Electrical Workers, Local No. 610

320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Electrical Workers, Lo- cal No. 610 and Landau Outdoor Sign Company, Inc. and Sign Makers and Sign Hangers Local Union No. 194, Sheet Metal Workers International Association.' Case 4-CD-394 ployer performed services valued in excess of $50,000 for customers located outside the Commonwealth of Pennsylvania, and its gross revenues exceeded $500,000. Accordingly, 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 jurisdiction herein. June 29, 1976 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, PENELLO, AND WALTHER II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find , that IBEW and Sign Hangers are labor organizations within the meaning of Section 2(5) of the Act. This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Landau Outdoor Sign Compa- ny, Inc., herein called Employer, alleging that Inter- national Brotherhood of Electrical Workers, Local No. 610, herein called IBEW, 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 IBEW rather than to employees rep- resented by Sign Makers and Sign Hangers Local Union No. 194, Sheet Metal Workers International Association, herein called Sign Hangers. Pursuant to notice, a hearing was held before Hearing Officer Bruce D. Bagley on April 22 and 23, 1976. All parties, including the Employer, IBEW, and Sign Hangers, 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 and IBEW 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 of the Hearing Officer made 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 THE EMPLOYER The parties stipulated, and we find, that the Em- ployer, a Pennsylvania corporation with its sole of- fice in Philadelphia, Pennsylvania, is engaged in manufacturing, erecting, and maintaining outdoor signs and billboards. During the past year, the Em- 1 Name appears as amended at the hearing III. THE DISPUTE A. Background and Facts The Employer maintains approximately 160 bill- boards in the greater Philadelphia-Delaware Valley area. These billboards consist of removable panels which are hung on a steel superstructure, and which form the face of the sign. The sign's message is paint- ed on these panels by certain of the Employer's em- ployees who are not involved in this dispute. Approx- imately every 45 or 60 days, existing panels are dismantled and usually replaced with newly painted panels forming new signs. However, it is also com- mon for a billboard to have its existing panels re- moved without having new panels installed for a pe- riod ranging from a day to a few weeks. The task of dismantling existing signs and installing new panels is performed for the Employer by two independent contractors, Ogram Sign Company, herein called Ogram, and M. W. Wolfe Sign Erectors, Inc., herein called Wolfe. The employees of both companies who perform this work are represented by Sign Hangers. From sundown until midnight, these signs are illu- minated by floodlights which are operated automati- cally by timeclocks. In addition, each sign has a switch, a plug, or a circuit breaker, which controls the operation of the lights but does not affect the operation of the timeclock. In those instances when existing panels are removed and new panels are not immediately installed, the floodlights are switched off until such time as the new panels are hung. From 1959 continuously until January 1974, employees represented by Sign Hangers performed this work of switching the lights off when removing existing pan- els and thereafter switching the lights on when in- stalling new panels. This task can be completed in a matter of seconds, as it merely involves turning a switch, removing or inserting a plug, or flipping a circuit breaker. 225 NLRB No. 58 ELECTRICAL WORKERS, LOCAL NO. 610 321 In January 1974, John Novak, business manager of IBEW, advised the Employer that the work of turning the floodlights on and off should be per- formed by electricians employed by the Employer and represented by IBEW pursuant to its collective- bargaining agreement with the Employer. The Em- ployer refused to assign the work to the electricians. At approximately the same time, Novak approached Sy Richardson, business manager of Sign Hangers, informed him that the work in question should be performed by IBEW-represented employees, and asked Richardson to advise the employees repre- sented by Sign Hangers not to turn the lights on and off. Thereafter, Richardson so advised the employ- ees, and they ceased performing the work. However, in emergencies, the Employer has requested the em- ployees represented by Sign Hangers to turn the lights on and off, and these employees have in fact performed the work on several occasions subsequent to their initial refusal. Since that time, the Employer has also instructed the electricians to do the work or has simply permitted the lights to continue burning on the signless billboards. On June 13, 1975, the Em- ployer filed the instant charge. B. The Work in Dispute The work in dispute concerns the switching on and off of the floodlights illuminating the Employer's outdoor advertising billboards. C. Contentions of the Parties At various times between January 1974 and the date of the hearing in this matter, Sign Hangers has disclaimed any interest in the performance of the dis- puted work. In view of this disclaimer, IBEW con- tends that there is no jurisdictional dispute in this case. IBEW also argues that the Board is without jurisdiction in this proceeding on the additional ground that there is insufficient evidence in the rec- ord to support a finding of reasonable cause to be- lieve that IBEW violated Section 8(b)(4)(D). Alterna- tively, IBEW claims the work on the basis of its collective-bargaining agreement with the Employer, area practice, and the factors of safety and relative skills. The Employer contends that a jurisdictional dis- pute exists and that the case is properly before the Board for determination. As to the merits, it asserts that assignment of the work to employees repre- sented by Sign Hangers is consistent with its prefer- ence and past practice, and is further supported by considerations of industry practice, efficiency, and economy of operations. D. Applicability of the Statute Before the Board may proceed with a determina- tion 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) has been violated, and that there is no agreed-upon method for the volun- tary settlement of the dispute. We find no merit in IBEW's contention that no dispute exists because Sign Hangers has disclaimed the work. The applicability of Section 10(k) is not dependent upon "the existence of a dispute between two or more groups of employees actively competing for the work assignment." 2 As in Pocahontas, Sign Hangers purported disclaimer imposes no hardship and involves no sacrifice or "giving up" by the em- ployees it represents. For, their employment is still required to remove and install advertising panels, and their wages and other benefits were not reduced by reason of their Union's disclaimer inasmuch as the disputed work requires only seconds to perform, and it is therefore not possible to allocate part of their compensation to this specific task.' Moreover, employees represented by Sign Hangers have, on oc- casion, continued to perform the work without (so far as the record shows) restraint, discipline, or threats thereof from their Union. Furthermore, it is clear from the testimony of the business manager of Sign Hangers and the president of Wolfe that em- ployees represented by Sign Hangers desire to con- tinue to perform the disputed work. Accordingly, we find that under well-established principles Sign Han- gers purported disclaimer is not effective to extin- guish the jurisdictional dispute between employees represented by that labor organization and employ- ees represented by IBEW.4 We also reject IBEW's contention that the Board has no jurisdiction in this proceeding because no "in- ducement or encouragement" within the meaning of Section 8(b)(4)(D) occurred. As summarized above, according to Sign Hangers Business Manager Rich- ardson, IBEW Representative Novak "said that he would like to have his people do the work. If not it could possibly lead to a jurisdictional dispute. . . . He asked me to have my people not turn the switches 2 Local 1291, International Longshoremen 's Association, AFL-CIO (Poc- ahontas Steamship Company), 152 NLRB 676, 679 (1965) l We find no support in the record as a whole for IBEW's contention that the Employer offered additional compensation to individual employees rep- resented by Sign Hangers if they would perform the disputed work and that therefore these employees suffered an economic detriment by the disclaim- er General Teamsters Local 326, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Eazor Ex- press, Inc), 203 NLRB 1002 (1973), Local 40, International Brotherhood of Electrical Workers, AFL-CIO (F & B/Ceco of California, Inc), 199 NLRB 903 (1972), Pocahontas Steamship Company, supra 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on and off." Richardson further testified that "[r]ath- er than go into a jurisdictional dispute which I felt was the electrician's jurisdiction, I advised the people that I didn't think they should do the work." Rich- ardson also testified that, but for the request of IBEW, the employees represented by Sign Hangers would be continuing to perform the work. Thus, it is clear that employees represented by Sign Hangers refused to perform the disputed work as a result of IBEW's request. The real question is: Did IBEW "induce or encourage" such refusals? In deciding this issue, we are guided by the holding of the Supreme Court that "[t]he words `induce or en- courage' are broad enough to include in them every form of influence and persuasion." 5 In the instant case, Novak presented Richardson with a choice be- tween "go[ing] into a jurisdictional dispute" with IBEW and advising the employees he represents to cease performing a task, which, as discussed above, would result in no economic detriment to those indi- viduals. Under those circumstances, one could rea- sonably assume that Richardson would choose the latter course. Therefore, the natural and probable consequence of Novak's request was Richardson's compliance therewith by advising the employees to refuse to perform the work. Thus, when Novak made this request to Richardson he was in effect encourag- ing and inducing employee action thereupon, even though the act of advising the employees not to per form the work was left to Richardson. In these cir- cumstances, we conclude that Novak's request was, in the words of the Supreme Court, a "form of influ- ence or persuasion," and, inasmuch as Novak testi- fied that an object of his conduct was to force or require the Employer to assign the disputed work to employees represented by IBEW rather than to em- ployees represented by Sign Hangers, we are satisfied that there is reasonable cause to believe that IBEW violated Section 8(b)(4)(D).6 The parties stipulated, and we find, that at the time of the instant dispute there did not exist any agreed- upon or approved method for the voluntary adjust- ment of the dispute to which all parties to the dispute were bound. Accordingly, the matter is properly be- fore the Board for determination. E. Merits of the Dispute Section 10(k) of the Act requires the Board to 5 International Brotherhood of Electrical Workers, Local 501 [Samuel Lan- ge/ v NLRB, 341 U S 694, 701-702 (1951) In view of this conclusion, we find it unnecessary to pass on the Employer's contention that IBEW also violated the Act by threatening the Employer with picketing unless it agreed to assign the work to employees represented by that Union make an affirmative award of the disputed work af- ter giving due consideration to various relevant fac- tors. 1. Employer's preference and past practice It is undisputed that, from 1959 until 1974, when the instant dispute began, the Employer assigned the work of switching on and off the lights to employees represented by Sign Hangers and employed by Ogram and Wolfe. The Employer's past practice, therefore, is consistent with its preference, and these factors favor awarding the work to employees repre- sented by Sign Hangers. 2. Collective-bargaining agreements The Employer has no collective-bargaining agree- ment with Sign Hangers. The Employer signed its first collective-bargaining agreement with IBEW in 1969. The agreement which was in effect at the time this dispute began is dated June 1972 and provided as follows in regard to work jurisdiction: The electrical work to be performed by employ- ees covered by this Agreement shall include the manufacture, assembly, cleaning, maintenance and erection and removal of all electrical signs, whether of the neon gas tube, receptacle or re- flector type, and shall include all neon window signs or other work, the bending, pumping and repairing of all tubes used as a conductor of electricity for whatever purpose intended. Electrical work on such signs shall include at least one electrician on every electric sign erec- tion or removal, the installation of all electrical wiring, apparatus, equipment, units, devices, connection, repair and servicing of all trans- formers, wires, cables, conduit and supports and insulators within or on the sign itself. The elec- trical work shall also include the installation and maintenance of time switches, gooseneck reflec- tors, black light fixtures, floodlights for outdoor advertising displays, animators, flashers, and all other equipment necessary in the illumination, operation or control of the sign, whether a part of the sign itself or separated from the sign but required in the illumination, operation or con- trol. The question presented is whether the switching on and off of the floodlights illuminating the Employer's billboards is "electrical work" within the meaning of the above provision. Inasmuch as this fob task is not specifically covered by any of the above contractual clauses, we will consider the parties' conduct in ren- ELECTRICAL WORKERS, LOCAL NO. 610 323 dering and receiving performance under the contract in order to aid us in interpreting its terms. For, "[i]n cases so numerous as to be impossible of full citation here, the courts have held that evidence of practical interpretation and construction by the parties is ad- missible to aid in choosing the meaning to which le- gal effect will be given." 7 As discussed above, it is clear that for 5 years after signing its first collective-bargaining agreement with IBEW in 1969, the Employer, without objection from that labor organization, continued its established practice of having the employees represented by Sign Hangers perform the disputed work. We find this practice of the parties to be persuasive evidence that they did not consider the task of switching on and off the lights to be "electrical work" falling within the jurisdiction of IBEW. Accordingly, we conclude that the factor of collective-bargaining agreements is not helpful to a determination. 3. Area and industry practice Concerning area practice, IBEW presented testi- mony that the principal competitor of the Employer, the Rollins Company, assigns this work to its em- ployees represented by IBEW. However, the record also reveals that another area sign company, United Outdoor Advertising, has the job task performed by sign hangers. The evidence relating to area practice is, therefore, inconclusive. Concerning industry practice, the Employer pre- sented testimony by its president and vice president that sign companies throughout the country, includ- ing the Rollins Company in locations other than Philadelphia, assign the work in dispute to employees represented by Sign Hangers. Rollins in Philadelphia is apparently the sole exception to this practice of the industry. The factor of industry practice, therefore, favors awarding the disputed work to employees rep- resented by Sign Hangers. 4. Relative skills, efficiency, and economy of operations Although the record reveals that both groups of employees possess the necessary skills to perform the job task of turning a switch, removing or inserting a plug, or flipping a circuit breaker, IBEW contends that the disputed work presents a safety hazard and therefore only a trained electrician should perform it. In support of this contention, IBEW cites the in- stance of an electrician who died after coming into contact with the electrical apparatus of a Rollins 7 Corbin on Contracts, pt. 3, chap 24, sec 558 (1952) sign. However, the record reveals that, unlike the Rollins signs, there are no exposed wires in the elec- trical boxes attached to the Employer's billboards, and no individual employed by Ogram or Wolfe has ever been injured as a result of performing the dis- puted work. Furthermore, the record also reveals that the only potential danger involved in performing the disputed work would result from damage to the grounding wires or the electrical box itself, and no special expertise is necessary to recognize the exis- tence of such a condition. The factor of relative skills therefore, is not helpful to a determination. The Employer urges that the factors of efficiency and economy of operations support an award of the disputed work to employees represented by Sign Hangers. Thus, these individuals are able to perform the work in a matter of seconds in the course of their normal duties of removing or installing the advertis- ing panels and at no additional cost to the Employer. However, were employees represented by IBEW as- signed this task, they would have to be dispatched to the location of the sign for the sole purpose of turn- ing the lights on or off. Since the record clearly estab- lishes that it would be more economical to utilize employees represented by Sign Hangers, we find that the factors of efficiency and economy of operations favor awarding the work to those employees. Conclusion Upon the record as a whole, and after full consid- eration of all relevant factors involved, we conclude that the employees represented by Sign Hangers are entitled to perform the work in dispute. We reach this conclusion upon the facts that the assignment is consistent with the Employer's preference, past prac- tice, and industry practice; it is not clearly inconsis- tent with area practice or the Employer's collective- bargaining agreement with IBEW; the employees represented by Sign Hangers possess the requisite skills; and such assignment will result in greater effi- ciency and economy of operations. Accordingly, we shall determine the dispute before us by awarding the work in dispute to the employees represented by Sign Hangers, but not to that Union or its members. In consequence, we also find that IBEW is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer to assign the disput- ed work to employees represented by it. 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- 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceeding, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees represented by Sign Makers and Sign Hangers Local Umon No. 194, Sheet Metal Workers International Association, are entitled to perform the work of switching on and off the flood- lights illuminating the Employer's outdoor advertis- ing billboards. 2. International Brotherhood of Electrical Work- ers, Local No. 610, is not entitled by means pro- scribed by Section 8(b)(4)(D) of the Act to force or require Landau Outdoor Sign Company, Inc., to as- sign the above work to employees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Broth- erhood of Electrical Workers, Local No. 610, shall notify the Regional Director for Region 4, in writing, whether or not it will refrain from forcing or requir- ing the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to employees represented by IBEW rather than to em- ployees represented by Sign Hangers.