Electrical Workers IBEW Local 701 (Federal Street Construction)

National Labor Relations Board - Board Decisions

Mar 25, 1992

306 N.L.R.B. 829 (N.L.R.B. 1992)

829
306 NLRB No. 160
ELECTRICAL WORKERS IBEW LOCAL 701 (FEDERAL STREET CONSTRUCTION)
1 All dates are in 1991 unless otherwise indicated.
2 On October 11, 1991, the Regional Director ordered that this
case be consolidated with Case 13–CD–448, in which Federal Street
alleged that Plumbers and Pipefitters, Local 514, violated Sec.
8(b)(4)(D) by engaging in proscribed conduct for the purpose of
forcing the USPS to assign particular work to employees it rep-
resents. Prior to the hearing, Local 514 disclaimed interest in all of
the disputed work. On October 31, 1991, the Regional Director
issued an order severing cases and revoking the notice of hearing in
Case 13–CD–448.
International Brotherhood of Electrical Workers,
Local 701, AFL–CIO and Federal Street Con-
struction Co., Inc. and United States Postal
Service, Party in Interest and American Postal
Workers Union, AFL–CIO, Party in Interest.
Case 13–CD–447
March 25, 1992
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The charge in this Section 10(k) proceeding was
filed September 26, 1991,1 and amended September
27, by Federal Street Construction Co., Inc. (Federal
Street), alleging that the Respondent, International
Brotherhood of Electrical Workers, Local 701, AFL–
CIO (Local 701), violated Section 8(b)(4)(D) of the
National Labor Relations Act by engaging in pro-
scribed activity with an object of forcing the United
States Postal Service (USPS) to assign certain work to
employees it represents rather than to employees of the
USPS or its contractor, Westinghouse. The hearing
was held October 22, 1991, before Hearing Officer
Aaron Karsh.2
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, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.
I. JURISDICTION
Federal Street is a Pennsylvania corporation engaged
in the business of construction, with its principal place
of business in Pittsburgh, Pennsylvania, and various
construction sites in Illinois. During the 12 months
preceding the hearing, Federal Street and its prede-
cessor, Mellon Stuart, purchased and received at its Il-
linois construction sites goods and materials valued in
excess of $50,000 from points located outside the State
of Illinois, and during the same time received gross
revenues in excess of $250,000. The parties stipulated,
and we find, that Federal Street is engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act and that Local 701 is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
In September 1989, the USPS contracted with Mel-
lon Stuart Company for the construction of its Fox
Valley Mail Processing Center in Aurora, Illinois. In
September 1991, Federal Street succeeded Mellon Stu-
art and took over the construction of the Fox Valley
facility. The construction contract calls for Federal
Street to erect the building, prepare the worksite, and
install the fixed mechanized conveyor system. Federal
Street has subcontracted most of the work it is respon-
sible for under the contract. Two of the subcontractors,
Interface Electric and Fishback and Moore, have em-
ployed electricians represented by Local 701 to per-
form electrical work on the fixed mechanized conveyor
system.
At the time of the hearing, the USPS had taken ben-
eficial occupancy of approximately 25 percent of the
Fox Valley facility. In part of the occupied area, em-
ployees of the USPS and Westinghouse began assem-
bling and installing automated mail processing equip-
ment, namely, two letter sorting machines (LSMs) and
four bar code sorters (sorters). The LSMs are used ma-
chines that have been moved from other USPS loca-
tions to the Fox Valley facility and are installed by
specialized USPS personnel called ‘‘MOTSC’’
teams—Maintenance Overhaul Technical Service Cen-
ter. The sorters are newly purchased from Westing-
house and are installed by Westinghouse employees.
The assembly and installation of this equipment is not
within the scope of the construction contract between
the USPS and Federal Street.
On September 19, Local 701 Business Agent Ken
Lambert was summoned to the Fox Valley facility by
Local 701 member Spencer Balon, an employee of a
subcontractor on the job, because Balon observed
USPS employees performing electrical hookup and in-
stallation work similar to that performed by elec-
tricians on other equipment.
Lambert met Federal Street Project Superintendent
Dan O’Neal and told him that he had a problem with
the USPS ‘‘putting their work in place, doing elec-
tricians’ work.’’ O’Neal responded that it was not Fed-
eral Street’s work and that he did not have a problem
with it.
That same day, Lambert called USPS Project Man-
ager Craig Sharp and told him that the USPS employ-
ees were doing electricians’ work in a construction en-
vironment. Sharp responded that the installation of the
LSMs was being done in USPS-occupied space by spe-
cialized MOTSC employees who do this work all over
the country. Lambert then threatened that unless some-
thing were done, the job would be shut down.
830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The full text of the handbill is as follows:
STOP the U.S. Postal Service from taking construction jobs.
Wiring and installation work is being done on the conveyor sys-
tem at the Aurora Postal Distribution Center by Postal Workers
who have not been trained by an approved A.F.L.–C.I.O.,
I.B.E.W. apprentice training program or training approved by
State of Illinois Bureau of Apprenticeship Training and United
Association of Plumbers and Pipefitters Apprenticeship stand-
ards. Postal Workers receive less than the area standard pre-
vailing wage rate, which undercuts the buying power of the en-
tire community. We ask for your support in our protest. Please
express your concern and your support of our efforts to the staff,
management and employees. We are appealing only to the pub-
lic–the consumer–and are not seeking to induce any person to
cease work or refuse to make deliveries.
4 The USPS notified the Board that Federal Street’s brief also rep-
resents the position of the USPS.
On September 20, USPS Attorney Stuart Blenner
called Local 701 Attorney Hugh Arnold to discuss the
situation. Arnold stated that Local 701 had a problem
with the work being performed by the USPS employ-
ees and asked if they were being paid the prevailing
wage. Blenner replied that the MOTSC teams assemble
and install the LSMs and that they are paid pursuant
to a collective-bargaining agreement the USPS has
with the American Postal Workers Union, AFL–CIO.
Arnold replied, ‘‘I just want you to know we are not
disputing the fact that they are doing the work. They
are putting together those machines. But that the em-
ployees are not being paid the appropriate wages.’’
Blenner repeated that the work has historically been
performed by the MOTSC crews pursuant to their col-
lective-bargaining agreement. Arnold then said, ‘‘Well,
we can handbill. I am not disputing that the work is
yours. But we can handbill and no one will report to
work and we will shut the place down tighter than a
drum.’’
On September 23, Arnold told Blenner that if the
USPS did not do something, Local 701 would handbill
the site, no one would go to work, and after several
days, Blenner could call Arnold and perhaps then they
could work something out.
Local 701 handbilled at the site on September 25
and 26.3 Both days, the employees of 14 of the 16
subcontractors did not report for work.
On September 25, as O’Neal was arriving at the fa-
cility, he observed Local 701 handbillers stationed at
each entrance. At gate 3, O’Neal got out of his truck
to ask what was going on. Local 701 Business Agent
George Iaccino told him that he understood there was
a big problem inside with the Postal Service workers
doing electricians’ work. O’Neal got back in his truck
and entered the facility.
On September 30, a meeting was held at the Fox
Valley facility among representatives of the USPS,
Federal Street, and Local 701. Local 701 Business
Agent Stan Perry stated that because the work was
being done in construction space, the USPS should as-
sign the assembly and installation work on the LSMs
and sorters to employees represented by Local 701. In
order to solve this problem, Perry proposed that the
USPS reassign the hookups and final terminations on
the sorters to these employees.
Pursuant to Local 701’s proposal, the USPS re-
quested bids and ultimately awarded the final hookup
work on the Westinghouse sorters to employees rep-
resented by Local 701. This work was completed on
September 28, 1991.
B. Work in Dispute
All parties agree that the assembly and installation
of the LSMs is part of the work in dispute. However,
as to the Westinghouse sorters, Local 701 maintains
that no jurisdictional dispute exists because such work
was completed prior to the hearing by employees rep-
resented by Local 701 and because Westinghouse was
not made a party to this proceeding. We find no merit
to Local 701’s contention because the Board has long
held that completion of disputed work on a particular
job does not moot a jurisdictional dispute when, as
here, there is nothing to indicate that a similar dispute
will not arise in the future. Electrical Workers IBEW
Local 581 (National Telephone), 223 NLRB 538, 539
(1976).
Based on the testimony presented, we find that the
disputed work involves the assembly, installation, and
testing of new bar code sorters and previously dis-
assembled letter sorting machines at the Fox Valley
Mail Processing Center in Aurora, Illinois. Assembling
of this equipment includes machine electrical connec-
tions, mechanical assembly, building electrical hookup
and testing, and incidental work.
C. Contentions of the Parties
Federal Street4 contends that there is reasonable
cause to believe that Local 701 violated Section
8(b)(4)(D) of the Act by threatening to shut the facility
down if the USPS did not reassign the disputed work
to employees represented by Local 701, and that the
Board must therefore determine the merits of the dis-
pute. It further contends that the work in dispute
should be awarded to USPS and Westinghouse em-
ployees on the basis of the USPS’ preference and past
practice, its collective-bargaining agreement with the
American Postal Workers Union, AFL–CIO, the spe-
cialized skills of the USPS and Westinghouse employ-
ees, and economy and efficiency of operations.
Local 701 maintains that the notice of hearing must
be quashed because this matter involves truthful
handbilling to assure compliance with the Davis-Bacon
Act, which Local 701 argues is the exclusive province
of the U.S. Department of Labor. Local 701 further
claims that all conversations regarding the disputed
work were linked directly to Davis-Bacon area stand-
831ELECTRICAL WORKERS IBEW LOCAL 701 (FEDERAL STREET CONSTRUCTION)
5 The hearing officer referred to the Board for a ruling Local 701’s
Motion for Summary Judgment and its alternative motion to exclude
evidence relating to the handbilling. In support, Local 701 argues
that it was engaged in truthful handbilling and that such handbilling
is protected by the First Amendment and is outside the jurisdiction
of the Board. Local 701 also claims that Sec. 8(c) of the Act re-
quires a finding that the handbill cannot be used as evidence of an
unfair labor practice. Because we do not rely on the handbilling and
the threat to handbill in finding reasonable cause to believe that
Local 701 violated Sec. 8(b)(4)(D), we deny Local 701’s motions.
6 Cement Masons Local 577 (Rocky Mountain Prestress), 233
NLRB 923, 924 (1977).
ard compliance and were not a claim for the work. Fi-
nally, Local 701 claims that, in any event, the Board
does not have jurisdiction over this dispute because
truthful handbilling is not subject to Board jurisdiction.
On the merits, Local 701 contends that the work
should be assigned to employees it represents because
they possess a higher level of training, skill, and ability
to perform the disputed work. Local 701 points out
that, unlike the USPS employees, its members must
complete a 5-year apprentice program and be licensed
as electricians. Local 701 also contends that an Illinois
statute requires that the work be performed by licensed
electricians.
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.
The parties stipulated that they have not agreed on
a method to adjust this dispute voluntarily.
As discussed above, testimony was presented that
Local 701 claimed that the USPS was doing elec-
tricians’ work when it began assembling and installing
the LSMs and sorters, and that something needed to be
done or the job would be shut down. Stan Perry re-
peated Local 701’s claim for the LSM and sorter work
at the September 30 meeting. Finally, Blenner testified
that Local 701’s attorney threatened that Local 701
would shut the place down tighter than a drum if the
USPS did not correct the problem.
This evidence is disputed by testimony presented by
Local 701 that it did not threaten to engage in prohib-
ited conduct or even make a demand for the work. In
a 10(k) proceeding the Board is not charged with find-
ing that a violation did in fact occur, but only that rea-
sonable cause exists for finding a violation. Thus, a
conflict in the testimony need not be resolved in order
for the Board to proceed to a determination of the dis-
pute. Laborers Local 334 (C. H. Heist Corp.), 175
NLRB 608, 609 (1969). Under these circumstances, we
find that Local 701’s threat to shut the facility down
provides reasonable cause to believe Local 701 en-
gaged in conduct prohibited by Section 8(b)(4)(D). In
so finding, we do not rely on the handbilling and the
threat to handbill.5
Local 701 moved to quash the notice of hearing on
the ground that the object of its conduct was to protest
the USPS’ failure to pay its employees the prevailing
wage as required by the Davis-Bacon Act. Even as-
suming that one object of Local 701’s conduct was to
protest the USPS wage rates, we find reasonable cause
to believe that another object of Local 701’s conduct
was to force the USPS to assign the disputed work to
employees represented by Local 701. There was testi-
mony that Local 701 claimed that the USPS was doing
electricians’ work, that the Local 701 claim to the
LSM and sorter work was repeated at the September
30 meeting, and that Local 701’s attorney threatened
the USPS counsel that Local 701 would shut the place
down if the USPS did not correct the problem. Be-
cause ‘‘[o]ne proscribed object is sufficient to bring a
union’s conduct within the ambit of Section
8(b)(4)(D),’’6 we deny Local 701’s motion to quash
the hearing and 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, 1410–
1411 (1962).
The following factors are relevant in making the de-
termination of the dispute.
1. Certification and collective-bargaining
agreements
The USPS is party to a collective-bargaining agree-
ment with the American Postal Workers Union, AFL–
CIO, as the representative of the USPS maintenance
employees, a classification that includes the MOTSC
employees. MOTSC exists for the purpose of serv-
icing, overhauling, and refurbishing USPS-owned letter
sorting machines in general. Therefore, the APWU
contract arguably covers the LSM work in dispute. The
USPS has no contract with Local 701. Therefore, this
factor favors an award of the LSM work to USPS em-
ployees.
The record does not contain evidence of any certifi-
cation or collective-bargaining agreement applicable to
the Westinghouse sorter work. Therefore, this factor
832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Local 701 also contends that an Illinois statute requires that the
work be performed by licensed electricians. In support, Local 701
cites Ill.Rev.Stat. Ch. 24, Par. 11-37-1, et seq., which permits any
municipality to regulate the installation, alteration, and use of elec-
trical equipment, as well as the registration of electrical contractors.
Contrary to Local 701’s contention, the cited statute does not require
that employees performing electrical work be licensed.
favors neither Westinghouse employees nor Local 701-
represented employees.
2. Employer preference and past practice
MOTSC General Manager Roman Sierzega testified
that the USPS prefers to use its own MOTSC employ-
ees to perform the assembly and installation work on
the LSM and that this has been its practice since 1969.
There is no evidence that employees represented by
Local 701 have ever performed this work for the
USPS. USPS’ preference in this regard is uniform on
all its postal facility projects. Thus, we find that the
factor of employer preference and past practice favors
an award of the LSM work to USPS employees.
USPS Project Manager Craig Sharp testified that the
USPS prefers to have the new sorters assembled and
installed by Westinghouse personnel who have special-
ized knowledge of how the machines operate.
3. Area and industry practice
As the USPS is the only employer of its type in the
industry, this factor does not favor any group of em-
ployees.
4. Relative skills
Sierzega testified that the USPS and Westinghouse
employees engaged in the disputed work undergo ex-
tensive training in the operation and overhaul of the
LSMs and sorters, in addition to training in industrial
electricity, electronics, and computers. The MOTSC
employees who work on the LSMs must complete in-
tensive training courses so that they may attain the
level of skill and proficiency required to perform the
work. Each MOTSC team consists of four overhaul
specialists, one electronics technician, and one super-
visor. The Westinghouse personnel who assemble and
install the new sorters have specialized knowledge of
how the sorter operates and are responsible for its
proper functioning.
Local 701 claims that employees it represents pos-
sess the necessary skill and ability to perform the final
hookup and control wiring work. Local 701 states that
subcontractors Fishback and Moore and Interface Elec-
tric, both using employees represented by Local 701,
wired the entire facility and ran the 480-volt hard feeds
to the equipment at issue. However, Federal Street
Project Manager John Emser testified that Interface
Electric had to train the employees represented by
Local 701 to do the electrical wiring work associated
with the computer control systems on the fixed mecha-
nized conveyor system.
It appears that both groups of employees are suffi-
ciently skilled to perform the disputed work.7 There-
fore, we find that this factor does not favor any group
of employees.
5. Economy and efficiency of operations
Sierzega testified that it is more efficient and eco-
nomical to use the USPS MOTSC specialists, who are
trained in the assembly of the actual machine, than it
would be to employ Local 701 electricians, who must
be trained in computer and electronics assembly, as
well as in the overhaul and fine-tuning techniques nec-
essary to put the LSMs in operation. The MOTSC
teams are cross-trained to perform tasks associated
with the assembly and installation work that are not
usually performed by Local 701 electricians.
As to the sorters, the USPS has a national procure-
ment contract with Westinghouse which includes the
assembly and installation of this equipment. Westing-
house employees have specialized knowledge of how
this equipment operates and can use this knowledge to
complete the assembly and installation work more effi-
ciently. If there is a defect in the sorter, Westinghouse
is responsible for any repairs necessary pursuant to its
contract.
Based on the testimony presented, we find that this
factor favors awarding the disputed work to the USPS
and Westinghouse employees.
Conclusions
After considering all the relevant factors, we con-
clude that employees of the USPS and Westinghouse
are entitled to perform the work in dispute. We reach
this conclusion relying on the USPS’ collective-bar-
gaining agreement with the American Postal Workers
Union, AFL–CIO, the USPS’ preference and past prac-
tice, and economy and efficiency of operations. The
determination 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.
1. Employees of the United States Postal Service are
entitled to perform the work of assembling and install-
ing the letter sorting machines, and employees of Wes-
tinghouse are entitled to perform the work of assem-
bling and installing the new sorters at the Fox Valley
Mail Processing Center in Aurora, Illinois.
2. International Brotherhood of Electrical Workers,
Local 701, AFL–CIO is not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force or re-
quire the United States Postal Service to assign the dis-
puted work to employees represented by it.
833ELECTRICAL WORKERS IBEW LOCAL 701 (FEDERAL STREET CONSTRUCTION)
3. Within 10 days from this date, International
Brotherhood of Electrical Workers, Local 701, AFL–
CIO shall notify the Regional Director for Region 13
in writing whether it will refrain from forcing the
United States Postal Service, by means proscribed by
Section 8(b)(4)(D), to assign the disputed work in a
manner inconsistent with this determination.