Electrical Workers IBEW Local 486 (New England Power)

National Labor Relations Board - Board Decisions

Jul 21, 1993

311 N.L.R.B. 1162 (N.L.R.B. 1993)

1162
311 NLRB No. 148
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The most recent NEPSCO/Local 486 collective-bargaining con-
tract is effective from May 12, 1992, to May 11, 1995.
2 The most recent NECA/Local 223 contract is effective from De-
cember 1, 1991, to August 31, 1994.
3 The labor management committee consisted of three electrical
contractor signatories to the Local 223/NECA agreement and two
representatives from Local 223.
Local 486, International Brotherhood of Electrical
Workers, AFL–CIO and New England Power
Service Company and Local 223, International
Brotherhood of Electrical Workers, AFL–CIO.
Case 1–CD–921
July 21, 1993
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed on January 13, 1993, by the Employer, New Eng-
land Power Service Company (NEPSCO), alleging that
the Respondent, Local 486, International Brotherhood
of Electrical Workers, AFL–CIO (Local 486) violated
Section 8(b)(4)(D) of the National Labor Relations Act
by engaging in proscribed activity with an object of
forcing the Employer to assign certain work to em-
ployees it represents rather than to employees rep-
resented by Local 223, International Brotherhood of
Electrical Workers, AFL–CIO (Local 223). The hear-
ing was held on February 9, 1993, before Hearing Of-
ficer Gerald Wolper.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.
I. JURISDICTION
NEPSCO, a Massachusetts corporation, with its
principal place of business in Westborough, Massachu-
setts, provides construction, repair, and other services
to public utilities and other employers. The Employer
annually derives gross revenue in excess of $250,000
from its operation and annually receives goods and
materials valued in excess of $50,000 from points lo-
cated outside the Commonwealth of Massachusetts.
The parties stipulate, and we find, that the Employer
is engaged in commerce within the meaning of Section
2(6) and (7) of the Act and that Local 486 and Local
223 are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
NEPSCO is a subsidiary of and service company to
the New England Electric System (NEES), a public
utility holding company with subsidiaries which oper-
ate electrical generating plants, transmission lines, and
retail electrical facilities throughout New England.
NEPSCO provides services to NEES, including legal,
accounting, administrative, maintenance, and construc-
tion services. Its maintenance and construction depart-
ment provides employees for NEES subsidiaries’ con-
struction work and, also along with outside private
contractors, bids on NEES subsidiary construction
projects.
For at least the past 32 years NEPSCO has had a
collective-bargaining contract with Local 486, which
represents its maintenance and construction employees
performing structural, maintenance, and electrical
work.1
Under a policy instituted in the 1970s and ratified
in a 1982 memorandum of understanding between
NEPSCO and a district office of the IBEW, when
NEPSCO needs employees in addition to its own for
a particular job, it hires supplementary employees on
an ‘‘as-needed basis,’’ directly from local building
trade unions under direct hiring arrangements (Letters
of Assent). On August 7, 1989, NEPSCO and Local
223 executed a Letter of Assent. This bound NEPSCO
to Local 223’s collective-bargaining contract with the
Rhode Island and Southeast Massachusetts Chapter,
National Electrical Contractors Association, Inc.
(NECA) whenever NEPSCO employed workers re-
ferred by the Local 223 hiring hall.2
In July 1992, NEPSCO started work on the elec-
trical work at NEPSCO’s Brayton Point power plant.
As its Local 486 employees were employed on other
jobs, NEPSCO hired electricians through the Local 223
hiring hall. However, in November 1992, NEPSCO ex-
perienced a sharp decrease in construction work, re-
sulting in the layoff of its Local 486 employees. Be-
cause Local 486 employees were then available to
work on the Brayton Point project, which had not been
completed, NEPSCO advised Local 223 that it in-
tended to replace the Local 223 employees on that
project with its Local 486 employees. On November
27, 1992, NEPSCO discharged the Local 223 elec-
tricians and the Local 486 employees took their place.
On January 6, 1993, Local 223 filed a grievance, al-
leging that NEPSCO’s November 27 action was a con-
tract violation. A hearing on the grievance was sched-
uled to be held January 12, 1993, before the contrac-
tual labor management committee, but was subse-
quently canceled.3 On the day before the scheduled
committee hearing, Richard Raymond, business man-
ager of Local 486, called James A. Cariani, NEPSCO’s
manager of labor relations and construction, and told
him that ‘‘if [Cariani] changed his mind [as a result of
the grievance hearing scheduled for the next day] and
made a change in the work assignment at Brayton
Point [Raymond] would have a job action and strike
this facility.’’
1163ELECTRICAL WORKERS IBEW LOCAL 486 (NEW ENGLAND POWER)
4 Local 486 did not appear and was not represented at the hearing.
5 See, e.g., Iron Workers Local 350 (Cornell & Co.), 271 NLRB
1182 (1984); Machinists Lodge 27 (Joseph E. Seagram & Sons), 198
NLRB 407, 408 (1972); and Laborers Local 1184 (H. M. Robertson
Pipeline Constructors), 192 NLRB 1078, 1079 (1971).
6 See, e.g., Electrical Workers IBEW Local 486 (New England
Power), 219 NLRB 692, 693 (1975).
7 See, e.g., Nashua Printing Pressmen Local 359 (Telegraph Pub-
lishing Co.), 212 NLRB 942, 944 (1974).
The labor management committee met on January
19, 1993.4 On January 25, 1993, Local 223 informed
NEPSCO’s counsel that the labor management com-
mittee had found that NEPSCO’s November 27, 1992
action had violated its contract with Local 223 and that
NEPSCO was to pay back wages and benefits to the
Local 223 employees terminated on that date.
B. Work in Dispute
The disputed work involves the electrical control
work, wiring, and remote and local control work per-
formed by the Employer in connection with the con-
struction of a city water fire protection system at New
England Power Company’s Brayton Point station lo-
cated in Somerset, Massachusetts.
C. Contentions of the Parties
The Employer and Local 486 contend that there is
reasonable cause to believe that Local 486 violated
Section 8(b)(4)(D) of the Act and that the proceeding
is properly before the Board for determination of the
dispute. They further argue that on the basis of Local
486’s collective-bargaining contract with the Employer,
the Employer’s past practice, economy and efficiency
of operations, and employer preference the work in
dispute should be assigned to employees represented
by Local 486.
Local 223 contends that the evidence does not estab-
lish a jurisdictional dispute cognizable under Section
8(b)(4)(D) of the Act. It claims that the Employer vol-
untarily reassigned the work to Local 486 and that
since Local 486 had already been assigned the disputed
work at the time of its alleged threat, the alleged threat
was not serious and would not rise to the level of a
jurisdictional dispute. Local 223 maintains that the real
issue in this proceeding is that the Employer’s reas-
signment of the disputed work to Local 486 violated
the collective-bargaining agreement between Local 223
and NECA and that the labor management committee’s
determination precludes Board review.
D. Applicability of the Statute
Before the Board may proceed with a determination
of the dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated and that
the parties have not agreed on a method for the vol-
untary adjustment of the dispute.
As noted above, Cariani testified that on January 11,
1993, he received a call from Local 486 Business
Manager Richard Raymond who threatened to strike
the Brayton Point facility if Cariani reassigned the dis-
puted work to Local 223. There is no record evidence
to support Local 223’s claim that this threat was not
genuine. Under settled Board policy, reasonable cause
to believe that a violation of Section 8(b)(4)(D) exists
if a labor organization which represents employees
who are assigned the disputed work puts improper
pressure on an employer to continue such assignment.5
Based on the foregoing and the record as a whole, we
find that there is reasonable cause to believe that an
object of Local 486’s action in threatening to strike
NEPSCO was to force NEPSCO to continue to assign
the disputed work to employees represented by Local
486 and that a violation of Section 8(b)(4)(D) has oc-
curred.
Further, contrary to Local 223’s contention, we find
that by filing the grievance against NEPSCO for reas-
signing the work to Local 486, Local 223 was, in ef-
fect, making a demand for the work.6 Finally, because
Local 486 was not a party to, or bound by, the arbitra-
tion proceeding between NEPSCO and Local 223, we
find that no agreed-upon method exists for the vol-
untary adjustment of the dispute which is binding on
all the parties.7 Accordingly, we find that the dispute
is properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative 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 in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Certifications and collective-bargaining
agreements
The Board has certified neither Local 486 nor Local
223 as the collective-bargaing representative of
NEPSCO’s employees who perform the disputed work.
NEPSCO has collective-bargaining agreements with
Local 486 and Local 223, both of which contain lan-
guage which covers the disputed work. Thus, we find
that this factor favors neither Union.
2. Employer preference and past practice
The Employer prefers to use the employees rep-
resented by Local 486, and its past practice for more
1164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
than 30 years has been to assign the disputed work to
employees represented by Local 486 unless Local 486
employees are unavailable because they are employed
by the Employer on a different project. Accordingly,
we find that this factor favors an award to employees
represented by Local 486.
3. Area and industry practice
Local 486 contends that area and industry practice
conforms to the Employer’s past practice. There is no
evidence in the record, however, to support this con-
tention. Accordingly, we find that this factor favors
neither Union.
4. Relative skills
The Employer challenges the relative skills of em-
ployees represented by Local 223 to perform the work
in dispute. The record establishes that employees rep-
resented by Local 223 had been performing the work
for a substantial period of time, and there is no evi-
dence that the Employer considered unsatisfactory any
of the work in dispute performed by these employees.
No party disputes that the employees represented by
Local 486 possess the skills needed to perform the
work in dispute. We find therefore that this factor fa-
vors employees represented by neither Union.
5. Economy and efficiency of operations
The Employer maintains that, unlike employees rep-
resented by Local 223, the employees represented by
Local 486 devote most of their worktime to power
plant work and that their greater familiarity with this
type of work makes for more efficient employee utili-
zation. In addition, should emergencies arise, the avail-
ability in a geographic area of employees skilled in
power plant electrical work would permit the transfer
of these employees from one project to another without
disrupting electrical service to its customers. Accord-
ingly, we find find that this factor favors employees
represented by Local 486.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by Local 486 are en-
titled to perform the disputed work. We reach this con-
clusion relying on the factors of the Employer’s pref-
erence and past practice, and economy and efficiency
of operations. In making this determination, we are
awarding the work to employees represented by Local
486, not to that Union or its members. The determina-
tion is limited to the controversy that gave rise to this
proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of New England Power Service Com-
pany represented by Local 486, International Brother-
hood of Electrical Workers, AFL–CIO are entitled to
perform the electrical control work, wiring, and remote
and local control work being performed by the Em-
ployer in connection with the construction of a city
water fire protection system at the New England Power
Company’s Brayton Point station located in Somerset,
Massachusetts.