Electrical Workers Local 44 (Utility Builders, Inc.)

ELECTRICAL WORKERS, LOCAL 44 International Brotherhood of Electrical Workers, Local 44, AFL-CIO and Utility Builders, Inc. and Local Union No. 400 of the International Union of Operating Engineers, AFL-CIO and Laborers International Union of North America, AFL-CIO, Montana District Council of Laborers. Case 19- CD-267 December 12, 1977 ORDER GRANTING MOTION AND DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY of the trade. All work outside of that property line on transmission lines, overhead or underground, would be to the outside branch of the trade. Now, to go further, we have agreements with the various international unions within the property lines that would be referred to as the building trades. [U]nder the inside branch of the trade all of the agreements we have - and we have the AFL- CIO Disputes Board that can settle disputes. As far as the IBEW is concerned, we will recognize those agreements for that portion of the trade. On April 11, 1977, the National Labor Relations Board issued its Decision and Order Quashing Notice of Hearing in the above-captioned proceed- ing,' finding that all parties to the instant jurisdic- tional dispute are bound to a voluntary method for the adjustment of such disputes through the proce- dures established by the Impartial Jurisdictional Disputes Board. Thereafter, on April 28, 1977, Utility Builders, Inc. (hereinafter the Employer), Local Union No. 400 of the International Union of Operating Engineers, AFL-CIO (hereinafter Operat- ing Engineers), and Laborers International Union of North America, AFL-CIO, Montana District Coun- cil of Laborers (hereinafter called Laborers), filed a joint request for review of the Board's Decision, contending that the Board erred in finding that Respondent International Brotherhood of Electrical Workers, Local 44, AFL-CIO (hereinafter called IBEW Local 44), is a member of the Building and Construction Trades Department, AFL-CIO, and hence bound to abide by the rules and procedures of the Impartial Jurisdictional Disputes Board (IJDB) for the settlement of jurisdictional disputes. In support of their position, the joint petitioners (Employer, Operating Engineers, and Laborers) rely on certain undisputed testimony in the record to the effect that IBEW Local 44 is a so-called outside branch of the IBEW and, as such, is not subject to the IJDB procedures for the resolution of disputes involving so-called outside work. The work in dispute in this proceeding is considered such outside work. Thus, Russell Williams, International repre- sentative of the IBEW, testified in relevant part as follows: [U ]nder the constitution that we have, it provides that all work within a property line such as a building . . . would fall within the inside branch The job that we are in dispute on now is considered, as far as the IBEW, as the outside. It would be given - in our estimation . . . to the outside branch of the trade .... * * * Over the years, because of our agreements with the utility companies, and through the AFL-CIO, it was agreed over the years, because of our classifications and our performing the work . . . that the outside branch of the trade would not come under the AFL-CIO Jurisdictional Dispute Board [sic]. In addition, Vincent J. Bosh, assistant business manager and vice president of Local 400, Operating Engineers, corroborated Williams' testimony. Thus, Bosh testified as follows: Q. Are IBEW unions under the building trades? A. The IBEW unions, part of them, are under the Building Trades Council, but the part in question here is not under the building trades. Q. What part of that IBEW union is involved here that is not a part of the building trades? A. Local 44, I don't think they are in the trades, but they are outside linemen and they are not recognized nationally as construction unions. IBEW Local 44 has not responded to the joint request for review of the Board's Decision. And, although the foregoing testimony stands uncontrad- icted on the record, no documentary proof was offered to establish that IBEW Local 44 is, in fact, considered by the Building and Construction Trades Council, AFL-CIO, to be an outside local and that it is, therefore, exempt from the procedures established 228 NLRB 1334(1977). 233 NLRB No. 146 1099 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the IJDB. Nevertheless, in light of the foregoing testimony and IBEW Local 44's failure to respond to the joint request for review, we accept as true the joint petitioners' assertion that IBEW Local 44 is not bound to the IJDB. Furthermore, we note that the Board has, in several decisions over the years, recognized the distinction between "inside" and "outside" locals of the IBEW and taken official note of the fact that the latter are not subject to the procedures for the resolution of jurisdictional dis- putes established by the Building and Construction Trades Department, AFL-CIO.2 ORDER Based on the foregoing, as well as the fact that the work here in dispute, as described below, is admit- tedly "outside work" as defined by the IBEW, we are satisfied that we erred in finding that IBEW Local 44 is bound to the procedures of the IJDB for the resolution of this dispute. Accordingly, as not all of the parties to the instant dispute are bound to the IJDB, we have decided to grant the joint request of the Employer, Operating Engineers, and Laborers and to determine the dispute on its merits. The Dispute A. The Work in Dispute The work in dispute, as previously described in our Decision and Order Quashing Notice of Hearing in this case, is as follows: The operation of all mechanical equipment used in excavating, backfilling, and repaving of trench- es and any other operation of equipment used in the project of installing underground communica- tion or electrical duct lines and manholes on projects performed by Utility Builders, Inc., in the State of Montana. The finegrading of trenches, shoveling work, placement of separators between ducts, installa- tion and placement of underground duct work and the pouring and placement of concrete around the duct system and all other miscellane- ous associated tasks on projects performed by Utility Builders, Inc., in the State of Montana. B. Background and Facts of the Dispute The background and relevant facts surrounding this dispute are set forth in our prior Decision and Order as follows: 2 See, e.g., Local Union 825, International Union of Operating Engineers, AFL-CIO (Nichols Electric Company). 137 NLRB 1425, 1429 (1962); International Union of Operating Engineers, Local Union No. 12 (George E. Miller Electric Company), 144 NLRB 9, 12 (1963); Local Union No. 181, The Employer was awarded a contract to perform the disputed work by the Mountain Bell Telephone Company. The Employer is a member of a multiemployer collective-bargaining group known as the Montana Contractors Association. Through this Association it has been a party to various collective-bargaining agreements, includ- ing one with the Laborers. Through that multiem- ployer association and an association known as the Montana Heavy, Highway and Building Contractors Joint Council, the Employer is also signatory to a collective-bargaining agreement with the Operating Engineers. The Employer has no contract with IBEW Local 44. Pursuant to its above bargaining agreements, the Employer assigned the operation of all mechanical equipment used in the excavating, backfilling, and repaving to its employees repre- sented by the Operating Engineers, and the work of fine grading of trenches and placement of underground ducts and the pouring and place- ment of concrete and related operations to its employees represented by the Laborers. The Employer began work on the project on August 16, 1976. A few days earlier, IBEW Local 44 Business Agent Gordon Mahood sent a letter to the Employer's president, R. H. Blakeslee, re- questing a prejob conference on the project and asking the Employer to sign a "letter of assent" binding it to a current collective-bargaining agreement between IBEW Local 44 and a multiemployer association known as Western Line Contractors Chapter, Inc., NECA, Inc. Blakeslee declined to sign the letter of assent, stating that the Employer intended to perform the work as it had done in the past by assigning it to its employees who are represented by the Labor- ers and the Operating Engineers. Thereafter, Mahood telephoned Blaskeslee and told him that the Employer's assignment of the work in dispute was "unsatisfactory," and that IBEW Local 44 would not allow any other crafts to do work on the project. When Blakeslee indicated he would not change his position, Mahood threatened to go to Mountain Bell. Subsequently, Mahood wrote a letter to Moun- tain Bell requesting that any work being per- formed by the Employer be suspended and that the project be completed by a contractor employ- ing IBEW Local 44 members. Thereafter, on August 31, 1976, an IBEW Local 44 picket appeared at the Employer's project carrying a International Union of Operating Engineers. AFL-CIO (Service Electric Company), 146 NLRB 483, 485 (1964); International Brotherhood of Electrical Workers of Fort Lauderdale, Florida, Local 728, AFL-CIO (Ebasco Services, Incorporated), 153 NLRB 873, 875-876 (1965). 1100 ELECTRICAL WORKERS, LOCAL 44 placard reading, "Utility Builder-Unfair- IBEW."2 Personnel working at the construction site refused to cross the picket line and work on the project was temporarily suspended. 2 IBEW Local 44 stipulated at the heanng that the picket line was authorized by it. Based on the evidence that an authorized agent of IBEW Local 44 demanded that the Employer assign the disputed work to employees represented by that labor organization, and that, thereafter, IBEW Local 44 authorized picketing of the Employer in support of such demand, which picketing halted the Employ- er's operations, the Board concluded that reasonable cause exists to believe that IBEW Local 44 had violated Section 8(b)(4)(D) of the Act. Having found, supra, that all parties are not bound to a voluntary method for the adjustment of this dispute, we find that this dispute is properly before the Board for determination. C. Contentions of the Parties The Employer contends that the work of operating all mechanical equipment used in excavating, back- filling, and repaving of trenches, and any other operation of equipment used in the project of installing underground communication or electrical duct lines and manholes on projects performed by it in the State of Montana, should be assigned to its employees who are represented by Operating Engi- neers. The Employer also contends that the work of backfilling of trenches, shoveling work, placement of separators between ducts, installation and placement of underground duct work, and the pouring and placement of concrete around the duct system, and all other miscellaneous associated tasks on projects performed by it in the State of Montana should be assigned to its employees who are represented by Laborers. The Employer bases these contentions upon its actual assignment of the work and its preference; its collective-bargaining agreements with Operating Engineerings and Laborers; its historic practice of assigning the work to employees repre- sented by these unions; the proven skills of these employees; the resultant economy and efficiency of its operations; and the fact that it does not have a collective-bargaining contract with IBEW Local 44. The Operating Engineers and Laborers essentially agree with the Employer's position. IBEW Local 44, on the other hand, contends that the work in dispute should be assigned to employees represented by it on the basis, inter alia, of industry practice, the Employ- 3 Radio & Television Broadcast Engineers Lnion, Local 1212, International Brotherhood of Electrical Workers, AFL C(O lColumrnhia Broadcasting Systeml v. N.L. RB., 364 U.S. 573 (1961). er's past practice, the overall knowledge and skills which IBEW members possess with respect to communications systems, and the facts that members of a sister IBEW local have performed similar work for Mountain Bell Telephone Company, and IBEW- represented employees will have further responsibili- ties after the ducts are in place. D. 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 factors.3 The Board has held that its determination in a jurisdictional dispute is an act of judgment, based on commonsense and experience, reached by balancing those factors involved in each particular case.4 The following factors are relevant in determining the dispute before us: 1. Certification and collective-bargaining agreements The parties stipulated that none of the unions here involved has ever been certified by the Board as bargaining representative of the Employer's employ- ees with respect to the disputed work. The Employer, however, has had a long and continuing bargaining relationship, and successive contracts, with both Operating Engineers and Laborers since at least 1948. The Employer's most recent contracts with Operating Engineers and Laborers, effective at all times material herein, cover a variety of work on traditional construction projects, including such things as "duct lines, pipelines, sewers, water mains, excavation and backfill . . . paving and like opera- tions, street and sewer grading and all similar projects, and excavation and removal or disposal of earth, rock and like material." IBEW Local 44, known as an outside lineman union of electrical workers, is party to a collective- bargaining agreement with a multiemployer associa- tion known as Western Line Constructors Chapter, NECA, Inc. The Employer is not a member of that association and therefore is not bound to its current contract with IBEW Local 44. In 1973 and 1974 the Employer signed letters of assent agreeing to be bound to IBEW Local 44's then current contract with the foregoing association. The last of these letters of assent expired by its own terms on May 31, 1974. In view of the foregoing, we find that the factor of collective-bargaining agreements favors awarding the 4 International Association of Machinists, Lodge No. 1743, AFL CIO (J A. Jones Construction Company). 135 NLRB 1402 (1962). 1101 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work to employees represented by Operating Engi- neers and Laborers. 2. The employer's practice As stated, the Employer has had successive collective-bargaining agreements with Operating Engineers and Laborers since at least 1948. Pursuant to these agreements, the Employer has consistently assigned work similar to that here in dispute to its employees represented by those labor organizations. In addition, the record shows that the Employer has performed 15 to 18 jobs for Mountain Bell Tele- phone Company which are similar to the job where this dispute arose. In each of those jobs, with a single exception, the Employer has awarded the work to its employees who are represented by Operating Engi- neers and Laborers. On one occasion in 1974, the Employer briefly used a backhoe operator represent- ed by IBEW in a trenching operation. That employee was terminated after a few days when he accidentally cut an existing telephone cable. He was then replaced by an employee represented by Operating Engineers and IBEW did not object to this substitution. Accordingly, we find that the Employer's consistent past practice of assigning similar work to employees represented by Operating Engineers and Laborers favors an award to these employees here. 3. Area and industry practice There are three other utility contractor companies in Montana which, with the Employer, perform a substantial amount of Mountain Bell's underground conduit projects. These firms,5 like the Employer, are members of the Montana Contractors Association, Inc., and, also like the Employer, signatory to that Association's labor agreements with Operating Engi- neers and Laborers. Pursuant to these contracts, these employers have made the same assignments of work as were made by the Employer. IBEW Local 44 presented evidence that a substan- tial amount of Mountain Bell's underground conduit work is performed by employees of Mountain Bell who are represented by sister locals of IBEW. IBEW Local 44 also presented testimony that its contract with Western Line Constructors Chapter of NECA covers the work here in dispute and that the construction firms which are members of that association regularly assign the work in dispute to employees represented by IBEW Local 44 or IBEW Local 532. The latter is not involved in this proceeding. Based on the foregoing, we are satisfied that some contractors in the State of Montana utilize employ- 5 Falls Construction (Great Falls), Felton Construction (Missoula), and Lochrem Construction (Billings). ees represented by IBEW to perform the disputed work while others, such as the Employer, use employees represented by Operating Engineers and Laborers. Accordingly, we find that the factor of area practice is inconclusive and does not clearly favor either group of employees. 4. Relative skills and safety Operating Engineers and IBEW Local 44 each claims that its members are fully skilled and trained to perform the disputed work safely. Each labor organization presented considerable evidence with respect to the skills and training of its members in performing certain tasks. Both unions have extensive apprenticeship training programs. However, while IBEW's training deals heavily with the installation and maintenance of electrical, communication, and utility transmission lines, Operating Engineers train- ing is devoted exclusively to the operation and maintenance of the various pieces of heavy construc- tion equipment used in earth-moving and construc- tion operations. Since the work here in dispute involves the operation of mechanical equipment used in excavating and backfilling trenches, the factor of skills and training tends to favor employees repre- sented by Operating Engineers. With respect to that portion of the disputed work assigned to employees represented by Laborers, the evidence as to skills was less sharply drawn. Thus, the work of finegrading the trenches, the laying of the duct, and the pouring of concrete can apparently be learned quickly and without much training. Accordingly, the factor of skills as to this work is neutral. 5. Economy and efficiency of operation The Employer contends that its overall operations function more efficiently and economically with the use of employees represented by Operating Engineers and Laborers. Thus, the Employer, in addition to its periodic work for Mountain Bell Telephone Compa- ny, is engaged in extensive water, sewer, sidewalk, curb, and gutter construction in which it utilizes employees represented by Laborers and Operating Engineers. If the Employer were to be required to assign the disputed work to employees represented by IBEW Local 44, it would have to maintain separate crews; one for its underground conduit work, which normally lasts 30 to 60 days, and another for its water, sewer, sidewalk, curb, and gutter work. On the other hand, if the work were assigned to employees represented by Operating Engineers and Laborers, the Employer would have 1102 ELECTRICAL WORKERS, LOCAL 44 the flexibility of transferring its employees from one task to another as the need arose. Based on these considerations, we find that the factor of economy and efficiency of operations favors the Employer's assignment of the work to employees represented by Operating Engineers and Laborers. Conclusion Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that employees who are represented by Local Union No. 400 of the International Union of Operating Engineers, AFL-CIO, and employees represented by Laborers International Union of North America, AFL-CIO, Montana District Coun- cil of Laborers, are entitled to perform the work in dispute. We reach this conclusion on the basis of the Employer's assignment and preference, the Employ- er's collective-bargaining agreements with these two labor organizations, the Employer's historic and consistent practice of assigning the work to these employees, the relatively greater skills of employees represented by Operating Engineers in operating the mechanical equipment here involved, and the fact that the Employer's assignment will result in greater efficiency and economy of operations. In making this determination, we are awarding the work in question to employees represented by the foregoing labor organizations, but not to those unions or their 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 makes the following Determination of Dispute: 1. Employees of Utility Builders, Inc., who are represented by Local Union No. 400 of the Interna- tional Union of Operating Engineers, AFL-CIO, are entitled to perform the following work: The operation of all mechanical equipment used in excavating, backfilling, and repaving of trench- es and any other operation of equipment used in the project of installing underground communica- tion or electrical duct lines and manholes on projects performed by Utility Builders, Inc., in the State of Montana. Employees of Utility Builders, Inc., who are represented by Laborers International Union of North America, AFL-CIO, Montana District Coun- cil of Laborers, are entitled to perform the following work: The finegrading of trenches, shoveling work, placement of separators between ducts, installa- tion and placement of underground duct work and the pouring and placement of concrete around the duct system and all other miscellane- ous associated tasks on projects performed by Utility Builders, Inc., in the State of Montana. 2. International Brotherhood of Electrical Work- ers, Local 44, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Utility Builders, Inc., to assign the disputed work to employees represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Broth- erhood of Electrical Workers, Local 44, AFL-CIO, shall notify the Regional Director for Region 19, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4XD) of the Act, to assign the disputed work in a manner inconsistent with the above determination. 1103