Electrical Workers IBEW Local 9 (Omni Electric)

National Labor Relations Board - Board Decisions

Aug 31, 1992

308 N.L.R.B. 513 (N.L.R.B. 1992)

513
308 NLRB No. 73
ELECTRICAL WORKERS IBEW LOCAL 9 (OMNI ELECTRIC)
1 All subsequent dates are in 1992 unless otherwise specified.
2 The other Parties in Interest did not appear at the hearing and
did not enter into the stipulation.
3 The parties’ commerce stipulation is not well stated, referring as
it does to the Employer’s purchasing and receiving in the State of
Indiana goods from points located outside the State of Illinois. How-
ever, we note that the parties also stipulated that the ‘‘Employer is
engaged in commerce within the meaning of the Act and is subject
to the jurisdiction of the National Labor Relations Board.’’ On the
basis of the parties’ stipulations and the record as a whole, we find
that a sufficient basis exists for asserting jurisdiction over the Em-
ployer in the instant 10(k) proceeding.
4 The designation ‘‘Laborers’’ will include, as appropriate, Local
Unions and District Councils of the Laborers’ International Union of
North America, AFL–CIO, in Illinois, Ohio, and Indiana. ‘‘Team-
sters’’ will include, as appropriate, Local Unions and District Coun-
cils and/or Conferences of the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, AFL–CIO
in Illinois, Ohio, and Indiana. ‘‘Operating Engineers’’ will include
the International Union of Operating Engineers Local Union No.
150, AFL–CIO and, as appropriate, any other local of that Union in
Illinois, Ohio, and Indiana with which the Employer has a collective-
bargaining agreement.
Local Union No. 9, International Brotherhood of
Electrical Workers, AFL–CIO and Omni Elec-
tric, Inc. and State of Indiana District Council,
Laborers’ International Union of North Amer-
ica, Party in Interest; Laborers Local No. 5,
Laborers’ International Union of North Amer-
ica, AFL–CIO, Party in Interest; International
Union of Operating Engineers Local Union No.
150, AFL–CIO; Party in Interest; Indiana Con-
ference of Teamsters, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL–CIO, Party in
Interest; Local 135, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO, Party in Inter-
est; and Roger and Sons Mill Maintenance,
Inc., Party in Interest. Case 13–CD–462
August 31, 1992
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The charge in this Section 10(k) proceeding was
filed April 29, 1992,1 by the Employer, Omni Electric,
Inc., alleging that the Respondent, Local Union No. 9,
International Brotherhood of Electrical Workers, AFL–
CIO (Electrical Workers) violated Section 8(b)(4)(D)
of the National Labor Relations Act by engaging in
proscribed activity with an object of forcing the Em-
ployer to assign certain work to employees it rep-
resents rather than to employees of Omni Electric, Inc.,
represented by Laborers Local No. 5, Laborers’ Inter-
national Union of North America, AFL–CIO (Laborers
Local 5). The hearing was held June 2, 1992, before
Hearing Officer Bruce Standish. Thereafter, the Em-
ployer and the Electrical Workers filed briefs.
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
Omni Electric, Inc., a Georgia corporation whose
principal place of business is in Michigan City, Indi-
ana, is an electrical contractor primarily engaged in in-
stalling public works lighting systems in the States of
Indiana, Illinois, Ohio, and Kentucky. The Employer
during the past calendar year, a representative period,
from its Michigan City, Indiana facility purchased and
received goods valued in excess of $50,000 from
points directly outside the State of Illinois. The Em-
ployer, the Electrical Workers, and Laborers Local 5
stipulate,2 and we find,3 that the Employer is engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act and that the Electrical Workers; Labor-
ers Local 5; the State of Indiana District Council, La-
borers’ International Union of North America; the
International Union of Operating Engineers Local
Union No. 150, AFL–CIO; the Indiana Conference of
Teamsters, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
AFL–CIO; and Local 135, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL–CIO are labor organizations within
the meaning of Section 2(5) of the Act.4
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer has been in business for 13 years, has
been based in Indiana since 1981, and is currently
working in Indiana, Illinois, Ohio, and Kentucky. The
Employer’s work is primarily public work involving
installation of simple lighting systems including street
lighting systems, traffic signals, air traffic control sys-
tems, duct work, conduit installation, and cabling.
The Employer became a union contractor in 1988
and is signatory to contracts with the Laborers, the
Teamsters, and the Operating Engineers in Indiana, Il-
linois, and Ohio. The Employer does not have a con-
tract with the Electrical Workers.
In peak season, the Employer has 30 to 40 construc-
tion employees, 90 percent of whom are represented
by the Laborers. Five or six employees represented by
the Laborers, and one represented by the Teamsters,
have been with the Employer for more than 3 years.
The Employer employs two electricians who are not
represented by any union. In addition, the Employer
hires employees represented by the Operating Engi-
neers as needed for its projects.
514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The Electrical Workers produced evidence concerning an inves-
tigation of Omni Electric, Inc. in 1988 for alleged violation of the
Illinois Prevailing Wage Act relative to a contract for street light
maintenance. We find the evidence irrelevant to the issue in this pro-
ceeding of the identity of the employees entitled to perform the
work.
Through a competitive bid, the Employer obtained a
contract from the Illinois Department of Transportation
to replace an obsolete lighting system involving about
78 street lights with a new up-to-date system. The Em-
ployer commenced this work in Lansing, Illinois, on
April 22, with a work crew consisting of seven em-
ployees represented by the Laborers and one employee
represented by the Teamsters. Five of the employees
represented by the Laborers had been with the Em-
ployer for 3 years or longer, and two were from La-
borers Local 5, an Illinois local.
On April 27, the Electrical Workers began picketing
the jobsite with area standards picket signs and contin-
ued picketing until May 5. On April 27, seven pickets
carried signs that read, ‘‘Omni Electric, Incorporated,
Unfair. Does not pay area standard wages and bene-
fits.’’ On that same day the pickets stopped a concrete
truck from delivering and pouring concrete.
On April 28, Robert Hairopoulos, the Employer’s
executive vice president, visited the jobsite and told
Robert Pearson, business agent for the Electrical
Workers, that the Employer would pay its employees
the wages paid to members of the Electrical Workers
if that was what the Electrical Workers wanted. Pear-
son replied, ‘‘No, that isn’t all we want, that is our
work out there. That is all our work.’’ Hairopoulos
told Pearson that the Employer was a union contractor;
its people were affiliated with other unions, i.e., the
Laborers, the Teamsters, and the Operating Engineers.
Pearson replied that it was all Electrical Workers’
work.
Later that day Hairopoulos talked to Pearson, and
Pearson told him that the pickets would be there until
a contract was signed. At Pearson’s request,
Hairopoulos called the Electrical Workers’ business
manager, Burkhart, who explained that the work the
Employer was doing in Lansing was Electrical Work-
ers’ work.
B. Work in Dispute
The work in dispute involves the removal of the ex-
isting highway lighting system and the installation,
both temporary and permanent, of a new, modern high-
way lighting system on Torrence Avenue and Ridge
Road in Lansing, Illinois, including the installation of
underground electric lines and conduit, concrete work,
and all related work.
C. Contentions of the Parties
The Employer contends that there is reasonable
cause to believe that the Electrical Workers violated
Section 8(b)(4)(D) of the Act. The Employer further
contends that the work in dispute is not electrical work
and should be awarded to Omni employees based on
the Employer’s preference and past practice, the col-
lective-bargaining agreements which the Employer has
with the Laborers, Operating Engineers, and Team-
sters, the economy and efficiency of awarding the
work to Omni employees, and Board precedent.
Laborers Local 5 contends that the Employer em-
ploys employees it represents, has a collective-bargain-
ing agreement with the Laborers Union, and that the
Employer should continue to employ Laborers-rep-
resented employees, to whom it has presently assigned
the work.
The Electrical Workers contends that the work in
dispute calls for one integrated electrical circuit and
electrical system that ties in with other electrical sys-
tems and is necessarily electrical work by the defini-
tion contained in the Illinois Department of Transpor-
tation contract. The Electrical Workers contends that
the work in dispute should be assigned to employees
it represents based on skill and training, industry and
area practice, and the determination by the Illinois De-
partment of Labor that Omni was guilty of violating
the Prevailing Wage Act.5
D. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute pursuant to Section 10(k) of the Act, it
must be established that reasonable cause exists to be-
lieve that Section 8(b)(4)(D) has been violated. This
requires a finding that there is reasonable cause to be-
lieve that a union has threatened to use or has used
proscribed means to force an employer to assign work
to one group of employees rather than to another.
At the beginning of this dispute, the Employer’s
own employees, most of whom were represented by
the Laborers, had been assigned to perform certain
work in Lansing, Illinois. Employees represented by
the Electrical Workers picketed the job with area
standards picket signs and also prevented a load of
concrete from being delivered and poured.
As discussed above, when Robert Hairopoulos, the
Employer’s executive vice president, offered to pay
area standards wages, Robert Pearson, the Electrical
Workers’ business agent, stated that wages were not all
they wanted and claimed the work. Pearson later told
Hairopoulos that the pickets would be there until a
contract was signed. In a phone conversation, Elec-
trical Workers’ business manager, Burkhart, also
claimed the work.
Although the message on the picket signs was
couched in area standards language, the evidence at the
hearing indicated that an object of the picketing was
to obtain the assignment of work. The presence of the
515ELECTRICAL WORKERS IBEW LOCAL 9 (OMNI ELECTRIC)
6 On one occasion in 1990, the Employer deviated from this prac-
tice and used IBEW-represented employees on a job in Ohio, but the
Employer found their work to be inadequate.
latter object is ‘‘sufficient to bring a union’s conduct
within the meaning of Section 8(b)(4)(D).’’ Plasterers
Local 594 (Tectonics Engineering), 286 NLRB 259,
260 (1987) (footnote omitted).
We find reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred, and the record con-
tains no evidence of an agreed method for voluntary
adjustment of the dispute within the meaning of Sec-
tion 10(k) of the Act. 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 the dispute.
1. Certifications and collective-bargaining
agreements
There is no evidence that any of the Unions has
been certified by the Board to represent the employees
of the Employer. The Employer has had contracts in
various jurisdictions with the Laborers, Teamsters, and
Operating Engineers since 1988, but it does not have
a contract with the Electrical Workers. The Employer
is signatory to contracts with the Laborers, Teamsters,
and Operating Engineers in Illinois by virtue of its
membership in the Illinois Road Builders’ Association.
The contracts are in evidence and arguably cover the
disputed work. However, because the Employer did
not complete its application with the Illinois Road
Builders’ Association until April 28, the day after the
picketing began, and because other factors exist that,
in any event, favor an award of the disputed work to
Omni employees, we find it unnecessary to consider
the contracts in determining the merits of the jurisdic-
tional dispute.
2. Company preference and past practice
The Employer has used its own unrepresented em-
ployees and, since 1988, has also used employees rep-
resented by the Laborers, Teamsters, and Operating
Engineers to perform work similar to the work in dis-
pute.6 The Employer prefers to continue to use its own
employees. We find that this factor favors awarding
the work to the Employer’s own employees.
3. Area and industry practice
The Electrical Workers produced evidence that the
area practice is to use employees represented by the
Electrical Workers to do the type of work in dispute.
However, when as here a job has been awarded to an
employer from another State or area and that employer
uses its own employees in performing such work, the
area practice prevalent where the jobsite is located can-
not be considered determinative. See Sheet Metal
Workers Local 41 (B & W Metals), 231 NLRB 122,
124 (1977); Painters Local 48 (Manganaro Corp.),
267 NLRB 1208, 1212 (1983). Although the Electrical
Workers contends that the industry practice is to use
employees represented by the Electrical Workers, the
evidence of this was limited to testimony of Inter-
national IBEW Representative Jerry O’Connor. O’Con-
nor testified that the International IBEW takes the po-
sition that on electrical construction projects the entire
work involved can be done by electricians. We find
that this factor does not favor awarding the work to ei-
ther group of employees.
4. Relative skills
The Electrical Workers presented evidence that the
American Line Builders Association (ALBAT) and the
IBEW have combined to create an apprentice program
for outside electricians. The course includes training in
digging holes, trenches, pouring concrete, and setting
poles. Electrical Workers Local 9 subscribes to this
program and, in addition, offers a training program for
all new Local 9 members and offers journeyman im-
provement programs throughout the year. The Em-
ployer presented evidence that the disputed work is
very simple and does not require a high degree of
skill. Hairopoulos testified that less than 1 percent of
the work involved is electrical work and that, except
for actually wiring connections, which the Employer
performs with its own electricians, the work is simple
nontechnical work, not electrical work and does not re-
quire electrical skill or knowledge. Gregory Neulieb,
Omni’s superintendent, testified that the Laborers’
work is ‘‘very adequate’’ and done ‘‘very profes-
sionally.’’ We find that this factor does not favor
awarding the work in dispute to either group of em-
ployees.
5. Economy and efficiency of operations
The Employer finds it more economical and effi-
cient to assign the disputed work to its own experi-
enced employees, who are familiar with the Employ-
er’s equipment, operating processes, and quality re-
quirements. In addition, the Employer currently uses a
working supervisor. Under a contract with the Elec-
516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
trical Workers, the Employer would be required, on a
crew of more than five persons, to hire an additional
employee, a nonworking foreman. We find that this
factor favors awarding the work in dispute to the Em-
ployer’s own employees.
Conclusions
After considering all the relevant factors, we con-
clude that the Employer’s own employees including
those who are represented by Laborers Local No. 5,
Laborers International Union of North America, AFL–
CIO; the State of Indiana District Council, Laborers’
International Union of North America; the Inter-
national Union of Operating Engineers Local Union
No. 150, AFL–CIO; the Indiana Conference of Team-
sters, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL–
CIO; and Local 135, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO are entitled to perform the work in
dispute. We reach this conclusion relying on employer
preference and past practice and economy and effi-
ciency of operations.
In making this determination, we are awarding the
work to the Employer’s own employees including
those represented by the Laborers, the Teamsters, and
the Operating Engineers, not to those Unions or their
members. The determination is limited to the con-
troversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of Omni Electric, Inc., including those
represented by Laborers Local No. 5, Laborers’ Inter-
national Union of North America, AFL–CIO; the State
of Indiana District Council, Laborers’ International
Union of North America; the International Union of
Operating Engineers Local Union No. 150, AFL–CIO;
the Indiana Conference of Teamsters, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL–CIO; and Local 135,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO are
entitled to perform the removal of the existing highway
lighting system and the installation, both temporary
and permanent, of a new, modern highway lighting
system on Torrence Avenue and Ridge Road in Lan-
sing, Illinois, including the installation of underground
electric lines and conduit, concrete work and all related
work.
2. Local Union No. 9, International Brotherhood of
Electrical Workers, AFL–CIO is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force
Omni Electric, Inc. to assign the disputed work to em-
ployees represented by it.
3. Within 10 days from this date, Local Union No.
9, International Brotherhood of Electrical Workers,
AFL–CIO shall notify the Regional Director for Re-
gion 13 in writing whether it will refrain from forcing
the Employer, by means proscribed by Section
8(b)(4)(D), to assign the disputed work in a manner in-
consistent with the determination.