Local 103, Electrical Workers

LOCAL 103, ELECTRICAL WORKERS Local 103, International Brotherhood of Electrical Workers (IBEW) and Siemens Corporation. Case 1-CD- 479 January 3, 1977 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by Siemens, Corporation, herein also called the Employer or Siemens, alleging that Local 103, International Brotherhood of Electrical Workers (IBEW), herein called Local 103 or the Union, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the assignment of certain work to employees represented by Local 103 rather than to employees of the Employer. Pursuant to notice, a hearing was held before Hearing Officer Robert C. Rosemere, on May 27, and June 1, 2, 29, and 30, 1976,1at Boston, Massachusetts. The Employer and Local 103 appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to present evidence bearing on the issues. Thereafter, the Employer and Local 103 filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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. The rulings are hereby affirmed. The Board has considered the entire record in this case and hereby makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The Employer is a Delaware corporation engaged in the manufacture and installation of hospital equipment with its principal place of business in South Iselin, New Jersey. During the past year, the Employer sold and shipped products to customers located outside New Jersey which were valued in excess of $50,000. Accordingly, we fmd, as the parties have stipulated, that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. i All dates' herein are in 1976 unless otherwise indicated. 2 Faulkner Hospital, herein also called the Hospital, did not appear or participate in this proceeding. 3 These installations were at the Tufts New England Medical Center in 1972-73 and at Waltham Hospital in 1973. 227 NLRB No. 96 H. THE LABOR ORGANIZATION INVOLVED 685 The parties stipulated, and we find, that Local 103 is a labor organization within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Dispute The work in dispute consists of the installation of X-ray equipment at Faulkner Hospital2 in Jamica Plain, Massachusetts. B. Background and Facts of the Dispute The Employer installs medical X-ray equipment in hospitals and other medical facilities throughout the Massachusetts, Rhode Island, and Connecticut area. Since 1968 the Employer has completed 270 X-ray installations in the Boston district, of which 96 percent were performed exclusively by the Employ- er's employees.'The record reveals that on at least two occasions in the Boston area the Employer employed members of Local 103 along with its own employees.3 However, the record reveals that on installations where employees represented by Local 103 were employed the Employer closely supervised their work, using its own supervisors for this purpose, and the work performed by such employees was limited to the assembly of the X-ray equipment. In each installation employees are required to (1) assemble, bolt, and secure X-ray equipment in place; (2) install and pull Siemens wires and cables from the M-314 to various components; (3) wire all individual components including the M-31; and (4) calibrate the various components. Pursuant to a contract between the Employer and Faulkner Hospital, the Employer agreed to install five rooms of medical X-ray equipment at the Hospital. The purchase price covered the full installa- tion, including the work in dispute. In late January, prior to the date the Employer was scheduled to begin installing the equipment, Edward McManus, an assistant business agent for Local 103, contacted the Employer's sales engineer, Frank Gallagher, and claimed all the installation work at the Hospital. Gallagher responded that the Employer intended to utilize its ownemployees for the work. On February 15, representatives of Local 103, the Hospital, and the Employer met to discuss the Union's demand for the X-ray installation work. At this meeting, according to Gallagher's testimony, McManus restated the Union's position, demanding 4 "M-31" is the Employer's designation for a box into which the power source is brought. It is peripheral to the generator and is utilized solely for purposes of appearance. 686 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD the work in dispute. Gallagher indicated that the Employer would utilize its own employees and that the Employer would wait to begin the installation until the Hospital "accepted" the X-ray wing from the general contractor, thereby removing the installa- tion work from the general contractor's control and thus from the jurisdiction of the Union, McManus then replied that if the union members were not assigned the work in dispute he would "shut the building down." Thereafter, according - to the testimony of Karl Haugen, director of general support services and new construction for the Hospital, the Hospital offered additional work to the Union. This offer was made in the hope that if the Union was compensated for any work' lost by the assignment of the X-ray installation work to the Employer's employees a shutdown of the project, and the consequent work delays, could be avoided. On April 27, McManus, in a letter to the Hospital and to the Employer, notified both parties that Local 103 intended to picket the hospital construction site on May 10, because of the labor dispute between the Union and the Employer. As a result of this letter, John J. Delaney, attorney for the Hospital, notified the Union that a separate gate was being established for the use of the Employer's employees. Also on May 7, the Employer filed the instant unfair labor practice charge. Work was completed by the Employer's employees on May 22 - on three of the X-ray rooms. - The remainder of the work was being performed, as of the dates of the hearing, exclusively by the Employer's employees.' No picketing of the ' Hospital by the Union has occurred. C. Contentions of the Parties Local 103 contends that no reasonable cause exists to believe that a violation of Section 8(b)(4)(D) of the Act has occurred. On the merits, Local 103 contends that the work in dispute should be assigned to employees represented by it on the grounds that (1) the Employer and his employees have failed to meet the licensing requirements as set forth in Massachu- setts General Laws, chapter 141, section 1;5 (2) the Employer failed to comply with the- permit require- ments of Massachusetts general laws, chapter 143, section 3L; 6 (3) the Employer -previously- used 5 Massachusetts general laws, ch. 141, sec. 1, states in pertinent part: "No person, firm, or corporation shall enter into, engage in or work at the business of installing wires, conduits, apparatus, fixtures or other appliance for carrying or using electricity for light, heat or power purposes, unless such persons, firm or corporation shall have received a license and a certificate therefor, issued by State Examiners of Electricians and in accordance with the provisions hereinafter set forth.. : " 6 Ch. 143, sec. 3L, states that "No person shall install for lure any electrical wiring or fixtures subject to this section without first or within five days after commencing the work giving notice to the inspector of wires appointed pursuant to the provisions of section thirty-two of Chapter 166. members of a sister local in the installation of X-ray equipment and experienced no difficulty in this arrangement; (4) the Employer has failed to show how the award of the disputed work to its employees would result in any reduced cost or increased efficiency; (5) although there is no collective-bargain- ing agreement between the Employer and Local 103, the letter of assent executed by the Employer and another IBEW local concerning the installation of X- ray equipment evidences an intention by the Employ- er to award the work in dispute to union members; and (6) an award of the work in dispute to the Employer's employees would cause further unem- ployment among union members.? The Employer contends that there is reasonable cause to believe that Local 103 violated Section 8(b)(4)(D) of the Act by threatening to picket in order to force the assignment of the work in dispute to its members rather than to the Employer's own unrepre- sented employees. On the merits, the Employer argues that the disputed work should be awarded to its employees on the grounds that (1) the Employer's practice has been to assign,-this type of work to its own employees; (2) industry practice is to assign such work to the employees of the X-ray equipment manufacturer; (3) the Employer's employees are specially trained to handle its equipment; (4) installa- tion by its own employees aids the later servicing of the equipment; (5) safety, considerations require an -award of the disputed work to its employees; (6) the Hospital prefers that the Employer's employees perform the work in dispute; and (7) it is the general practice of the Employer to include the cost of installation in its bid for a job and the projected cost would be greatly increased if union members were awarded the disputed work. Also, the Employer argues that Massachusetts law does not prohibit the use of its employees in the installation of X-ray equipment, and, in any event, the state statutes quoted above are irrelevant to a determination of the instant dispute. - Finally, the Employer argues that in the event the Board awards the work in dispute to its employees the scope of the award should encompass the geographi- cal area where the jurisdiction of Local 103 and the Employer's Boston district coincide, on grounds that Any person failing to give such notice shall be punished by a fine not exceeding twenty dollars This section shall be enforced by the inspector of wires within his jurisdiction and the state examiners of electricians." 7 Local 103 also contends that the Hearing Officer erroneously excluded evidence of industry practice; i.e., that union electricians installed other manufacturers' X-ray equipment at three hospitals in the Boston area. We find no error in the Hearing Officer's rejection of the proffered exhibits on grounds that the area surveys comprising this evidence were not based upon the personal knowledge of the witness through whom the evidence was offered LOCAL 103, ELECTRICAL WORKERS 687 similar disputes have previously arisen between these parties. D. Applicability of the Statute Before the Board may proceed to a determination of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that (1) there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated, and (2) the parties have not agreed upon a method for the voluntary adjustment of the dispute. As to (1) above, Local 103 contends that it made no unlawful threat to the Employer or Faulkner Hospital because the threatened picketing was,for informa- tional purposes only and in any event no picketing occurred. The record establishes that on February 15, McManus, assistant business agent for the Union, told the Hospital's and the Employer's representa- tives that if the Union was not allowed to perform the disputed work-they would "shut the building down." It is clear from- this statement that the threat was directed nt the Hospital, and that our object thereof was to force reassignment of the work in dispute to employees represented by the Union. Accordingly, we conclude that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) of the Act has occurred. E. 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 relevant factors, includ- ing the following: 1. Certification and collective-bargaining agreements There is no evidence in the record that any labor organization has been certified by the Board as the exclusive representative of the Employer's employees. The record does -establish, however, that there is no collective-bargaining agreement between the Em- ployer -and the Union. Accordingly, we give no weight'to these factors in our determination of the dispute. 2. Employer's past practice The Employer, since opening its Boston district in 1968, has utilized its own employees to install X-ray equipment with only a few-minor exceptions. The evidence clearly establishes that in the Boston area the Employer's practice has been to use its own employees almost exclusively, and in the few installa- tions where employees represented by Local 103 were employed their duties were limited to the assembly of the X-ray equipment under the close supervision of Siemens' supervisors. There is no evidence that employees represented by the Union have ever performed for Siemens all of the job functions encompassed in. the work now in dispute. According- ly, we conclude that the Employer's past practice favors an assignment of the work in dispute to its own unrepresented employees. 3. Industry and area practice The record reveals that there are at least three other X-ray companies operating in the Boston district. It further indicates that employees represented by the Union were employed in six non-Siemens installa- tions, or less than 4 percent of the total number of X- ray installations performed by other manufacturers, since 1965. Additionally,, it appears from the record that most X-ray equipment manufacturers utilize their own employees to install the equipment. On the basis of the above findings, we conclude that the industry and area practice of other companies in the Boston area,.while not determinative, favors award- ing the work in dispute to the employees of the Employer. 4. - Skills, safety, efficiency, and economy The record discloses that both groups of techni- cians, i.e., those employedby the Employer and those represented by Local 103, receive training in the installation - of X-ray equipment. However, it is undisputed that employees of the Employer receive specialized training in the German notation system and the metric system, and that these employees use special metric tools to enable them to properly handle siemens' cables. In addition, the Employer makes a special effort to ' monitor the amount of X-ray exposure received by its employees as a part of its overall safety program, while the Union has no such monitoring procedure.8 Further, the evidence establ- ishes that each Siemens technician has had, in addition to special training, a minimum of 2 years' field experience, as contrasted with the more general- ized training employees represented by, the Union receive. Finally, as a group,, employees working for the Employer appear to be more qualified by their skills and experience to perform the work in dispute than those represented by Local 103. We therefore conclude that this factor award of the work in dispute to the Employer's employees. 8 The Employer does not use this monitoring procedure for nonregular employees because of the difficulty of keeping adequate records as to them. 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. Effect on employment The Union contends that an award of the disputed work to the Employer's employees would have a detrimental effect on employment of employees represented by it inasmuch as nearly 40 percent of its membership was unemployed at the time of the hearing. The Employer, however, asserts that if the work were assigned to Local 103 members Siemens would have to lay off its own employees. The record indicates that there are approximately 2,300 union members and that the Employer's Boston medical systems division employs only 14 X-ray technicians. It is apparent that an assignment of the work in dispute to the individuals currently working for the Employer will have no substantial impact upon the job opportunities available to individuals represented by Local 103, while a contrary award would have a disproportionate effect on the employment of the Employer's employees. Thus, this factor favors an award to the employees of the Employer.9 6. Licensing requirements As noted previously, Local 103 argues that the Employer failed to comply with Massachusetts gener- al laws, chapter 141, in using unlicensed employees and failing to be licensed itself. Local 103 further contends that the Employer has failed to comply with the permit requirements of chapter 143. It is uncon- troverted that neither the Employer nor its employees were issued licenses for the performance of the work in dispute. With respect to the Employer's failure to comply with the licensing requirement set forth in chapter 141, we find that this requirement relates solely to .the Employer's qualification to do the work and not to the assignment of the work to a particular group of employees. In Local Union No. 134, IBEW, supra, the Board found that licensing requirements are irrele- vant where they concern only the employer's qualifi- cation to perform the disputed work and not the assignment of such work to employees. Accordingly, we find the instant'alleged licensing requirement as it applies to Siemens to have the same purpose as that in Local Union No. 134, and deem it irrelevant to our determination of this dispute. The record reveals that the applicability of chapter 141 to the qualifications of the Employer's employees to do the work in dispute remains unsettled. The state board examiners and electricians investigator, Antho- ny Agresti, testified that "there has not been any ruling by a court that Chapter 141 specifically applies to installers of X-ray equipment." Further, although there have been attempts to amend chapter 141 so as to specifically include X-ray installers, the statute has never been so changed. Indeed, it appears that the Massachusetts legislature intended that the licensing requirements not apply to X-ray installation as is indicated by the following statement in a letter by State Representative Robert B. Ambler, chairman of the Massachusetts Committee on Government Regu- lations: According to our research we found that in many aspects of this legislation electricians would be given complete jurisdiction over technical areas in which they have had relatively little knowledge. Your point regarding X-ray field service engineers and servicemen was a typical example. Therefore, the committee concluded that no legislation was necessary. Additionally, we note that a court proceeding involv- ing the applicability of chapter 141 to X-ray installers is pending between the state board and-another X-ray equipment manufacturer. As of the date of the hearing herein, no decision had been reached. Since there has been no definitive interpretation of the chapter 141 licensing requirements by the state courts with respect to X-ray installers, we find their statute to be of no assistance in our consideration of the merits of this dispute. Finally, with respect to the requirements of chapter 143, Agresti testified that "Chapter 143 is a permit law. In other words, it is to give -notice to the Inspector ...." Thus, we find that this state law attempts to regulate the activities of the Employer and does not bear on the qualifications of the competing employee groups to perform the disputed work. Accordingly, chapter 143, like the alleged licensing requirements of chapter 141 for Siemens itself, is irrelevant to a determination of this dispute. 7. Employer preference The record clearly establishes that the Employer would prefer to assign the disputed work to its own unrepresented employees. This factor also tends to favor an award of the work to employees of the Employer. Conclusion Based upon the entire record, and after full consideration of all relevant factors, we conclude that the employees of the Employer are entitled to perform the work in dispute. We reach this conclu- sion based on the Employer's past practice, industry 9 Local Union No. 134, International Brotherhood of Electrical Workers, AFL-CIO (International Telephone & Telegraph Corporation, Communications Equipment and Systems Division), 191 NLRB 828 (1971). LOCAL 103, ELECTRICAL WORKERS 689 and area practice, considerations of skill, safety, efficiency, and economy, effect on employment, and the Employer's preference. Accordingly, we shall determine the dispute before us by awarding the work in dispute to those employees presently employed by the Employer as X-ray technicians. The Employer, in its brief, requests that the Board determine the dispute by awarding the disputed work to its own employees and further requests that the Board's determination apply to the geographic juris- diction of Local 103. In the past, it has been the Board's policy to make an award broad enough to encompass the geographic area in which an employer does business, wherever jurisdiction of the competing groups of employees coincide, in circumstances where there is an indica- tion that the dispute is likely to recur.'0 As the record fails to establish such a likelihood with respect to the instant dispute, we find that a broad remedial order is not appropriate in this case. Therefore, our determi- nation in this case is limited to the present dispute. 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 hereby makes the following Determination of Dis- pute: 1. Employees of Siemens Corporation are entitled to perform the installation of X-ray equipment at Faulkner Hospital, Jamaica Plain, Massachusetts. 2. Local 103, International Brotherhood of Elec- trical Workers (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 disputed work to employees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 103, Interna- tional Brotherhood of Electrical Workers (IBEW), shall notify the Regional Director for Region 1 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 its members rather than to employees of the Employ- er. 10 International Brotherhood of Electrical Workers, Local No. 26, AFL- CIO (Taylor Woodrow Blitman Construction Corporation), 195 NLRB 261 (1972).