Laborers, Local 703

84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Laborers International Union of North America, Local 703 and B & F Highline, A Division of N.G. Gilbert Corporation and Local 51, International Brotherhood of Electrical Workers, AFL-CIO. Case 38-CD-110 April 16, 1974 DECISION AND DETERMINATION OF DISPUTE 2(6) and (7) of the Act and it will effectuate the policies of the Act to assert jurisdiction herein. II. LABOR ORGANIZATIONS INVOLVED The parties stipulated and we find that the Laborers Local 703 and the IBEW, Local 51, are labor organizations within the meaning of Section 2(5) of the Act. III. THE 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 a charge filed by B & F Highline, A Division of N.G. Gilbert Corporation (hereinafter referred to as Gilbert Corporation), alleging that the Laborers International Union of North America, Local 703 (hereinafter referred to as Laborers), 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 the work in dispute to them rather than to employees represented by Local 51, International Brotherhood of Electrical Workers, AFL-CIO (hereinafter referred to as IBEW). Pursuant to notice, a hearing was held before Hearing Officer Michael B. Ryan on January 29, 1974, at Champaign, Illinois. All parties 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. Thereafter, briefs were filed by the Gilbert Corporation and Local 51, IBEW, respectively. 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. The Board has considered the entire record in this case, including the briefs, and hereby makes the following findings: 1. THE BUSINESS OF THE EMPLOYER .'he parties stipulated that the Employer is an Illinois corporation engaged in the construction industry throughout the United States. During the last 12 months, a representative period, the Employer purchased goods valued in excess of $150,000 from suppliers located outside the State of Illinois, which goods were thereafter shipped into the State of Illinois. Accordingly, we find that the Employer is engaged in commerce within the meaning of Section 210 NLRB No. 23 A. The Work at Issue The work in dispute is the unloading of materials, the laying of telephone conduits in trenches and their encasement in concrete, excavating for and setting of precast manholes, and replacing the concrete and asphalt removed in order to perform the work at the downtown mall in Champaign, Illinois. B. Background and Facts of the Dispute The Employer is a corporation engaged in the business of contracting and construction. It is a member of the American Line Builders Chapter, National Electrical Contractors Association (NECA), which has a collective-bargaining agree- ment with Local 51, IBEW, for the period from May 27, 1973, to June 2, 1974. This agreement covers outside construction work on properties of telephone utilities, and any other outside construction work on railroad communication and signal systems, includ- ing CATV work, when performed by electrical contractors. Record testimony indicates that the Employer had contracts with Commonwealth Edison Company, Central Illinois Light Company, and General Tele- phone Company to complete underground duct projects in Illinois similar to the work here in dispute. On all these jobs the Employer retained and utilized employees represented by Local 51 and other locals of the IBEW. Such work has been performed in several different parts of Illinois, but never before in Champaign County. Evidence was produced at the hearing which indicated that, in Champaign County, the type of work in dispute has traditionally been performed by members of the Laborers, Operating Engineers, and Teamsters working for local contrac- tors or occasionally contractors from outside the area. The Employer has a contract with Illinois Bell Telephone Company to lay and encase in concrete 2,200 feet of telephone duct on Neil Street as part of the construction of the downtown mall in Cham- paign, Illinois . On November 19, 1973, the project started and all work was assigned to the IBEW pursuant to the aforementioned agreement. While LABORERS, LOCAL 703 85 thus engaged, the assistant business manager for the Laborers appeared at the jobsite and told the superintendent of the Employer's project "you're doing our work." The next day, November 20, 1973, the Laborers picketed the said jobsite of the Employer for the purpose of causing a change in work assignments from employees represented by the IBEW to the employees represented by the Laborers, which resulted in a shutdown of the Employer's construction at that jobsite. Laborers based its claim on the traditional practice of the building trade unions in the Champaign area. C. The Contentions of the Parties The Employer contends that the assignment of the work to employees represented by Local 51, IBEW, should not be changed because it offers the Compa- ny greater efficiency and economy. It argues that the employees represented by the IBEW possess all the skills to perform the disputed work and that it would be inefficient and uneconomical for the Employer to hire employees represented by the Laborers solely for this purpose, considering further that the Employer is accustomed to the style and performance of the former but not the latter group of employees. The Employer also argues that the assignment of this work to the IBEW is in conformity with the Employer's past practice, the terms of its collective- bargaining agreement with Local 51, IBEW, and the industrial practice in Illinois. Local 51, IBEW, contends that its members are entitled to perform the work in question based on the Employer's assignment, past practice, and its collec- tive-bargaining agreement with the Employer. The Respondent Union contends that the work in dispute is traditionally assigned to its members under existing area practice and that building trades construction men, represented by the Respondent Union, have always done this work in the Cham- paign, Illinois, area; Local 51, IBEW, members are linemen and so assignment of the work to them would result in confusing area practice within the Champaign, Illinois, area. They also contend that they are entitled to the work because they have the necessary skills for the work. D. Applicability of the Statute Before the Board may proceed to the determina- tion of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that (1) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, i Local 395, Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Telander Bros Contractors, Inc), 196 NLRB 119 2 N. L. R. B. v Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers [Columbia Broadcasting and (2) the parties have not agreed upon a method for the voluntary adjustment of the dispute. The record indicates that on or about November 29, 1973, the assistant business manager for Local 703 told the Employer's project superintendent that "you're doing our work." The next day, the Laborers picketed the jobsite for the purpose of causing a change in the work assignment of unloading materi- als, laying telephone conduits in trenches and their encasement in concrete, excavating for and setting of precast manholes, and replacing the concrete and asphalt from employees represented by Local 51, IBEW, to employees represented by Laborers Local 703. On the basis of the entire record and the stipulation of the parties, we 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. The Employer and Local 51, IBEW, contend that this dispute is properly before the Board, since the parties have not agreed to a voluntary method for adjusting the dispute. While it was established that the Impartial Jurisdictional Disputes Board issued an award on December 13, 1973, giving the work to the Laborers, such an award is not binding on this Board. The record fails to show that the Employer is a party to any collective-bargaining agreement whereby it has agreed to be bound by the Joint Board procedures.' As we find that the Employer is not bound, it is unnecessary to consider whether the Laborers and the IBEW are bound by the Joint Board procedures. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various relevant factors.2 As the Board has stated, its determination in a jurisdictional dispute case is an act of judgment based on commonsense and experience reached by balancing those factors involved in a particular case.3 1. Certification and collective-bargaining agreements There is no Board certification determining the bargaining representative for the employees assigned to perform the work in dispute. Neither of the labor organizations involved herein has been certified by the Board as the collective-bargaining representative for a unit of the Employer's employees. System], 364 U S 573(1961) 3 International Association of Machinists, Lodge No. 1743, AFL-CIO (J A. Jones Construction Company), 135 NLRB 1402. 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At no material time herein has the Employer been a party to a collective-bargaining agreement with the Laborers. However, the Employer has been a party to a collective-bargaining agreement with Local 51, IBEW, through the American Line Builders Chapter, NECA, a multiemployer bargaining group of which the Employer is a member. The agreement became effective on May 27, 1973, and extends through June 2, 1974. 2. Past practice The record indicates that the Employer has previously performed work of the same general nature here in dispute and has always assigned the work to employees represented by Local 51 or some other IBEW local. Moreover, evidence was adduced at the hearing that for at least 27 years it has been the Employer's practice to assign work similar to that in dispute to employees represented by IBEW locals. Further- more, record testimony indicates that the Employer has never used Laborers for this type work. 3. Economy and efficiency The Employer strongly favors an award to its employees represented by Local 51 because of their experience and flexibility in performing all of the disputed work and the resulting efficiency and economy of operations. Record testimony also indicates that it is the Employer's practice to keep the same employees, where possible, and to move them from project to project. In addition to the efficiency and flexibility attained when using employees represented by the IBEW, evidence established that the laborers could only do part of the work and the Employer, by necessity, would have to hire operating engineers and team- sters. Conclusion The foregoing factors, including specifically the efficiency and economy of operation as well as the Employer's past practice and its agreement with Local 51, IBEW, justify the award of the disputed work to members of Local 51, IBEW. Nevertheless, the Respondent Union contends that the work involved in this case is the same job which, in the Champaign area, has been traditionally and exclu- sively performed by their members. But the weight of this argument, in our view, is overcome by a consideration of the Employer's past practice. In Peoria, Illinois, prior to this Champaign, Illinois, job, the Employer successfully completed a job similar to the one in question and used employees represented by Local 51, IBEW, without experiencing any jurisdictional work disputes. Such continuity of contract is conducive to efficiency of operation. Moreover, these same employees have been found by the Employer to be able to move easily from one job classification of work to another so as to be fully occupied during the entire work period. Moreover, the Employer has assigned the disputed work to Local 51, IBEW, pursuant to the contractual rela- tionship with the Union. These factors clearly favor an award to the employees represented by Local 51, IBEW.4 In view of the foregoing, we conclude that employees represented by Local 51, IBEW, are entitled to perform the work in dispute. In making this determination, we are assigning the disputed work to employees of B & F Highline, A Division of N.G. Gilbert Corporation, who are represented by Local 51, International Brotherhood of Electrical Workers, AFL-CIO, 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 and the entire record in this proceeding, the National Labor Relations Board hereby makes the following Determination of Dis- pute: 1. Employees of B & F Highline, A Division of N.G. Gilbert Corporation, who are currently repre- sented by Local 51, International Brotherhood of Electrical Workers, AFL-CIO, are entitled to per- form the work of unloading of materials, the laying of telephone conduit in trenches and their encase- ment in concrete, excavating for and setting of precast manholes, and replacing the concrete and asphalt removed in order to perform the work at the downtown mall in Champaign, Illinois. 2. Laborers International Union of North Ameri- ca, Local 703, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require B & F Highline, A Division of N.G. Gilbert Corporation, to assign the above-descnbed underground conduit installation work to workers represented by them. 3. Within 10 days from the date of this Decision and Determination of Dispute, Laborers Internation- al Union of North America, Local 703, shall notify the Regional Director for Region 13, in writing, whether or not they will refrain from forcing or requiring the Employer by means proscribed by 4 Teamsters Local 26, International Union of Operating Engineers, Local Construction Company), 203 NLRB No. 7. 841, Laborers International Union of North America, Local 624 (John Burns LABORERS, LOCAL 703 Section 8(b)(4)(D) of the Act, to assign the work in rather than to employees represented by Local $f, dispute to employees represented by the Laborers, IBEW.