Electrical Workers Local 702 (F.W. Electric, Inc.)

594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD International Brotherhood of Electrical Workers, Local Union No. 702, AFL–CIO and F. W. Elec­ tric, Inc. and Laborers International Union of North America, AFL–CIO, Local 227. Case 14– CD–1026 May 30, 2002 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN AND BARTLETT This is a jurisdictional dispute proceeding under Sec­ tion 10(k) of the National Labor Relations Act (the Act). The charge in this Section 10(k) proceeding was filed on October 4, 2001,1 by F.W. Electric, Inc. (the Employer) alleging that the Respondent, International Brotherhood of Electrical Workers, Local Union No. 702, AFL–CIO (IBEW Local 702), violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employ­ ees it represents rather than to employees represented by Laborers International Union of North America, AFL– CIO, Local 227 (Laborers Local 227). The hearing was held on October 30, before Hearing Officer AnnG K. Wright. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board affirms the hearing officer’s rulings, find­ ing them free from prejudicial error. On the entire re- cord, the Board makes the following findings. I. JURISDICTION The parties stipulated that the Employer is an Illinois corporation engaged in the business of providing com­ mercial electrical services as an electrical contractor in the construction industry. During the 12-month period preceding the hearing, the Employer purchased and re­ ceived goods valued in excess of $50,000 at its facility located in Benton, Illinois, directly from points located outside the State of Illinois. The parties further stipu­ lated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that IBEW Local 702 and Laborers Local 227 are labor organizations within the meaning of Sec­ tion 2(5) of the Act. II. THE DISPUTE A. Background and Facts of the Dispute The Employer is engaged in commercial electrical work within the construction industry. E.T. Simonds, the 1 Unless otherwise indicated, all dates are in 2001. general contractor, subcontracted the work of installing traffic signals at Reed Station Road and Highway 13 in Carbondale, Illinois, to the Employer. E.T. Simonds is signatory to a collective-bargaining agreement with La- borers Local 227. The Employer is signatory to a collec­ tive-bargaining agreement with IBEW Local 702 and assigned the installation of the traffic signals to its em­ ployees who are represented by IBEW Local 702. Laborers Local 227 filed a grievance against E.T. Si­ monds, asserting a violation of the subcontracting clause of the Simonds-Laborers’ collective-bargaining agree­ ment by E.T. Simonds’ assignment of the disputed work to the Employer. The Employer received a letter dated August 10 from E.T. Simonds, informing the Employer that Laborers Local 227 claimed the installation of traffic signals at the highway construction site being performed by the Employer’s employees represented by IBEW Lo­ cal 702, and that Laborers Local 227 had filed a griev­ ance against E.T. Simonds over the work. The letter further advised that the Employer was obligated to re- solve the dispute over the work. On or about August 20, the Employer’s president, Ferrell Winemiller, telephoned John Taylor, Business Manager of Laborers Local 227, to discuss resolution of the dispute. Taylor told Winemiller that Laborers Local 227 claimed the work and that the dispute could be re- solved if F.W. Electric became signatory to the Laborers’ collective-bargaining agreement. Taylor also told Wine- miller that Laborers’ Local 227-represented employees had done the work in other areas, and that “he was doing his job and was trying to get it for his members in that area.” He said that Local 227 wanted “to get this work drawn back into the [E.T. Simonds contract] . . . or if they were going to . . . give [it] to [F.W. Electric], that it would be done with Laborers.” Subsequently, Winemil­ ler informed Gary L. Roan, business manager of IBEW Local 702, about the claim for the work made by Labor­ ers Local 227. By letters dated August 22 and Septem­ ber 20, IBEW Local 702 threatened to strike and/or picket if the disputed work was reassigned to employees represented by Laborers Local 227. On October 4, the Employer filed the instant charge under Section 8(b)(4)(D) of the Act. B. Work in Dispute The parties stipulated that the disputed work is cor­ rectly identified in the notice of hearing as all flagging, concrete pouring, operation of power-concrete saws and hand tampers, and digging with shovels, trowel, or other hand tools necessary for the installation of traffic signals at the highway construction site located at Reed Station Road and Highway 13 in Carbondale, Illinois. 337 NLRB No. 89 ELECTRICAL WORKERS LOCAL 702 (F. W. ELECTRIC, INC.) 595 C. Contentions of the Parties2 The Employer and IBEW Local 702 contend that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated. The Employer and IBEW Local 702 further contend that no voluntary means exist for adjustment of the jurisdictional dispute and that the work in dispute should be assigned to the employees represented by IBEW Local 702 based on the factors of: the Employer’s preference and past practice; the collec­ tive-bargaining agreement and relationship between the Employer and IBEW Local 702; area and industry prac­ tice; and economy and efficiency of operations. IBEW Local 702 also contends that the work should be assigned to the employees it represents based on relative skills and training. Laborers Local 227 contends that the work should be assigned to the employees it represents and that the grievance and arbitration procedure in the collective- bargaining agreement between Laborers Local 227 and E.T. Simonds is the proper forum to resolve the dispute over the work assignment. Laborers Local 227 als o con- tends that the arbitrator’s decision will bind all the par- ties.3 D. Applicability of the Statute Before the Board may proceed with a determination of a dispute pursuant to Section 10(k) of the Act, it must be established that reasonable cause exists to believe that Section 8(b)(4)(D) of the Act has been violated. This requires a finding that there are competing claims to dis­ puted work between rival groups of employees and that there is reasonable cause to believe that a party has used proscribed means to enforce its claim. The Board also must find that no method for voluntary adjustment of the dispute has been agreed upon. In Laborers (Capitol Drilling Supplies) , 318 NLRB 809 (1995), the Board held that in the construction indus­ try, a union’s effort to enforce a lawful union-signatory subcontracting clause against a general contractor through a grievance, arbitration, or court action does not constitute a claim to the subcontractor for the work. The Board, however, distinguished those cases in which a union does more than peacefully pursue a contractual grievance against a general contractor. The Board found that a true jurisdictional dispute arises when a union, seeking enforcement of a contractual claim, not only pursues its contractual remedies against the employer with which it has an agreement, but also makes a claim for the work directly to the subcontractor that has as- 2 Laborers Local 227 did not file a brief. 3 Laborers Local 227 left the hearing after stating its position and presented no evidence. signed the work. Id. at 809. In such circumstances, the Board stated that it would find truly competing claims and that the threat of coercion to enforce a claim by the representative of either group of employees would be sufficient to trigger an 8(b)(4)(D) allegation and conse­ quent 10(k) proceeding. Id. See also Electrical Workers IBEW Local 363 (U.S. Information Systems), 326 NLRB 1382, 1383 (1998) (citing Capitol Drilling, 318 NLRB at 811–812).4 The instant case is a true jurisdictional dispute, distin­ guishable from the facts presented in Capitol Drilling. Laborers Local 227 did more than pursue its grievance against General Contractor E.T. Simonds. Laborers Lo­ cal 227 also made a claim for the work directly to F.W. Electric, the party that had assigned the work. As stated above, the Employer received a letter from E.T. Simonds stating that Laborers Local 227 claimed the work. Sub­ sequently, the Employer telephoned John Taylor, the business manager of Laborers Local 227. Taylor in- formed the Employer that the Laborers performed the disputed work in other jurisdictions and wanted the dis­ puted work in Southern Illinois for the employees repre­ sented by the Laborers. Taylor further indicated that one sure way that the dispute would be resolved was for F.W. Electric to become signatory to the Laborer’s agreement. To be sure, this last statement alone may be read simply as explaining how the subcontracting grievance itself could be resolved, since it would bring General Contrac­ tor E.T. Simonds into compliance with the subcontract­ ing clause in its agreement with the Laborers. However, in the context of Taylor’s other statements to the Em­ ployer, we find the evidence is sufficient to establish reasonable cause to believe that Laborers Local 227 made a claim for the disputed work directly to F.W. Electric. After the Employer informed it of the Laborers’ claim, IBEW Local 702 responded by sending two letters to the Employer which claimed the work and threatened actions against the Employer, including “picketing or striking” if the Employer reassigned the disputed work. Accord­ ingly, we find that there is reasonable cause to believe that IBEW Local 702 has used proscribed means to en- force their claim. Finally, we find that there is no voluntary method of resolving this jurisdictional dispute under Section 10(k) which would be binding on all parties. As stated above, 4 Chairman Hurtgen has previously stated his reservations regarding the Board’s holding in Capitol Drilling. See, e.g., his concurring opin­ ion in Laborers Local 113 (Super Excavators) , 327 NLRB 113 (1998). However, inasmuch as the instant case is distinguishable from Capitol Drilling, it is unnecessary for him to pass on the Board’s holding in Capitol Drilling. 596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Laborers Local 227 is a signatory to a collective- bargaining agreement with E.T. Simonds, the general contractor. Laborers Local 227 pursued its claim under the grievance and arbitration procedure with E.T. Si­ monds. However, F.W. Electric is deemed to be the em­ ployer for purposes of determining the jurisdictional dis­ pute, and F.W. Electric is not a signatory to the Laborers agreement. Operating Engineers Local 150 (Austin Co.), 296 NLRB 938, 940 (1989) (the company ultimately controlling and making job assignments is deemed the employer for purposes of a 10(k) proceeding). Nor is IBEW Local 702, the union representing the Employer’s employees, bound to the E.T. Simonds-Laborers Local 227 collective-bargaining agreement. Finally, the griev­ ance-arbitration provision of the Laborers Local 227-E.T. Simonds agreement explicitly excludes from its applica­ bility “jurisdictional disputes.” Thus, no agreed-upon method for voluntary adjustment of the dispute exists. We therefore find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed-upon method for voluntary ad­ justment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dispute is properly before the Board for determination. E. Merits of the Dispute Section 10(k) requires the Board to make an affirma­ tive 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 balancing the factors in­ volved in a particular case. Machinists Lodge 1743 (J.A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in deciding this dis­ pute. 1. Certification and collective-bargaining agreements Although Laborers Local 227 argues that its collective- bargaining agreement with E.T. Simonds, the general contractor, controls the award of the disputed work, that agreement is not applicable because, as discussed above, the employer for purposes of assigning the work, F.W. Electric, is not a signatory to the Laborers’ agreement. F.W. Electric is, however, signatory to a collective- bargaining agreement with IBEW Local 702, which spe­ cifically covers the work in dispute. Therefore, we find this factor favors awarding the work in dispute to em­ ployees represented by IBEW Local 702. Electrical Workers IBEW Local 363 (U.S. Information Systems), supra. 326 at 1384. 2. Employer preference and current assignment The Employer assigned the disputed work to employ­ ees represented by IBEW Local 702 and prefers that the work in dispute continue to be performed by the IBEW Local 702 represented employees. Accordingly, this factor favors awarding the work in dispute to the em­ ployees represented by IBEW Local 702. 3. Area and industry practice At the hearing, Laborers Local 227 presented no evi­ dence that the disputed work is traditionally performed by Laborers-represented employees in the area and in­ dustry. Although IBEW Local 702 also claimed that the disputed work has been performed by the employees it represents at similar projects within the area and throughout the industry, the evidence is limited to Winemiller’s testimony as to how F.W. Electric has as- signed the work in the past and does not address area or industrywide practice. Accordingly, we find that this factor does not favor an award of the disputed work to employees represented by either union. 4. Employer past practice At the hearing, Winemiller testified that F.W. Elec­ tric’s past practice is to assign the type of work in dispute to the members of IBEW Local 702. According to Winemiller, the Employer has employed individuals rep­ resented by IBEW Local 702 for the past 27 years and has not employed any employees represented by Labor­ ers Local 227 to perform the disputed work. Accord­ ingly, employer past practice favors an award of the dis­ puted work to employees represented by IBEW Local 702. 5. Relative skills and training The evidence presented at the hearing demo nstrates that the Employer’s employees, represented by IBEW Local 702, possess the required skills and training to per- form the disputed work and have performed this type of project in the past. Winemiller testified that the Em­ ployer is satisfied with the quality of the work performed by its own IBEW-represented employees. No evidence was presented concerning the skills of the employees represented by the Laborers. Accordingly, we find that this factor favors awarding the disputed work to the em­ ployees represented by IBEW 702. 6. Economy and efficiency of operations Winemiller testified that other work at the project, such as the installation of electrical conduit, is performed by employees represented by IBEW Local 702 and is not claimed by Laborers Local 227. According to Winemil­ ler, even if the Laborers perform the disputed work, the Employer would still be obligated to assign the installa- ELECTRICAL WORKERS LOCAL 702 (F. W. ELECTRIC, INC.) 597 tion of the conduit to the IBEW -represented employees and the work performed by the employees represented by the Laborers will not account for 8-hour workdays for the duration of the project. Based on this undisputed tes­ timony, we find that the factor of economy and effi­ ciency of operations favors an award of the disputed work to the Employer’s employees represented by the IBEW Local 702. Conclusions After considering all the relevant factors, we conclude that the employees represented by IBEW Local 702 are entitled to perform the work in dispute. We reach this conclusion relying on the factors of collective-bargaining agreements, employer preference and current assignment, employer past practice, relative skills and training, and the economy and efficiency of operations. In making this determination, we are awarding the work to employ­ ees represented by International Brotherhood of Electri­ cal Workers, Local Union No. 702, AFL–CIO, not to that Union or its members. The determination is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the follow­ ing Determination of Dispute. Employees of F.W. Electric, Inc., represented by In­ ternational Brotherhood of Electrical Workers, Local Union No. 702, AFL–CIO, are entitled to perform all the flagging, concrete pouring, operation of power-concrete saws and hand tampers, and digging with shovels, trowel, or other hand tools necessary for the installation of traffic signals at the highway construction site located at Reed Station Road and Highway 13 in Carbondale, Illinois.