Local Union No. 1, Operating Engineers

LOCAL UNION NO 1, OPERATING ENGINEERS Local Union No. 1 of the International Union of Op- erating Engineers and King Soopers , a Division of Dillon Companies, Inc. and International Brother- hood of Electrical Workers, Local Union No. 12. Case 27-CD-184 November 10, 1976 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by King Soopers, a Division of Dil- lon Companies, Inc., herein the Employer, alleging that Local Union No. I of the International Union of Operating Engineers, herein Operating Engineers or Respondent, has violated Section 8(b)(4)(D) of the Act. A hearing was held in Denver, Colorado, before Hearing Officer Robert L. McCabe on July 22, 1976. The Employer, Operating Engineers, and Interna- tional Brotherhood of Electrical Workers, Local Union No. 12, herein referred to as IBEW, 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. There- after, the Employer, Operating Engineers, 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 rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this proceeding, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that King Soopers, a Divi- sion of Dillon Companies, Inc., is a Kansas corpora- tion engaged in the distribution and sale of grocery items in the State of Colorado. It has a gross volume of business in excess of $500,000 annually. In addi- tion, it annually purchases or sells goods valued in excess of $50,000 from suppliers or to buyers located directly outside the State of Colorado. 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 policies of the Act to assert jurisdiction herein. 11. THE LABOR ORGANIZATIONS INVOLVED 867 We find, as stipulated by the parties, that the Op- erating Engineers and the IBEW are labor organiza- tions within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of Dispute , Prior to July 1, 1974, electrical work for both new construction and for remodeling of the Employer's supermarkets was performed by subcontractors whose employees were represented by locals of the International Brotherhood of Electrical Workers. According to record testimony, in July 1974, the Em- ployer decided that the disputed work of refrigera- tion case and checkstand wiring could be performed more efficiently and at reduced cost if it employed its own crew of electricians. Thereafter, the work of re- frigeration case and checkstand wiring was per- formed by electricians employed by the Employer and represented by the Operating Engineers. In or about June 1976, the Employer began the remodeling and expansion of a store in Pueblo, Colo- rado, and assigned its electricians to perform refrig- eration wiring and other electrical work. Thereafter, IBEW commenced picketing the jobsite, and the Em- ployer subcontracted the work to Sturgeon Electric Co. whose employees were represented by IBEW. The parties stipulated that on June 2, 1976, Respon- dent's attorney, Simons, called the Employer's attor- ney, Siebert, and stated that if the Employer did not reassign the disputed work to electricians represented by the Operating Engineers the Operating Engineers would picket the Employer. B. The Work in Dispute The disputed work concerns assignment of refrig- eration case and checkstand wiring at the Employer's store in Pueblo, Colorado. C. The Contentions of the Parties The Employer contends that the disputed work should be assigned to employees represented by the Operating Engineers. The Operating Engineers claims the disputed work on the basis of the factors of efficiency, economy, skill, area practice, and em- ployer preference. The IBEW claims the disputed work on the basis that IBEW workmen are the only employees qualified to perform electrical construc- tion work and that, prior to July 1974, the Employer 226 NLRB No. 96 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD utilized the services of IBEW members to perform the disputed work. D. Applicability of the Statute Before the Board proceeds with a determination of a 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 shows that Operating Engineers threat- ened to picket the Employer unless the Employer as- signed the disputed work to Operating Engineers members. On the basis of the entire record , we con- clude that there is reasonable cause to believe that a violation of Section 8(b)(4)(D ) has occurred . The rec- ord also fails to establish the existence of any agreed- upon method for the voluntary adjustment of the dis- pute to which all parties to the dispute were bound. Accordingly, the matter is properly before the Board for determination under Section 10(k) of the Act.' Although the Employer's electricians are classified as "refrigeration" employees, the disputed work is not specifically mentioned in the contract between the Employer and the Operating Engineers. We find that the collective-bargaining agreement does not contribute to the disposition of this dispute. 2. Company and area practice The record shows that prior to July 1974 the Em- ployer utilized the services of subcontractors whose employees were represented by locals of Internation- al Brotherhood of Electrical Workers. From July 1974 to the present, the Employer has employed elec- tricians represented by Operating Engineers to per- form the disputed work. Inasmuch as the record con- tains conflicting testimony as to area practice, we find that company and area practice does not favor an award to the employees represented by either union. 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.2 The following factors are relevant to a determi- nation of the dispute before us: 1. Collective-bargaining agreements Operating Engineers contends that its contract with the Employer assigns the disputed work to its members.' The contract provides in pertinent part: Article 1 RECOGNITION. The Employer recognizes the Union as the sole collective-bargaining agent for all operating engineers employed in the Employer's warehouse and stores, but EXCLUD- ING supervisors and all other employees. The contract also provides, in Appendix "A," for classifications designated as mechanical mainte- nance, meat plant, and refrigeration. Record evi- dence indicates that the Employer's electricians are included in the refrigeration classification. i It appears that at the hearing matters were raised which went beyond the scope of the notice of hearing However , inasmuch as no party raised any objection to discussion of incidents occurring subsequent to filing of the May 19, 1976, charge , and as we are satisfied that the June 2, 1976 , threat establishes probable cause that a violation of Sec 8 (b)(4)(D) has occurred, we find it appropriate to limit our award to the Pueblo, Colorado, location which was the subject of the instant hearing 2 International Association of Machinists, Lodge No 1743, AFL-CIO (J A Jones Construction Company), 135 NLRB 1402 (1962) 3 The record contains no applicable collective-bargaining agreement be- tween the Employer and IBEW 3. Employer's assignment of the work It is undisputed that the Employer presently as- signs the work in dispute, in the absence of a con- trary claim by IBEW, to employees represented by Operating Engineers. This factor favors employees represented by Operating Engineers. 4. Relative skills, efficiency, and economy The record reveals that electricians represented by Operating Engineers and electricians represented by IBEW are skilled workmen, and that both groups of employees are capable of performing the disputed work. Thus, we find that evidence of relative skills does not support an assignment of the disputed work to either group of employees. With respect to efficiency and economy, the Em- ployer asserts that it hired its own electricians to per- form the disputed work because subcontractors had been undependable and had done unsatisfactory work. The Employer contends that the work is per- formed more efficiently and economically by utiliz- ing its own employees who are familiar with its unique refrigeration and checkstand systems. In this regard, the record reveals that the Employer's costs almost double when it uses subcontractors' employ- ees to perform the disputed work. The Employer as- serts that it has required work improperly done by subcontractors' employees represented by IBEW to be redone by its own employees represented by Op- erating Engineers. The record reveals an instance in which employees represented by IBEW spent 8 hours wiring two refrigeration cases, whereas in 6 hours LOCAL UNION NO. 1, OPERATING ENGINEERS two employees represented by Operating Engineers wired six refrigeration cases. Moreover, record testi- mony indicates that should the disputed work be as- signed to employees represented by IBEW, the Em- ployer will be forced to reduce the number of its employees. Thus, we find that the factors of efficien- cy and economy favor awarding the work to employ- ees represented by Operating Engineers. 5. Board certification There is no evidence that a Board certification has issued to either labor organization with respect to the employees who perform the disputed work. Conclusion Upon the record as a whole, and after full consid- eration of all relevant factors involved, we conclude that the employees of the Employer who are repre- sented by Operating Engineers are entitled to per- form the work in dispute. In reaching this conclu- 869 sion, we have particularly relied on the Employer's assignment of the disputed work to its employees and the efficiency and economy of operations which re- sult from such assignment. We shall therefore de- termine the dispute before us by awarding the work involved herein to employees represented by Local Union No. 1 of the International Union of Operating Engineers, 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 King Soopers, a Division of Dillon Companies, Inc., who currently are represented by Local Union No. I of the International Union of Operating Engineers, are entitled to perform refriger- ation case and checkstand wiring at the Employer's Pueblo, Colorado, facility.