Casler Electric Co.

National Labor Relations Board - Board Decisions

Jan 3, 1966

156 N.L.R.B. 586 (N.L.R.B. 1966)

586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director for Region 30, in writing, within 20 days from
the date of receipt of this Trial Examiner's Decision, what steps the Respondent has
taken to comply herewith.'°
"In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, an in order to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that:
WE WILL bargain, upon request, with Teamsters and Chauffeurs Union, Local
No. 328, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive representative of all the employees in
the bargaining unit described below with respect to rates of pay, wages, hours of
employment, or other terms and conditions of employment, and, if an under-
standing is reached, embody it in a signed agreement. The bargaining unit is:
All of our production and maintenance employees, including truckdrivers,
but excluding office clerical employees, professional employees, guards, and
supervisors as defined in the Act.
WE WILL NOT interrogate employees as to their union interests and activities
in a manner constituting interference, restraint, or coercion within the meaning
of Section 8 (a) (1) of the Act.
WE WILL NOT threaten employees with reprisals or promise or grant them bene-
fits for the purpose of influencing their union activities or sympathies.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to form, join,
or assist Teamsters and Chauffeurs Union, Local No. 328, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any
other labor organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain from any or all
such activities, except to the extent that such right may be affected by the provi-
sions of Section 8(a) (3) of the Act, as amended.
GAFNER AUTOMOTIVE & MACHINE, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, Room 230,
744 North Fourth Street; Milwaukee, Wisconsin, Telephone No. 272-8600, Extension
3866. ,
International Union of Operating Engineers Local No. 571 AFL-
CIO and V. E. Casler and M . W. Casler d/b/a Casler Electric
Company and International Brotherhood of Electrical Work-
ers Local No. 1525, AFL-CIO. Case No. 17-CD-79. January 3,
1966.
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10 (k) of the National.: Labor
Relations Act, as amended, following the filing of charges under
156 NLRB No. 64.
INT'L UNION OF OPERATING ENGINEERS LOCAL 571 587
Section 8 (b) (4) (D) of the Act by V. E. Casler and Al. W. Casler
d/b/a Casler Electric Company, herein called Casler or the Employer
alleging that International Union of Operating Engineers, Local No.
571, AFL-CIO, herein called Respondent had induced and encouraged
employees to cease work in order to force or require Casler to assign
the disputed work to members of the Respondent rather than to
employees represented by International Brotherhood of Electrical
Workers, Local No. 1525, AFL-CIO, herein called IBEW. A hear-
ing was held before Hearing Officer Robert L. Uhlig on October 12, 13,
and 14, 1965. All parties who appeared at the hearing were afforded
full opportunity to be heard, to examine and cross-examine witnesses,
and to adduce evidence bearing upon the issues. The rulings of the
Hearing Officer made at the hearing are free from prejudicial error
and are hereby affirmed. A brief was filed by the Respondent and has
been duly considered.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Zagoria].
Upon the entire record in the case, the Board makes the following
findings :
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated that Casler is a partnership with its prin-
cipal office and place of business located at 1501 Seventh Street, Sioux
City, Iowa, where it is engaged as an electrical contractor performing
fabricating and assembly'work including erection of power substations
for municipal and other governmental utilities. In the course and con-
duct of its business operations, the Employer annually performs serv-
ices valued in excess of $50,000 in States other than Iowa, wherein it
is located. The Employer also annually purchases goods or services
from outside the State of Iowa in excess of $50,000. We find that the
Employer is engaged in commerce within the meaning of the Act and
that it will effectuate the purposes of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that both Local 1525, IBEW,
and the Respondent are labor organizations within the meaning of
Section 2 (5) of the Act.
M. THE DISPUTE
A. The work in dispute
On or about February 10, 1965, Casler contracted with the city of
Fremont, Nebraska, to furnish and install equipment which would
involve additions and remodeling of two of its powerplant substations.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The dispute herein occurred at one substation known as the Fal-Tex
site. It arose over the operation of a truck-mounted power hoist
referred to as a "high reach," used by Casler in its operations. C. I.
Girdler Construction Company, a subcontractor at the Fal-Tex site
and hereinafter referred to as "Girdler," was also affected by the
dispute.
The machine, manufactured by the Elliott Manufacturing Company
of Omaha, Nebraska, was specially designed in part by Casler to meet
the particular needs of the electrical contracting trade. The primary
purpose of this machine, which can lift up to six men, 45 feet in the air,
is to hoist men in a basket to perform electrical work. It is also used
to hoist light-weight electrical equipment into the air for placement.
The machine which is mounted on a truck and powered by the truck
engine, can be operated from the basket in the air, or from the side of
the truck on the ground.
Casler's employees are electrical workers and Casler assigned an
electrician to operate the "high reach" machine. Members of the
Respondent, who were employed by Girdler, claimed that machine
should be operated by engineers and engaged in a work stoppage to
protest Casler's assignment. The work stoppage occurred on June 22
and ended on June 26, 1965, when the city of Fremont persuaded
Casler to remove the "high reach" equipment from the Fal-Tex site.
B. Evidence of conduct violative of Section 8(b) (4) (i) (D)
On June 16, 1965, Virgil Cash, business agent of the IBEW, was
approached by Orva Metzler, business manager of the Respondent, at
the Fal-Tex site. Metzler informed Cash that the electricians should
not be doing the work, that the engineers would walk off the job if
the electricians should continue to operate the "high reach" equipment,
and that the matter should be submitted to their respective Inter-
nationals for settlement. On June 18, 1965, Cyril Pottebaum, foreman
for Casler, had a conversation with Jim Gilpin, business agent of the
Respondent, and was advised by Gilpin that he (Pottebaum) was
going to have "trouble" because engineers should be operating the
"high reach" equipment. Gilpin thereafter contacted Cash and they
agreed to submit the matter to their respective Internationals, Cash
also agreeing that the electricians would not use the equipment pend-
ing the resolution of the dispute by the Internationals. On June 21,
Cash received a telegram from the IBEI\T International advising him
that electrical workers were to continue to work the "high reach"
equipment.' The following day, Donald Clark, foreman for Girdler
and a member of the Respondent, observed the "high reach" machine
1 The record affirmatively indicated that the Internationals never (lid resolve the dis-
pute between themselves
INT'L UNION OF OPERATING ENGINEERS LOCAL 571 589
being operated by electricians and decided to walk off the job.2 Clark
testified that he was at no time induced or encouraged to walk off by
the Respondent Union. Metzler testified that he was informed by
Clark of the walkoff and that he promptly ordered Clark and the other
engineers to return to work, but they refused. Metzler, however,
admitted that he neither knew of any disciplinary action taken by the
Respondent against the engineers who participated in the walkoff
nor did he know of any replacements dispatched by the Respondent
to Girdler during the work stoppage. Furthermore, the record indi-
cates that Metzler telephoned Casler a few hours after the work
stoppage occurred and requested that he employ engineers to operate
the "high reach" equipment, advising him that the engineers would not
return as long as the "high reach" equipment was run by electrical
workers.
C. Applicability of the statute
Before the Board proceeds with the determination of dispute pur-
suant 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.
Although the Respondent does not deny that it actively sought to have
the work being done by members of the IBEWV assigned to its own
members, it contends that it has not resorted to prohibited methods
in pressing for the work assignment on behalf of its members, specifi-
cally disclaiming any responsibility for the work stoppage. Both
Metzler and Gilpin testified that they knew nothing about the walkoff
in advance and that they neither aided nor abetted the walkoff. But
the record reveals that Respondent's union steward was among the
employees that engaged in the walkoff and that Metzler telephoned
Casler after the work stoppage requesting that work be assigned to
his men.
In view of Respondent's claim to the work, its admonishing state-
ments of impending trouble made in this regard, the subsequent strike
action because of the work assignment, followed immediately by a
renewed demand for a reassignment to Respondent's members, we find
that the work stoppage was called to further this objective. More-
over, even if the Respondent had not actually authorized it in advance,
we are of the view that the Respondent ratified the work stoppage
inasmuch as its subsequent conduct in this connection was consistent
with the violation alleged. We therefore, conclude that there is
reasonable cause to believe that a violation of Section 8(b) (4) (i) (D)
has occurred and that the dispute is properly before the Board for
determination under Section 10 (k) of the Act.
2 According to his testimony , he walked off on his own initiative , and as a foreman
ordered the five other engineers at the site including the steward to leave the job. How-
ever , the job superintendent for Girdler Informed Casler Foreman Pottebaum that the
operating engineers walked off the job.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Merits of the dispute
Section 10(k) of the Act requires the Board to make an affirmative
award of disputed work after giving due consideration to various
relevant factors. The following factors are asserted in support of the
claims of the parties herein :
1. Skills and safety of operations
Both the IBEW and the Respondent contend that the disputed work
involves skills and training unique to their respective trades. The
record indicates that Casler specially designed the "high reach" equip-
ment for the work Casler does as an electrical contractor . Casler
was of the view that the machine should be operated by a trained
electrician inasmuch as such skills are necessary for safe operation.
In this respect, the record indicated that the operator must have
knowledge of energized conductors , hot wires, etc., and know what
steps to take in case of an emergency or a line power failure. Further,
the operation of the machine around or near electrical lines and other
equipment was shown to be dangerous not only to the operator but to
other employees and such knowledge was a prerequisite to the safe
operation of the machine .3 Although the Respondent urges that its
members have through the years operated similar equipment in the
truck-mounted power hoist category and therefore have developed the
skills necessary to operate the "high reach" machine herein , it is clear
that the special nature of the work in the instant case calls for more
than the application of these traditional skills. In these circumstances,
the factors of skill s and safety of operation needed to perform the dis-
puted work favor the IBEW.
2. Contracts
The only collective-bargaining agreement directly relevant here is
one between Casler and the IBEW, covering Casler's employees. But
the contract does not expressly mention the "high reach" equipment
and its language is ambiguous as to coverage of the disputed work.
Therefore, we do not regard the contract as a determinative factor.
Although Respondent asserts that the disputed work is covered by an
agreement entered into between the Associated Contractors Employer
Association of Omaha, Nebraska, Inc., and itself, there is no evidence
in the record that Casler was a member of that Association. In these
circumstances , we find that the Respondent had no contractual claim
against Casler respecting the work in dispute.
3 Casler stated that it was not sufficient merely to avoid physical contact by the "high
reach" with hot wires Under some conditions if any part of the machine comes into
a certain " tolerance ," an electrical explosion could occur and people as far as 50 feet
away could be injured
INT'L UNION OF OPERATING ENGINEERS LOCAL 571 591
3. Efficiency and economy
Casler asserts that the assignment was motivated by good business
judgment and that efficiency and economy dictate that the disputed
work be done by the IBEW. The record showed that Casler's entire
business was tailored to electrical endeavors and electrical employees.
Casler was able to obtain well-qualified employees from the IBE117
inasmuch as they have all served apprenticeships in that particular
trade. There was also evidence that the "high reach" equipment may
be operated only a few minutes or few hours a day. Therefore, if the
work were assigned to a member of the Respondent Union, Casler
would be able to have this employee actually working only when the
"high reach" machine was in operation. He would then be forced
to pay "stand by" time while the equipment was idle. Therefore, the
Employer's assignment of the disputed work to its electrical employees
is consistent with efficiency and economy.
4. Custom and practice
The Respondent operates all hoisting equipment in the general
building construction trade in Nebraska except equipment used by
electrical contractors which members of the IBEW operate. The
record indicates that general contractors in the area frequently sub-
contract their electrical work and that while they use various types of
hoisting equipment they are not familiar with the operation of the
"high reach" machine. Casler testified that it has always been the
custom and practice for his company to use electrical workers to
perform this work. Thus, it is clear that practice favors the claim of
the IBEW to the work.
E. Conclusion, as to the Merits of the dispute
On the basis of the record as a whole,4 and on an appraisal of all
the relevant considerations , we believe that the work in dispute should
be awarded to the electrical employees of the Casler Electric Com-
pany. The fact that Casler's assignment conforms to its past practice
and is not inconsistent with its collective-bargaining contract with the
IBEW, the fact that Casler's employees have sufficient skill to do the
work and are thoroughly familiar with the dangers inherent in such
work, and the consequent economy and efficiency of operation, lead
us to conclude that Casler's assignment of the work should not be
disturbed. In addition, the Employer is satisfied with the results
achieved by its assignment and desires no change. Therefore, we shall
determine the present dispute by assigning the disputed work to
employees of Casler presently represented by the IBEW, rather than
4 The parties stipulated that Casler Electric Company and the International Brother-
hood of Electrical workers were not bound by the National Joint Board
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the engineers who are represented by the Respondent Union. In
making this determination, we are not assigning the disputed work to
Local 1525, IBEW, or its members.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Relations Act, as
amended, and upon the basis of the foregoing findings and the entire
record in this proceeding, the National Labor Relations Board hereby
makes the following Determination of Dispute.
1. Employees employed by Casler Electric Company, currently
represented by International Brotherhood of Electrical Workers,,
Local No. 1525, AFL-CIO, are entitled to operate the "high reach"
hoist equipment operated by Casler Electric Company at the sub-
station at the Fal-Tex site, Fremont, Nebraska.
2. International Union of Operation Engineers, Local No. 571,.
AFL-CIO, is not and has not been entitled, by means proscribed by
Section 8(b) (4) (D) of the Act, to force or require Casler Electric
Company to assign the above work to its members.
3. Within 10 days from the date of this Decision and Determination
of Dispute, International Union of Operating Engineers, Local No.
571, AFL-CIO, shall notify the Regional Director for Region 17, in
writing, whether it will or will not refrain from forcing or requiring
the Employer, by means proscribed by Section 8(b) (4) (D), to assign
the work in dispute to engineers, rather than to the employees of Casler
Electric Company.
Concren , Inc., d/b/a Great Scot Super Market , and d/b/a Prechtel
and Osburn Co., and d/b/a Prechtel Co.; John B . Prechtel, a
Sole Proprietorship , d/b/a Prechtel Co., and d/b/a Prechtel
and Osburn Co.; John B . Prechtel and James A. Osburn, a
Partnership, d/b/a Prechtel and Osburn Co. and Retail Store
Employees Union , Local 550, Retail Clerks International Asso-
ciation , AFL-CIO and Douglas Lockhart, David Byrd and
R. Michael Myers, a Committee , Party of Interest and Great
Scot Employees ' Planning Committee, Party of Interest and
Great Scot Employees ' Independent Union , Party of Interest
and Great Scot Employees' Committee , Party of Interest. Case
No. 25-CA-1928. January 5,1966
DECISION AND ORDER
On February 19, 1965, Trial Examiner John F. Funke issued his
Decision in the above-entitled proceeding , finding that Respondent
Conren, Inc., and John B. Prechtel , had engaged in and were engaging
156 NLRB No. 43.