Local Un. No. 44, Electrical Wkrs.

LOCAL UN. NO. 44, ELECTRICAL WKRS. 517 Local Union No. 44, International Brotherhood of Electrical Workers, AFL-CIO and The Montana Power Company.' Case 19-CD-223 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. June 13, 1974 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed on December 18, 1973, by The Montana Power Company, alleging that Local Union No. 44, International Brotherhood of Electri- cal Workers, AFL-CIO (hereafter Local 44), 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 44 rather than to employees represented by Local Union 375, Interna- tional Union of Operating Engineers, AFL-CIO (hereafter Local 375). A hearing was held before Hearing Officer Robert J. Janowitz on February 7, 1974. 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. All parties waived filing of 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 made by the Hearing Officer 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: 1. THE BUSINESS OF EMPLOYER The parties stipulated, and we find, that The Montana Power Company is a public utility incorpo- rated in the State of Montana, where it is engaged at several locations within the State providing gas, electric, and water service. During the past year, a representative period, the Employer's gross volume of business exceeded $500,000 and, during the same period, it purchased goods and materials from sources directly outside the State of Montana valued in excess of $50,000. Accordingly, we find that the Employer is engaged I The Employer's name appears as amended at the hearing. 2 The remaining divisions are headquartered in Billings, Bozeman, Great II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Local 44 and Local 375 are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Dispute The parties stipulated that there is a work dispute as defined in Sections 10(k) and 8(b)(4)(D) of the Act and that this dispute concerns the assignment of the following work task: The digging and backfilling, by heavy equipment, of electrical ditches used solely for the burying of the underground electrical cables within the geographical boundaries of The Montana Power Company's Butte division. B. Background and Facts of the Dispute As noted previously, the Employer provides elec- tric, gas, and water services for the State of Montana. The Employer's statewide system is divided into seven administrative divisions with this proceeding involving only the Employer's Butte, Montana, division.2 The Butte division is divided into electric and gas departments with members of Local 44 assigned to the electric department and members of Local 375 assigned to the gas department. Local 44 has members operating in all of Employer's seven divisions and its collective-bargaining agreement with Employer is a statewide one. Local 375 has members operating only out of the Butte and Missoula divisions and has separate collective-bar- gaining agreements with Employer covering these employees. In order to provide its services, the Employer is often called upon to install underground electrical facilities and gas lines, which, necessarily, entails the digging and backfilling of ditches into which these systems are placed. Three types of ditches are dug depending upon the type of system to be installed; a ditch for electrical facilities only, a ditch for gas lines only, and a "joint use ditch" for the installation of both gas and electric systems. This dispute does not involve the latter two types of ditches, the digging of which, Local 44 concedes, is within the jurisdiction of Local 375. All- electric ditches constitute approximately 15 percent of the Employer's total ditchdigging. Additionally, Falls, Helena, Lewiston, and Missoula. 211 NLRB No. 31 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because exclusively electrical ditches are smaller than other kinds, 50 percent of the all-electric ditches are dug by handheld equipment. Local 375 concedes that when handheld equipment is to be utilized in the digging of an exclusively electrical ditch, such work is properly within Local 44's jurisdiction. Thus the dispute involves only the digging and backfilling of exclusively electrical ditches by heavy equipment, which Local 375 contends is equipment upon which a driver is seated. Placing electrical facilities underground did not take place in the Butte division until the mid-1960's. Since that time the disputed work has been per- formed by members of Local 375. However, in 1971, during the course of renegotiating their statewide collective-bargaining agreement, the Employer and Local 44 amended the provisions on "Work Rules" to read: "Trenching and backfilling of trenches when done by employees of the Company shall be done by employees covered by this Agreement whenever such trenches are to be used exclusively for electric facilities." In the summer of 1973, a member of Local 44 working in the Butte division filed a grievance protesting the assignment of heavy equipment to a member of Local 375 working on an exclusively electrical ditch. Several meetings were held among all the parties in an attempt to resolve the dispute. With neither Local desiring to be bound by the arbitration machinery in the other's contract, attempts to voluntarily adjust the matter broke down. On December 10, 1973, a meeting was held between representatives of both the Employer and Local 44 during which the business agent for Local 44 informed Employer's representatives that failure to assign the disputed work to members of Local 44 would result in a strike. The following week, Employer filed the charge in this proceeding. Since that time members of Local 44 have dug exclusively electrical ditches but this work has not been performed by the operation of heavy equipment. All parties stipulated at the hearing held in this proceed- ing that there is a jurisdictional dispute within the meaning of Sections 10(k) and 8(b)(4)(D) of the Act. C. Contention of the Parties Employer does not take a formal position that one Local should be awarded the work rather than the other, but does contend that an award to Local 44 would be more economical insofar as such an award would eliminate the possibility of Local 44 workers having to wait for an operating engineer to arrive at the worksite, and provide greater flexibility in, determining daily work assignments. The Employer further contends that there would be no diminution of work for the operating engineers, currently three in number, because there is ample work for them in the gas department. Local 44 argues that its claim to the disputed work is consistent with both the terms of its collective- bargaining agreement and industry practice. It also emphasizes the Employer's practice in its six other divisions as supporting its claim to the disputed work. Finally, Local 44 contends that its members are more aware of the potential hazards in working with energized electrical lines and, therefore, safety considerations militate in favor of awarding the work in dispute to its members. Local 375 contends that its collective-bargaining agreement covers the work in dispute as witnessed by the Employer's past practice in the Butte division. It disputes Local 44's view that safety considerations favor either Union and points to the greater degree of skill its members have accumulated through experience in performing the work. D. 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. The record indicates that after Employer had assigned the disputed work to a member of Local 375, a representative of Local 44, on or about December 10, 1973, threatened Employer with a work stoppage with an object of forcing or requiring the Employer to assign the disputed work to members of Local 44 rather than to members of Local 375. Accordingly, we conclude that reasonable cause exists to believe Section 8(b)(4)(D) of the Act has been violated and that the dispute is properly before the Board for determination pursuant to 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 giving due consideration to various relevant factors .3 As the Board has stated, the determination in a jurisdiction- al dispute is an act of judgment based on common- sense and experience in weighing these factors.4 The following factors are relevant in making a determination of the dispute before us: 3 N.L R.B v . Radio and Television Broadcast Engineers Union, Local 4 International Association of Machinists, Lodge No. 1743, AFL-CIO (J 1212, International Brotherhood of Electrical Workers, AFL-CIO, 364 U S. A Jones Construction Company), 135 NLRB 1402. 573 (1961). LOCAL UN. NO. 44, ELECTRICAL WKRS. 519 1. Certification and collective-bargaining agreements Neither labor organization herein has been certi- fied by the Board as the collective-bargaining repre- sentative for a unit of the Employer's employees. The relevant portions of Employer's collective- bargaining agreement with Local 44 are set out under section III, supra. The collective-bargaining agree- ment between Employer and Local 375 contains the following language: "All employees of Montana Power Company performing work as portable equipment operators in Silver Bow County, Montana shall be members of Local Union No. 375.'15 Local 375 contended at the hearing that "portable equip- ment" means equipment upon which a driver is seated. In view of the Employer's past assignment of the disputed work to members of Local 375, who customarily operate heavy equipment upon which a driver is seated, we conclude that interpretation is reasonable. However, the Employer also concedes that the relevant language of both agreements is apparently inconsistent insofar as either could support an assignment of the disputed work. In agreement with the Employer, we conclude that neither Local has a greater claim to work by virtue of its applicable collective-bargaining agreement. 2. Industry practice There is testimony by representatives of Local 44 that other public utilities in the area have labor agreements with sister locals which assign the disputed work to members of those locals. Testimony was also received relative to other utility contractors who have agreements with Local 44. It appears that these contractors also assign the work in dispute, pursuant to those contracts, to members of Local 44. Upon the foregoing, we conclude the industry practice favors an award to the members of Local 44. 3. Skills and training, safety Local 44 and the Employer have a statewide joint apprenticeship program whereby operation of the equipment involved is taught to apprentices. This program is not, however, established in the Butte division, although there is testimony which indicates that the program could easily be adopted in the Butte division. While Employer and Local 375 have no formal training programs, Employer's witness testi- fied that the Local 375 members are engaged in a program where its members learn through experi- ence. Both Locals have at all times demonstrated an ability to utilize the equipment and, in agreement with the Employer, we conclude that the relative skills of both are similar and do not favor an award to either party. As noted previously, Local 44 contends that safety considerations favor an award to its members because the latter are more familiar with the potential effects of working with energized electrical facilities; however, the record also indicates that the operation of the equipment by the members of Local 375 has never resulted in any accidents incident to performance of the disputed work. We do not believe that the type of work involved here requires an intricate knowledge of the potential hazards involved and, on the basis of both parties' past performance of the disputed work, we conclude that safety consider- ations do not favor either party. 4. Economy Before the outbreak of this dispute, members of Local 375 performed the disputed work. The Em- ployer contends, however, that its operation would be more economical if members of Local 44 were awarded the work insofar as such an award would provide greater flexibility in scheduling job tasks and eliminate the possibility that members of Local 44, who install all electric facilities, might be unable to perform installations if an operating engineer were not available at the time. The Employer also assures that an award to members of Local 44 would not result in significant diminution of work tasks for Local 375 members who would still perform the disputed work when all-gas or joint use ditches must be dug. We conclude, then, that economic considera- tions favor an award to members of Local 44. 5. Employer's assignment, preference, and past practice The Employer, pursuant to its agreement with Local 375, assigned the disputed work to the latter's members up until the outbreak of this dispute. Since that time, the digging of exclusively electric ditches has been performed by members of Local 44 utilizing handheld equipment. The Employer's Missoula division is the only other division where operating engineers are employed and, in that division, the disputed work is performed by members of Local 44. Local 375 contends that the assignment of such work to members of Local 44 in the Missoula division is based on a difference in contract language appearing in the collective-bargaining agreement covering operating engineers in that division, but that agree- ment is not in the record. The Employer makes no formal request for an 5 Butte, Montana, is in Silver Bow County. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD award to either party but, as indicated above, does contend that it would be more economical if the disputed work were awarded to members of Local 44. Apparently, then, the basis for the Employer's initial assignment to Local 375 members derives from the Employer's view that any other assignment would be in derogation of its collective -bargaining agreement with Local 375. We have, however, previously concluded , as the Employer concedes, that the language of the competing collective-bar- gaining agreements is irreconcilable so that, while the Employer's previous assignment favors the members of Local 375, the emphasis to be accorded that assignment is tempered by the Employer's preference and customary practice in its other divisions. Conclusion Upon the entire record in this case, and after full consideration of all relevant factors involved, we conclude, on balance, that Employer's employees represented by Local 44 are entitled to perform the work in dispute. We reach this conclusion based on several considerations, among them the Employer's practice in its other divisions of allocating the disputed work based upon the type of facilities to be installed, the added efficiency and economy such an award would permit, the area practice of awarding such work to members of Local 44, and the fact that such an award will not result in any significant diminution of work tasks for Local 375. We shall, therefore, determine the existing jurisdictional con- troversy by awarding the work in dispute at the Employer's Butte division to its employees represent- ed by Local 44, but not to that Union. Our present determination is limited to the particular controversy 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 hereby makes the following Determination of Dis- pute: Employees of The Montana Power Company who are represented by Local Union No. 44, Internation- al Brotherhood of Electrical Workers, AFL-CIO, are entitled to perform with heavy equipment, the work of digging and backfilling of electrical ditches used solely for the burying of underground electrical cables within the geographical boundaries of The Montana Power Company's Butte division.