International Brotherhood Of Electrical Workers, Local 3, Afl-Cio

370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD International Brotherhood of Electrical Workers, Local 3, AFL-CIO and Regional Scaffolding & Hoisting Co., Inc. and Local 1536, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case 2-CD-745 April 1, 1988 DECISION AND DETERMINATION OF - DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON The charge in this Section 10(k) proceeding was filed July 7, 1987, 1 by the Employer, Regional Scaffolding & Hoisting Co., Inc., alleging that the Respondent, Local 3, International Brotherhood of Electrical Workers, AFL-CIO, violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to em- ployees it represents rather than to employees rep- resented by Local 1536, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. The hearing was held September 17 and October 2 before Hearing Officer Mary Mooney. 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, 2 the Board makes the following fmd- ings. I. JURISDICTION The Employer, a New York corporation, is en- gaged in the operation of installing and maintaining exterior material and personnel hoists (elevators) in the construction industry. In the course and con- duct of its business operations, the Employer annu- albr derives gross revenues in excess of $500,000 and purchases and receives scaffolding and other materials valued in excess of $50,000 directly from suppliers located outside the State of New York. We find that the Employer is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. The parties stipulate, and we find, that 1 All dates refer to 1987 unless otherwise specified. 2 After the hearmg was closed, the Electrical Workers Local 3 for- warded to the Board a copy of a decision by the New York Plan for the Settlement of Jurisdictional Disputes. The Employer excepts to this prof- fer of additional evidence, asserting that the decision may not be added to the record after the close of the hearing absent a motion for reconsid- eration or for a reopening of the record. We agree with the Employer and therefore do not admit the additional evidence into the record We note that consideration of this document would deny the parties the op- portunity for vow dire and cross-examination and would violate the Board's Rules. See Secs. 102.90, 102.65(e)(1), and 102.68 of the Board's Rules and Regulations Electrical Workers Local 3 and Carpenters Local 1536 are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute As a member of the Hoisting Trade Association of New York, Inc., the Employer is party to a col- lective-bargaining agreement with Carpenters Local 1536. Pursuant to the collective-bargaining agreement, the Employer employs members of Carpenters Local 1536 to install and maintain its material hoists. The Employer has never had a col- lective-bargaining relationship with Electrical Workers Local 3 and does not employ any mem- bers of Electrical Workers Local 3. In March, the Employer began installation of its material hoist at a jobsite which is located at 60 Wall Street, New York, New York. The installa- tion involved, among other things, running a powerline to the hoist from the main power source provided by the general contractor, hooking up the control lines from the hoist motor to the base tower unit, and installing the upper and lower limit switches? 3 brackets, and gate switches on the hoist. The Employer assigned all of this work to mem- bers of Carpenters Local 1536. Concurrent with the installation work, members of Electrical Workers Local 3 were performing electrical work for Arc Electric, the subcontractor providing the electrical power at the construction site. Electrical Workers Local 3 approached the Employer about performing some of the hoist in- stallation work, particularly the running of the powerline and the hookup of the control lines. The Employer's vice president, Michael Mazzucca, in- formed Michael Whalen, business agent for Electri- cal Workers Local 3, that the work would be as- signed to carpenters. When the Employer attempt- ed to proceed with the installation work, however, it was unable to do so as it was unable to obtain the necessary electrical power, even though all other contractors at the site had power. Mazzucca contacted Electrical Workers Local 3 in an attempt to resolve the dispute and have power restored at the site. According to Mazzucca, he was informed by Whalen that power would be provided to the Employer if the Employer agreed to permit members of Electrical Workers Local 3 who were working at the site to perform the dis- puted work. Mazzucca further testified that the Employer was under pressure from the general Limit switches are electrical switches which automatically stop the hoist car at the top or bottom of the hoist tower. These switches prevent the hoist car from crashing through either end of the tower. 288 NLRB No. 33 ELECTRICAL WORKERS IBEW LOCAL 3 (REGIONAL SCAFFOLDING) 371 contractor to get the hoist working because con- struction work on the upper floors of the building could not proceed until the material hoist was com- pleted. Because of this pressure, Mazzucca acceded to the Electrical Workers' demand and agreed to allow members of Electrical Workers Local 3 to run the powerline from the main power source to the Employer's hoist and hook up the control line from the hoist motor to the base tower unit. After the Employer agreed to allow Electrical Workers Local 3's members to perform the work, power was restored to the Employer at the site. Electrical Workers Local 3, however, denies any involvement with the Employer's loss of power at the site. In late June, the Employer attempted to raise the hoist tower several floors so that materials could be brought to the upper floors which were under construction. This procedure is commonly known as "jumping." When a jump is made, the hoist tower is raised by the hoist car. The upper limit switches are removed by hand and reattached to the hoist tower at the top floor. According to the Employer, this procedure does not involve the per- formance of any electrical work and takes only 15 minutes if done properly. The Employer assigned the work to carpenters. The Employer's attempt to perform the June jump, however, was unsuccessful because it was unable to obtain electrical power. When the Em- ployer contacted a representative of the Carpenters Union to find out why the jump had not been com- pleted, it was informed that Electrical Workers Local 3 wanted to have its members do the upper limit switch work. Mazzucca contacted Whalen, who confirmed that Electrical Workers Local 3 felt it was necessary to have its members on the jump. The Employer refused to assign the work to members of Electrical Workers Local 3 and filed the instant charge. After the charge was filed, the Employer's power was restored at the site and the jump was successfully completed by carpenters in early July. Again, Electrical Workers Local 3 denies any in- volvement with the Employer's loss of power at the site. B. Work in Dispute The record evidence indicates that the disputed work involved the installation and maintenance work on the material hoists, including running a power line to the hoist from the main power source, hooking up the control lines from the hoist motor to the base tower unit, and installing and ad- justing the upper and lower limit switches, brack- ets, and gate switches on the hoist, at the jobsite lo- cated at 60 Wall Street, New York, New York.4 C. Contentions of the Parties Electrical Workers Local 3 asserts that this Sec- tion 10(k) proceeding is not properly before the Board as there is no reasonable cause to believe that Section 8(b)(4)(D) has been violated. Further- more, it asserts that there is an agreed-upon method for voluntary adjustment of this dispute. Specifically, Electrical Workers Local 3 contends that this dispute should be settled under the New York Plan for the Settlement of Jurisdictional Dis- putes (the Plan) as contained in its agreement with the New York Electrical Contractors Association. The Employer contends that it is not currently covered by the Plan under its collective-bargaining agreement with the Carpenters. 5 Furthermore, the Employer points out that its collective-bargaining agreement with Carpenters Local 1536 provides for the resolution of jurisdictional disputes by a Juris- dictional Panel established jointly by the Hoisting Trade Association of New York and the Carpen- ter's District Council. Thus, it contends that there is no agreed-upon voluntary method for the resolu- tion of the instant dispute, and absent such a method for dispute resolution, the dispute is prop- erly before the Board and the Board should award the work in question to carpenters. 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 find reasonable cause to believe that Section 8(b)(4)(D) has been violated and that the parties have not agreed to a method for voluntary adjustment of the dispute. Electrical Workers Local 3 contends that there is no reasonable cause to believe Section 8(b)(4)(D) has been violated because it had nothing to do with the Employer's loss of electrical power. It is not the Board's duty to determine at this time whether an 8(b)(4)(D) violation of the Act has occurred, but rather only whether there is reasonable cause to believe that there has been a violation of the Act. 4 The disputed work as stated in the notice of hearing involves all work involved with the raising of the elevation of the material hoist at the jobsite located at 50 Wall Street, New York, New York. The record indicates, however, that the disputed work in reality consists of the work described above 5 Under the Employer's collective-bargaining agreement with the Car- penters, the Employer agreed to be bound to all pre-1975 decisions of the New York Plan. This provision apparently reflected the fact that prior to 1975, the Carpenters were bound to decisions by the New York Plan While the Carpenters have recently rejoined the New York Plan, the most recent agreement between the Carpenters and the Employer, agreed to after the Carpenters' return to the New York Plan, in no way binds the Employer to current decisions under the Plan 372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In light of the suspicious timing of the Employer's loss, and restoration, of electrical power and Maz- zucca's testimony that Whalen told him that power would be restored if the work in dispute was awarded to Electrical Workers Local 3, we con- clude that there is reasonable cause to believe that the Local was involved in the shutdown of the Employer's electrical power and thus reasonable cause to believe that there has been a violation of the Act. Electrical Workers Local 3 further contends that the Board should defer resolution of this dispute to the Plan. While the Employer's collective-bargain- ing agreement with the Carpenters provides for the resolution of jurisdictional disputes by a Jurisdici- tional Panel, that panel is not the Plan to which Electrical Workers Local 3 is subject. Further- more, it is clear that the collective-bargaining agreement between the Carpenters and the Em- ployer does not bind the Employer to current deci- sions under the Plan. It is well established that the Board will not defer to arbitration if all parties have not agreed to be bound by a single tripartite arbitration. Stage Employees IATSE Local 659 (King Broadcasting Co.), 216 NLRB 860, 862 (1975). Here, the parties are separately bound to different jurisdictional dispute resolution forums, they are not bound to the same jurisdictional dispute resolu- tion forum. Therefore, we will not defer. On the basis of the entire record, we conclude that there is reasonable cause to believe that a vio- lation of Section 8(b)(4)(D) has occurred and that there exists no agreed-upon method for the volun- tary adjustment of the dispute within the meaning of the Act. Accordingly, 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. Certification and collective-bargaining agreement The Employer, through the Hoisting Trade As- sociation of New York, has had a series of collec- tive-bargaining agreements with Carpenters Local 1536. Article IV of their collective-bargaining agreement provides that members of Carpenters Local 1536 will perform "the installation, erecting, removing and placing of building material hoists • . . and collar clamps to keep rails from slipping • . . and any other work and jurisdiction now in the possession of Hod Hoist Carpenters, members of Local Union 1536 (Carpenters)." The Employer has never had a collective-bar- gaining agreement with Electrical Workers Local 3. The Employer's collective-bargaining agreement with the Carpenters covering the work in dispute, and lack of any collective-bargaining agreement with the Electrical Workers, weighs in favor of awarding the work in dispute to employees repre- sented by Carpenters Local 1536. 2. The Employer's preference and past practice The Employer operates at several locations throughout the metropolitan New York area and employs Carpenters Local 1536 members at these sites to perform all the installation and maintenance work on its material hoists. Prior to March, the Employer had never assigned any work to mem- bers of Electrical Workers Local 3 and there is no evidence that workers represented by the Electri- cal Workers have ever performed this type of work on material hoists. The assignment of the dis- puted work to employees represented by Carpen- ters Local 1536 is consistent with the longstanding practice of the Employer and, therefore, this factor favors an award to employees represented by Car- penters Local 1536. 3. Relative skills The Employer's employees receive special train- ing from the manufacturer of the material hoists on the installation and operation of the hoists. There is no evidence that any members of Electrical Work- ers 3 have ever received any training relating to the installation or operation of the hoists. This factor, therefore, favors an award to employees represented by Carpenters Local 1536. 4. Economy and efficiency of operation The Employer's witness, Mazzucca, testified that it is both more economical and more efficient to have the disputed work performed by carpenters. He testified that if the Employer were required to assign this work to employees represented by Elec- trical Workers Local 3, in addition to under-utiliz- ing its carpenters, the Employer would have to spend additional time and money to train the elec- trical workers on the hoist operations. According- ELECTRICAL WORKERS IBEW LO !•,^, :e 4 ly, this factor favors an award of the disputed work to employees represented by Carpenters Local 1536. Conclusion After considering all the relevant factors, we conclude that employees represented by Carpenters 1536 are entitled to perform the work in dispute. We reach this conclusion relying on the collective- bargainging agreement between the Employer and the Carpenters, the Employer's past practice and preference, and relative skills, economy, and effi- ciency of operations. In making this determination, we are awarding the work to employees represent- ed by Carpenters Local 1536, 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 following Determination of Dispute. CAL 3 (REGIONAL SCAFFOLDING) 373 1.Employees of Regional Scaffolding & Hoisting Co., Inc. represented by Carpenters Local 1536 are entitled to perform all installation and maintenance work on the material hoists, including running a powerline to the hoist from the main power source, hooking up the control lines from the hoist motor to the base tower unit, and installing and adjusting the upper and lower limit switches, brackets, and gate switches on the hoist, at the jobsite located at 60 Wall Street, New York, New York. 2. Electrical Workers Local 3 is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Regional Scaffolding to assign the disput- ed work to employees represented by it. 3. Within 10 days from this date, Electrical Workers Local 3 shall notify the Regional Director for Region 2 in writing whether it will refrain from forcing the Employer, by means proscribed by Sec- tion 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination.