Central Arizona Dist. Council of Carpenters

National Labor Relations Board - Board Decisions

Apr 7, 1970

181 N.L.R.B. 988 (N.L.R.B. 1970)

988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Central Arizona District Council of Carpenters and
Bechtel Corporation and Local 769, International
Brotherhood of Electrical Workers. Case
28-CD- 107
April 7, 1970
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended,
following a charge by Local 769, International
Brotherhood of Electrical Workers, herein called
IBEW, alleging that Central Arizona District
Council of Carpenters, herein called Carpenters or
Respondent, had violated Section 8(b)(4)(D) of the
Act by engaging in certain proscribed activity with
an object of forcing or requiring Bechtel
Corporation, herein also referred to as the
Employer, to assign certain work to employees
represented by it, rather than to employees of the
Employer represented by IBEW. Pursuant to notice,
a hearing was held before Hearing Officer J. W
Cherry on January 6, 7, and 8, 1970. All parties
appeared and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and
to adduce evidence bearing on the issues. Thereafter,
the Employer, IBEW, and Carpenters filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Act, as amended, the National
Labor Relations Board has delegated its powers in
connection with this case to a three-member panel
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby
affirmed.'
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated that Bechtel Corporation is
a Delaware corporation with its principal place of
business in San Francisco, California. It is engaged
in construction work throughout the United States,
and is at present under contract with Inspiration
Consolidated Copper Company at Inspiration,
Arizona, and with the Salt River Power District of
Arizona. Each of these contracts exceeds one million
dollars. During the last calendar year the Employer
purchased and caused to be shipped to it, from
outside the State of Arizona, goods valued in excess
of $50,000. The parties agreed, and we find, that the
'Respondent contended that the Hearing Officer erred in permitting
Charging Party witnesses to testify after it had rested its case We find no
merit in this procedural exception as the record before us disclosed no
prejudice to Respondent
Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Local
769, International Brotherhood of Electrical
Workers, and Central Arizona District Council of
Carpenters are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background Facts
In April 1969, Bechtel began performance of its
construction contract for Inspiration Consolidated
Copper Company, hereinafter called Inspiration,
and of its contract with the Salt River Power
District near Apache Junction, Arizona. The
construction projects involved in these two contracts
were treated by the Employer as two separate jobs
even though they were physically adjacent to one
another.
The contract at the Salt River project called for
the construction at Mormon Flat Dam of a new
powerhouse and two new intake structures. The
work required building concrete foundations, the
forms for which were made by carpenters. All
construction on these foundations was performed by
members of the building trades. A part of this work
also required the construction by Bechtel of a
substation at Moonshine Hill where it built
foundations for three generators and for 17
transmitters and other related equipment. Bechtel
used carpenters for the construction of forms for
these large foundations. Although it is conceded that
all this work was done by carpenters, and there is
no dispute concerning it, we take note thereof as
this is used by the Carpenters in support of its
contention that area practice favored an assignment
of the disputed work to carpenters.
The work in dispute is at the project at
Inspiration, Arizona. This work for Inspiration
Copper was divided into two parts. At the
Moonshine Hill substation, Bechtel was building a
frequency converter in Inspiration's existing plant at
this location. The concrete foundations for the
generators required certain form work, and it is
conceded that all of it was done by carpenters and
that there is no dispute concerning this work.
However, in addition to the Moonshine Hill
substation, Bechtel was also under contract to
construct a number of transmission towers and to
bring the power from Moonshine Hill substation to
Inspiration's mine. This entailed the construction of
a line with approximately ten transmission towers
from Moonshine Hill to the concentrator building at
the mine, a distance of about 2 miles. Bechtel
181 NLRB No. 161
CENTRAL ARIZONA DIST. COUNCIL OF CARPENTERS 989
subcontracted to Reynolds Electric Company the
job of actually building the towers and of stringing
the line, and reserved for itself the construction of
the foundations or footings, for 10 transmission line
towers
Construction of foundations or footings as they
are known, required the following steps: digging a
hole by means of a digging machine; laying or
setting a "form" which in simple terms means
properly placing the form in the hole and setting
and bracing it; placing inside the form the anchor
bolts, embedded iron, and rebars; pouring the
concrete into the form and after it hardens removing
or stripping the form from the concrete footings.
The forms used by Bechtel were of two types, the
principal one known as a "soni tube" and the other
a steel cylinder. The soni tube is a hollow tube made
of a strip of cardboard paper and is used as a form
because it is easily stripped away from the dry
concrete. The steel form apparently is a type of steel
well casing about 30 inches in diameter and is driven
into the ground after the excavation. The casing is
cut off after the concrete has set, and is disposed of
as scrap metal
The 10 transmission line towers referred to above
required the construction of 40 foundations. All of
this work was assigned to IBEW. The Respondent,
apparently, makes no claim of right to perform all
of the work described, but only the work of
preparing the form for the receipt of the concrete.
This is the disputed work, and the issue in the case.'
In late July or early August 1969, representatives
in Bechtel's labor relations department met with Ed
Nicksic, business manager of IBEW Local 769.
There is some question whether H. C Borcherding,
Employer's labor relations department
representative, or Cal Knoke, project
superintendent, also present at the meeting, assigned
the disputed work to IBEW. But the Employer
takes the firm position that the work in dispute was
in fact assigned to the IBEW. After work had been
in progress for 3 days, there followed a conference
between the representatives of the Employer and
Carpenters with reference to assignment of the
disputed work to IBEW. The Carpenters maintained
that the form work should be performed by
carpenters No satisfactory agreement was reached,
and on October 3, 1969, Carpenters established
picket lines, not only at the transmission line project
but at Mormon Flat Dam, even though none of the
disputed work was being performed at the latter
site All work stopped for a period of 13 days.'
'There is also a dispute over the construction of the forms for four
"dead men " A "dead man " is a chunk of concrete approximately 8 feet
long and 9 or 10 inches square into which are embedded several pieces of
reinforcing iron and an anchor rod These "dead men" are buried in the
ground at curves or turns in the line for the purpose of holding back strain
or tension exerted by the electrical high voltage lines, and are connected to
the steel transmission towers by a steel cable
'In a 10 (e) injunction proceeding the United States District Court for the
District of Arizona, Central Arizona District Council of Carpenters
entered into a stipulation by which it agreed to refrain from engaging in
B. Contentions of the Parties
The Carpenters contends that the disputed work
should be assigned to carpenters on the basis of its
national contract with the Employer, the area and
industry practice, and because carpenters can
perform the work more efficiently and economically.
The IBEW argues that the work is essentially
electrical, that its own collective-bargaining
agreement with the Employer specifically assigns
such work to electricians, and that area and industry
practice favors it.
Other than maintaining that it assigned the work
to the IBEW, the Employer takes no position with
respect to the instant dispute.
C. Applicability of the Statute
The charges, which were duly investigated by the
Regional Director, allege violations of Section
8(b)(4)(D) of the Act by the Carpenters. The
Regional Director was satisfied upon the basis of
such investigation that there was reasonable cause to
believe that the violations had been committed and
directed that a hearing be held in accordance with
Section 10(k) of the Act.
The record establishes that Carpenters threatened
to picket and strike the Employer unless the
disputed work was assigned to its members, and it is
undisputed that Carpenters picketed and struck the
Employer, on October 3, 1969, and thereafter
thereby causing work stoppages at Employer's
Mormon Flat, and Inspiration, projects because the
disputed work had not been assigned to carpenters.
Accordingly, on the basis of the entire record, we
find there is a reasonable cause to believe that a
violation of Section 8(b)(4)(D) has occurred and that
the dispute is properly before the Board for
determination under Section 10(k) of the Act.
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 the various relevant
factors; and the Board has held that its
determination in a jurisdictional dispute case is an
act of judgment based upon common sense and
experience and a balancing of such factors.'
picketing, threats, restraint or coercion of Bechtel Corporation with an
object of forcing Bechtel Corporation to assign the disputed work to its
members, pending the issuance of a final Board decision disposing of the
issue James W Mast Acting Regional Director v Central Arizona
District Council of Carpenters (Civil No 69-447 Phx), United States
District Court for the District of Arizona
'N L R B v Radio & Television Broadcast Engineers Union. Local
1212. International Brotherhood of Electrical Workers (Columbia
Broadcasting System), 364 U S 573, International Association of
Machinists . Lodge No 1743, AFL-CIO (JA Jones Construction
Company), 135 NLRB 1402
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Skills involved
The record is clear that wooden forms are not
involved in the preparation of the footings. The
forms that are used are made of cardboard paper or
steel well casing material. There is evidence though
that carpenters, as well as electricians, have the
necessary skills to perform the work in dispute, and
we therefore cannot conclude that the factor of skills
favors either side.
2. Collective- bargaining agreements
At the time Employer entered on the- work in
question , it had national agreements with Carpenters
and IBEW.
The national agreements provide that Bechtel will,
inter alia , abide by agreements of the national
union ' s recognized local bargaining agency in the
locality in which it is working . The contract, upon
which Carpenters relies is the Arizona Master Labor
Agreement and Wage Scales. Article III, thereof
describes in general terms the Building and
Construction Trades Council , AFL-CIO's work
jurisdiction . The IBEW ' s local contract provides in
paragraph 4:
4. TRANSMISSION TOWER FOOTINGS
AND OUTDOOR SUB-STATIONS: The
digging, back - filling, compaction and cleanup at
structure sites; the building of landings and
cranes; the drilling and blasting of holes and
operation of all equipment including the operation
of power tamps, jackhammers , pavement
breakers ; the operation of all trucks hauling
material , water, equipment , stub angles, forms
and templates (or similar devices ) shall be the
work of the IBEW....
While the contract of the Carpenters can be said to
cover the work in question, the Carpenters'
agreement covers the construction of forms in
general terms; the IBEW ' s agreement , however, is
quite specific in assigning construction of footing
foundations of transmission lines to IBEWS and
reserves for electricians construction of transmission
lines. However , there is some evidence that
notwithstanding the Carpenters ' alleged limited
jurisdiction , carpenters have and are capable of
doing the work in question . We therefore cannot say
the contract favors one organization over another.
3. Area Practice
Bechtel, itself, has not heretofore engaged in the
construction of transmission lines in the State of
Arizona and thus could not confirm area practice. It
did, on inquiry, conclude that area practice favored
'Local 769 is an outside electrical local having jurisdiction over
"outside" work as contrasted with inside electrical work which is under the
jurisdiction of another IBEW local , a member of the Building and
Construction Trades Council
an assignment of the work to Local 769,
International Brotherhood of Electrical Workers,
and made the assignment on that basis. However,
John Corbin of Corbin-Dykes Electric Company,
which has been engaged for the last 10 years in
construction of transmission lines in Arizona,
testified that the work of preparing foundations, or
footings, for the erection of transmission lines, in 50
or 60 jobs has been performed by IBEW members.
Donald W. Heckathorn of Power Line Erector
Company, another transmission line contractor,
stated that its Arizona work on such lines in all of
1966 and 1967 was assigned to IBEW members.
On the other hand, Carpenters pointed to the
Mormon Flat and Moonshine Hill projects of the
Employer in support of its contention that area
practice favors carpenters. However, the foundation
work, upon which Carpenters relies, is in the
building and construction trades and is of an
entirely different nature and involves large forms.
Moreover, the evidence shows only three projects in
the State of Arizona in which carpenters have
constructed foundations or footings similar to the
disputed work. The record shows quite definitely
that area practice favors the IBEW.6
4. Economy and efficiency of operation
There is evidence in the record to the effect that
carpenters receive a lower wage than do electricians,
which leads the Carpenters to argue that carpenters
can do this work more cheaply. But, it is also
apparent that if the disputed work was assigned to
carpenters other work in preparation of the footings
would have to be assigned to other crafts in the
building trades, and the ultimate cost of such
multiple assignments could well be in excess of the
cost of employing electricians because of the
inefficiency of having several trades work on single
simple items of construction. Moreover, the record
also shows that, if the electricians are unable, for
any specific reason, to work on the foundations for
towers, they are available for work on other aspects
of construction of the transmission lines thereby
avoiding a good deal of idle time which otherwise
would have to be paid for. However, although there
is no definitive evidence on the question of cost, we
think it a fair conclusion that the factors of
economy and efficiency weigh, in balance, on favor
of IBEW.
5. Employer assignment
When considering the assignment of the disputed
work, the Employer found its contract with IBEW
more precise in its description of the transmission
tower work and, as indicated, it had some
'See IUOE, Local No 428 et al (Ets-Hokin), 153 NLRB 573 In that
case, the Board found area practice in the State of Arizona, involving
excavation in the construction of transmission tower footings , favored
Local 769, and awarded the disputed work to electricians
CENTRAL ARIZONA DIST. COUNCIL OF CARPENTERS 991
knowledge of area practice and of the Board's
decision in the Ets-Hokin case, (supra) on which to
base its assignment of the disputed work to IBEW.
Conclusion as to the Merits of the Dispute
Upon consideration of all pertinent factors in this
case, we shall assign the disputed work to employees
represented by IBEW. In making this
determination, we have given weight to evidence of
area practice, to that of economy and efficiency, and
to the factor of Employer's assignment as
warranting an award of the disputed work to the
IBEW Other factors such as skills, and contractual
rights, we find favor neither union.
In making this determination, which is limited to
the particular controversy which gave rise to this
proceeding, we make clear that we are assigning the
disputed work to employees of the Employer who
are represented by IBEW, but not to the Union
itself nor 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 currently represented by Local 769,
International Brotherhood of Electrical Workers,
AFL-CIO, are entitled to perform the form and
layout work , the setting of anchor bolts and stub
angles, the imbedding of iron and the welding and
stripping of the forms , including the soni tube or
other material , in connection with the preparation of
tower foundations or footings on the transmission
lines being constructed by Bechtel for Inspiration
Consolidated Copper Company at Inspiration,
Arizona.
2. Central Arizona District Council of Carpenters
is not entitled by means proscribed by Section
8(b)(4)(D ) of the Act, to force or require Bechtel
Corporation, to assign the aforementioned work to
carpenters who are currently represented by such
labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute , Central Arizona
District Council of Carpenters , shall notify the
Regional Director for Region 28, in writing , whether
or not it will refrain from forcing or requiring
Bechtel Corporation, by means proscribed by
Section 8 (b)(4)(D), of the Act, to assign the work in
dispute to employees represented by Carpenters
rather than to employees represented by IBEW.