IBEW, Local 24

IBEW, LOCAL 24 337 International Brotherhood of Electrical Workers, Local 24, AFL-CIO, CLC and General Electric Company, Medical Systems Division.' Case 5-CD-198 November 14, 1973 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed on December 11, 1972, by General Electric Company, Medical Systems Division (herein called General Electric or the Employer), alleging that International Brotherhood of Electrical Work- ers, Local 24, AFL-CIO, CLC (herein called Local 24 or the Union), had violated the Act by engaging in certain proscribed activity with an object of forcing or requiring the assignment of certain work described below to employees represented by Local 24 rather than to its own employees. A hearing was held before Hearing Officer Louis J. D'Amico on February 20, 21, and 22, 1973. Thereaf- ter, the Employer and the Union filed briefs and, in accord with the Board's grant of leave to the parties to do so, also filed reply brief s.2 Pursuant to the Board's Order of May 22, 1973, a reopened hearing was held before Hearing Officer D'Amico on June 14, 18, and 20, 1973. Thereafter, further briefs were filed by the Employer and the Union. All parties appeared at the hearing, and at the reopened hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. All of the briefs filed by the parties have been duly considered. 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 made by the Hearing Officer at the hearings and finds that they are free from prejudicial error. They are hereby affirmed, except as noted below.3 i As amended at the hearing to reflect its correct-designation 2 During the course of the above-noted hearing, the parties entered into a stipulation which related to the existence of a jurisdictional dispute. After full consideration of the entire record in this proceeding at that time, the Board concluded that the parties had not reached a common understanding as to the' meaning and extent of the aforementioned stipulation According- ly, on May 22, 1973, the Board ordered that the hearing be reopened for the purpose of receiving evidence as to the existence of a jurisdictional dispute. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that General Electric Company is a New York corporation engaged in the manufacture, sale, and distribution of electrical products throughout the United States; that within the past year, a representative period, its facilities within the 'State of Maryland received electrical products valued in excess of $50;000 from points outside thereof; and that the Medical Systems Division is a division of General Electric Company. Accordingly, we find that the Employer is engaged in commerce within the meaning of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that Local 24 is a labor organization within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Dispute The disputed work involves the uncrating, assem- bly, and installation of X-ray equipment at the North Building, University of Maryland Hospital, Balti- more, Maryland. Local 24 is contending herein that one-half of the employees performing this work should be union electricians .4 B. Background and Facts of the Dispute General Electric sells X-ray equipment to hospitals - and other medical facilities in the Baltimore, Mary land, area. Typically, the contracts for such sales include, at a fixed total price, assembly and installa- tion of the equipment ' at the customer's premises. The Employer has always utilized its own unrepre- sented employees-field service technicians-to ac- complish this work. In over 9T percent of " installa- tions, these technicians have performed the work exclusively. However, when installations have been at the sites of new construction, members of Local 24-electricians-have worked along with the Em- ployer's technicians at various ratios.5 Such jointly performed installations have represented less than 3 3 During the course of the reopened hearing, Local 24 filed with the Board a motion which sought, inter alia, reversal of'a Hearing Officer's ruling restricting the introduction of evidence on certain issues. On June 15, 1973, the Board issued an Order reversing the Hearing Officer's ruling. 4 Hereinafter, when the term "disputed work" is used, it refers to the work performed by one-half of the employees engaged in uncratmg, assembling, and installing X-ray equipment. 5 The testimony indicated that at so6e projects the ratio had been one- (Continued) 207 NLRB No. 42 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD percent of the Employer's total X-ray installation work.6 General Electric asserts that it has never desired to have electricians perform any of its X-ray installation work,/ but has agreed in the past to have some of them on the job at unionized construction sites because the leverage possessed there by Local 24 made General Electric concerned that a labor dispute, delaying completion of the hospital in- volved, would otherwise result. During, the spring of 1972,7 General Electric was negotiating a contract for the sale of over $1 million worth of X-ray equipment to be assembled and installed at the University of Maryland Hospital's North Building, then under construction. In connec- tion therewith, representatives of General Electric and Local 24 met to discuss possible problems that might arise between them. As of that time, it appears that both General Electric and its customer were willing to have the X-ray installation work performed by both union electricians and employer technicians, on the basis of a one-to-one ratio.& However, Local 24 rejected that ratio and, instead, demanded that the work be done by one Employer technician working with a crew made up entirely of union electricians. This was unacceptable to both General Electric and the hospital. There were subsequent contacts on this issue between General Electric, the Union, and hospital officials, but no agreement resulted there- from. Thereafter, a contract for the sale of the X-ray equipment was executed which provided that all assembly and installation of the equipment would be performed by General Electric personnel and that if any outside labor was used it would be at the customer's expense. In November, representatives of the Employer and the Union met again. General Electric offered to add one union electrician to its installation crew of approximately five technicians. Local 24 rejected this and said that it would agree to the one-to-one ratio it had previously turned down. But that was no longer acceptable to . General Electric, as its customer was no longer able or willing to absorb the additional cost involved. On December 5, the Employer's technicians began to assemble and install the X-ray equipment at the hospital. On the following day, Local 24 began to to-three (union electricians-to-employer technicians), while at others the ratio was one-to-one. The parties are in agreement that such installations -performed jointly by electricians and technicians-occurred at four new construction sites in the Baltimore area during the years 1966 through 1968. General Electric asserts that those were the only instances to the last 10 years of electricians working on its X-ray installations Local 24 alleges two other such instances, one in 1967 and the other in 1971. For purposes of this Decision, we do not find it necessary to resolve this conflict as, in any event, it is clear that union electricians, participated in X-ray installations on an extremely infrequent basis. 6 It appears from the record that the union electricians performing such picket the jobsite with signs stating that General Electric did not have a collective-bargaining contract with the Union and did not pay prevailing wages or require other union conditions. This picketing ceased on December 12, the day after the unfair labor practice charges in this case were filed. Except for the first` day thereof, the technicians crossed the picket line and continued their work. C. The Contentions of the Parties Local 24 contends that no jurisdictional dispute within the meaning of Sections 8(b)(4)(D) and 10(k) exists here because competing claims for the work in dispute were not made by two or more groups of employees, there having been no showing that the field service technicians asserted such a claim at or before the time of the Union's picketing- Alternative- ly, Local 24 maintains that, if a jurisdictional dispute does exist, the disputed work should be awarded to its members on the basis of the past practice of the Employer in the Baltimore area. The Employer contends that there are competing claims for the disputed work and that Local 24 violated Section 8(b)(4)(D) of the Act by exercising coercive pressure-picketing--designed to force the assignment of that work to its members rather than to the technicians who had been performing it. Further, the Employer maintains that its technicians should be awarded the work on the grounds of their superior skills, efficiency, and economy of operation, the predominant past practice, and its own assign- ment of the work. D. The Applicability of the Statute Before the Board may proceed with a determina- tion of the 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 24's assertion that the Employer's field service technicians do not constitute a competing group of employees. They, as employees of the Employer, were exclusively performing the work in question at the time the dispute arose, they continued to perform it despite the union picket line, and three of them testified that they desired to continue performing such work. In our view, such work were actually supplied by the electrical subcontractor at the particular construction site, who. in turn, charged General Electric for the electricians' services. All dates hereinafter are in 1972, unless indicated otherwise. It is clear from the record that because of their preference for work done by the field service technicians , hospital officials wanted them to perform as much of the installation work as was feasible under the circumstances The one-to-one ratio represented the maximum utilization of union electricians that they would countenance- It appears that they would have preferred performance exclusively by the technicians. IBEW, LOCAL 24 339 circumstances constitute sufficient evidence to indi- cate that the technicians claim the disputed work .9 Further, as Local 24 admittedly claims the same work for its members, it is clear that-contrary to its contentions herein--competing claims for the work in dispute have been made by two employee groups. Accordingly, as Local 24 picketed the hospital jobsite to force reassignment of one-half the installation work from the Employer's technicians to the electri- cians it represented, we find that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that the dispute is properly before the Board for determination under Section 10(k) of the Act. followed and, previous to that, only one project is even alleged by Local 24. In any event, General Electric's technicians have been exclusively perform- ing the work in question in over 97 percent of all X- ray equipment installations contracted for by the Employer. Therefore, as indicated in the previous cases and supported by the facts herein, the practice of including some electricians on some X-ray equip- ment crews was merely a narrow exception to the Employer's broader practice of assigning the vast majority of such work to its own technicians.13 2. Skills and training 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 various relevant factors. As the Board has stated, the determination in a jurisdictional dispute case is an act of judgment based on commonsense and experience in weighing these factors.1° The following factors are relevant in making a determination of the dispute before us. 1. Past practice Local 24 asserts that General Electric has followed a past practice of including union electricians, as well as its own technicians, on the crews which install X- ray equipment at new construction sites. The Board, however, has previously refused to accord controlling weight to such a practice where it is based-as it is here-on the nature of particular projects and, inferentially, on the nature of employee representa- tion at those projects, rather than on the nature of the disputed work itself." The record herein shows that the assembly and installation of X-ray equip- ment at hospitals under construction does not vary from that performed at existing hospitals.12 More- over, we note that even with respect to new construc- tion sites, there have been no more than six projects in the past 10 years on which the practice of employing electricians on installation work was 9 See Sheet Metal Workers Local Union No. 54 (The Goodyear Tire & Rubber Company), 203 NLRB No. 21, Dock Builders, Shores, House Movers, Pile Drivers and Foundation Workers, Local Union No 1456, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Vibroflotation Foundation Company), 199 NLRB 453 , General Teamsters Local 326, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (Eazor Express, Incorporated), 203 NLRB No. 154, International Brotherhood of Electrical Workers, AFL-CIO, and its Local 639 (Bendix Radio Division of the Bendix Corporation), 138 NLRB 689. See also Local No 3, International Brotherhood of Electrical Workers, AFL-CIO (Mansfield Contracting Corporation), 206 NLRB No. 84. 10 NL.R.B. v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting System], 364 U.S. 573 ( 1961); International Association of Machinists, Lodge No. 1743, AFL-CIO (J.A Jones Construction Company), The record establishes that General Electric's technicians possess the skills necessary to perform the disputed work to a degree far greater than the electricians represented by Local 24. Newly hired technicians undergo an intensive 6-month training program that includes theoretical studies in X-ray physics, optics, photography, and electronics, as well as training on the specific components of General Electric's line of X-ray equipment. This training, which is under the management 'of the Employer's Medical Systems Institute, continues from time to time throughout the technicians' employment. Fur- ther, in cases of certain especially sophisticated equipment-some of which was to be installed in the North Building-for proper installation to be effect- ed, it is necessary for the assigned technicians to go to General Electric's manufacturing facilities to observe particular aspects of the equipment being built. Journeymen electricians have no training in most of the above-noted areas and little, if any, familiarity with the Employer's equipment. Their basic skills are such, however, that they can perform installation work if given close supervision by trained field service technicians. But this leads to duplication of effort as, in the absence of electricians on the job, the technicians would be performing that work them- selves. It is not disputed that, when electricians are included in the employee complement performing 135 NLRB 1402. 11 Local Union No 3, International Brotherhood of Electrical Workers, AFL-CIO (New York Telephone Company), 193 NLRB 765; Local 501, International Brotherhood of Electrical Workers, AFL-CIO (New York Telephone Company), 172 NLRB 1651; Local 25, international Brotherhood of Electrical Workers, AFL-CIO (New York Telephone Company), 152 NLRB 723. 12 It appears, however, that there is a difference between new construction and existing structures relating to the primary electrical site preparation work needed . But, all of that, as well as related structural work, is always performed by employees of either the electrical subcontractor or the hospital . General Electric's installation crews have never done such work themselves. 13 Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO (New York Telephone Company), supra 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD installation work, the job takes longer to complete and the number of employees needed is greater. 3. Efficiency and economy of operation The record supports the Employer' s contention that, if the disputed work were awarded to the electricians, the cost of installation would increase by more than 50 percent. Further, it also appears that the Employer's customers-because of their greater confidence in the expertise of technicians-prefer that the work be performed by them. 4. Employer's assignment of work We find that General Electric's assignment of the disputed work was based on sound business consid- erations, including the economy, efficiency, and customer satisfaction resulting therefrom. Conclusions Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that the technicians employed by the Employer are entitled to the disputed work. In reaching this conclusion, we have relied on the Employer's assignment of the disputed work to its own employees; the fact that this assignment is consistent with the Employer's predominant past practice; the relative skills of employees in the contending groups; and efficiency and economy of operation. Our determination, awarding the work to the technicians, is limited to the particular controver- sy 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 makes the following Determination of Dispute: 1. Employees of General Electric Company, Medical Systems Division, are entitled to exclusively perform the work of uncrating , assembling, and installing X-ray equipment at the North Building, University of Maryland Hospital, Baltimore, Mary- land. 2. International Brotherhood of Electrical Work- ers, Local 24, AFL-CIO, CLC, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require the assignment of the above work, or any part thereof,, to its members or to employees it represents. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Broth- erhood of Electrical Workers, Local 24, AFL-CIO, CLC, shall notify the Regional Director for Region 5, in writing, whether or not it will refrain from forcing or requiring, by means proscribed by Section 8(b)(4)(D) of the Act, the assignment of the disputed work in a manner inconsistent with this determina- tion.