Electric Workers Ibew Local 6 (Intercontinental Hotels)

National Labor Relations Board - Board Decisions

Nov 19, 1987

286 N.L.R.B. 913 (N.L.R.B. 1987)

ELECTRICAL WORKERS IBEW LOCAL 6 (INTERCONTINENTAL HOTELS) 913
International Brotherhood of Electrical Workers,
Local 6 and Intercontinental Hotels Corpora-
tion and Communications Workers of America,
AFL-CIO, Local 9431 . Case 20-C3-633
Communications Workers are labor organizations
within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
19 November 1987
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS BABSON , STEPHENS, AND
CRACRAFF
The charge in this Section 10(k) proceeding was
filed 30 December 1986 by Intercontinental Hotels
Corporation, alleging that the Respondent, Interna-
tional Brotherhood of Electrical Workers, Local 6
(Electrical Workers or Local 6) violated Section
8(b)(4)(D) of the National Labor Relations Act by
engaging in proscribed activity with an object of
forcing Telarian Corporation, the Employer,' to
assign certain work to employees it represents
rather than to employees represented by Communi-
cations Workers of America., AFL--CIO, Local
9431 (Communications Workers). The hearing was
held 19 February 1987 before Hearing Officer
Harvey R. Dasho.2
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.
1. JURISDICTION
Telarian Corporation, the Employer, is a Califor-
nia corporation with an office and place of business
in Santa Barbara, California, where it is engaged in
the contracting business. It is undisputed and we
find that during the past calendar year, a represent-
ative period, the Employer performed services out-
side the State of California valued in excess of
$50,000. It is undisputed and we find that the Em-
ployer is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. It is undisputed
and we find that the Electrical Workers and the
i Intercontinental Hotels Corporation , the Charging Party, is the
owner of the Mark Hopkins Hotel at which the disputed work is being
performed by employees of Telanan Corporation , the Employer , and the
contractor hired by the hotel
2 An attorney representing the Electrical Workers appeared at the
hearing solely to request that it be postponed until after the hearing on
the Board 's motion for an injunction When the hearing officer denied
her request , the attorney left the hearing and specifically abstained from
any further participation in the proceedings The attorney representing
the Hotel left the proceedings after the introduction of evidence concern-
ing whether there was reasonable cause to believe the Act had been vio-
lated There were no briefs filed by any party to these proceedings
A. Background and Facts of Dispute
Prior to December 1986, the Mark Hopkins
Hotel began a renovation project. Certain con-
struction work was performed at the hotel by a
general contractor and its various subcontractors.
In addition, the hotel directly contracted with Te-
larian Corporation to install wiring for enunciated
smoke detection and energy management systems
in rooms that were being renovated. Telarian em-
ploys members of the Communications Workers to
perform this work. Onsite electrical work is being
performed by members of the Electrical Workers
pursuant to a contract with McClure Electric, the
electrical subcontractor.
In December 1986 Telarian actually began work
on the project. Members of the Electrical Workers
appeared at the site on 18 December 1986 at which
time Richard Danberger, its business agent, com-
plained to the hotel's chief engineer, Marvin Glenn,
that the Telarian employees could not produce
their union cards on his request. Glenn expressed
his surprise, for he had been assured that Telarian's
employees had union cards, and Glenn told Dan-
berger that if the Telarian employees could not
produce their union cards Glenn would ask them
to leave the job. Glenn spoke with Wayne Miller, a
Telarian representative, who indicated that two of
the six employees had cards. When Glenn told
Miller that Telarian's employees would have to
leave the jobsite, Miller replied that Telarian had
made arrangements for the union cards, but that
they had not yet been received. Glenn further ex-
plained the situation to Jim Piltingsrude, Telarian's
director of marketing, who, on Friday, 19 Decem-
ber 1986, obtained union cards for Telarian em-
ployees. However, the Telarian employees did not
work on 19 December, but returned on Monday,
22 December 1986, without incident.
On Tuesday, 23 December 1986, Glenn learned
that pickets were outside the construction entrance
of the hotel. John Walsh, a representative of the
Electrical Workers, informed Glenn that one of the
six Telarian employees did not have a union card.
When Glenn indicated that arrangements for the
cards had been made, Walsh remarked that he
would "get back" to Glenn, which he did not do.
Glenn observed the pickets with signs reading,
"Telarian Corp. is unfair to IBEW Local No. 6.
This dispute is with Telarian only."
Glenn spoke with Wayne Miller, who collected
cards from five employees on the job. According
286 NLRB No. 92
914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to Miller , the sixth employee left his card at home.
Glenn then spoke with the construction superin-
tendent employed by the general contractor on the
job who informed Glenn that McClure Electric
employees had left the job when the pickets
showed up and that if the pickets were on the site
the next day , there was a possibility that no con-
struction workers would cross the picket line.
Based on this information , Glenn told Telarian not
to return to the jobsite until the dispute was re-
solved.
About 23 December , Glenn spoke with Dan-
berger and told him that Telarian would not be on
the jobsite until the dispute had been resolved and
asked Danberger what Telarian could do to resolve
the dispute . Danberger responded that "Telarian
would have to clear through Local 6."
According to the Electrical Workers attorney,
Local 6 sent a telegram on 29 December to the
hotel 's attorney disclaiming any work assignment
objective . Local 6 asserted its right to picket for an
area standards objective as well as to inform the
public that the work was being performed in viola-
tion of San Francisco code requirements.3
On 19 January 1987 the Electrical Workers
began picketing again , this time with signs that
said , "Unfair Telarian does not pay prevailing rates
of pay for electric work ." John Flynn , security
manager for the hotel , asked one of the pickets
why he was picketing and the picket said that Te-
larian was doing electrical work and not paying
electricians ' scale . Flynn learned that the employ-
ees of McClure Electric did not work that day.
Picketing of a similar nature occurred on 20 and 21
January 1987.
Employees of Telarian Corporation have not re-
turned to the jobsite since the December picketing
by the Electrical Workers, which , according to the
hearing officer 's report, has indicated it would
resume picketing if Telarian employees returned. In
view of the Electrical Workers ' position, the
Board 's Regional Office, on 6 February 1987, filed
for injunctive relief under Section 10(1) of the Act
in United States District Court for Northern Cali-
fornia . The Board 's petition for a preliminary in-
junction was denied.
B. Work in Dispute
The disputed work consists of all work related to
the installation of low voltage wiring of enunciated
smoke detection systems and energy management
s The telegram , allegedly sent by the Electrical Workers, was not in-
troduced in evidence at the hearing , nor was there any testimony by any
of the parties about its contents Contents of the alleged telegram were
described by Local 6's attorney, not in sworn testimony , but in her state-
ment to the hearing officer requesting a postponement of the hearing
systems performed by employees of Telarian Cor-
poration at the Mark Hopkins-Intercontinental
Hotel at One Nob Hill , San Francisco , California.
C. Contentions of the Parties
The Charging Party contends there is reasonable
cause to believe that Section 8(b)(4)(D) had been
violated based on the entire course of conduct en-
gaged in by the Electrical Workers , but takes no
position concerning to whom the disputed work
should be awarded . The Communications Workers
contends that there was no valid area standards
picketing nor was there an effective disclaimer of a
work assignment objective by the Electrical Work-
ers. The Communications Workers contends its
members should be awarded the disputed work
based on its collective -bargaining contract with Te-
larian Corporation and its members' skills and effi-
ciency in performing the disputed work . The Elec-
trical Workers takes the position that its members
engaged in valid area standards picketing and that
it made a valid disclaimer of a work assignment ob-
jective.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of dispute pursuant 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 and that there is no agreed -on method for
the voluntary adjustment of the dispute.
As noted above , the Electrical Workers' business
agent , Danberger, complained to the hotel that Te-
larian's employees could not produce their union
cards . On 23 December 1986, when the Electrical
Workers learned that a Telarian employee did not
have his union card , pickets appeared at the jobsite
with signs reading "Telarian Corp . is unfair to
IBEW Local No. 6. This dispute is with Telarian
only." Employees of McClure Electric, the electri-
cal subcontractor on the job , left the job when the
pickets arrived. The general contractor 's construc-
tion superintendent informed the hotel that if pick-
ets were on the site the next day, there was a possi-
bility that no construction workers would cross the
picket line. The hotel then told Telarian's employ-
ees not to return to work until the dispute was re-
solved . Danberger informed the hotel that in order
to resolve the dispute , "Telarian would have to
clear through Local 6."
Picketing began again on 19 January 1987 with
signs reading "Unfair Telarian does not pay pre-
vailing rates of pay for electric work." One of the
pickets indicated he was on the jobsite because Te-
larian was doing electrical work and not paying
electricians ' wages . Employees of McClure did not
ELECTRICAL WORKERS IBEW LOCAL 6 (INTERCONTINENTAL HOTELS)
work that day. Telarian 's employees have not re-
turned to the hotel jobsite since December in view
of the Electrical Workers intent to resume picket-
ing if they do so.
The Electrical Workers contends it made a dis-
claimer of any work assignment objective on 29
December 1986, that it has engaged in no conduct
since that time which is inconsistent with its dis-
claimer, and that picketing which has occurred
since the disclaimer was valid area standards pick-
eting.
Regarding the Electrical Workers' alleged dis-
claimer , the Board has held that "a jurisdictional
dispute no longer exists when one of the competing
unions or parties effectively renounces its claim to
the work at issue . The party raising such an issue,
however , has the burden to satisfy the Board's re-
quirements of a clear , unequivocal , and unqualified
disclaimer of all interest in the work in dispute."4
At the outset , we note that there exists the Electri-
cal Workers attorney 's mere assertion that a tele-
gram was sent to the hotel allegedly disclaiming a
work assignment objective . The telegram is not in
evidence and there is no record testimony by the
hotel concerning whether it was received and, if it
was received , what it stated . Even assuming such,a
telegram was sent, however, it is our opinion that
picketing engaged in by the Electrical Workers
subsequent to the telegram negates any intention on
its part to disclaim the disputed work. Thus, we
shall not honor the Electrical Workers' alleged dis-
claimer of the disputed work.
The Electrical Workers also asserts that it en-
gaged in lawful area standards picketing about 19
January 1987 , with its signs indicating that Telarian
did not pay prevailing rates of pay for electrical
work . However , there is no evidence indicating
that the Electrical Workers ever contacted the Em-
ployer regarding wages paid to its employees rep-
resented by the Communications Workers or in any
other fashion ascertained such wage information.
Thus, it is clear that the Electrical Workers never
made a reasonable inquiry into the Employer's pay
scales . Accordingly , we find no merit in this con-
tention.
Considering all the circumstances and rejecting
the Electrical Workers' contentions to the con-
trary, we find that there is reasonable cause to be-
lieve that an object of the Electrical Workers' con-
duct was to force the Employer to assign the dis-
puted work to employees represented by the Elec-
trical Workers , and thus that Section 8(b)(4)(D) has
been violated. We particularly note the Electrical
Workers' keen interest in whether Telarian's em-
4 Electrical Workers IBEW Local 202 (W B Skinner), 271 NLRB 171,
172 (1984)
915
ployees had union cards and Danberger 's statement
that Telarian could resolve the "dispute" if it
would "clear through Local 6 ." We also note the
language of the picket signs, one indicating that
Telarian is "unfair to IBEW Local No. 6." and an-
other one indicating that Telarian did not pay pre-
vailing wages for "electric work ." This entire
course of conduct leads us to believe that the Elec-
trical Workers, having assumed that the work
being done by Telarian was, in fact , electrical
work , intended to obtain that work for its members
and engaged in activity designed to force the Em-
ployer to change its work assignment.
Accordingly, we conclude that there is reasona-
ble cause to believe that a violation of Section
8(b)(4)(D) has occurred . Furthermore , there is no
evidence and no party contends that an agreed-on
method exists for the voluntary adjustment of this
dispute . Therefore , we find that this dispute is
properly before the Board for determination.
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. Certifications and collective-bargaining
agreements
There is no certification covering the disputed
work . The employees of the Employer who are
performing the disputed work are represented by
the Communications Workers and are performing
their work pursuant to a collective-bargaining
agreement with the Company , which covers the
disputed work. We conclude that this factor favors
awarding the work to employees represented by
the Communications Workers.
2. Company past practice
It is undisputed that the Employer during the
past 10 years has used Communications Workers
members to perform the type of work in dispute.
We find that the Employer's past practice favors its
assignment of the disputed work to employees rep-
resented by the Communications Workers.
916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. Area and industry practice
It is undisputed that the Communications Work-
ers represents employees employed by contractors
in the San Francisco Bay area who are performing
work of the same type as the disputed work. We
therefore find that this factor tends to favor an
award of the disputed work to employees repre-
sented by the Communications Workers.
4. Relative skills
The undisputed testimony of the Employer indi-
cates that the disputed work requires the skills of a
person trained in electronic, rather than electrical,
work. Its employees, represented by the Communi-
cations Workers, have the necessary skills and the
Employer is satisfied with their work. The Em-
ployer testified that it uses specific test equipment,
tools, and color coding for wiring with which
members of the Electrical Workers may not be fa-
miliar , and that electricians normally do not have
the training to understand the fundamentals of the
analog and digital distribution systems and comput-
erized central processing systems used by the Em-
ployer. We find that this factor favors an award of
the disputed work to employees represented by the
Communications Workers.
5. Economy and efficiency of operations
The Employer testified that it is more efficient
for employees represented by the Communications
Workers to perform the disputed work because of
the skills they possess . According to the Employ-
er's undisputed testimony, members of the Electri-
cal Workers are not able to complete the total job,
which would thus require that another group of
employees be brought in to complete the disputed
work. The Employer testified that such a two-step
procedure would create problems in managing the
installation of the smoke detection and energy man-
agement systems at issue here. The Employer testi-
fied that at a different jobsite the electricians could
not carry the work through the final installation
stage because they did not have the knowledge and
training to do so. The Employer was required to
bring in other trained employees to finish the job.
We find that this factor favors an award of the dis-
puted work to employees represented by the Com-
munications Workers.
Conclusions
After considering all the relevant factors, we
conclude that the employees represented by Com-
munications Workers of America , AFL-CIO,
Local 9431 are entitled to perform the work in dis-
pute . We reach this conclusion relying on the facts
that such an award is consistent with the Employ-
er's current collective-bargaining agreement with
the Communications Workers; the employees rep-
resented by the Communications Workers possess
the requisite skills to perform such work; such an
award will result in greater efficiency of oper-
ations; the assignment is in accord with area prac-
tice; and it is consistent with the Employer's past
practice. In making this determination, we are
awarding the work to employees represented by
Communications Workers of America, AFL-CIO,
Local 9431, not to that Union or its members. We
also find that International Brotherhood of Electri-
cal Workers, Local 6, is not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force
or require the Employer to assign the disputed
work to employees it represents. The present deter-
mination is limited to the particular controversy
that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. Employees of Telarian Corporation, who are
currently represented by Communications Workers
of America, AFL-CIO, Local 9431, are entitled to
perform all work related to the installation of low-
voltage wiring of enunciated smoke detection sys-
tems and energy management systems at the Mark
Hopkins-Intercontinental Hotel at One Nob Hill,
San Francisco, California.
2. International Brotherhood of Electrical Work-
ers, Local 6, is not entitled by means proscribed by
Section 8(b)(4)(D) of the Act to force or require
Telarian Corporation to assign the disputed work
to employees represented by it.
3. Within 10 days from this date, International
Brotherhood of Electrical Workers, Local 6, shall
notify the Regional Director for Region 20 in writ-
ing whether it will refrain from forcing the Em-
ployer, by means proscribed by Section 8(b)(4)(D),
to assign the disputed work in a manner inconsist-
ent with this determination.
MEMBER CRACRAFT, dissenting.
I do not agree with my colleagues' holding that
there is reasonable cause to believe that an object
of the Electrical Workers' conduct was to force
the Employer to assign disputed work to employ-
ees it represented. A prerequisite to finding that a
jurisdictional dispute exists is that there be "com-
peting claims to . . . disputed work between rival
groups of employees."' There is not reasonable
' Federation of Special Police & Law Enforcement Officers, 242 NLRB
1076, 1077 (1979)
ELECTRICAL 'WORKERS IBEW LOCAL 6 (INTERCONTINENTAL HOTELS) 917
cause to believe that two groups of employees are
competing for the work allegedly in dispute.
Much of the record evidence concerning an al-
leged work dispute is ambiguous at best and re-
veals only that the Electrical Workers may have
had some nonspecific complaint with either the
hotel or with Telarian . Even putting the evidence
in the light most unfavorable to the Respondent, it
is not possible on this record to determine what
that complaint might have been . Both Richard
Danberger and John Walsh complained to the
hotel that Telarian 's employees did not have union
cards . Even after being assured that arrangements
for Telarian 's employees to have union cards had
been made, the hotel decided to pull Telarian's em-
ployees off the job . There had been no request that
it do so and no direct communication from the
Electrical Workers regarding the source of its con-
cern . The first picket sign merely said that "Telar-
ian Corp. is unfair to IBEW Local No. 6" without
indicating how Telarian was being unfair. Dan-
berger 's statement to Glenn that "Tellarian would
have to clear through Local 6" to resolve the al-
leged dispute is ambiguous , contains no hint of
what the "dispute" was , and contains no direct re-
quest for action by any party herein . The second
picket sign stated "Unfair Te larian does not pay
prevailing rates of pay for electric work." While
this picket sign may not qualify as legitimate area
standards picketing , neither does it indicate that
there is a dispute over a work assignment.
In my opinion , the facts simply do not allow an
inference to be drawn that there is any real compe-
tition between the Communications 'Workers and
the Electrical Workers for a specific work task.
None of the conversations between the hotel and
representatives of the Electrical Workers indicate
that the electrical workers were disgruntled about
a work assignment . There is no indication that the
Electrical Workers, either directly or indirectly,
sought a reassignment of the work allegedly in dis-
pute . There is no indication that the Electrical
Workers pressed Telarian , which controlled the
work assignment , to change the work assignment
or that the hotel , as the general contractor, asked
for a change . While the Electrical Workers en-
gaged in picketing , the purpose of this economic
activity does not appear related to any asserted
right of Local 6 members to perform a specific
work task . In short, the record evidence simply
does not allow any reasonable inference that the
Electrical Workers engaged in the above activity
with the objective of forcing the Employer to
make a particular work assignment to employees
represented by the Electrical Workers.
The Board has repeatedly held that Sections
8(b)(4)(D) and 10(k) "were intended to deal with
disputes between two or more competing employee
groups claiming the right to perform certain tasks
. . . ."2 Absent competing claims between rival
groups of employees to perform the work allegedly
in dispute , there is no jurisdictional dispute within
the meaning of Section 8(b)(4)(D) and Section
10(k) of the Act. Accordingly, I would quash the
notice of hearing.
2 Teamsters Local 839 (Shurtleff & Andrews Constructors), 249 NLRB
176, 177 (1980)