Electrical Workers IBEW Local 98 (AIMM, Inc.)

National Labor Relations Board - Board Decisions

Aug 24, 2000

331 N.L.R.B. 1075 (N.L.R.B. 2000)

ELECTRICAL WORKERS LOCAL 98 (AIMM, INC.) 1075
International Brotherhood of Electrical Workers,
Local 98, AFL–CIO and AIMM, Inc. and Met-
ropolitan Regional Council of Philadelphia &
Vicinity, United Brotherhood of Carpenters &
Joiners of America, AFL–CIO. Case 4–CD–
1017
August 24, 2000
DECISION AND DETERMINATION OF DISPUTE
BY MEMBERS FOX, LIEBMAN, AND BRAME
The charge in this Section 10(k) proceeding was filed
on March 1, 2000,1 by AIMM, Inc. (the Employer), al-
leging that the Respondent, International Brotherhood of
Electrical Workers, Local 98 (Local 98), violated Section
8(b)(4)(D) of the National Labor Relations Act by engag-
ing in proscribed activity with an object of forcing the
Employer to assign certain work to employees it repre-
sents rather than to employees represented by the United
Brotherhood of Carpenters & Joiners of America (the
Carpenters). The hearing was held on March 31 before
Hearing Officer Henry R. Protas.
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
The Employer, a New Jersey corporation, is engaged
in the business of installing commercial furniture, fix-
tures and equipment; it has an office in Haddon Heights,
New Jersey. During the 12-month period leading up to
the hearing, the Employer provided services valued in
excess of $50,000 directly to customers located outside
the State of New Jersey. The parties stipulated, 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 98 and the Carpenters are labor organizations
within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The location of the work dispute is the construction
site of the Hotel Sofitel in Philadelphia. Higgins Design
Group (Higgins), responsible for providing the interior
furnishings of the hotel, contracted with the Employer
for unloading and installation of the furnishings at the
site. The furnishings, referred to generically in this re-
cord as “furniture, fixtures, and equipment” or “FF&E,”
include beds, headboards, armoires, nightstands, lamps,
and, most significant in this case, refrigerators and televi-
sion sets. The Employer assigned the FF&E work to its
employees represented by the Carpenters. The Employer
began performance of the contract in late January.

1 All dates hereafter are in 2000.
On February 22, Karl Disney, the foreman of the Em-
ployer’s Carpenter employees, and another employee
were unloading FF&E from a truck at the hotel’s loading
dock. Between seven and nine members of Local 98 ap-
peared at the dock and stood in a way that obstructed
further unloading and distribution of the FF&E. One of
the Local 98 members identified himself as a business
agent and told Disney that he knew there were refrigera-
tors on the truck and that Local 98 claimed the work of
unloading the refrigerators and distributing them to the
hotel rooms. Rather than risk a more serious confronta-
tion, Disney followed the telephoned instructions of his
superior to return the refrigerators to Higgins. It is appar-
ent that the rest of the FF&E work was carried out that
day without interference from Local 98.
On February 23, Disney was approached at the hotel
site by two officials of Local 98. One of them handed
Disney a copy of a faxed message sent by the Keating
Building Corp., the project’s general contractor, to Hig-
gins. The fax stated that, “because Local 98 was threaten-
ing a job action, Higgins was not to deliver any refrigera-
tors or televisions to the Sofitel site unless Local 98
members unloaded and distributed them.” The Local 98
official explained to Disney that “we don’t want any
more refrigerators or TVs to be delivered unless Electri-
cians handle it.”
From February 22 through the March 31 hearing, no
more televisions or refrigerators were shipped to the ho-
tel site for unloading, distribution, and installation by the
Employer. The hotel project was due to be completed by
the end of April.
B. Work in Dispute
The disputed work involves the unloading, moving,
and installation of refrigerators and television sets at the
Hotel Sofitel, 17th and Sansom Streets, Philadelphia,
Pennsylvania.
C. Contentions of the Parties
In its posthearing brief, the Employer contends that the
conduct of Local 98’s representatives on February 22 and
23 establishes at least reasonable cause to believe that
Local 98 has violated Section 8(b)(4)(D) of the Act. The
Employer further contends that the Board should award
the work to its employees represented by the Carpenters,
based on the terms of its current collective-bargaining
agreement with the Carpenters; on the Employer’s prac-
tice and preference; on area and industry practice; on the
superior relative skills of its Carpenter employees; and
on the economy and efficiency of its assignment to the
Carpenter employees. Finally, the Employer requests that
the Board issue a broad work award in view of Local
98’s conduct.
The Carpenters filed a letter with the Board in lieu of a
posthearing brief, expressing agreement with the Em-
ployer’s position that the work in dispute should continue
to be assigned to its members who work for the Em-
331 NLRB No. 156
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1076
ployer. Local 98 did not file any posthearing documents
with the Board. At the hearing, its position appeared to
be that the disputed work should be assigned to its mem-
bers because installation of both refrigerators and televi-
sion sets requires plugging electrical cords into wall out-
lets.
D. Applicability of the Statute
Before the Board may proceed with a determination
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 the parties have not
agreed on a method for the voluntary adjustment of the
dispute.
The facts above demonstrate that on February 22, rep-
resentatives of Local 98 appeared at the loading dock of
the Hotel Sofitel site, claimed the work of unloading and
distributing refrigerators at the site, and obstructed the
work of unloading, distribution and installation of FF&E,
including refrigerators, then being performed by the Em-
ployer’s Carpenter employees. In order to avoid further
confrontation, the Employer ceased unloading the refrig-
erators. On the following day, a Local 98 official made
clear—based on the content of the Keating/Higgins fax
and on his own statement to Foreman Disney—that Lo-
cal 98 claimed the work of unloading, moving, and in-
stalling televisions and refrigerators then being per-
formed by the Employer’s Carpenter employees, and that
it was prepared to engage in a job action of some kind in
order to acquire it.
Local 98’s conduct in both of these incidents appeared
to be threatening and coercive and designed to force an
assignment of the work in dispute to its members. Ac-
cordingly, we find reasonable cause to believe that a vio-
lation of Section 8(b)(4)(D) has occurred. Further, the
parties stipulated, and we find, that Local 98 and the
Carpenters both claim the work in dispute,2 and that there
exists no agreed upon method for voluntary adjustment
of the dispute within the meaning of Section 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 affirma-
tive award of disputed work after considering various
factors. NLRB v. Electrical Workers Local 1212 (Colum-
bia 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 involved in a particular
case. Machinists Lodge 1743 (J. A. Jones Construction),
135 NLRB 1402 (1962).

2 Member Brame notes that Local 98’s “disclaimer” letter was not
submitted into evidence at the hearing and, in any event, does not effec-
tively disclaim the disputed work.
The following factors are relevant in making the de-
termination of this dispute.
1. Certification and collective-bargaining agreements
The parties stipulated that the Employer is not failing
to conform to a Board order or certification determining
the bargaining representative for the employees perform-
ing the work in dispute. The parties further stipulated that
the Employer has no collective-bargaining agreement
with Local 98. Finally, the parties stipulated that there is
a current collective-bargaining agreement between the
Employer and the Carpenters, and that the terms of this
agreement cover the work in dispute in this case. Accord-
ingly, this factor favors an award of the disputed work to
employees represented by the Carpenters.
2. Employer preference and past practice
The Employer’s clear preference is for its employees
represented by the Carpenters to perform the work. The
evidence establishes that this preference is consistent
with the Employer’s past practice: in the 3 years prior to
the hearing, the Employer has performed the disputed
work using its Carpenter employees at nine hotel con-
struction sites in the Philadelphia area, and also at a tenth
location where refrigerators, but not television sets, were
involved. Accordingly, this factor favors an award of the
disputed work to employees represented by the Carpen-
ters.
3. Area and industry practice
The Employer contends that the past-practice evidence
above also represents the industry practice in the Phila-
delphia area. We find this evidence insufficient to sup-
port any affirmative finding regarding this factor. There-
fore, this factor does not favor an award of the disputed
work to either of the competing employee groups.
4. Relative skills
The Employer contends that its Carpenter employees
have far more experience than employees represented by
Local 98 in unloading and distributing refrigerators and
televisions, and in plugging them into wall outlets, and
that this establishes their superior relative skills in per-
forming the disputed work. On this record, we infer that
the performance of the work in dispute requires no spe-
cial skills. Accordingly, this factor does not favor an
award of the work to either employee group.
5. Economy and efficiency of operations
As currently assigned, the Carpenter employees perform
the disputed work as part of their broader assignment to
unload, distribute and install FF&E. The Employer has no
control over the loading of the trucks which transport the
FF&E to the Hotel Sofitel site. Thus, it is an invariable fact
that in each truckload refrigerators and television sets are
intermixed with other FF&E—apparently loaded in a man-
ner consistent with the destination of each set of room fur-
nishings within the hotel. Therefore, if Local 98 employees
ELECTRICAL WORKERS LOCAL 98 (AIMM, INC.) 1077
were awarded the work in dispute, two employee crews
working simultaneously would be required: a Local 98 crew
to perform the disputed work, and a Carpenter crew to
unload, distribute, and install the remainder of the FF&E.
Therefore, this factor favors an award of the work to em-
ployees represented by the Carpenters.
Conclusions
After considering all the relevant factors, we conclude
that employees represented by the Carpenters are entitled to
perform the work in dispute. We reach this conclusion rely-
ing on the terms of the collective-bargaining agreement
between the Employer and the Carpenters, the Employer’s
preference and past practice, and the economy and effi-
ciency of the Employer’s operation resulting from its cur-
rent assignment of the work to its Carpenter employees.
In making this determination, we are awarding the
work to employees represented by the Carpenters, not to
that Union or its members.
Scope of the Award
The Employer requests that the Board issue a broad,
areawide work award applicable to all future FF&E in-
stallation work it may perform.3 In support of a broad
award, the Employer asserts that prior allegations that
Local 98 violated Section 8(b)(4)(D) have been found
meritorious with regard to other employers and unions
and different disputed work, and thus demonstrate, in the
Employer’s view, a relevant pattern of illegal conduct.
There is a two-part legal standard for the issuance of a
broad award concerning disputed work in Section 10(k)
proceedings. First, there must be evidence that the dis-
puted work has been a continuing source of controversy
in the relevant geographic area and that similar disputes
are likely to recur. Second, there must be evidence that

3 As a matter of clarification, we note that the Employer actually re-
quests a broad “order” against Local 98. However, the Board does not
issue remedial orders pursuant to 10(k) proceedings. See Sec. 10(k);
compare Sec. 10(b) and (c). Accordingly, we have interpreted this
request to mean a broad award concerning the disputed work.
the charged party has a proclivity to engage in unlawful
conduct to obtain work similar to the work at issue. See,
e.g., Electrical Workers Local 3 (U.S. Information Sys-
tems), 324 NLRB 604, 607 (1997). In the instant case,
the Employer has provided no evidence that the work in
dispute has been the source of previous controversies,
and no evidence that this dispute is likely to recur. Fur-
ther, there is no evidence that Local 98 has sought previ-
ously to acquire work similar to the work in dispute or
evidence of a proclivity to engage in unlawful conduct in
order to do so. Finally, the Employer’s request for an
award covering all FF&E installation work exceeds the
defined work in dispute, and therefore is overbroad.
In light of the above, we find that a broad work award is
inappropriate in this case. Accordingly, our determination
and award is limited to the controversy that gave rise to this
proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
1. Employees of AIMM, Inc., represented by Metro-
politan Regional Council of Philadelphia & Vicinity,
United Brotherhood of Carpenters & Joiners of America,
AFL–CIO are entitled to perform the work of unloading,
moving and installation of refrigerators and television
sets at the Hotel Sofitel, 17th and Sansom Streets, Phila-
delphia, Pennsylvania.
2. International Brotherhood of Electrical Workers, Local
98, AFL–CIO is not entitled by means proscribed by Sec-
tion 8(b)(4)(D) of the Act to force AIMM, Inc., to assign
the disputed work to employees represented by it.
3. Within 10 days from this date, International Brother-
hood of Electrical Workers, Local 98, AFL–CIO, shall
notify the Regional Director for Region 4 in writing
whether it will refrain from forcing AIMM, Inc., by
means proscribed by Section 8(b)(4)(D), to assign the
disputed work in a manner inconsistent with this deter-
mination.