International Brotherhood of Electrical Workers, Local 486

692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Electrical Workers, Lo- I. THE BUSINESS OF THE EMPLOYER cals 486, 588, 326, AFL-CIO and New England Power Service Company, New England Power Company, Narragansett Electric Company, Massa- chusetts Electric Company and The Brotherhood of Utility Workers of New England, Inc. Case 1-CD-432 July 29, 1975 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, 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 20, 1974, by New England Power Service Company, New England Power Company, Narragansett Electric Company, and Massachusetts Electric Company, herein collec- tively called the New England Electric System or the Employer, alleging that International Brotherhood of Electrical Workers, Locals 486, 588, and 326, AFL- CIO, herein called I.B.E.W., violated Section 8(b)(4)(D) of the Act by engaging in certain pro- scribed activity with an object of forcing or requiring the Employer to assign certain work to employees represented by I.B.E.W. rather than to employees represented by The Brotherhood of Utility Workers of New England, Inc., herein called B.U.W. Pursuant to notice, a hearing was held before Hearing Officer Francis X. McDonough on January 24, 27, 29, February 11, 12, 14, and 28, 1975. All parties, including the Employer, I.B.E.W., and B.U.W., 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, the Employer, I.B.E.W., and B.U.W. 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 Board has reviewed the rulings made by the Hearing Officer at the hearing and finds they are free from prejudicial error. The rulings are hereby af- firmed. Upon the entire record in this case, including the aforementioned briefs, the Board makes the fol- lowing findings: 1 The Employer has requested oral argument. This request is hereby de- nied as the record and the beefs adequately present the issues and the positions of the parties. The parties stipulated, and we find, that the Em- ployer is a complex of Massachusetts corporations comprising an electric utility holding company sys- tem organized and operated under the Public Utility Holding Company Act of 1935. The parent corpora- tion is the New England Electric System. The Charg- ing Parties are four wholly owned subsidiaries. The Employer is engaged in producing and distributing electric power; its annual gross revenues are in excess of $250,000, and it annually receives from other States goods 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 purposes of the Act to assert juris- diction herein. 11. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that I.B.E.W. and B.U.W. are labor organizations within the mean- ing of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Dispute The work in dispute is "heavy" construction of transmission lines and high voltage substations and certain "street work." Heavy construction is various- ly defined in the record as that involving any substa- tion or transmission line of 69,000 volts and above, as well as those which are below 69,000 volts but are considered heavy due to their size, complexity, par- ticular terrain, or the level of skill required in their construction. The street work in dispute includes the digging of trenches, installing of ducts, and building of manholes in the Worcester County, Massachu- setts, area. B. Background and Facts The Employer consists of four "operating compa- nies;" the New England Power Service Company, herein the Service Company; and Granite State Elec- tric, which is the generating and transmission compa- ny but is not herein involved. The Service Company is organized to provide needed services for the oper- ating companies and is comprised of three divisions: service, engineering, and construction. I.B.E.W. rep- resents the employees of the construction division. B.U.W. represents the employees of the operating companies. The prime responsibility of the operating companies is the operation and maintenance of all 219 NLRB No. 145 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCALS 486 693 the facilities of the system and the construction of the distribution (rather than transmission) facilities, both lines and substations. The Service Company's responsibility is to perform construction which the operating companies are not equipped to perform (generally, construction of transmission lines and substations) and which the operating companies are able to perform but cannot due to heavy workloads. During the 5-year period from 1970 through 1974 the Service Company built, in terms of dollars, 92 per- cent of the substations involving heavy construction and 99 percent of the transmission line projects. Since the advent of the "energy crisis " at the end of 1973, the System experienced a substantial reduction in demand for power which reduced the base work- load of the operating company employees. In order to keep operating company employees fully em- ployed, it was deemed necessary by the Employer to use them on various construction projects that they would not ordinarily be called upon to perform, and to cease using outside contractors and temporary em- ployees . Thereafter, on December 3, 1974, an arbitra- tor handed down a decision in which he found the Employer in breach of its contract with the B.U.W., in that it used Service Company employees to per- form work in situations where operating company employees were subject to layoff or reduction in clas- sification. The Employer informed I.B.E.W. repre- sentatives at a meeting on December 11, 1974, that pursuant to that award it was going to transfer cer- tain work to employees of the local operating compa- nies. At the meeting I.B.E.W . Business Agent Jack Cicero strenuously objected to the work being trans- ferred and said that they would take any action nec- essary to retain the work , including a work stoppage. C. Contentions of the Parties The I.B.E.W. claims that the disputed work should be assigned to the employees it represents based on the Employer's past practice, economy and efficien- cy, skills, and relative job impact. The Employer prefers assignment of the work to the employees represented by I.B.E.W., subject to limited assignments to the employees represented by the B.U.W. during such emergency situations as the construction cutback of the past few years . This pref- erence is based primarily on considerations of econo- my and efficiency of operation and relative skill and experience. The Employer further contends that as- signment to the employees represented by I.B.E.W. is consistent with its past practice and relevant contrac- tual obligations. Both the Employer and I.B.E.W. contend that the matter is properly before the Board and that there is no agreed-upon method for the voluntary settlement of the instant dispute. B.U.W. contends that no jurisdictional dispute ex- ists here. It argues that it does not claim the work in dispute, but is merely attempting to enforce its con- tract. B.U.W.'s position is that, pursuant to its con- tract with the Employer and the recent arbitration award, in situations where operating company forces are subject to layoff or reduction in job classification and where they have the capability to perform the work involved, such work may not be assigned to Service Company employees. D. Applicability of the Statute Section 10(k) of the Act empowers the Board to determine a dispute out of which an 8(b )(4)(D) charge has arisen. However , before the Board pro- ceeds with a determination of dispute, it must be sat- isfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. As stated above, B.U.W. contends that there exists no jurisdictional dispute because it is merely attempt- ing to enforce its contract and is not claiming the disputed work. In doing so, however, it is in fact making a claim to the work . Thus, we fail to see how B.U.W.'s arguments take this controversy outside the provisions of Section 8(b)(4)(D). Representatives of I.B.E.W., after being informed that the Employer in- tended to transfer certain work from Service Compa- ny employees to operating company employees, indi- cated that they would take any action necessary to retain the work, including a strike. On the basis of the above-described threat and the record as a whole, we find 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 af- ter giving due consideration to various relevant fac- tors. 1. Certification and collective-bargaining agreements There is no evidence that either of the contending Unions has ever been certified by the Board. None of the respective collective -bargaining agreements ex- pressly cover the disputed work. All of the contracts, both with I.B.E.W. and B.U.W., contain the follow- 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing section B-12 which indicates that Service Compa- ny employees are: to handle those types of construction work which are beyond the ordinary capacity of Op- erating Company forces to handle either be- cause of the peculiar nature of such work or be- cause of its volume in the case of types of work which the local companies are manned and equipped to handle. Construction Department participation in the sort of activity which is ordinarily handled by local forces is expected to be on a peak-shaving basis only. In other words, it is the policy of the System that, "Local forces shall not be reduced because of such Construction Department parti- cipation. These local forces shall be increased as often as base work loads increase so as to justify additional personnel on a full time continuing basis." The 1974 arbitration award deciding the dispute between the Employer and B.U.W. interpreted this clause to mean that Service Company employees could not perform work that operating company em- ployees were capable of performing, if the latter em- ployees were subject to layoff or reduction in classifi- cation. B.U.W. relies on this award to support its claim to the disputed work. The evidence shows that section B-12 evolved from the so-called "Joslin Let- ter" of 1960 to B.U.W. from a then system vice presi- dent regarding the resolution of a grievance over the performance by I.B.E.W.-represented employees of work claimed by B.U.W. In that letter Joslin explains the purpose and value of the Service Company and attempts to assure B.U.W. that the Employer does not intend to use Service Company employees in such a manner as to usurp the base workload of the operating company employees. The record testimony further confirms that both the early grievance and the eventual letter dealt solely with distribution of light construction and not with the heavy construc- tion involved in this proceeding. Since I.B.E.W. did not participate in the 1974 arbitration, the award does not constitute an assignment of the disputed work and is not controlling herein.2 B.U.W.'s con- tract right is not a work assignment and hence is not relevant to the issue now before us, but may be en- forceable, if at all, at law. Therefore, we find that neither the agreement nor the interpretation placed on it is helpful to our determination. 2 Newspaper & Mail Deliverers ' Union of New York City and Vicinity (The New York Times Company), 152 NLRB 871 (1965). 2. Employer's assignment and practice The weight of the evidence is that Service Compa- ny employees have, with infrequent minor excep- tions, historically performed the disputed work, ex- cept during the "energy crisis" period of 1974. It is uncontroverted that during the period 1970-74 Ser- vice Company employees performed, in terms of dol- lars, over 99 percent of the transmission line projects and 92 percent of substation projects. In addition, the record reveals that from 1952 until 1974 all of the street work in the Worcester area was performed by the Service Company. In 1974, the Employer, against its strong preference, made a decision to transfer some work normally performed by the Service Com- pany to the operating company employees in order that the latter be kept fully employed and in order to reduce expenses by divesting itself of subcontractors and temporary employees in the Service Company. However, the 1974 emergency assignment is not suf- ficient to override the many years of normal opera- tion. Therefore, the past practice favors assignment to the Service Company employees represented by I.B.E.W. 3. Relative skills, efficiency, and economy of operation The Employer urges that the factors of skill, econ- omy, and efficiency of operation support its pre- ferred assignment to the employees represented by I.B.E.W. The Employer argues that it is caught "on a tightrope" between the need to maintain a "base- load work force" in the operating companies and the need to maintain a force with special skills. B.U.W. contends that its employees have the necessary skills to perform the disputed work. The record shows that the operating company em- ployees have the minimum level of skill necessary to perform most of the disputed work. However, the record also reveals that Service Company employees have generally better developed skills of the type nec- essary to perform the disputed work, as well as cer- tain special skills such as dynamiting, welding, and operating certain heavy equipment. The Employer points out that superior skill in the Service Company is partly due to the fact that those employees perform this type of work on a routine basis rather than just sporadically. In addition, training and steps in skill progression are different in the Service Company than in the operating companies. Furthermore, expe- rienced Service Company employees are preferred for street work because of the dangers of cave-in. Use of Service Company employees provides the Employer with greater flexibility in planning; they INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCALS 486 can be transferred from project to project without disrupting the force necessary to perform the base workload and respond to emergencies at the distribu- tion level. On the basis of the evidence presented, we find that the factor of skill , economy, and efficiency of operation favor assignment to the employees rep- resented by I.B.E.W. 4. Job impact The record reveals that if the work were assigned to employees represented by B.U.W., the Service Company would be forced to lay off approximately 500 employees, virtually the entire work force. We are unable to measure the effect on operating compa- ny forces of assignment to Service Company employ- ees. Clearly, however, the impact would not be as severe because some minimum number of employees must be retained to handle the base workload. Ac- cordingly, we find that considerations of job impact favor assignment to the employees represented by I.B.E.W. Conclusion Upon the record as a whole, and after full consid- eration of all relevant factors involved , we conclude that the Service Company employees, represented by I.B.E.W., are entitled to the work , subject to limited assignments to the operating company employees 695 during emergency situations when the Employer deems it appropriate . In reaching this conclusion we have relied on the Employer's preference; the fact that this assignment is consistent with the Employer's predominant past practice; the relative skills of the employees in the contending groups ; the foreseeable job impact ; the fact that the assignment is consistent with the relevant collective-bargaining agreements; and the fact the assignment will result in greater economy and efficiency of operation. Accordingly, we shall determine the dispute before us by awarding the work in dispute to the Employer's employees rep- resented by I.B.E.W., 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 pro- ceeding, the National Labor Relations Board hereby makes the following Determination of Dispute: Employees of New England Power Service Com- pany, New England Power Company, Narragansett Electric Company, and Massachusetts Electric Com- pany currently represented by International Brother- hood of Electrical Workers, Locals 486, 588, 326, AFL-CIO, are entitled to perform the work in dis- pute, subject to limited assignments to the operating company employees during emergency situations when the Employer deems it appropriate.