Electrical Workers IBEW Local 202 (W. B. Skinner, Inc.)

ELECTRICAL WORKERS IBEW LOCAL 202 (W. B. SKINNER, INC.) International Brotherhood of Electrical Workers, Local Union 202 and W. B. Skinner, Inc. and Northern California District Council of Labor- ers, AFL-CIO and Laborers Local Union No. 261, AFL-CIO. Case 20-CD-613 11 July 1984 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS The charge in this Section 10(k) proceeding was filed 4 November 1983 by the Employer, alleging that the Respondent, the Electrical Workers, vio- lated Section 8(b)(4)(D) of the National Labor Re- lations Act by engaging in proscribed activity with an object of forcing the Employer to continue to assign certain work to employees it represents rather than to employees represented by the Labor- ers. The hearing was held 30 January 1984 before Hearing Officer David K. Senty. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board affirms the hearing officer's rulings, finding them free from prejudicial error. On the entire record, the Board makes the following find- ings. I. JURISDICTION The Company, a California corporation, is en- gaged in the business of general engineering, in- cluding the installation of underground television cable. During calendar year 1983, the Employer performed services valued in excess of $50,000 for Viacom Cablevision of San Francisco. During cal- endar year 1983 Viacom, a California corporation, had gross revenues from individual subscribers in excess of $1 million and during the same period purchased and received goods valued in excess of $50,000 directly from suppliers located outside the State of California. We find that the Employer is engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. The parties stipulate, and we further find, that Electrical Workers and the Laborers are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute The Employer is a subcontractor of Viacom Ca- blevision of San Francisco. Viacom possesses the exclusive franchise to install and operate a cable television system in the city and county of San Francisco. Pursuant to its franchise agreement, 271 NLRB No. 31 Viacom is required to install underground and aerial television cable throughout residential areas of San Francisco in accordance with a construction plan and timetable extending into calendar year 1988 agreed to by the city and Viacom. Viacom subcontracted some of the work of exca- vation and installation of underground cable to the Employer in June 1982. As a prerequisite to their agreement, Viacom required the Employer to sign a collective-bargaining agreement with Electrical Workers covering the work to be performed under this subcontract. Viacom's employees who had been performing the work are represented by Elec- trical Workers, and Viacom's policy and practice is to require all its subcontractors to sign an agree- ment with Electrical Workers prior to commencing work. The Employer signed a contract with Elec- trical Workers and also hired some persons who had performed this work as employees of Viacom. It also purchased some of the equipment used by Viacom in performing the work. In approximately January 1983 the Employer took over all of Via- com's underground construction work. In August 1982 the Laborers approached the Employer about assigning to its members the un- derground construction work being performed by employees represented by Electrical Workers. When the Employer refused to reassign the work to employees represented by Laborers, the Labor- ers grieved the refusal under the 1980-1983 Master Agreement, to which the Employer was allegedly bound. The grievance was referred to a board of adjustment, which found for the Laborers. The Employer did not participate in the board of ad- justment proceeding. The board of adjustment arbi- tration award directed the Employer to pay 15 la- borers listed in the grievance "from August 19, 1982, forward to the completion of the project." The Laborers subsequently sought and obtained en- forcement of the arbitration award in the San Fran- cisco County Superior Court.' Upon learning of the claim by the Laborers to the work being performed by employees represent- ed by it, Electrical Workers, in a letter dated 3 Oc- tober 1983, threatened "to take whatever action is necessary, including picketing to prevent such as- signment." This letter gave rise to the charge in this case. I The Employer did not appear in the Superior Court proceeding. and has filed a motion to set aside the court order confirming the arbitration award That motion, which was entered into the record of the 10(k) pro- ceeding, asserts, inter alia, that the Superior Court's order was a default judgment resulting from the inadvertence and excusable neglect of the Employer's counsel, who erred in calendaring the date of appearance. The Employer's motion was, at the lime of the hearing. pending before the Superior Court, with a hearing scheduled for 7 February 1984. 171 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Work in Dispute The disputed work is all work involving the ex- cavation and laying of underground cable and re- lated conduits carrying television signals through- out the city and county of San Francisco. C. Contentions of the Parties At the commencement of the hearing counsel for the Laborers stated on the record that the Laborers disclaim interest in the disputed work, and moved that the notice of 10(k) hearing be quashed on the basis that there is no jurisdictional dispute. The Employer opposed the Laborers' motion, taking the position that the disclaimer is inconsistent with the Laborers' Superior Court enforcement of its ar- bitration award requiring the Employer to pay members of Laborers for performance of the work in dispute. Counsel for the Laborers moved, alter- natively, to continue the hearing until after the Su- perior Court hearing on the Employer's motion to set aside the Superior Court's order confirming the Laborers arbitration award. The hearing officer denied these motions, whereupon counsel for the Laborers declined to participate further in the pro- ceeding and left the hearing room. Laborers in its brief to the Board reasserts its disclaimer of interest in the work, and renews its motion to quash. The Employer contends that the Board should determine the merits of this dispute because there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated and there is no agreed-upon method of voluntary resolution. With respect to the merits, the Employer asserts that its assignment of the disputed work is consistent with factors on which the Board relies in resolving work assignment disputes. Thus, the Employer maintains that both the Employer and Viacom have traditionally assigned the disputed work to employees represented by Electrical Workers in Marin County, California, as well as in the city and county of San Francisco; that the Employer and Electrical Workers are signatory to a collective- bargaining agreement covering the disputed work; that the performance of the disputed work requires the operation of numerous pieces of heavy equip- ment and a high degree of coordination of effort between all of the various crews performing the total job; and that it prefers the disputed work to be assigned to employees represented by Electrical Workers. The Electrical Workers' position essentially is in agreement with that of the Employer. It specifical- ly asserts that the Laborers' disclaimer of interest in the work in dispute should not be given effect, and contends that the record supports the assign- ment of the disputed work to employees represent- ed by it. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the 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 the parties have not agreed upon a method for the voluntary adjustment of the dis- pute. As noted above, the Electrical Workers in its letter of 3 October 1984 informed the Employer that it would take whatever action was necessary, including picketing, to prevent the Employer from reassigning the disputed work. Accordingly, we find that there is reasonable cause to believe that an object of the Electrical Workers' threat was to force the Employer to continue to assign the dis- puted work to employees represented by Electrical Workers, and thus that Section 8(b)(4)(D) has been violated. In reaching this conclusion, we have carefully considered the Laborers' disclaimer of interest in the work in dispute. The Board has held that a ju- risdictional dispute no longer exists when one of the competing unions or parties effectively re- nounces its claim to the work at issue.2 The party raising such an issue, however, has the burden to satisfy the Board's requirements of a clear, un- equivocal, and unqualified disclaimer of all interest in the work in dispute.3 Laborers argues that since 30 January 1984, it has effectively disclaimed any interest in the work described in the notice of hearing, and that it has done nothing inconsistent with its disclaimer. La- borers points out that the Superior Court's order confirming the arbitration award was granted on 29 August 1983 and dealt with damages for the breach of a collective-bargaining agreement which expired 16 June 1983. The Employer's efforts to have the Superior Court's order set aside are, the Laborers claims, not any action which it has instituted, and thus the Laborers is not actively engaging in any conduct apparently inconsistent with its disclaimer of the work. We note that the arbitration award confirmed by the Superior Court provides, inter alia, as follows: 3. The Employer be directed to pay the 15 laborers listed in the grievance from August 19, 1982 forward to the completion of the 2 Laborers Local 66 (Georgia-Pacific Corp.), 209 NLRB 611 (1974), and cases cited therein. : Operating Engineers Local 77 (C. J. Coakley Co.), 257 NLRB 436 (1981). 172 ELECTRICAL WORKERS IBEW LOCAL 202 (W. B. SKINNER, INC.) project and fringe benefits to be paid to the Trust Fund. We further note that the project to which the arbi- tration award relates is scheduled to continue into 1988. While Laborers emphasizes that the alleged contract pursuant to which it obtained the arbitra- tion award has expired, it does not aver that it does not seek enforcement of the award, as written, ex- tending beyond the contract term. Under these cir- cumstances, where it is arguable that Laborers con- tinues to seek payment from the Employer for the work in dispute, we cannot conclude that it has ef- fectively disclaimed interest in that work. Thus, we shall not honor the disclaimer, and we deny Labor- ers' motion to quash contained in its brief. No party contends and there is no evidence showing that there exists an agreed-upon method for the voluntary adjustment of this dispute binding on all the parties. We find reasonable cause to believe that a viola- tion of Section 8(b)(4)(D) has occurred and that there exists no agreed method for voluntary adjust- ment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dis- pute is properly before the Board for determina- tion. E. Merits of the Dispute Section 10(k) requires the Board to make an af- firmative award of disputed work after considering various factors. NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U.S. 573 (1961). The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by bal- ancing the factors involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the determination of this dispute. 1. Certifications and collective-bargaining agreements There are no known certifications concerning the employees of the Employer engaged in the dis- puted work. The Employer has, since August 1982, been party to a collective-bargaining agreement with the Electrical Workers covering its employees who perform the work involved in the under- ground construction, excavation, and laying of cable and other conduits throughout the city and county of San Francisco.4 4 The Employer's contract with the Electrical Workers expired by its terms 15 January 1984, but at the time of the hearing had been extended while the parties negotiated for a new agreement. Laborers contends that the Employer was signa- tory to the Laborers Master Agreement for 1980- 1983, which expired 16 June 1983. The board of adjustment's arbitration award directing the Em- ployer to pay 15 laborers until the completion of the project tends to support this assertion. Howev- er, the Employer in its motion to set aside the Su- perior Court's order confirming the arbitration award asserts, inter alia, that it had no valid con- tract with the Laborers, and there is insufficient evidence in the record to resolve whether the Em- ployer in fact was a party to a valid collective-bar- gaining agreement with the Laborers. Resolution of that issue is not, in any case, critical to our deter- mination here. If the Laborers had a contract with the Employer covering the work in dispute, that contract would at most offset the Electrical Work- ers contract with the Employer so that this factor would favor neither group of employees. On the other hand, if the Laborers did not have a valid contract with the Employer, this factor would tend to favor the Electrical Workers. Such a result would only add weight to our determination herein, since, as discussed below, we find that the other factors, to the extent they favor either group of employees, all favor the Electrical Workers. Therefore, we find it unnecessary to rely on this factor in resolving the dispute. 2. Company preference and past practice The Employer has assigned the work in dispute to employees represented by Electrical Workers from the time it commenced operation pursuant to its subcontracting agreement with Viacom. Bill Skinner, the Employer's representative, also testi- fied at the hearing that the Employer preferred to continue to assign the work to its employees repre- sented by Electrical Workers. We conclude, there- fore, that consideration of this factor favors assign- ment of the work to employees represented by Electrical Workers. 3. Area and industry practice Employees of Viacom and its subcontractors are the only employees engaged in performing the un- derground construction, excavation, and other work related to providing cable services in San Francisco, since Viacom has the exclusive franchise to provide cable television service in that area. All employees engaged in this work, whether em- ployed by Viacom or its subcontractors, are repre- sented by Electrical Workers. Electrical Workers also represents employees performing the same type of work in Marin County. There is no evi- dence that employees represented by Laborers have ever performed work involving the under- 173 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ground construction, excavation, and laying of cable and other conduits carrying television signals in San Francisco or its neighboring areas. Accord- ingly, we find that area practice favors awarding the work to the Employer's employees represented by Electrical Workers. 5 4. Relative Skills Employees of the Employer who are represented by Electrical Workers possess the necessary skills, training, and expertise to perform every aspect of the work in dispute. Some of these employees have performed the disputed work as employees of Viacom, and subsequently of W. B. Skinner, and have acquired the skills and expertise essential to efficiently and safely perform the work. The work includes operation of the T-600 and M-475 Ver- meer Rockwheels, air compressors, various sized dump trucks, backhoe loaders, asphalt rollers, and all other specialized and generalized equipment used in underground construction work. These em- ployees also participate in regular safety and train- ing meetings held by the Employer. The record contains no evidence with respect to the relative skills of individuals represented by the Laborers. Accordingly, we find the evidence with respect to this factor favors assignment of the dis- puted work to employees represented by the Elec- trical Workers. 5. Economy and efficiency of operations Employees represented by the Electrical Work- ers perform all tasks connected with the disputed work, from the erection of street barricades at the beginning of the job, through the actual construc- tion, excavation, and laying of cables, to the re- moval of the barricades at the end of the job. Small b There is no evidence as to industry practice outside the San Francis- co-Marin County area. crews working one after the other in a highly co- ordinated manner perform the various stages of the underground construction work. Currently, all tasks, including the operation of heavy equipment, are performed by employees of the Employer rep- resented by Electrical Workers. The Laborers in- troduced no evidence with respect to which tasks, if any, of the work in dispute employees they rep- resent can perform. We find that the factors of efficiency and econo- my of operations support assignment of the work to the Employer's employees represented by Elec- trical Workers. Conclusions After considering all the relevant factors, we conclude that employees represented by Electrical Workers are entitled to peform the work in dis- pute. We reach this conclusion on the basis of the Employer's assignment and preference, the area practice with which such assignment is consistent, and the fact that the Employer's assignment will tend to result in greater efficiency and economy of operations. In making this determination, we are awarding the work to employees represented by Electrical Workers, not to that Union or its mem- bers. The determination is limited to the controver- sy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. Employees of W. B. Skinner, Inc. represented by International Brotherhood of Electrical Workers, Local Union 202 are entitled to perform all work involving the excavation and laying of under- ground cable and related conduits carrying televi- sion signals throughout the city and county of San Francisco. 174