Electrical Workers Local 134 (Pepper Construction Co.)

ELECTRICAL WORKERS LOCAL 124 (PEPPER CONSTRUCTION CO.) 123 International Brotherhood of Electrical Workers, Local 134 and Communications Workers of America, District 4 International Brotherhood of Electrical Workers, Local 134 and Pepper Construction Company. Cases 13–CD–662–1 and 13–CD–663–1 May 30, 2003 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND WALSH The charges in this Section 10(k) proceeding were filed on September 6, 2002,1 by Communications Work- ers of America, District 4 (Communications Workers or CWA) and Pepper Construction Company (Pepper), re- spectively, alleging that the Respondent, International Brotherhood of Electrical Workers, Local 134 (IBEW or Local 134), violated Section 8(b)(4)(D) by engaging in proscribed activity with an object of forcing Pepper and Alarm Services Network (ASN or Employer) to reassign the installation of fire and burglar alarm systems from ASN employees who are represented by the CWA to the employees that Local 134 represents. The hearing was held on October 29 and November 12, before Hearing Officer Daniel E. Murphy. Pepper, the IBEW, and the CWA each filed posthearing briefs.2 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 Pepper is a Delaware company, headquartered in Illi- nois, engaged in the construction business as a general contractor. Within the past calendar year, a representa- tive period, it purchased and received at its Illinois loca- tions goods and materials valued in excess of $50,000, directly from points outside the State of Illinois. ASN is a Michigan corporation, headquartered in Auburn Hills, Michigan, and has done alarm installation and service work for Target stores in Michigan, Illinois, Indiana, Tennessee, Pennsylvania, Kentucky, and Ohio. Within the past calendar year, a representative period, ASN pur- chased and received goods and materials valued in ex- cess of $250,000 from points outside the State of Michi- gan. The parties stipulated, and we find, that Pepper and ASN are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The parties also stipu- 1 All dates are in 2002 unless otherwise indicated. 2 ASN did not file a posthearing brief. lated, and we find, that the IBEW and CWA are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute Pepper was the general contractor on a Target store expansion project located in Calumet City, Illinois. As part of that project, the job required removing and replac- ing the old and existing alarm systems (fire and burglar), as well as installing alarm systems in the new space. After the project started in early April, Pepper received a list of seven alarm system subcontractors from Target who were prequalified to bid on this work. One of the prequalified subcontractors, ASN, had performed similar work on over 50 Target stores throughout the Midwest, and was the successful bidder. Pepper wanted to ensure that no labor problems arose as the result of using ASN and its CWA-represented workers on the Calumet City job. Pepper was concerned because IBEW Business Agent Rich Kelly had inquired of Tom Hosack, Pepper’s project superintendent, about the possibility of ASN being awarded the work even be- fore the subcontract had been assigned. Kelly had told Hosack, on more than one occasion during the period from April-July, that the alarm work was IBEW’s and that the IBEW did not want the CWA-represented work- ers in the area. As a consequence, Pepper directed ASN to discuss the issue with the IBEW. ASN called the IBEW and received what it believed to be assurances that there would be no problem if it brought its CWA- represented employees to work in the Chicago area. ASN advised Pepper of that contact, and Pepper and Target proceeded to award the contract to ASN. ASN’s CWA-represented employees arrived on the Calumet City job in early July. By letter dated July 9, the IBEW advised Pepper that “Alarm Services Network does not pay area standard wages and benefits for its electricians.” The letter stated that IBEW had asked ASN for written proof that it complied with area stan- dards. The letter also asked if Pepper had such proof, and if so, asked Pepper to turn it over to the IBEW. Finally, the letter advised Pepper that IBEW would engage in picketing and/or handbilling of ASN at the jobsite and that IBEW was not claiming the work at the jobsite, nor claiming to represent the ASN employees. Pepper notified IBEW that it would investigate the area standards issue, and that it had removed ASN from the jobsite while it did so. Pepper contacted ASN, which provided a copy of its collective-bargaining agreement with CWA as well as wage/benefit documentation. On July 12, Pepper told IBEW that ASN had agreed to 339 NLRB No. 22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 124 match the area standard wages and benefits. In response, also on July 12, IBEW sent a letter to Pepper inquiring about other issues, such as journeyman/apprentice ratios and trust fund payments. The letter concluded by appeal- ing to Pepper to voluntarily exercise its business judg- ment not to permit ASN to bring out-of-state employees to perform the work while there were many qualified and trained electricians available in the Chicago area. ASN employees returned to work on July 22. On Au- gust 29, IBEW distributed handbills outside Pepper’s headquarters stating that ASN did not pay area standards for wages or benefits. On September 3, IBEW distrib- uted another handbill, asserting that ASN had paid $4 less than it had promised, and questioning, “Wouldn’t a responsible contractor remove a subcontractor for violat- ing the terms of their agreement?” When ASN employees arrived at the worksite on Sep- tember 4, they checked in with an IBEW steward who was an employee of an electrical subcontractor on the site. When two ASN employees could not produce their union cards, the steward told Pepper that he had con- tacted IBEW Business Agent Kelly, and that Kelly had said the IBEW would picket the job the next day. Other workers on the site approached an ASN employee sev- eral times the same day, accusing ASN of not being un- ion. When the ASN employee replied that ASN employ- ees were CWA members, the response was, “that’s not the right one.” The ASN employee was also told to “get your ass back” to Michigan. All but three ASN employ- ees left the site; the others finished their work and left. When two ASN employees returned later that evening, they found 10 to 15 IBEW pickets at the entrance, and they chose not to enter the jobsite. On September 5, IBEW picketed the jobsite with area standards signs. A reserve gate was set up, but ASN employees refused to cross the picket line. The ASN employees went home to Michigan. Pepper then awarded the work to IBEW contractor New United, and the picketing stopped. B. Work in Dispute As stated in the notice of hearing, the work in dispute is “installation of fire and burglar alarm systems at the job site located at 171 East West Road, Calumet City, Illinois.” C. Contentions of the Parties The IBEW contends there is no reasonable cause to be- lieve that Section 8(b)(4)(D) has been violated, arguing that its picketing activities had the lawful objects of pre- serving area standard wages and benefits for workers performing similar work in the Chicago area, and of law- fully appealing to Pepper to exercise its management discretion in awarding work to subcontractors, pursuant to the standards set forth in NLRB v. Servette, Inc., 377 U.S. 46 (1964). Should the Board reach the merits of the jurisdictional dispute, the IBEW argues that the work in dispute should be awarded to employees it represents based on the factors of collective-bargaining agreements, relative skills and training, area and industry practice, and employer preference. Pepper and CWA contend that there is reasonable cause to believe that Section 8(b)(4)(D) has been vio- lated, arguing that the IBEW claimed the work, and that IBEW’s picketing had an object of forcing Pepper and/or ASN to assign the disputed work to employees repre- sented by it rather than to employees represented by CWA. In addition, Pepper and CWA both contend that the disputed work should be awarded to employees rep- resented by CWA based on collective-bargaining agree- ments, employer preference, and economy and efficiency of operations. Pepper also argues that the CWA- represented employees should be awarded the work based on relative skills, and CWA contends that employ- ees it represents should get the work based on area prac- tice. 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) has been violated. This requires a finding that there are competing claims to disputed work between rival groups of employees and that there is rea- sonable 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. Although IBEW denies that it claimed the work in dis- pute, we find for the following reasons that there is rea- sonable cause to believe that there are competing claims. Pepper Project Superintendent Hosack testified that, in late April or early May, before ASN’s employees were selected to perform the work, IBEW Business Agent Kelly told Hosack that if ASN were to be assigned the work, “there won’t be a snowball’s chance in hell that they will get a letter out of IBEW authorizing them to work in our area.” Hosack testified that Kelly told him “a couple of times” that “it was 134’s work.” Pepper Project Engineer Kmet testified that Kelly told him in early July “that Pepper and IBEW had a good relation- ship and that by us bringing in a Michigan contractor to do their work, it really hurts.” Finally, IBEW’s July 12 letter to Pepper complained that out-of-state employees were doing the work while Chicago area (Local 134) electricians were available. ELECTRICAL WORKEERS LOCAL 134 (PEPPER CONSTRUCTION CO.) 125 Although IBEW contends that it never made a direct claim for the work to Employer ASN, the Board has long held that a dispute cognizable under Section 8(b)(4)(D) may exist even though no demand has been addressed to the employer whose employees are performing the work.3 IBEW’s claim to General Contractor Pepper is sufficient to constitute a claim for the work. Finally, the Board has also held that when an employer has assigned disputed work to employees who are not represented by the union claiming the work, there are competing claims.4 It is clear that Local 134 has demanded work that can only be assigned to employees it represents at the expense of ASN’s employees who are represented by CWA. Accordingly, we find there is reasonable cause to believe that there are competing claims to the disputed work. Pepper and CWA stipulated that there is no agreed- upon method for a voluntary adjustment of the dispute. The CWA contract with ASN contains no such provi- sion. Neither ASN nor Pepper is signatory to an agree- ment with Local 134. While Local 134 would not join the stipulation, it presented no evidence to the contrary. Accordingly, we find that no agreed-upon method for voluntary adjustment of the dispute exists. We turn now to the issue of whether there is reason- able cause to believe that IBEW has used proscribed means to enforce its claim for the disputed work. Al- though the message on the Union’s picket signs was couched in area standards language, the evidence ad- duced at the hearing and summarized above indicates that an object of the picketing was to obtain the assign- ment of the disputed work. IBEW made clear to Pepper that it considered the alarm work to be IBEW work, that it did not want CWA on the job, and that it would not permit ASN to work on the site. Even after assurances that ASN would meet area standards, IBEW picketed the site. In these circumstances, we conclude that there is reasonable cause to believe that one object of the picket- ing was to obtain the work for IBEW-represented em- ployees. Where, as here, one object of picketing is pro- scribed, it is “sufficient to bring a union’s conduct within the meaning of 8(b)(4)(D).”5 We conclude, therefore, that there is reasonable cause to believe that an object of Local 134’s picketing was to force or require Pepper 3 See Longshoremen Locals 8 and 40 (Port of Portland), 233 NLRB 459, 461 (1977) (union’s demands for assignment of disputed work made to port authority, rather than to employer performing the work at port, sufficient to establish competing claim). 4 Laborers Local 662 (McCarthy Bros.), 268 NLRB 926, 927 (1984). 5 Plasterers Local 594 (Tectonics Engineering), 286 NLRB 259, 260 (1987) (footnote omitted); Operating Engineers Local 150 (Hankes Plumbing), 298 NLRB 650, 652 (1990). and/or ASN to assign the disputed work to employees Local 134 represents.6 Accordingly, for these reasons, we deny Local 134’s motion to quash the hearing and 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 Local 1212 (Co- lumbia 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 ex- perience, reached by balancing the factors involved in a particular case. Machinists Lodge 1743 (J. A. Jones Con- struction), 135 NLRB 1402 (1962). The following factors are relevant in making the de- termination of this dispute. 1. Collective-bargaining agreements ASN is signatory to an agreement with CWA. Al- though the CWA contract with ASN has no specific “scope of work” provision, ASN’s employees employed under that contract perform the disputed work. While the Local 134 agreements cover the type of work in dispute, neither ASN nor Pepper is signatory to an agreement with Local 134. Therefore, because the subcontractor who successfully bid on the work is signatory to only a CWA contract, this factor favors an award of the dis- puted work to employees represented by CWA.7 2. Employer preference Tom Bailey, ASN vice president of sales, was the rep- resentative of management in charge of the alarm instal- lation work at Target stores. He testified that it was ASN’s preference to have its employees represented by CWA perform the alarm installation work. This factor 6 The fact that an object of the picketing was to force reassignment of the work by Pepper, rather than by its subcontractor ASN (the Em- ployer controlling the work), is not a defense. See, e.g., Asbestos Workers Local 91 (Northern Tier Insulations), 278 NLRB 1138, 1139 fn. 7 (1986). Nor does Sec. 8(b)(4)(D) require that the threat or coer- cion which it proscribes be directed to the employer possessing the power to assign disputed work (ASN). The violation is complete if “any person” (Pepper), is threatened or coerced and an object of that conduct is to force or require “any employer” (ASN) to assign disputed work to one group rather than another. Electrical Workers Local 26 (McCloskey & Co.), 147 NLRB 1498, 1504 fn. 14 (1964), citing Oper- ating Engineers Local 450 v. Elliot, 256 F. 2d 630, 635 (5th Cir. 1958). 7 Contrary to his colleagues, Member Walsh finds that this factor does not favor an award of the disputed work to either group of em- ployees. In his view, the fact that ASN applied a CWA contract to its employees who were assigned the disputed work is insufficient to es- tablish that the contract itself covers the disputed work and supports awarding the disputed work to those employees. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 126 favors an award to the ASN employees represented by CWA. 3. Area and industry practice The record demonstrates that ASN has performed alarm installation work for Target stores in several Mid- western States over the years. IBEW introduced testi- mony that employees it represents have considerable experience installing fire and burglar alarm systems in Cook County, where the work dispute occurred. How- ever, as argued by Pepper, there is not substantial evi- dence as to area and industry practice. In our view, this factor does not favor an award of the disputed work to either of the employee groups in this instance. 4. Relative skills and training The evidence presented at the hearing shows that the ASN employees, represented by CWA, possess the re- quired skills and training to perform the disputed work. CWA acknowledged that IBEW electricians were also qualified to perform the disputed work. Accordingly, we find that the factors of skills and training do not favor awarding the disputed work to either group of employ- ees. 5. Economy and efficiency of operations Pepper and ASN contend that it is more efficient for ASN to use its own CWA-represented employees to per- form the disputed work than it is to assign it to IBEW- represented employees. ASN employees have performed the exact alarm work at issue here—installing Radionics systems on multiple other Target jobs. Further, when the work was reassigned to IBEW-represented employees, ASN was required to send its Radionics certified em- ployee to oversee the hands-on installation work by Lo- cal 134 members who do not have the same experience or certification. Accordingly, we find that this factor favors awarding the disputed work to ASN’s employees represented by CWA. Conclusions After considering all the relevant factors, we conclude that employees represented by CWA are entitled to per- form the work in dispute. We reach this conclusion rely- ing on the factors of collective-bargaining agreements, employer preference, and economy and efficiency of operations. In making this determination, we are award- ing the work to employees represented by CWA, not to that Union or its members. The determination is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE 1. Employees of Alarm Systems Network, represented by Communications Workers of America, District 4 are entitled to perform the installation of fire and burglar alarm systems at the jobsite located at 171 East West Road, Calumet City, Illinois. 2. International Brotherhood of Electrical Workers, Local 134 is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Pepper Construction Com- pany and Alarm Services Network to assign the disputed work to employees represented by it. 3. Within 14 days from this date, International Broth- erhood of Electrical Workers, Local 134 shall notify the Regional Director for Region 13 in writing whether it will refrain from forcing Pepper Construction Company and Alarm Services Network, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination.