Asplundh Construction Corp.

National Labor Relations Board - Board Decisions

Jul 13, 2000

331 N.L.R.B. 779 (N.L.R.B. 2000)

ELECTRICAL WORKERS LOCAL 1049 (ASPLUNDH CONSTRUCTION) 779
Local 1049, International Brotherhood of Electri-
cal Workers, AFL–CIO and Asplundh Con-
struction Corp. and Local 1298, Laborers In-
ternational Union of North America, AFL–
CIO. Case 29–CD–523
July 13, 2000
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND BRAME
The charge in this Section 10(k) proceeding was
filed on August 12, 1999, by Asplundh Construction
Corp. (Asplundh or the Employer), alleging that the
Respondent, Local 1049, International Brotherhood of
Electrical Workers, AFL–CIO (the Electrical Work-
ers), violated Section 8(b)(4)(D) of the National La-
bor Relations Act by engaging in proscribed activity
with an object of forcing the Employer to assign cer-
tain work to employees it represents rather than to
employees represented by Local 1298, Laborers In-
ternational Union of North America, AFL–CIO (the
Laborers). The hearing was held on September 14,
1999, before Hearing Officer Stephanie LaTour.
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,
finding them free from prejudicial error. On the en-
tire record, the Board makes the following findings.
I. JURISDICTION
The Employer, a New York corporation, with its
principal place of business in Yaphank, New York, is
a contractor engaged in the installation and repair of
electric utility and natural gaslines, and also performs
general construction, including road construction
work. During the 12 months preceding the hearing,
Asplundh purchased and received at its Yaphank fa-
cility goods and materials valued in excess of
$50,000, from points located outside the State of New
York. The parties stipulate, and we find, that As-
plundh is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that the Electrical
Workers and the Laborers are labor organizations
within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Asplundh’s principal customer in its gas and elec-
tric line service operations is Keyspan Energy
(Keyspan), formerly known as Long Island Lighting
Company (LILCO). In servicing Keyspan’s gaslines
in Nassau, Suffolk, and Queens Counties, Asplundh
extends main gaslines, ties in residential service to
main line extensions, repairs leaks in gas mains and
residential service lines, and lays underground elec-
tric cable in a common trench with gas mains and
services.
Asplundh has collective-bargaining relationships
with both the Electrical Workers and the Laborers.
Pursuant to one of two collective-bargaining agree-
ments between Asplundh and the Electrical Workers,
employees represented by the Electrical Workers per-
form gas utility work for Asplundh involving gaslines
2 inches or less in diameter.1 Pursuant to a collec-
tive-bargaining agreement between Asplundh and the
Laborers, employees represented by the Laborers per-
form gasline work as well, although the size of the
gaslines on which they work is not specified in the
agreement.
Before the current dispute, employees represented
by the Electrical Workers, with some exceptions,
have been assigned gas work involving lines 2 inches
or less in diameter, and employees represented by the
Laborers have been assigned gas work involving
gaslines over 2 inches in diameter. The Electrical
Workers’ agreement expired in February 1999, and
the Laborers’ agreement expired in May 1999. In the
bargaining for renewal contracts, both Unions insisted
that the Employer agree to assign small diameter
work to employees they respectively represented.
In early July 1999, Laborers President Stephen
Buckley informed Francis Giordano, Asplundh’s vice
president, that the Laborers wanted all of the Em-
ployer’s new 2-inch gasline work. In late July 1999,
the Employer won a bid to perform gas work at the
Bohemia, New York project. Asplundh decided to
assign work involving gaslines 2 inches or less in
diameter to employees represented by the Electrical
Workers, and to assign larger diameter work to em-
ployees represented by the Laborers. On August 5,
1999, after learning of the Bohemia job, Everett
Lewis, the Electrical Workers’ business representa-
tive, met with Francis Giordano, Asplundh’s vice
president, and told him that the Employer would have
“problems” if the small diameter gas work was not
assigned to employees represented by the Electrical
Workers. When Giordano asked Lewis about the na-
ture of such “problems,” Lewis responded that the
Electrical Workers would “shut you down.” Lewis
repeated the same threats the next day by telephone.
B. The Work in Dispute
The disputed work is the work being performed by
the employees of Asplundh Construction Company
for Keyspan Energy2 at a trailer park location in Bo-

1 The parties refer to this agreement as the Gas Agreement. As-
plundh and the Electrical Workers have entered into a second collec-
tive-bargaining agreement covering underground and overhead electri-
cal work, which is not relevant to these proceedings.
2 The notice of hearing states that the work is being performed for
Long Island Lighting Company. At the hearing, the parties agreed that
331 NLRB No. 90
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 780
hemia, New York, involving the installation of ap-
proximately 13,085 feet of 2-inch plastic gasline
pipe.3
C. Contentions of the Parties
Asplundh contends that the Electrical Workers’
threat to engage in a work stoppage is sufficient basis
for the Board to have reasonable cause to believe that
Section 8(b)(4)(D) of the Act has been violated, and
neither Union disputes this contention. With regard
to the merits, Asplundh and the Electrical Workers
assert that the work in dispute should be awarded to
employees represented by the Electrical Workers
based on the jurisdictional provision of the Gas
Agreement, employer preference, past practice of the
parties, economy and efficiency of operations, and the
superior training and skills of the employees repre-
sented by the Electrical Workers.
The Laborers contend that the work in dispute
should be assigned to employees it represents based
on its collective-bargaining agreement, the practice of
other contractors in the area, and past practice. Fi-
nally, the Laborers dispute the Employer’s assessment
that the Electrical Workers would be more efficient in
performing the work in dispute than would the Labor-
ers.
D. Applicability of the Statute
Before the Board may proceed with determining a
dispute pursuant to Section 10(k) of the Act, two ju-
risdictional prerequisites must be met. First, the
Board must find reasonable cause to believe that Sec-
tion 8(b)(4)(D) of the Act has been violated. Second,
the Board must find that the parties have failed to
agree on a method for voluntary adjustment of the
dispute.
These jurisdictional prerequisites have been met in
this case. First, as noted above, both the Electrical
Workers and the Laborers claim the work in dispute.
In addition, the Electrical Workers Representative
Everett Lewis advised Asplundh that if the Employer
assigned the disputed work to employees represented
by the Laborers, employees represented by the Elec-
trical Workers would “shut down” the Employer. On
this basis, we find reasonable cause to believe that
Section 8(b)(4)(D) of the Act has been violated. Op-
erating Engineers Local 825 (Walters & Lambert),
309 NLRB 142, 143 (1992) (threat to “shut down” the
job provides reasonable cause to believe the statute

Long Island Lighting Company is now known as Keyspan Energy. We
are amending the description of work accordingly.
3 The Employer and the Electrical Workers declined to stipulate to
the description of the work in dispute. It is apparent, however, that their
disagreement is with the scope of the award, which we address below,
not the description of the disputed work. We find that, except as men-
tioned in the preceding footnote, the record supports the notice of hear-
ing’s description of the work in dispute.
has been violated). Second, we find that that there is
no method for voluntary adjustment of the dispute to
which all parties are bound.4 Accordingly, we find
that the Board has jurisdiction to resolve this dispute.
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 balancing
the factors involved in a particular case. Machinists
Lodge 1743 (J.A. Jones Construction), 135 NLRB
1402, 1410–1411 (1962).
The following factors are relevant in making the
determination of this dispute.
1. Certification and collective-bargaining agreements
There is no record evidence that either Union in-
volved in this dispute has been certified by the Board.
Accordingly, this factor favors neither Union.
The Electrical Workers’ Gas Agreement recognizes
the Electrical Workers as the bargaining representa-
tive of employees servicing gas mains and extensions
that are 2 inches or less in diameter, and this jurisdic-
tional provision is identical to the jurisdictional pro-
vision of parties’ prior collective-bargaining agree-
ment. The Laborers’ current agreement, which modi-
fied the parties’ prior agreement, covers work on
gaslines “of any size.”5 This language covers the
work in dispute just as clearly as the provision in the
Electrical Workers agreement.
Because both agreements at issue appear to cover
the work in dispute, we conclude that an analysis of
the parties’ collective-bargaining agreements does not
favor an award of the disputed work to either union.
4 At the hearing, the Laborers moved to quash the notice of hearing,
arguing that there was a voluntary method of adjustment to which all
parties are bound. The hearing officer referred determination of this
issue to the Board.
The Employer and the Electrical Workers have attached to their
briefs an arbitrator’s award issued subsequent to the instant 10(k) hear-
ing. The arbitrator disagreed with the Laborers’ contention that As-
plundh was bound by the dispute resolution mechanism that the Labor-
ers urged in the 10(k) hearing.
The Laborers makes no mention of the jurisdictional issue in its brief
to the Board, which suggests that it has abandoned it in light of the
arbitrator’s ruling. Under the circumstances, we find that the record
does not show that all parties have agreed on a method for voluntary
adjustment of the dispute. We therefore deny the motion to quash the
notice of hearing.
5 Art. VII, § 2(w) of the Laborers’ prior agreement referred to the
“[i]nstallation of all gas mains and services and all work related
thereto” without reference to the size of the gas lines themselves (em-
phasis added).
ELECTRICAL WORKERS LOCAL 1049 (ASPLUNDH CONSTRUCTION) 781
2. Employer preference
Giordano, Asplundh’s vice president, testified that
the Employer prefers to assign the work in dispute to
employees represented by the Electrical Workers.
The Laborers do not dispute the Employer’s prefer-
ence in this matter. Accordingly, we find that the
factor of employer preference favors an award of the
disputed work to employees represented by the Elec-
trical Workers.
3. Employer past practice
Giordano testified that Asplundh’s historical prac-
tice was to assign gas work involving lines 2 inches
or less in diameter to employees represented by the
Electrical Workers, and to assign gas work involving
lines greater than 2 inches to employees represented
by the Laborers. Giordano also testified that the oc-
casional exceptions to this past practice occurred
when employees represented by the Electrical Work-
ers were not available to perform the work or when he
needed to fill a small gap in the work assignments of
employees represented by the Laborers. We conclude
that the Employer’s past practice has been to assign
small gasline work to employees represented by the
Electrical Workers, with deviations from this practice
under circumstances not present in the instant case.
Thus, we find that the factor of past practice favors an
award of the disputed work to employees represented
by the Electrical Workers.
4. Area and industry practice
The testimony regarding the practice of other con-
tractors in assigning work similar to the work in dis-
pute in the instant case is inconclusive. Therefore,
we conclude that area and industry practice does not
favor an award of the work in dispute to employees
represented by either union.
5. Economy and efficiency of operations
Brett Martin, Asplundh’s manager of gas opera-
tions, testified that employees represented by the
Electrical Workers perform all the tasks associated
with an assignment of the disputed work, including
operating all the necessary equipment, cutting the
road, excavating a trench by machine or by hand, fus-
ing the gas pipe using heat and pressure, tapping the
main and installing the service lines, backfilling the
trench and patching the road, and driving the neces-
sary trucks. According to Martin, the Employer would
need only a five-person crew, consisting of a fore-
man, an underground mechanic, and three appren-
tices, if the disputed work at the Bohemia job is as-
signed to employees represented by the Electrical
Workers. Each person on the crew would have mini-
mal downtime because each crew member could per-
form all tasks associated with the disputed work.
By contrast, the Employer would need a six-person
crew to perform the disputed work, if employees rep-
resented by the Laborers received the assignment.
Employees represented by the Laborers do not oper-
ate any of the excavation machinery nor do they drive
the necessary trucks. Those tasks would be assigned,
respectively, to employees represented by local un-
ions of Operating Engineers and Teamsters. There-
fore, to assign the disputed Bohemia work to employ-
ees represented by the Laborers, the Employer would
need a foreman, three laborers, one excavation ma-
chine operator, and one driver. Under this scenario,
the excavation equipment operator and the driver
would be left idle for several hours while the actual
pipe installation was performed by the employees
represented by the Laborers.
We conclude that an analysis of economy and effi-
ciency of operations favors an award of the disputed
work to employees represented by the Electrical
Workers.
6. Relative skills and training
The record indicates that employees represented by
both unions have the requisite skills and training to
perform the work in dispute. Thus, this factor does
not favor an award of the work in dispute to employ-
ees represented by either union.
Conclusions
After considering all the relevant factors, we con-
clude that Asplundh’s employees represented by the
Electrical Workers are entitled to perform the work in
dispute. We reach this conclusion relying on As-
plundh’s preference, its past practice, and economy
and efficiency of operations. In making this determi-
nation, we are awarding the disputed work to employ-
ees represented by the Electrical Workers, not to that
union or to its members.
Scope of Award
The Employer and the Electrical Workers contend
that the scope of the work in dispute should be broad-
ened to include all gasline work performed by As-
plundh employees in Nassau, Suffolk, and Queens
Counties, New York, an area coextensive with the
geographic jurisdiction of the Electrical Workers.
The Board has customarily declined to grant an are-
awide award in cases where, as here, the charged
party (the Electrical Workers) represents the employ-
ees to whom the work is awarded and to whom the
Employer contemplates continuing to assign the
work. Sea-Land Service, 322 NLRB 830, 835 (1997).
Thus, we find a broad award inappropriate under the
circumstances of this case. Accordingly, this deter-
mination is limited to the controversy that gave rise to
this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 782
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of Asplundh Construction Corp. repre-
sented by the Local 1049, International Brotherhood
of Electrical Workers, AFL–CIO are entitled to per-
form the work being performed by Asplundh Con-
struction Corp. for Keyspan Energy at a trailer park
location in Bohemia, New York, involving the instal-
lation of approximately 13,085 feet of 2-inch plastic
gasoline pipe.