Electric Workers Ibew Local 6 (Intercontinental Hotels)

ELECTRICAL WORKERS IBEW LOCAL 6 (INTERCONTINENTAL HOTELS) 913 International Brotherhood of Electrical Workers, Local 6 and Intercontinental Hotels Corpora- tion and Communications Workers of America, AFL-CIO, Local 9431. Case 20-C3-633 Communications Workers are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE 19 November 1987 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS BABSON, STEPHENS, AND CRACRAFF The charge in this Section 10(k) proceeding was filed 30 December 1986 by Intercontinental Hotels Corporation, alleging that the Respondent, Interna- tional Brotherhood of Electrical Workers, Local 6 (Electrical Workers or Local 6) violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing Telarian Corporation, the Employer,' to assign certain work to employees it represents rather than to employees represented by Communi- cations Workers of America., AFL--CIO, Local 9431 (Communications Workers). The hearing was held 19 February 1987 before Hearing Officer Harvey R. Dasho.2 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. 1. JURISDICTION Telarian Corporation, the Employer, is a Califor- nia corporation with an office and place of business in Santa Barbara, California, where it is engaged in the contracting business. It is undisputed and we find that during the past calendar year, a represent- ative period, the Employer performed services out- side the State of California valued in excess of $50,000. It is undisputed and we find that the Em- ployer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It is undisputed and we find that the Electrical Workers and the i Intercontinental Hotels Corporation, the Charging Party, is the owner of the Mark Hopkins Hotel at which the disputed work is being performed by employees of Telanan Corporation , the Employer, and the contractor hired by the hotel 2 An attorney representing the Electrical Workers appeared at the hearing solely to request that it be postponed until after the hearing on the Board's motion for an injunction When the hearing officer denied her request, the attorney left the hearing and specifically abstained from any further participation in the proceedings The attorney representing the Hotel left the proceedings after the introduction of evidence concern- ing whether there was reasonable cause to believe the Act had been vio- lated There were no briefs filed by any party to these proceedings A. Background and Facts of Dispute Prior to December 1986, the Mark Hopkins Hotel began a renovation project. Certain con- struction work was performed at the hotel by a general contractor and its various subcontractors. In addition, the hotel directly contracted with Te- larian Corporation to install wiring for enunciated smoke detection and energy management systems in rooms that were being renovated. Telarian em- ploys members of the Communications Workers to perform this work. Onsite electrical work is being performed by members of the Electrical Workers pursuant to a contract with McClure Electric, the electrical subcontractor. In December 1986 Telarian actually began work on the project. Members of the Electrical Workers appeared at the site on 18 December 1986 at which time Richard Danberger, its business agent, com- plained to the hotel's chief engineer, Marvin Glenn, that the Telarian employees could not produce their union cards on his request. Glenn expressed his surprise, for he had been assured that Telarian's employees had union cards, and Glenn told Dan- berger that if the Telarian employees could not produce their union cards Glenn would ask them to leave the job. Glenn spoke with Wayne Miller, a Telarian representative, who indicated that two of the six employees had cards. When Glenn told Miller that Telarian's employees would have to leave the jobsite, Miller replied that Telarian had made arrangements for the union cards, but that they had not yet been received. Glenn further ex- plained the situation to Jim Piltingsrude, Telarian's director of marketing, who, on Friday, 19 Decem- ber 1986, obtained union cards for Telarian em- ployees. However, the Telarian employees did not work on 19 December, but returned on Monday, 22 December 1986, without incident. On Tuesday, 23 December 1986, Glenn learned that pickets were outside the construction entrance of the hotel. John Walsh, a representative of the Electrical Workers, informed Glenn that one of the six Telarian employees did not have a union card. When Glenn indicated that arrangements for the cards had been made, Walsh remarked that he would "get back" to Glenn, which he did not do. Glenn observed the pickets with signs reading, "Telarian Corp. is unfair to IBEW Local No. 6. This dispute is with Telarian only." Glenn spoke with Wayne Miller, who collected cards from five employees on the job. According 286 NLRB No. 92 914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to Miller, the sixth employee left his card at home. Glenn then spoke with the construction superin- tendent employed by the general contractor on the job who informed Glenn that McClure Electric employees had left the job when the pickets showed up and that if the pickets were on the site the next day, there was a possibility that no con- struction workers would cross the picket line. Based on this information, Glenn told Telarian not to return to the jobsite until the dispute was re- solved. About 23 December, Glenn spoke with Dan- berger and told him that Telarian would not be on the jobsite until the dispute had been resolved and asked Danberger what Telarian could do to resolve the dispute. Danberger responded that "Telarian would have to clear through Local 6." According to the Electrical Workers attorney, Local 6 sent a telegram on 29 December to the hotel's attorney disclaiming any work assignment objective . Local 6 asserted its right to picket for an area standards objective as well as to inform the public that the work was being performed in viola- tion of San Francisco code requirements.3 On 19 January 1987 the Electrical Workers began picketing again, this time with signs that said, "Unfair Telarian does not pay prevailing rates of pay for electric work." John Flynn, security manager for the hotel , asked one of the pickets why he was picketing and the picket said that Te- larian was doing electrical work and not paying electricians' scale. Flynn learned that the employ- ees of McClure Electric did not work that day. Picketing of a similar nature occurred on 20 and 21 January 1987. Employees of Telarian Corporation have not re- turned to the jobsite since the December picketing by the Electrical Workers, which , according to the hearing officer's report, has indicated it would resume picketing if Telarian employees returned. In view of the Electrical Workers' position, the Board's Regional Office, on 6 February 1987, filed for injunctive relief under Section 10(1) of the Act in United States District Court for Northern Cali- fornia. The Board's petition for a preliminary in- junction was denied. B. Work in Dispute The disputed work consists of all work related to the installation of low voltage wiring of enunciated smoke detection systems and energy management s The telegram, allegedly sent by the Electrical Workers, was not in- troduced in evidence at the hearing, nor was there any testimony by any of the parties about its contents Contents of the alleged telegram were described by Local 6's attorney, not in sworn testimony , but in her state- ment to the hearing officer requesting a postponement of the hearing systems performed by employees of Telarian Cor- poration at the Mark Hopkins-Intercontinental Hotel at One Nob Hill, San Francisco, California. C. Contentions of the Parties The Charging Party contends there is reasonable cause to believe that Section 8(b)(4)(D) had been violated based on the entire course of conduct en- gaged in by the Electrical Workers , but takes no position concerning to whom the disputed work should be awarded . The Communications Workers contends that there was no valid area standards picketing nor was there an effective disclaimer of a work assignment objective by the Electrical Work- ers. The Communications Workers contends its members should be awarded the disputed work based on its collective -bargaining contract with Te- larian Corporation and its members' skills and effi- ciency in performing the disputed work. The Elec- trical Workers takes the position that its members engaged in valid area standards picketing and that it made a valid disclaimer of a work assignment ob- jective. D. Applicability of the Statute Before the Board may proceed with a determina- tion of 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 there is no agreed-on method for the voluntary adjustment of the dispute. As noted above, the Electrical Workers' business agent, Danberger, complained to the hotel that Te- larian's employees could not produce their union cards. On 23 December 1986, when the Electrical Workers learned that a Telarian employee did not have his union card , pickets appeared at the jobsite with signs reading "Telarian Corp. is unfair to IBEW Local No. 6. This dispute is with Telarian only." Employees of McClure Electric, the electri- cal subcontractor on the job , left the job when the pickets arrived. The general contractor 's construc- tion superintendent informed the hotel that if pick- ets were on the site the next day, there was a possi- bility that no construction workers would cross the picket line. The hotel then told Telarian's employ- ees not to return to work until the dispute was re- solved. Danberger informed the hotel that in order to resolve the dispute, "Telarian would have to clear through Local 6." Picketing began again on 19 January 1987 with signs reading "Unfair Telarian does not pay pre- vailing rates of pay for electric work." One of the pickets indicated he was on the jobsite because Te- larian was doing electrical work and not paying electricians' wages. Employees of McClure did not ELECTRICAL WORKERS IBEW LOCAL 6 (INTERCONTINENTAL HOTELS) work that day. Telarian 's employees have not re- turned to the hotel jobsite since December in view of the Electrical Workers intent to resume picket- ing if they do so. The Electrical Workers contends it made a dis- claimer of any work assignment objective on 29 December 1986, that it has engaged in no conduct since that time which is inconsistent with its dis- claimer, and that picketing which has occurred since the disclaimer was valid area standards pick- eting. Regarding the Electrical Workers' alleged dis- claimer, the Board has held that "a jurisdictional dispute no longer exists when one of the competing unions or parties effectively renounces its claim to the work at issue. The party raising such an issue, however, has the burden to satisfy the Board's re- quirements of a clear, unequivocal, and unqualified disclaimer of all interest in the work in dispute."4 At the outset, we note that there exists the Electri- cal Workers attorney's mere assertion that a tele- gram was sent to the hotel allegedly disclaiming a work assignment objective. The telegram is not in evidence and there is no record testimony by the hotel concerning whether it was received and, if it was received, what it stated . Even assuming such,a telegram was sent, however, it is our opinion that picketing engaged in by the Electrical Workers subsequent to the telegram negates any intention on its part to disclaim the disputed work. Thus, we shall not honor the Electrical Workers' alleged dis- claimer of the disputed work. The Electrical Workers also asserts that it en- gaged in lawful area standards picketing about 19 January 1987, with its signs indicating that Telarian did not pay prevailing rates of pay for electrical work. However, there is no evidence indicating that the Electrical Workers ever contacted the Em- ployer regarding wages paid to its employees rep- resented by the Communications Workers or in any other fashion ascertained such wage information. Thus, it is clear that the Electrical Workers never made a reasonable inquiry into the Employer's pay scales. Accordingly, we find no merit in this con- tention. Considering all the circumstances and rejecting the Electrical Workers' contentions to the con- trary, we find that there is reasonable cause to be- lieve that an object of the Electrical Workers' con- duct was to force the Employer to assign the dis- puted work to employees represented by the Elec- trical Workers, and thus that Section 8(b)(4)(D) has been violated. We particularly note the Electrical Workers' keen interest in whether Telarian's em- 4 Electrical Workers IBEW Local 202 (W B Skinner), 271 NLRB 171, 172 (1984) 915 ployees had union cards and Danberger's statement that Telarian could resolve the "dispute" if it would "clear through Local 6." We also note the language of the picket signs, one indicating that Telarian is "unfair to IBEW Local No. 6." and an- other one indicating that Telarian did not pay pre- vailing wages for "electric work." This entire course of conduct leads us to believe that the Elec- trical Workers, having assumed that the work being done by Telarian was, in fact, electrical work, intended to obtain that work for its members and engaged in activity designed to force the Em- ployer to change its work assignment. Accordingly, we conclude that there is reasona- ble cause to believe that a violation of Section 8(b)(4)(D) has occurred. Furthermore , there is no evidence and no party contends that an agreed-on method exists for the voluntary adjustment of this dispute. Therefore, we find that this dispute is properly before the Board for determination. 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 is no certification covering the disputed work. The employees of the Employer who are performing the disputed work are represented by the Communications Workers and are performing their work pursuant to a collective-bargaining agreement with the Company , which covers the disputed work. We conclude that this factor favors awarding the work to employees represented by the Communications Workers. 2. Company past practice It is undisputed that the Employer during the past 10 years has used Communications Workers members to perform the type of work in dispute. We find that the Employer's past practice favors its assignment of the disputed work to employees rep- resented by the Communications Workers. 916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3. Area and industry practice It is undisputed that the Communications Work- ers represents employees employed by contractors in the San Francisco Bay area who are performing work of the same type as the disputed work. We therefore find that this factor tends to favor an award of the disputed work to employees repre- sented by the Communications Workers. 4. Relative skills The undisputed testimony of the Employer indi- cates that the disputed work requires the skills of a person trained in electronic, rather than electrical, work. Its employees, represented by the Communi- cations Workers, have the necessary skills and the Employer is satisfied with their work. The Em- ployer testified that it uses specific test equipment, tools, and color coding for wiring with which members of the Electrical Workers may not be fa- miliar, and that electricians normally do not have the training to understand the fundamentals of the analog and digital distribution systems and comput- erized central processing systems used by the Em- ployer. We find that this factor favors an award of the disputed work to employees represented by the Communications Workers. 5. Economy and efficiency of operations The Employer testified that it is more efficient for employees represented by the Communications Workers to perform the disputed work because of the skills they possess. According to the Employ- er's undisputed testimony, members of the Electri- cal Workers are not able to complete the total job, which would thus require that another group of employees be brought in to complete the disputed work. The Employer testified that such a two-step procedure would create problems in managing the installation of the smoke detection and energy man- agement systems at issue here. The Employer testi- fied that at a different jobsite the electricians could not carry the work through the final installation stage because they did not have the knowledge and training to do so. The Employer was required to bring in other trained employees to finish the job. We find that this factor favors an award of the dis- puted work to employees represented by the Com- munications Workers. Conclusions After considering all the relevant factors, we conclude that the employees represented by Com- munications Workers of America, AFL-CIO, Local 9431 are entitled to perform the work in dis- pute. We reach this conclusion relying on the facts that such an award is consistent with the Employ- er's current collective-bargaining agreement with the Communications Workers; the employees rep- resented by the Communications Workers possess the requisite skills to perform such work; such an award will result in greater efficiency of oper- ations; the assignment is in accord with area prac- tice; and it is consistent with the Employer's past practice. In making this determination, we are awarding the work to employees represented by Communications Workers of America, AFL-CIO, Local 9431, not to that Union or its members. We also find that International Brotherhood of Electri- cal Workers, Local 6, is not entitled by means pro- scribed by Section 8(b)(4)(D) of the Act to force or require the Employer to assign the disputed work to employees it represents. The present deter- mination is limited to the particular controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Employees of Telarian Corporation, who are currently represented by Communications Workers of America, AFL-CIO, Local 9431, are entitled to perform all work related to the installation of low- voltage wiring of enunciated smoke detection sys- tems and energy management systems at the Mark Hopkins-Intercontinental Hotel at One Nob Hill, San Francisco, California. 2. International Brotherhood of Electrical Work- ers, Local 6, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Telarian Corporation to assign the disputed work to employees represented by it. 3. Within 10 days from this date, International Brotherhood of Electrical Workers, Local 6, shall notify the Regional Director for Region 20 in writ- ing whether it will refrain from forcing the Em- ployer, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsist- ent with this determination. MEMBER CRACRAFT, dissenting. I do not agree with my colleagues' holding that there is reasonable cause to believe that an object of the Electrical Workers' conduct was to force the Employer to assign disputed work to employ- ees it represented. A prerequisite to finding that a jurisdictional dispute exists is that there be "com- peting claims to . . . disputed work between rival groups of employees."' There is not reasonable ' Federation of Special Police & Law Enforcement Officers, 242 NLRB 1076, 1077 (1979) ELECTRICAL 'WORKERS IBEW LOCAL 6 (INTERCONTINENTAL HOTELS) 917 cause to believe that two groups of employees are competing for the work allegedly in dispute. Much of the record evidence concerning an al- leged work dispute is ambiguous at best and re- veals only that the Electrical Workers may have had some nonspecific complaint with either the hotel or with Telarian . Even putting the evidence in the light most unfavorable to the Respondent, it is not possible on this record to determine what that complaint might have been. Both Richard Danberger and John Walsh complained to the hotel that Telarian's employees did not have union cards. Even after being assured that arrangements for Telarian's employees to have union cards had been made, the hotel decided to pull Telarian's em- ployees off the job. There had been no request that it do so and no direct communication from the Electrical Workers regarding the source of its con- cern. The first picket sign merely said that "Telar- ian Corp. is unfair to IBEW Local No. 6" without indicating how Telarian was being unfair. Dan- berger's statement to Glenn that "Tellarian would have to clear through Local 6" to resolve the al- leged dispute is ambiguous, contains no hint of what the "dispute" was, and contains no direct re- quest for action by any party herein . The second picket sign stated "Unfair Te larian does not pay prevailing rates of pay for electric work." While this picket sign may not qualify as legitimate area standards picketing, neither does it indicate that there is a dispute over a work assignment. In my opinion, the facts simply do not allow an inference to be drawn that there is any real compe- tition between the Communications 'Workers and the Electrical Workers for a specific work task. None of the conversations between the hotel and representatives of the Electrical Workers indicate that the electrical workers were disgruntled about a work assignment . There is no indication that the Electrical Workers, either directly or indirectly, sought a reassignment of the work allegedly in dis- pute. There is no indication that the Electrical Workers pressed Telarian , which controlled the work assignment, to change the work assignment or that the hotel , as the general contractor, asked for a change . While the Electrical Workers en- gaged in picketing, the purpose of this economic activity does not appear related to any asserted right of Local 6 members to perform a specific work task. In short, the record evidence simply does not allow any reasonable inference that the Electrical Workers engaged in the above activity with the objective of forcing the Employer to make a particular work assignment to employees represented by the Electrical Workers. The Board has repeatedly held that Sections 8(b)(4)(D) and 10(k) "were intended to deal with disputes between two or more competing employee groups claiming the right to perform certain tasks . . . ."2 Absent competing claims between rival groups of employees to perform the work allegedly in dispute, there is no jurisdictional dispute within the meaning of Section 8(b)(4)(D) and Section 10(k) of the Act. Accordingly, I would quash the notice of hearing. 2 Teamsters Local 839 (Shurtleff & Andrews Constructors), 249 NLRB 176, 177 (1980)