sec 8(b)(4)(D) has been violated is without merit, notwithstanding the fact that a portion of the evidence is hearsay, inasmuch as the fact of a violation need not be established under Sec 10(k) of the Act , only reasonable cause to believe such a violation has occurred and therefore the technical rules of evidence are not controlling Local 501, International Brotherhood of Electri- cal Workers, AFL-CIO (New York Telephone Company), 172 NLRB 1651, 1652 8 N L R B v Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broad- casting System], 364 U S 573 , International Association of Machinists, Lodge No 1743, AFL-CIO (J A Jones Construction Company), 135 NLRB 1402, 1410-11 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Collective-bargaining agreements The Employer is a member of the Movers Associa- tion of Greater Chicago, which has an agreement with the Teamsters specifically covering the disputed work. The Local 134 contract, on the other hand, contains only general trade jurisdictional language and can be interpreted as covering the disputed work only by referring to the IBEW constitution which covers the installation of electrical appliances and all necessary work related thereto. Thus, while the agreement be- tween the Association and the Teamsters directly cov- ers the disputed work, the Local 134 contract covers the work, if at all, only as incidental to the electrical connecting of the equipment. We therefore find that consideration of the various collective-bargaining agreements involved herein fa- vors award of the disputed work to employees repre- sented by the Teamsters. 2. Skill and training The Employer argues, and the record shows, that its employees are trained specialists in moving office equipment and employ special skills and experience in performing their job. Local 134 does not contend that its members are specially trained in moving but does point out that they are familiar with the basic tools of the moving trade and are capable of performing the disputed work. There is some indication in the record tending to substantiate Local 134's claim inasmuch as it did move the IBM equipment that Fernstrom at- tempted to deliver, apparently without complaint from the consignee or IBM. On balance, however, we find that the evidence presented with regard to skill and training preponder- ates in favor of awarding the disputed work to em- ployees represented by the Teamsters. 3. Efficiency and economy of operation The record supports the Employer's contention that, if the work were awarded to electricians, the continuity of delivery would be broken and the neces- sity of transferring the equipment from the possession of the movers to the electricians would cause unwar- ranted delay and loss of efficiency. Thus we find that this factor favors award of the disputed work to employees represented by the Team- sters. 4. Employer's past practice The Employer introduced evidence through its vice president, as well as representatives of several other moving companies in the area and several employees, that the work involved in transporting office equip- ment to and from its final resting places in the area is being done daily by its employees represented by the Teamsters and that this has been the practice for many years. Local 134 contends that the Employer did not pro- duce evidence of any particular move after the June 1972 agreement between it and the Teamsters which purportedly gave the disputed work to Local 134. Thus, it contends that, whatever the practice was in the past, it has changed since the agreement to one which favors the electricians. Although Local 134s view of the evidence in this regard is correct, disre- garding the events which gave rise to this case, the record is likewise devoid of any evidence showing a pattern of electricians doing the work in dispute. Thus, the only clearly discernible practice supported by the record is that of employees represented by the Teamsters doing the disputed work. We therefore find that this factor favors awarding the disputed work to employees represented by the Teamsters. 5. Gain or loss of employment The record shows that Fernstrom and other moving companies in the area each employ up to 45 men engaged full time in delivering and picking up busi- ness equipment. The record also shows that none of the employees represented by Local 134 are engaged exclusively in this work. It would appear, therefore, that awarding the work to employees represented by Local 134 would necessitate some loss of employment for employees represented by the Teamsters. We thus find this factor favors awarding the disput- ed work to employees represented by the Teamsters. 6. Scope of determination Local 134 contends that the scope of the award, if any is made, must be limited to the dispute over the delivery of IBM equipment to the premises at 233 North Michigan Avenue, inasmuch as the notice of hearing specified that dispute only and neither Union attempted to litigate any issues beyond those involved in that incident. It argues that any award which goes beyond that would be in violation of the Administra- tive Procedure Act and would deprive the parties of due process of law. It further contends that there is no evidence in the record upon which to frame an award larger in scope than 233 North Michigan Avenue. The Employer and the Association contend that the notice of hearing and the charges filed herein refer to a continuing dispute over a period extending at least INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 134 6 months prior to the specified incident. They further contend that the record contains evidence of other disputes, including a dispute involving the Werner- Kennelly moving company, another Association member, and Local 134 a month before the Fernst- rom-Local 134 dispute, which amply supports our en- tering a broad order. Based on the evidence in the record of several other disputes over the same work between Local 134 and other members of the Association,' as well as the testi- mony of Burton Von Wettering, Local 134's business representative, that the dispute has been continuing for some 5 to 10 years, we find that in order to proper- ly resolve the dispute herein our award will cover the moving of business equipment to its final resting place anywhere within the geographic area encompassed by Local 134'sjurisdiction. In granting a Board order, we note that Local 134's contention of prejudice based on the pleadings herein is without merit, inasmuch as the facts surrounding the other disputes were fully ex- plored at the hearing at which time all parties had an opportunity to ascertain the facts.10 Conclusion Upon consideration of all pertinent factors in the entire record, we conclude that the work in dispute involves transporting business equipment to and from its final resting place within the geographical area of Chicago, Illinois, encompassed by Local 134's juris- diction. We further conclude that the collective-bargaining agreement between the Association and the Team- sters, the factors of skill, training, efficiency, and 9 The record contains evidence of disputes between Local 134 and the Pickens Kane moving company and the Werner -Kennelly moving company in early 1970, April 1972, and October 1972, respectively, and reference to several others, all involving the same work at various locations within Local 134's jurisdiction 10 Iron Workers Local No 563, International Association of Bridge, Structur- al and Ornamental Iron Workers, AFL-CIO, (Spancrete Midwest Company), 183 NLRB 1105 219 economy of operation, the Employer's past practice, and the gain or loss of employment favor an award of the disputed work to employees represented by the Teamsters. Accordingly, we shall award the disputed work to those employees who are represented by the Team- sters and not those represented by Local 134. The scope of this determination is as indicated above. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the foregoing findings and the entire record in this proceeding, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees of Fernstrom Storage and Van Com- pany, Inc., Rosemont, Illinois, and the other members of the Movers Association of Greater Chicago, cur- rently represented by Local 705, International Broth- erhood of Teamsters, are entitled to perform the work of transporting business equipment to and from their final resting place within the geographical area of Chi- cago, Illinois, encompassed by Local 134's jurisdic- tion. 2. International Brotherhood of Electrical Work- ers, Local Union # 134, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Fernstrom Storage and Van Company, Inc., or any other member of the Movers Association of Greater Chicago, to assign the above work to elec- tricians represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Brother- hood of Electrical Workers, Local Union # 134, shall notify the Regional Director for Region 13, in writing, whether or not it will refrain from forcing or requiring Fernstrom Storage and Van Company, or any other member of the Movers Association of Greater Chica- go, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute in a manner incon- sistent with the above determination.