Electrical Workers, Local 90

644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Electrical Workers, Lo- cal 90, AFL-CIO' and Connecticut Construction Industries Association, Inc.' and L. G. DeFelice, Inc.' and Local 478, International Union of Oper- ating Engineers, AFL-CIO and Local 547, Laborers International' Union of North America, AFL- CIO. Case 1-CD-416. April 30, 1975 DECISION AND DETERMINATION OF DISPUTE By MEMBERS FANNING, JENKINS, AND KENNEDY This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following charges filed by Connecticut Construction Industries Association, Inc. (the collective-bargaining association representative of the Employer), alleging that the Elec- tricians violated Section 8(b)(4)(i) and (ii)(D) of the Act by engaging in proscribed conduct with an object of forcing or requiring the Employer to assign certain work to its members rather than to Employer's em- ployees represented by the Engineers and Laborers. A hearing was held before Hearing Officer Albert N. Stieglitz on October 22 and 23 and November 7 and 8, 1974. The parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bear- ing on the issues. Thereafter the Employer and the Electricians filed briefs. 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 hear- ing are free from prejudicial error and are hereby af- firmed. Upon the entire record in this proceeding, the Board makes the following findings: I THE BUSINESS OF THE EMPLOYER The parties stipulated and we fmd that the Em- ployer, L. G. DeFelice, Inc., which annually receives goods and materials valued in excess of $50,000 at its Connecticut jobsites directly from States other than the State of Connecticut and which annually performs con- struction services valued in excess of $50,000 at job projects located in States other than the State of Con- necticut, is engaged in commerce within the meaning of the Act.' - II,THE LABOR ORGANIZATIONS INVOLVED The parties stipulated and we find that the Electri- cians, Engineers, and Laborers are labor organizations within the meaning of Section 2(5) of the Act. III THE DISPUTE A. Background and Facts of the Dispute In April 1972, L. G. DeFelice, as general contractor, was awarded the Gold Star Memorial Bride Job, Pro- ject #94-107, in New London, Connecticut. The total job, which is in excess of $22 million , entails the partial dismantling, rebuilding, and widening of the present bridge and will carry the flow of traffic easterly. This is a span type bridge which is about 1 mile long and crosses the Thames River. A parallel new bridge which handles the traffic flowing in the opposite direction was recently constructed . Both bridges are interlocutory segments of the 1-95 system. The Company commenced work on the project in the summer of 1972. The electrical work started in November or December 1973, when the Company removed some of the old light poles and conduits. This removal work was performed by the Company's em- ployees and is not in dispute in this proceeding because it was never claimed by Local 90. There was a total of approximately 75 employees on the job, of which ap- proximately 35 were laborers. Dick Panagrossi, Jr., was the assistant business manager of Local 90 until the death of his father, Dominick Panagrossi, on February 9, 1974, when Panagrossi, Jr., became the business manager. He was formally confirmed as business manager on March 6, 1974. Panagrossi, Jr., became aware of this DeFelice job in the winter of 1972, when an IBEW subcontractor, Co- kin, told Panagrossi, Jr., that he, Cokin, was interested in putting in a bid to L. G. DeFelice to perform the work in dispute. Cokin is the subcontractor who per- formed similar work on the Westerly bridge job. In March 1973, Panagrossi, Sr., called William Miller, superintendent of lighting and traffic for DeFe- lice, and asked how Miller was going to operate the New London bridge job . Miller responded that he was going to operate it with his own personnel, the Labor- ers and Operating Engineers, the people who work for the Company under union agreements . Panagrossi, Sr., I Herein called Electricians or Local 90 2 Herein called Association or CCIA 3 Herein called Employer or Company. 4 Herein called Engineers or Operating Engineers 5 Herein called Laborers 6 The parties also stipulate that both Connecticut Construction Industries Association, Inc , the Charging Party herein, and its members, either collec- tively or individually, are engaged in commerce within the meaning of the Act 217 NLRB No. 112 ELECTRICAL WORKERS, LOCAL 90 told Miller that his son, Panagrossi , Jr., would call Miller. About April 1973, Panagrossi, Jr., called Miller and asked how Miller was going to operate the Gold Star Memorial Bridge job. Miller answered that he was run- ning the job with his own personnel which are Operat- ing Engineers, Laborers, and Teamsters. Panagrossi, Jr., asked for a "temporary contract" or we claim the work. Miller explained that he had no agreement with the IBEW but did have contracts with the Laborers and Operating Engineers and therefore had no choice but to use these people. Panagrossi, Jr., then said, "You won't, you will not operate with your own personnel," and stated that this was his work and that he was going to get the work. On July 10, 1974, Victor Hallberg, president of L. G. DeFelice, met with Panagrossi, Jr. Panagrossi, Jr., said the conduit and electrical work on the Gold Star Bridge in New London was his jurisdiction and he wanted the Company to have his Local 90 electricians perform the work. Hallberg stated that the Company had already assigned the work to the Laborers and the Operating Engineers who were presently performing that work and that as far as he, Hallberg, was con- cerned this was the work of Laborers and Operating Engineers. Hallberg also stated that, through the CCIA, the Company had a collective-bargaining agree- ment with the Laborers and Operating Engineers, but the Company did not have any agreement with Local 90 or any other Electrician Union. Panagrossi, Jr., said that he wanted the Company to have Local 90 people do the work by using a subcontractor with whom Local 90 had an agreement, and in that way the Company wouldn't have to have an agreement with his local. Hallberg said that was not acceptable . Panagrossi, Jr., then said he would like the Company to use at least one Local 90 man to perform this work along with the other employees the Company had already assigned. Hall- berg said he didn't think that would be acceptable to the company people and that it wasn't acceptable to Hallberg because it wasn't economically advantageous and the work was already assigned. Hallberg further said that he would talk to his people and get back to Panagrossi, Jr., in a few days and that the Company has been doing this work for a couple of years with Operat- ing Engineers and Laborers and that if Panagrossi, Jr., felt strongly that it was his work he should talk to the Laborers Union and to Sonny Mertz of the Operating Engineers. As the meeting was ending Hallberg asked Panagrossi, Jr., "Is it my understanding that you want representation on this job?" Panagrossi, Jr., either re- sponded, "Vic, I want job opportunities for people who are qualified electricians. You take it from there," or "You take it from there." About 8 or 10 days after the July 10, 1974, meeting Hallberg advised Panagrossi, 645 Jr., that the Company could not use any Local 90 electricians or contractors. On July 31, 1974, John Silva, business agent for Lo- cal 547 Laborers, advised Hallberg that Local 90 was going to picket the job the following day and that the Laborers would cross the picket line because the work in dispute was covered in the Laborers collective-bar- gaining agreement and that this was Laborers work. Local 90 picketed the jobsite at four locations from August 1 to 15, 1974, and the picket sign read, "To the Public, Employees performing electrical work on this job site are doing so under substandard conditions. There is no strike here. This is for purpose of informa- tion only. Local #90, International Brotherhood of Electrical Workers." On August 1, 1974, the employees of DeFelice represented by the Carpenters Union refused to cross the picket line for that 1 day. Around August 2, 1974, the employees represented by the Painters Union, who were employed by a subcontractor (Langeni) refused to cross the picket line for that day. On August 1, 1974, the charge against the Electricians was filed. B. The Work in Dispute The work in dispute involves the installation of elec- trical conduits, wiring, light poles, lights, and related work, which includes but is not limited to the installa- tion of junction boxes, pulling of wire, and the splicing and laying of wire, when performed on the bridge and approaches to the bridge and highways on the Gold Star Memorial Bridge project, in Groton, Connecticut. C. Contentions of the Parties The Electricians contends the hearing herein should be quashed on the grounds that there was an agreed- upon method for settlement by which all parties were bound. Further, while the Electricians takes the posi- tion that it has not made claim to the work, it does indicate it would accept an assignment of the disputed work if it were awarded to the Electricians. Moreover, the Electricians does not disclaim the disputed work nor does any other party raise such contention. The Electricians, however, is somewhat equivocal as to whether it was seeking an assignment of the disputed work to be performed only on the bridge itself or whether it would accept similar work off the bridge for which DeFelice has the contract to perform. Subsequent to the instant charges, and prior to the hearing, the Electricians filed a request for an award for the disputed work with the Impartial Jurisdictional Disputes Board for the Construction Industry, herein called IJDB. The Electricians also reties on a recent decision by the IJDB, issued October 25, 1974, which awarded the disputed work to the Electricians over the 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Engineers and Laborers. However, the Company con- tends that it is not bound to the Joint Board and is therefore not bound to its awards. The Charging Party, Laborers, and Engineers simi- larly contend that the disputed work is covered by the terms of the Company's collective-bargaining agree- ments with both the Laborers and Engineers, but no agreement with the Electricians. The work in dispute was assigned to both Laborers and Engineers who are to date still engaged in such work. DeFelice uses mixed crews of Laborers and Engineers to perform the dis- puted work, some of which is performed by members of either Union without distinction as to their craft. The employees to whom the disputed work is assigned are for the most part "permanent" employees of DeFe- lice, and thus work for the Company from jobsite to jobsite. Also, while working on the Gold Star Bridge they have been intermittently used for nonelectrical work on the bridge or at other sites. Therefore, the Company, Laborers, and Engineers contend that the work in dispute properly belongs to the Laborers and Engineers based on the contracts and present work assignment. The Electricians,' Laborers, and Engineers all sub- scribe to the new Plan for the Settlement of Jurisdic- tional Disputes and are bound thereto. The Charging Party contends that the Employer, DeFelice, is not bound to any procedure or plan for the adjustments of jurisdictional disputes, nor is DeFelice bound by virtue of its membership in Connecticut Construction Indus- tries Association, Inc., or any other association. -Also the Charging Party contends that DeFelice has not otherwise agreed to be bound to any method or proce- dure for the settlement of such disputes. The Electricians, contrary to the other parties, claims that DeFelice is bound, or has otherwise agreed to be bound, by virtue of its contractual provisions in its collective-bargaining agreement with the Engineers. The clause relied on by the Electricians is article III, section 2, which reads as follows: Jurisdictional disputes involving any other labor organization shall be processed in accordance with a voluntary settlement procedure as may be mutu- ally agreed to by the parties, if any. The Electricians argues that the interpretation of this section is that, since the Operating Engineers has agreed to a voluntary settlement procedure, the other party is bound thereto, and since the Operating Engi- neers is bound to the new Joint Board, so is the Com- pany. We do not agree with the Electricians interpreta- tion of this contractual provision. Further, the I Local 90 is an "inside" local vis-a-vis an outside IBEW local and thus subscribed to the new Plan for the Settlement of Jurisdictional Disputes under the IJDB Charging Party avers that, notwithstanding such an ambiguous contractual provision, the other -parties are not bound thereby, and thus there is no agreed-upon method or procedure for the settlement of such dis- putes. D. Applicability of the Statute Before the Board may proceed with a determination 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) had been violated and that there is no agreed-upon method for the voluntary adjustment of the dispute. The record establishes that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. The record shows that Panagrossi, Jr., sought to obtain the work being performed by the Laborers and Engi- neers for the Electricians . When he did not obtain the assignment of the disputed work he picketed the job. We find that the purpose of the pickets was to protest the Employer's assignment of the disputed work to the Laborers and Engineers, and not as Panagrossi, Jr., alleged that the picketing was to protest the Employer's failure to pay area standard wages; i.e., to protest the Employer's failure to pay the prevailing wage rates to the Engineers and/or Laborers engaged in the disputed work. Panagrossi, Jr.'s investigation as to whether or not area standard wages were being paid was not thorough and therefore inaccurate . As a result of the picketing the Carpenters and Painters each refused to cross the picket line for a day. The record further establishes that there is no agreed-upon method for settling the dispute . All parties to a dispute, including the employer, must be bound before the Board will defer to a voluntary agreed-upon method to settle a dispute.' The record shows that the Company is not bound to the IJDB and it follows that there is no voluntary method of dispute settlement in this case. In view of the foregoing, we find that there is reason- able cause to believe that there has been a violation of Section 8(b)(4)(D) of the Act, and that the dispute is properly before the Board for determination.-' E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to all relevant factors involved. The following are relevant in making a determination of the dispute before us:10 8 See, e g., Carpenters Local 1622 (0. R Karst), 139 NLRB 591 (1962). 9 For the reasons stated above, we find that the Electricians motion to quash is without merit and therefore we deny said motion. '° International Association ofMachimsts; Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402, 1410 (1962) ELECTRICAL WORKERS, LOCAL 90 1. Certifications and collective-bargaining agreements There is no evidence that any of the labor organiza- tions involved herein has been certified by the Board as the collective-bargaining representative for a unit of the Employer's employees. The Employer, DeFelice, has statewide collective- bargaining agreements with both the Laborers and En- gineers, but no agreement with the Electricians. As the Employer has no agreement with the Electricians and the Employer's agreements with the Laborers and En- gineers cover the work in dispute, the collective-bar- gaining factor tends to support the award to the Labor- ers and Engineers. 2. Company and area practices The Employer has assigned the work in dispute to members of the Engineers and Laborers and has been satisfied with their work performance. The record indi- cates that much of the work in dispute has not as yet been performed or assigned, but in accord with the Company's past practice it is to be assigned to its em- ployees represented by the Laborers and Engineers Unions and foremen. The Company's past practice fa- vors the present assignment of the disputed work to the Laborers and Engineers. The area practice indicates that some employers in the area in the past have used Laborers and Engineers to perform similar work to that which is in dispute and other employers have used Electricians for such work. Therefore, evidence as to area practice is inconclusive as the record indicates a mixed past practice in the area. 3. Relative skills, efficiency of operations, and economy The employees of DeFelice represented by the La- borers and Engineers possess sufficient skills to per- form the tasks involved herein, inasmuch as they have been performing this work for many years. Installing conduit, which is the physical placing of 2-inch pipe and screwing it together, does not require much in the way of skill or training. Where particular skill is neces- sary the Employer utilizes people who are probably more skilled for the task than the Electricians. For example, engineers are used to operate the winches on a tough or long pull of wire. Furthermore, although no state licenses are required for any of the work in dis- pute, the Company has two employees who have mas- ters licenses and eight employees, of which four are laborers and four are engineers, who possess a regular E-'l license. In addition, the laborer, Crisensa, who was 647 engaged in the conduit installation on this job, has engaged in this type of work for more than 10,000 hours and is very well qualified. The general foreman has been installing this material since 1952, and has performed in a major part of the highway illumination in Connecticut and is licensed. Moreover, a comparison between the work procedure and assignments utilized by the Company and the disclaimers of certain portions of the work involved in the dispute by the Electricians shows that the Electricians (Local 90) does not con- sider much of this work within its jurisdiction. Regarding the efficiency of the operation the record shows that the Company's present operations permit statewide movement and transfer of its employees whereas the Electricians have limited jurisdiction which does not provide for such movement. Because of - this the Company would have to lay off employees rather than employ them on other jobs in other areas. The Company presently employs eight employees con- tinuously and statewide for electrical and other work. With continuity of employment, in spite of the fact that electrical work is sporadic, the Company can retain its employees at other tasks, and, if there are mistakes or changes on the job, the Company's employees are on the job to make the changes. The members of the La- borers and Engineers also provide flexibility in that they perform a great many other duties on the job. Therefore, their time is used efficiently because the aspect of the work being claimed by the Electricians is not a full-time operation and members of the Electri- cians do not perform the other operations. If the Company were required to follow the proce- dure used on the westerly bridge under the Electricians agreement, the Company may be compelled to hire three or four electricians, one of which is to watch the wheel, another to soap the wire, and another to drive the pickup truck. This would not only be highly ineffi- cient, but it would also be uneconomical. On the basis of the foregoing, we find the skills neces- sary to perform the tasks and the efficiency and economy of the operation favor the assignment of the work to the Laborers and Engineers. Conclusion Upon the entire record, after full consideration of all relevant factors here involved, we believe that the work in dispute should be awarded to employees represented by the Laborers and Engineers. The fact that the Em- ployer's assignment conforms to the contracts and to its own past practice, the fact that the laborers and engineers employed by the Employer not only have the requisite skills but are familiar with all facets of the work, and the attendant efficiency and concurrent eco- nomics of utilizing the services of the laborers and - 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engineers for all tasks necessary for the work when performed on the bridge and approaches to the bridge and highways, lead us to conclude that the Employer's assignment of work to the laborers and engineers is a proper one. Therefore, we shall assign the work in ques- tion to employees of the Employer who are represented by the Laborers and Engineers. In making this determi- nation, which is limited to the controversy that gives rise to this proceeding, we are not assigning the work to the Laborers or Engineers or their members. Scope of the Award The Employer requests an award covering all of its projects in the State of Connecticut, contending that such an award is necessary because of the likelihood that the dispute will occur on future construction jobs on which it is involved. However, we do not find the record evidence herein sufficient to establish a pattern of misconduct suggestive of a likelihood that this dis- pute will extend to other jobsites or recur in the future. Accordingly, we do not believe that the broad order requested by the Employer is appropriate at this time and, therefore, the determination herein shall apply to the project presently under consideration. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Re- lations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceed- ing, the National Labor Relations Board hereby makes the following Determination of Dispute: 1. Employees of L. G. DeFelice, Inc., who are repre- sented by Local 547, Laborers International, Union of North America, AFL-CIO, and by Local 478, Interna- tional Union of Operating Engineers, AFL-CIO, are entitled to perform the installation of electrical con- duits, wiring, light poles, lights, and related work, which includes but is not limited to the installation of junction boxes, pulling of wire, and the splicing and laying of wire, when performed on the bridge and ap- proaches to the bridge and highways on the Gold Star Memorial Bridge project, Groton, Connecticut. 2. International Brotherhood of Electrical Workers, Local 90, AFL-CIO, is not entitled by means pros- cribed by Section 8(b)(4)(D) of the Act to force or require the Employer, L. G. DeFelice, Inc., to assign the above work to employees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Brotherhood of Electrical Workers, Local 90, AFL-CIO, shall notify the Regional Director for Region 1, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to employees represented by it rather than to employees represented by Local 547, Laborers International Union of North America, AFL-CIO, and Local 478, International Union of Operating Engineers, AFL-CIO.