Electrical Workers Local 723 (Contel Of Indiana)

ELECTRICAL WORKERS LOCAL 723 (CONTEL OF INDIANA) 879 Local Union 723, International Brotherhood of Elec- trical Workers, AFL-CIO and Contel of Indi- ana and Local 15332, United Steelworkers of America, AFL-CIO-CLC. Case 25-CD-246 April 29, 1988 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON The charge in this Section 10(k) proceeding was filed November 30, 1987, by the Employer, alleg- ing that the Respondent, IBEW Local 723 (IBEW), violated Section 8(b)(4)(D) of the Nation- al Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to employees represented by Steel- workers Local 15332 (the Steelworkers). The hear- ing was held January 6, 1988, before Hearing Offi- cer M. Julia McKenzie. 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 Employer, with principal offices located in Atlanta, Georgia, is engaged in the operation of a telephone service as a public utility at various loca- tions in southern Indiana. During the 12 months preceding the hearing, the Employer, in the course and conduct of its business operations within Indi- ana, received goods and materials valued in excess of $50,000 from points outside the State of Indiana and had annual gross revenues in excess of $500,000. The parties stipulate, 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 and the Steelworkers are labor organiza- tions within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute Contel of Indiana' began providing telephone service to locations in the State of Indiana in June Continental Telephone Co became Contel of Indiana in January 1988. 1978, after it acquired four independent telephone companies in various areas of southern Indiana. IBEW was certified by the Board as the exclusive bargaining agent for employees at all the Employ- er's then-existing facilities, including the Jasper, In- diana facility. In October 1978, the Employer pur- chased Midwest Telephone Company, an independ- ent telephone company located in Petersburg, Indi- ana. Midwest employees were represented by the Steelworkers. The Employer retained the employ- ees at the Midwest facilities, recognized the Steel- workers as the bargaining representative of these employees, and assumed the contract between the Steelworkers and Midwest. The Employer acquired from Midwest an office at Spurgeon, Indiana, and a toll cable running from Spurgeon to Lynnville, Indiana. 2 Midwest did not own, and therefore the Employer did not acquire, the Lynnville office. Midwest's employees contin- ued to perform the maintenance work on the toll cable after the Employer purchased Midwest. In 1985 the Employer purchased the Century Telephone Company, an independent company lo- cated in Elberfeld, Indiana. Century's employees were unrepresented. In addition to the Elberfeld and Lynnville telephone exchanges, the Employer acquired from Century a local telephone line, that runs from Lynnville to Spurgeon. The local tele- phone line ran alongside the toll cable. While the Century employees did not perform any service or maintenance work on the toll cable prior to the purchase of Century by the Employer, Century employees did perform some maintenance work on the toll cable after the purchase. In June 1985 the Steelworkers filed a petition with the Board seeking an election among the El- berfeld-Lynnville employees. On July 12, 1985, the Regional Director for Region 25 issued a Decision and Order in Case 25-RC-8192 dismissing the Steelworkers' petition and finding that the Elber- feld-Lynnville employees constituted an accretion to IBEW's bargaining unit. Since that decision, the Elberfeld-Lynnville employees have been repre- sented by IBEW and covered by the contract be- tween IBEW and the Employer. In 1986 the Employer constructed a fiber optic cable from Lynnville to Spurgeon. This fiber optic cable tied into the Employer's fiber optic system and made Jasper, Indiana, the centralized exchange for the Elberfeld and Lynnville exchanges. When the fiber optic cable became operational in October 1986, the Employer abandoned the old toll cable for long-distance use although thereafter it may 2 This toll cable ties toll or long-distance service from Spurgeon into the Bell System's lines. 288 NLRB No. 96 880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD have been partially utilized for local distribution service in the Lynnville exchange. On August 6, 1986, the Steelworkers filed a grievance claiming that an "out of unit" employee performed work on the fiber optic cable at a time when a Steelworkers employee was "off work." In its written appeal of the Employer's denial of its grievance, the Steelworkers claimed the work on the fiber optic cable between Spurgeon and Lynn- ville then being performed by IBEW-represented employees. The Steelworkers rejected the Employ- er's proposed compromise plan, and the Employer denied the Steelworkers' grievance. The Steel- workers then demanded arbitration. The Employer informed IBEW that it intended to assign the work to the Steelworkers in order to avoid arbitration.3 IBEW threatened, both orally and by letters of September 28 and October 27, 1987, to strike and erect picket lines if the Employer assigned the work to the Steelworkers. B. Work in Dispute The disputed work involves the servicing and maintenance of the Employer's fiber optic cable from Spurgeon to Lynnville, Indiana. C. Contentions of the Parties The Employer contends that it has the right to assign work to those who can effectively and effi- ciently perform it. The Employer prefers to assign the work to IBEW-represented employees because such employees already maintain the local cable running alongside the fiber optic cable from Spur- geon to Lynnville and the fiber optic cable runs almost entirely within IBEW's jurisdiction. The Steelworkers contends that the Employer is obligated to assign the service and maintenance work on the fiber optic cable between Spurgeon and Lynnville to the employees it represents. It bases its argument on the fact that the fiber optic cable is merely a replacement of the old toll cable that employees represented by the Steelworkers have maintained and serviced in the past. IBEW contends that the disputed work should be assigned to employees it represents as the fiber optic cable runs almost entirely within its jurisdic- tion and it is more economical and efficient for such employees to perform the work. D. Applicability of the Statute Before the Board may proceed with a determina- tion of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable 3 The Employer sought to avoid arbitration because only the Employ- er and the Steelworkers would be bound by the arbitration. IBEW stated it would refuse to abide by the arbitrator's recommendations. cause to believe that Section 8(b)(4)(D) has been violated and that the parties have not agreed on a method for the voluntary adjustment of the dis- pute. By letters of September 28 and October 27, 1987, IBEW's business manager, Martha Simpson, in- formed the Employer that IBEW "would erect picket lines to protest the breach of it's [sic] agree- ment" and that it would "direct its members to cease performing work for Continental Telephone until such time as the work has been restored to the jurisdiction of Local 723's bargaining unit members." Patricia Sinclair, director of human re- sources for Contel of Indiana, testified that in mid- November Simpson told her, "[I]f you do [give the work to the Steelworkers] we will strike and we will erect picket lines." Additionally, the record contains no evidence showing that an agreed-upon method for the voluntary adjustment of this dispute exists to which all parties are bound. We find reasonable cause to believe that a viola- tion of Section 8(b)(4)(D) has occurred and that there exists no agreed-upon method for voluntary adjustment 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 deter- mination. 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 agreements In 1978, in Case 25-RC-6765, the Board certified IBEW Local 723 as the representative of all the Employer's employees at its then-existing facilities, which included the Jasper exchange. In 1985, in Case 25-RC-8192, the Regional Director for Region 25 found that the employees in the Elber- feld-Lynnville exchanges constituted an accretion to IBEW Local 723's Jasper bargaining unit. Since 1978, the Employer has entered into successive col- lective-bargaining agreements with IBEW. The most recent agreement covers the period March 1, 1987, through February 28, 1990. The agreement , ELECTRICAL WORKERS LOCAL 723 (CONTEL OF INDIANA) 881 recognizes IBEW as the exclusive collective-bar- gaining representative of "all plant and equipment department employees of Continental Telephone of Indiana, including all plant clerical employees and all Senior Inside Plant Technicians" and covers service clerks, telephone service technicians (line persons), telephone service technician, warehouse person, and communications technician. As set forth above, when the Employer pur- chased Midwest, it recognized the Steelworkers and assumed Midwest's collective-bargaining agree- ment with that Union. Since that time, the Em- ployer has entered into successive collective-bar- gaining agreements with the Steelworkers, the most recent covering the period April 23, 1986, through April 22, 1989. That agreement recognizes the Steelworkers as the exclusive collective-bar- gaining representative for "all plant employees covered by this Agreement" and all service clerical employees and service representatives at the -Em- ployer's Petersburg, Indiana facility. The certification of IBEW as the exclusive rep- resentative of a unit of the Employer's employees preceded the construction of the fiber optic cable. The language of the Employer's collective-bargain- ing agreement with each Union arguably encom- passes the work in dispute. Accordingly, we find the certification and collective-bargaining agree- ments are inconclusive. 2. Company preference and past practice Employees represented by IBEW regularly per- form work within the Lynnville exchange, includ- ing the service and maintenance of the local cable that runs alongside the fiber optic cable. Employ- ees represented by the Steelworkers regularly per- formed service and maintenance work on the old toll cable running between Spurgeon and Lynn- ville, which has been replaced by the fiber optic cable. At the hearing and in its brief, the Employer ex- pressed its preference that the diputed work be as- signed to employees working out of the Lynnville exchange. The Employer's assignment of the dis- puted work to employees working out of the Lynnville exchange is consistent with the Employ- er's past practice of assigning work within a given exchange to employees who report to work within that exchange. We therefore find the factors of company prefer- ence and past practice favor an award of the dis- puted work to IBEW-represented employees. 3. Relative skills We find that both groups of employees are capa- ble of performing the disputed work, given that they have performed similar work in the past. We find, therefore, that the factor of relative skills does not favor an award to either competing employee group. 4. Efficiency and economy of operations It is undisputed that IBEW-represented employ- ees are primarily responsible for service and main- tenance work on the local telephone cable that is located within the Lynnville exchange and runs alongside the fiber optic cable between Lynnville and Spurgeon. Given the Employer's uncontrovert- ed evidence that if the local cable were cut or damaged the fiber optic cable would likely be also, an award of the disputed work to Steelworkers- represented employees would mean that two work crews would have to be dispatched to do repair work at the same site. Only one crew would gener- ally be required, however, if the disputed work were awarded to IBEW-represented employees. Accordingly, this factor favors an award of the disputed work to employees represented by IBEW Local 723. Conclusion After considering all the relevant factors, we conclude that employees represented by IBEW Local 723 are entitled to perform the work in dis- pute. We reach this conclusion relying on the Em- ployer's preference and past practice and consider- ations of economy and efficiency of operations. In making this determination, we are awarding the work to employees represented by IBEW Local 723, not to that Union or its members. The deter- mination 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. Employees of Contel of Indiana represented by Local Union 723, International Brotherhood of Electrical Workers, AFL-CIO, are entitled to per- form maintenance and service work on the Em- ployer's fiber optic cable from Spurgeon to Lynn- ville, Indiana.