Electrical Workers, Local No. 46

ELECTRICAL WORKERS, LOCAL NO. 46 International Brotherhood of Electrical Workers, and its Local No. 46 and Sanford Productions, Inc. and Studio Transportation Drivers, Local No. 399, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 19-CD-220 March 15, 1974 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, follow- ing charges filed by Sanford Productions, Inc., hereafter called the Employer, alleging a violation of Section 8(b)(4)(D) by International Brotherhood of Electrical Workers, and its Local No. 46, hereafter called the IBEW and Local 46 or the Respondents. The charge alleges, in substance, that the Respon- dents threatened to picket, and did picket, the Employer with an object of forcing or requiring the Employer to assign the operation and maintenance of certain portable generators to its members rather than to members of Studio Transportation Drivers, Local No. 399, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, hereafter called Teamsters. Pursuant to notice, a hearing was held on July 17, 1973, at Seattle, Washington, before Hearing Officer Paul Eggert. The IBEW, Local 46, and the Employer' appeared 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 the Respondents filed briefs which have been duly considered by the Board.2 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 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: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that the Employer is a California corporation with its office and principal place of business in Los Angeles, California, and that 1 Although notified, the Teamsters declined to participate in the heanng. 2 The IBEW filed a motion to correct the record to change the word "members" to "member" in a stipulation agreed to by the parties at the heanng. The Employer opposes this motion. For the reasons hereinafter 741 it engages in the production of motion pictures in Los Angeles and at various locations throughout the United States. In the course and conduct of its business, the Employer annually purchases and receives goods directly outside the State of California which are valued in excess of $50,000. 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 policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the IBEW, Local 46, and the Teamsters are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background The Employer is engaged in the production of motion pictures on location in various parts of the United States. At the time the dispute in this proceeding took place, the Employer was engaged in the production of a film entitled "Cinderella Liberty" in and around Seattle, Washington. The Employer leased a mobile studio from Creative Bus Rentals, Inc., for this particular production. This mobile studio is composed of a tractor with two electrical generators located behind the cab, and a trailer which houses cameras, lighting equipment, sound equipment, wardrobe, props, and special effects. The disputed work involves the starting, operation, and maintenance of two electrical generators used to produce power for lighting and other filmmaking equipment. The generators operate independently of each other; one being used primarily as a backup for the other. To start the generator, the operator opens the air and exhaust pipes, flips a fuel switch, turns an ignition key, allows the engine to idle for a minute, and then adjusts knobs to regulate engine speed and voltage. All of the controls are located in the cab of the truck. Thereafter, the generators operate auto- matically without maintenance or monitoring. To stop the generator, the procedures outlined above are simply reversed. A fail-safe device stops the system in the case of a malfunction. The Employer assigned the work in dispute to the driver of the tractor, a member of the Teamsters. This driver is the same individual who designed and built the generator system, the operation and maintenance of which is in dispute here. The discussed, we find no ment in the distinction the IBEW seeks to draw and it could not, in any way, affect our disposition of the issues herein Accordingly, we hereby deny the IBEW's motion to correct the record. 209 NLRB No. 98 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer has a collective-bargaining agreement with the Teamsters covering drivers . No collective-bar- gaining relationship exists between the Employer and the IBEW or Local 46. On May 29, IBEW International Representative Don McPherson called Eugene Levy (the Employer's production accountant and production assistant responsible for obtaining the mobile unit used here) and asked him to meet the following day to discuss the operation of the generators . On the following day, Levy met with McPherson and Mr . Olson, who is business representative for Local 46, and, after discussing the matter, both McPherson and Olson demanded that the disputed work be assigned to their members . The next morning McPherson repeat- ed the demand and further said that the IBEW would picket if the disputed work was not immedi- ately assigned to their members. Levy rejected this demand . That same day, a single picket appeared with a sign which read: SANFORD PRODUCTIONS UNFAIR REFUSES TO ASSIGN ELECTRICAL WORK TO ELECTRICIANS INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS Thereafter, the Employer filed the instant charge. B. The Work in Dispute The work in dispute is the starting, operation, and maintenance of certain portable generators housed in a mobile studio leased by the Employer from Creative Bus Rentals, Inc., which are used to produce power for lighting and other filmmaking equipment. C. Position of the Parties The Employer contends that its assignment to an employee represented by the Teamsters is based on the skills and work involved, company and industry practice, and the efficient operation of its business. The Employer further contends that the Board's decision in CECO3 is controlling and that the existing assignment is consistent with a relevant arbitration award. The IBEW and Local 46 contend that there is no jurisdictional dispute because picketing was wholly informational in character and because the disputed work involved only a single employee . The Respon- dents further contend that the Employer should not be allowed to invoke the protection of the Act because it allegedly was unlawfully engaged in business in the State of Washington at the time the dispute occurred. The IBEW did not state a position on any factor to support its claim for the disputed work. In a letter to the Board's Regional Director dated June 7, 1973, Local 46 purported to disclaim "any claim to jurisdiction" over the work in dispute. The Teamsters, as previously indicated, did not appear at the hearing nor file a brief. In a letter to the Board's Regional Director dated June 1, 1973, the Teamsters indicated that it disclaimed any interest in the work in dispute here. D. Applicability 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. The Respondents contend that the object sought by them does not come within paragraph (D) of Section 8(b)(4), which speaks in terms of work assignments to "employees," because here the disput- ed work involves a portion of the duties of a single employee represented by the Teamsters. We find no merit in this contention. We do not read the term "employees" in paragraph (D) as limiting the scope of the proscription in Section 8(b)(4) to situations where the object is to seek the work of two or more persons. The potential impact on the employer would not be significantly different because a party seeks to overturn an assignment of work involving two persons as opposed to one person. There is no logical reason for Congress to have created such a distinc- tion. Furthermore, we know of no language in the legislative history of paragraph (D) of Section 8(b)(4) which would support such a contention. Respon- dents further contend that the Employer was unlawfully engaged in business in the State of Washington at the time of the dispute and is therefore not entitled to invoke the protection of the Act. We likewise find no merit in this contention. An employer's qualifications to do business under state law is an extraneous matter which is not involved in the application or enforcement of our Act. Finally, the Respondents contend that the picketing was wholly informational in character. As set forth previously, the Respondents made a demand for the disputed work on May 30. The following day the IBEW repeated the demand and threatened to picket if the demand was not met. The Employer rejected the demand and that same day a single picket 3 Local 40, International Brotherhood of Electrical Workers, AFL-CIO (F & B/CECO of California, Inc), 199 NLRB 903 ELECTRICAL WORKERS, LOCAL NO. 46 appeared at the worksite. Consequently, we find that the instant picketing was an attempt by the IBEW to force assignment of the work in dispute to its members. Concerning the Teamsters disclaimer of any interest in the disputed work, we note that an employee represented by the Teamsters has been performing the disputed work and that the purported disclaimer imposed no hardship and involved no sacrifice on their membership. In such circum- stances, we will follow our usual practice and give no effect to such a disclaimer.4 We likewise find ineffective Local 46's purported disclaimer of interest in the disputed work. The IBEW and Local 46 are both jointly charged as the Respondents in this proceeding because of evidence that they acted in concert in attempting to acquire the work in dispute for their members. Although Local 46 has disclaimed, no such disclaimer has been made by the IBEW. In such circumstances, we consider Local 46's disclaimer to be meaningless and we accord it no effect. On the basis of the entire record, and in view of the absence of an agreed-upon method binding on all the parties for resolving the dispute, we conclude 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 factors involved.5 The following factors are relevant in making a determination of the dispute before us. 1. Collective-bargaining agreements Neither Union is the certified bargaining represent- ative of any employee of the Employer. There is testimony that Charles Enzen, the individual as- signed to perform the disputed work by the Employ- er, is a member of the Teamsters and that the Teamsters has a contract with the Employer .6 However, lacking the contract in evidence, there is no basis to determine whether it covers the actual work in dispute. For that reason, and in view of the absence of any contractual relationship between the Employer and the Respondents, we conclude that this factor does not support the claim of either party. F& BICECO, supra s International Association of Machinists, Lodge No 1743, AFL-CIO (J. A. Jones Construction Co), 135 NLRB 1402 6 The agreement was not available at the time of the heanng and the parties agreed that the Employer would submit a signed copy of the current 743 2. The Employer's assignment, preference, and economy of operations Under the existing assignment, an employee represented by the Teamsters drives the tractor- trailer which houses the electrical generators to the worksite and there performs the functions encom- passed by the disputed work. If the disputed work were awarded to employees represented by the IBEW and Local 46, it would continue to be necessary to retain the employee represented by the Teamsters to drive the tractor-trailer to the worksite. Thus, in such circumstances, the Employer would have to incur the expense of employing an additional employee to perform the disputed work presently being satisfactorily performed by the employee represented by the Teamsters. Accordingly, inasmuch as the assignment of the disputed work to an employee represented by the Teamsters contributes to the economy of the Em- ployer's operations, we find that this factor favors an award to the employee represented by the Teamsters. 3. Skills and training Although the routine starting, operation, and maintenance of the generators require little in the way of special skills,7 a limited training period is necessary before an individual is qualified to perform all of the various operations in dispute. The employee represented by the Teamsters has been performing the disputed work and already possesses the requisite training. Moreover, this same employee represented by the Teamsters designed and built the generator system. Accordingly, this factor favors an assignment to the employee represented by the Teamsters. 4. Employer and industry practice The mobile studio which houses the generators in dispute is the only one in existence and was being used for the first time by the Employer here. In the past the Employer used another mobile studio-"Cin- emobile"-operated by an employee represented by the Teamsters. Although there are differences in the makeup and operation of the instant system and the "Cinemobile," they are differences without a distinc- tion in effecting the assignment of the disputed work here. Furthermore, we have previously found that the "Cecomobile," a third type of mobile studio used in the industry, properly used employees represented by the Teamsters to operate its automatic generators. agreement within 7 days of the close of the heanng . No such document has been received by us r A major breakdown in the generator system would, of course, present a different situation. We consider a major breakdown , however, to be beyond the scope of the disputed work herein. 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD See Local 40, International Brotherhood of Electrical Workers, AFL-CIO (F & B/CECO of California, Inc.), 199 NLRB 903. Accordingly, we find that Employer and industry practice favor an award of the disputed work to the employee represented by the Teamsters. Conclusion Having considered all the pertinent factors herein, we conclude that the employee represented by the Teamsters is entitled to perform the work in dispute. In making this determination, we are assigning the disputed work to the employee 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. The employees represented by Studio Trans- portation Drivers, Local No. 399, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, are entitled to perform the starting, operation, and maintenance of certain portable generators housed in a mobile studio leased by Sanford Productions, Inc., from Creative Bus Rentals, Inc., which are used to produce power for lighting and other filmmaking equipment. 2. International Brotherhood of Electrical Work- ers and its Local No. 46 are not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Sanford Productions, Inc., to assign such work exclusively to individuals represented by the aforesaid labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Broth- erhood of Electrical Workers, and its Local No. 46, shall notify the Regional Director for Region 19, in writing, whether or not it will refrain from forcing or requiring Sanford Productions. Inc., 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.