US Utility Contractor Co.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 355 NLRB No. 59 344 International Brotherhood of Electrical Workers, Local No. 71 and US Utility Contractor Com- pany, Inc. and Laborers’ International Union of North America, Local 1216. Case 8–CD–506 July 30, 2010 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN LIEBMAN AND MEMBERS BECKER AND PEARCE This is a jurisdictional dispute proceeding under Sec- tion 10(k) of the National Labor Relations Act (the Act). US Utility Contractor Company, Inc. (the Employer), filed a charge on January 11, 2010, alleging that Interna- tional Brotherhood of Electrical Workers, Local No. 71 (Electrical Workers) 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 represented by Electrical Workers rather than to em- ployees represented by Laborers’ International Union of North America, Local 1216 (Laborers). The hearing was held on February 8, 2010, before Hearing Officer Greg- ory M. Gleine. At this hearing, Laborers orally moved to quash the notice of hearing. After the hearing officer referred this motion to the Board for ruling, Laborers filed a memorandum in support of its motion to quash, and the Employer and Electrical Workers each filed a memorandum in opposition to Laborers’ motion to quash. The Employer, Electrical Workers, and Laborers also filed posthearing briefs. 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 Employer is a Perrysburg, Ohio-based electrical contractor engaged in outdoor electrical work, including the construction and installation of highway and traffic signal lights, highway lighting, and streetscape lighting. The parties stipulated that during the 12-month period prior to January 12, 2010, the Employer purchased goods from outside the State of Ohio valued in excess of $50,000, and performed services in states other than the State of Ohio valued in excess of $50,000. The parties further stipulated that the Employer is an employer within the meaning of Section 2(2) of the Act, and we find that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The parties addition- ally stipulated, and we find, that Electrical Workers and Laborers are labor organizations within the meaning of 2(5) of the Act. II. THE DISPUTE A. Background and Facts of the Dispute The Employer is a signatory, through the National Electrical Contractors Association (NECA), to a collec- tive-bargaining agreement with Electrical Workers for outside electrical work (outside agreement), effective December 31, 2007, to January 3, 2010. That agreement covers the “installation and maintenance of highway and street lighting, highway and street sign lighting, elec- tronic message boards and traffic control systems, cam- era systems, traffic signal work, substation and line con- struction including overhead and underground projects.” The Employer does not have a collective-bargaining agreement with Laborers. However, Laborers has a col- lective-bargaining agreement with the Ohio Contractors Association (OCA), of which Anderzack-Pitzen Con- struction, Inc. (Anderzack), a general contractor, is a member. That agreement (heavy highway agreement), effective May 1, 2007, to April 30, 2010, covers “High- way Construction” and requires that “all subcontractors shall be subjected to the terms and provisions of this Agreement.” Anderzack is the general contractor on a highway re- construction project funded by the Ohio Department of Transportation in Bucyrus, Ohio. On August 12, 2009,1 Anderzack awarded a subcontract to the Employer to perform decorative street lighting and traffic signal in- stallation work on this project. On about October 8, the Employer commenced work on this project using a 3–4 person crew of employees represented by Electrical Workers. On October 29, Anderzack notified the Employer that Laborers had filed a grievance against Anderzack, alleg- ing that Anderzack’s subcontract with the Employer vio- lated the subcontracting provision of the heavy highway agreement. The Employer’s district manager, Patrick McKeown, testified that, in a telephone call later that day with La- borers’ Business Manager Perry Johnson, Johnson stated that Laborers-represented employees do all the traffic signal, street lighting, and highway lighting work throughout the state, except for the “hot hookups.” McKeown testified that he then asked Johnson whether the Employer had to use “your people,” and Johnson replied “yes,” adding “[i]t’s their work.”2 1 Unless otherwise specified, all dates are in 2009. 2 Johnson testified that he told McKeown during this conversation that Laborers has a collective-bargaining agreement with Anderzack, but that he rejected a suggestion by McKeown that the Employer em- ploy Laborers-represented employees on the project. ELECTRICAL WORKERS LOCAL 71 (US UTILITY CONTRACTOR CO.) 345 In late November, Anderzack notified the Employer that Laborers-represented employees were going to be placed on the Bucyrus Project. Subsequently, on about November 23, Anderzack placed one Laborers- represented employee on the crew together with the Em- ployer’s Electrical Workers-represented employees. By letter dated November 27, Electrical Workers’ Business Manager Patrick Grice informed the Em- ployer’s President Stan Chlebowski that, under the Em- ployer’s collective-bargaining agreement with Electrical Workers, the Employer was prohibited from using em- ployees other than those represented by Electrical Work- ers to perform work on the Bucyrus project. The letter stated: “Be advised that should US Utilities continue to violate and/or breech [sic] the [outside agreement]; Grievances will be filed against US Utilities Company.” The letter further stated: “In addition, Picket Lines, Strike activity and the filing of charges with the National Labor Relations Board will be levied against US Utilities Company.” Grice concluded by stating that Electrical Workers “will do whatever is necessary to protect the integrity of the [outside agreement] and protect IBEW jobs.” In a letter dated December 2, Anderzack’s General Manager Pam Pitzen notified Chlebowski that the “work required by your firm that is not directly related to elec- trical hook up, wiring, etc. is being claimed by the La- borers.” Pitzen added that Laborers demanded that two Laborers-represented employees “perform the manual labor (other than electrical) on this project.” Pitzen stated that Anderzack would provide another Laborers- represented employee to assist on the Bucyrus project and that Anderzack would charge the Employer for all hours worked by the Laborers-represented employees. In December, the Employer utilized a four-employee composite crew on the Bucyrus project, consisting of two employees represented by Electrical Workers and two employees represented by Laborers. The Laborers- represented employees performed the nonelectrical work on the project, which involved digging trenches, piecing together conduit, forming concrete pads, and anchoring bolts. Subsequently, Anderzack billed the Employer for the hours worked by the Laborers-represented employ- ees. On December 31, Electrical Workers filed a grievance against the Employer alleging, among other things, that the Employer had failed to use Electrical Workers as the exclusive source of referral of applicants for employment on the project. On January 4, 2010, Electrical Workers picketed the Bucyrus project site. No work was performed on the jobsite on that day and no further work was performed that week. B. Work in Dispute The work in dispute involves trenching, laying of con- duit, pulling of wiring, the installation of decorative lighting, and the installation of traffic signals at an Ohio Department of Transportation project located in Bucyrus, Ohio, performed by US Utility Contractor Co., Inc. C. Contentions of the Parties Laborers argues that the notice of hearing should be quashed, contending that it has not claimed the disputed work. Relying on Laborers (Capitol Drilling Supplies), 318 NLRB 809 (1995) (union’s action through grievance procedure to enforce claim against general contractor does not constitute claim against subcontractor for work in dispute), Laborers argues that it has pursued only a contractual grievance against Anderzack for failing to honor the subcontracting clause in the heavy highway agreement. Laborers also contends that Electrical Work- ers’ threat was a sham, and was contrived in order to create a jurisdictional dispute and thereby obtain the work assignment preferred by the Employer.3 The Employer and Electrical Workers oppose the mo- tion to quash. They contend that there is reasonable cause to believe that Section 8(b)(4)(D) has been vio- lated, as evidenced by Electrical Workers’ threat to picket and its actual picketing of the jobsite. They fur- ther contend that there are competing claims to the dis- puted work, and therefore the motion to quash should be denied. In particular, they contend that Laborers pressed its claim for the work directly to the Employer when, during the October 29 phone call with Employer District Manager McKeown, Laborers Business Manager John- son told McKeown that Laborers-represented employees do all the lighting and traffic signal installation work all over the state, and that the work in dispute is “their work.” They further contend that Laborers’ claim for the work is demonstrated by the fact that, for a brief period in November and December, Laborers-represented em- ployees performed the work in a composite crew with the Employer’s Electrical Workers-represented employees.4 3 In its posthearing brief, Laborers did not set forth any contentions regarding the merits of the dispute. Laborers did, however, introduce some evidence relevant to the merits, and that evidence is considered below. 4 The Employer and Electrical Workers also contend that Laborers made a claim for the work in dispute when it requested that the Em- ployer sign the heavy highway agreement to resolve a grievance filed against another general contractor, Shelly Company, on a project in Lima, Ohio. The Employer further contends that Laborers also claimed the work when, in a meeting held to discuss the grievance concerning the Lima project, the vice president of the Laborers International Un- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 346 On the merits, the Employer and Electrical Workers assert that the work in dispute should be awarded to em- ployees represented by Electrical Workers based on the factors of collective-bargaining agreements, employer preference and past practice, area and industry practice, relative skills, and economy and efficiency of operations. D. Applicability of the Statute Before the Board may proceed with determining a dis- pute pursuant to Section 10(k) of the Act, there must be reasonable cause to believe that Section 8(b)(4)(D) has been violated. This standard requires finding that there is reasonable cause to believe that: (1) there are competing claims for the disputed work among rival groups of em- ployees;5 (2) a party has used proscribed means to en- force its claim to the work in dispute;6 and (3) the parties have not agreed on a method for the voluntary adjust- ment of the dispute.7 On this record, we find that this standard has been met. 1. Competing claims for the work We find that there are competing claims for the work in dispute. Electrical Workers has at all times claimed the work in dispute for the employees it represents, and those employees have been performing the work. Fur- ther, Electrical Workers Business Manager Grice’s No- vember 17 letter to the Employer claimed the work in dispute for employees represented by Electrical Workers. Laborers contends, however, that it has not claimed the work in dispute, but rather merely filed a grievance against Anderzack for breach of the subcontracting clause in the heavy highway agreement. See Capitol Drilling, supra. We disagree. First, its claim is demon- strated by the fact that employees it represents briefly performed the work in a composite crew with employees represented by Electrical Workers.8 Further, as stated above, McKeown testified that, in his October 29 phone conversation with Johnson, Johnson replied affirmatively when asked whether the Employer was required to use ion, Ralph Cole, told McKeown that “traffic signal work and street- lighting work belongs to the Laborers’, with the exception . . . of any electrical connections, hot connections.” 5 Carpenters Local 275 (Lymo Construction Co.), 334 NLRB 422, 423 (2001). 6 See, e.g., Electrical Workers Local 3 (Slattery Skanska, Inc.), 342 NLRB 173, 174 (2004). 7 Operating Engineers Local 150 (R&D Thiel), 345 NLRB 1137, 1138–1139 (2005). 8 See Operating Engineers Local 542 (Caldwell Tanks, Inc.), 338 NLRB 507, 509 (2002) (observing that the Board has long held that employees’ performance of work is evidence of their claim to that work, even absent an explicit claim); Longshoremen ILWU Local 14 (Sierra Pacific Industries), 314 NLRB 834, 836 (1994) (performance of work by a group of employees is evidence of a claim for work by those employees, even in the absence of an explicit claim). “your people,” adding “[i]t’s their work.” Although La- borers disputes the validity of this testimony, we find that it is sufficient to establish reasonable cause to believe that Laborers made a claim for the disputed work. See J.P. Patti Co., 332 NLRB 830, 832 (2000).9 In view of the evidence that Laborers performed some of the work in dispute and made a claim directly to the Employer for the work, we find the instant case distinguishable from Capitol Drilling. 2. Use of proscribed means We also find that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. As set forth above, Electrical Workers stated in its November 27 let- ter to the Employer that if the Employer assigned the work to employees other than those represented by Elec- trical Workers, “Picket Lines, Strike activity and the fil- ing of charges with the National Labor Relations Board will be levied against [the Employer].” Additionally, Electrical Workers picketed the jobsite in January 2010. Laborers argues that Electrical Workers’ actions were a sham in order to obtain the work assignment through this 10(k) proceeding. Laborers does not, however, offer any direct evidence demonstrating that Electrical Work- ers did not intend its threat to be taken seriously. To the contrary, Electrical Workers carried out its threat to picket on January 4, 2010. See Operating Engineers Lo- cal 150 (Royal Components, Inc.), 348 NLRB 1369, 1370 (2006) (picketing accompanied by claim for work constitute reasonable cause to believe that a union used proscribed means). We therefore find reasonable cause to believe that Section 8(b)(4)(D) has been violated. 3. No voluntary method for adjustment of dispute The parties have stipulated, and we find, that there is no agreed-upon method for voluntary adjustment of the dispute to which all parties are bound. In view of the evidence above, we find reasonable cause to believe that there are competing claims for the work in dispute and that a violation of Section 8(b)(4)(D) has occurred, and that no voluntary method exists for adjustment of the dispute. We thus find that the dispute is properly before the Board for determination, and ac- cordingly deny Laborers’ motion to quash the notice of hearing. 9 The Board need not rule on the credibility of testimony in order to proceed to the determination of a 10(k) dispute because the Board need only find reasonable cause to believe that the statute has been violated. Electrical Workers Local 363 (U.S. Information Systems), 326 NLRB 1382, 1383 (1998). We also find it unnecessary to address the Employer’s and Electrical Workers’ contentions that Laborers made additional claims for the work, as set forth in fn. 4, supra. ELECTRICAL WORKERS LOCAL 71 (US UTILITY CONTRACTOR CO.) 347 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, 1410–1411 (1962). The following factors are relevant in making the de- termination in this dispute. 1. Certifications and collective-bargaining agreements There is no evidence of Board certifications concern- ing the employees involved in this dispute. The parties stipulated that the Employer and Electrical Workers are bound to the outside agreement, which cov- ers the “installation and maintenance of highway and street lighting, highway and street sign lighting, electric message boards and traffic control systems, camera sys- tems, traffic signal work, substation and line construc- tion, including overhead and underground projects.” In contrast, it is undisputed that the Employer does not have a collective-bargaining agreement with Laborers.10 Accordingly, we find that the factor of collective- bargaining agreements favors an award of the disputed work to the employees represented by Electrical Work- ers. 2. Employer preference and past practice Employer District Manager McKeown testified that the Employer prefers to have the disputed work per- formed by Electrical Workers-represented employees. At the hearing, McKeown and Electrical Workers Business Manager Grice testified that the Employer has historically assigned this type of work to its Electrical Workers-represented employees. There is no evidence that, other than during the brief period in November and December, the Employer ever used Laborers-represented employees to perform work of the kind in dispute. Ac- cordingly, we find this factor favors an award of the dis- puted work to employees represented by Electrical Workers. 10 Although Laborers has a collective-bargaining agreement with Anderzack, that agreement is not applicable because the company that ultimately controls the job assignment is deemed to be the employer for purposes of a 10(k) proceeding. Plasterers Local 502 (PBM Concrete), 328 NLRB 641, 644 (1999); Operating Engineers Local 150 (Austin Co.), 296 NLRB 938, 940 (1989). 3. Area and industry practice Grice testified that employees represented by Electri- cal Workers have performed work of the kind in dispute in Crawford County, Ohio, where Bucyrus is located, and the surrounding areas for at least 30 years. Grice also testified that, throughout Ohio, other electrical con- tractors have assigned traffic signal and streetscape light- ing installation work to employees represented by Elec- trical Workers. The Employer’s foreman, Aaron Grand, testified that he has worked on hundreds of signal instal- lation projects and street lighting projects as an Electrical Workers-represented employee for about 20 years, and that no Laborers-represented employees were involved in those projects. Laborers also presented testimony relevant to this fac- tor. The vice president of the Laborers’ International Union, Ralph Cole, testified that employees represented by his local unions perform highway lighting and traffic signal installation work throughout Ohio, including the wiring except when it is energized.11 In addition, John- son testified that Laborers-represented employees have performed highway lighting and traffic signal installation “for as long as [he] can remember” within his jurisdic- tion in the counties of Ashland, Crawford, Knox, Mor- row, and Richland, Ohio. Johnson stated that the con- tractors who use employees represented by Laborers to perform this type of work include “Lake Erie, M.P. Dory, Sandusky Bay, Complete General, Trafftech, Pe- terson, Bansal, Cornerstone, and Miller Cable.” In view of this evidence, we find that this factor does not favor an award of the work in dispute to either group of employ- ees. 4. Relative skills Electrical Workers presented testimony that the em- ployees it represents are trained, and have the requisite experience and skills, to perform the disputed work. Electrical Workers Business Manager Grice testified that in order to become a journeyman lineman, an employee represented by Electrical Workers must complete a 7000- hour apprenticeship program consisting of both on-the- job and classroom training. This program provides train- ing in electrical theory, the requirements of the National Electrical Code, and traffic signal installation. Employer foreman Grand similarly testified that employees repre- sented by Electrical Workers possess the skills required 11 At the hearing, Laborers submitted two documents in support of its contention that Laborers-represented employees perform highway and signal lighting installations: a 2006 arbitration decision requiring an employer, Trafftech, Inc., to assign the installation work to employ- ees represented by Laborers Local 860; and the Order of Dismissal from the United States District Court, Northern District of Ohio con- cerning said arbitration award. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 348 to perform the work in dispute. Employer District Man- ager McKeown testified that the Electrical Workers- represented employees who perform the work in dispute for the Employer are certified by the International Mu- nicipal Signal Association (IMSA). Further, McKeown testified that Laborers officials Johnson and Cole in- formed him that Laborers-represented employees do not perform work of the kind in dispute when the wiring be- comes live. Cole testified that employees represented by Laborers undergo a 4000-hour apprenticeship program for the classification of general laborer. Although Cole did not testify in detail about the training program, he stated that it has only been in operation for about 3 years, and that it is not specific to electrical work. We find that this factor favors an award of the work in dispute to employees represented by Electrical Workers. 5. Economy and efficiency of operations Employer District Manager McKeown and Employer Foreman Grand both testified that it is more efficient for the Employer to perform the work in dispute using Elec- trical Workers-represented employees. They explained that these employees are able to perform the work inter- changeably and in a cohesive fashion. Grand testified, for example, that a ground man, journeyman lineman, or foreman on a crew of employees represented by Electri- cal Workers can perform the wiring work on the installa- tion projects. McKeown and Grand also both testified that a com- posite crew of employees represented by Electrical Workers and Laborers would be less productive, because the latter would have to be taught how to perform some of the tasks involved in the performance of this work. Foreman Grand specifically testified that the two Labor- ers-represented employees who briefly performed the work in dispute were not familiar with the work, and thus Grand “basically had to walk them through it.” Finally, as noted above, Laborers-represented employ- ees cannot perform any of the tasks involving live con- nections, an important component to the installation work. See generally, Electrical Workers Local 126 (Henkels & McCoy), 338 NLRB 1, 4 (2002) (finding it more economical and efficient to award work to employ- ees who could perform all, rather than only some, of the job functions needed to complete the work in dispute). Conclusion After considering all the relevant factors, we conclude that the employees represented by Electrical Workers are entitled to perform the work in dispute. We reach this conclusion relying on the factors of collective-bargaining agreements, employer preference and past practice, rela- tive skills, and economy and efficiency of operations. In making this determination, we are awarding the work to employees represented by Electrical Workers, not to that Union or its members. F. Scope of the Award The Employer requests a broad, statewide award cov- ering the work in dispute. The Board customarily does not grant a broad areawide award in cases where the charged party represents the employees to whom the work is awarded and to whom the employer contem- plates continuing to assign the work. See, e.g., Laborers Local 243 (A. Amorello & Sons), 314 NLRB 501, 503 (1994). Accordingly, we shall limit the present determi- nation to the particular controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the follow- ing Determination of Dispute. Employees of US Utility Contractor Company, Inc., represented by International Brotherhood of Electrical Workers, Local Union No. 71, are entitled to perform the trenching, laying of conduit, pulling of wiring, the instal- lation of decorative lighting, and the installation of traffic signals at an Ohio Department of Transportation project located in Bucyrus, Ohio, performed by US Utility Con- tractor Company, Inc.