Electrical Workers, Local 90

National Labor Relations Board - Board Decisions

Apr 30, 1975

217 N.L.R.B. 644 (N.L.R.B. 1975)

644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers, Lo-
cal 90, AFL-CIO' and Connecticut Construction
Industries Association , Inc.' and L . G. DeFelice,
Inc.' and Local 478, International Union of Oper-
ating Engineers , AFL-CIO and Local 547, Laborers
International' Union of North America, AFL-
CIO. Case 1-CD-416.
April 30, 1975
DECISION AND DETERMINATION OF
DISPUTE
By MEMBERS FANNING, JENKINS, AND KENNEDY
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following
charges filed by Connecticut Construction Industries
Association, Inc. (the collective-bargaining association
representative of the Employer), alleging that the Elec-
tricians violated Section 8(b)(4)(i) and (ii)(D) of the
Act by engaging in proscribed conduct with an object
of forcing or requiring the Employer to assign certain
work to its members rather than to Employer's em-
ployees represented by the Engineers and Laborers.
A hearing was held before Hearing Officer Albert N.
Stieglitz on October 22 and 23 and November 7 and 8,
1974. The parties appeared at the hearing and were
afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence bear-
ing on the issues. Thereafter the Employer and the
Electricians filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The rulings of the Hearing Officer made at the hear-
ing are free from prejudicial error and are hereby af-
firmed.
Upon the entire record in this proceeding, the Board
makes the following findings:
I THE BUSINESS OF THE EMPLOYER
The parties stipulated and we fmd that the Em-
ployer, L. G. DeFelice, Inc., which annually receives
goods and materials valued in excess of $50,000 at its
Connecticut jobsites directly from States other than the
State of Connecticut and which annually performs con-
struction services valued in excess of $50,000 at job
projects located in States other than the State of Con-
necticut , is engaged in commerce within the meaning
of the Act.' -
II,THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated and we find that the Electri-
cians, Engineers , and Laborers are labor organizations
within the meaning of Section 2 (5) of the Act.
III THE DISPUTE
A. Background and Facts of the Dispute
In April 1972 , L. G. DeFelice, as general contractor,
was awarded the Gold Star Memorial Bride Job, Pro-
ject #94-107, in New London , Connecticut . The total
job, which is in excess of $22 million , entails the partial
dismantling , rebuilding , and widening of the present
bridge and will carry the flow of traffic easterly. This
is a span type bridge which is about 1 mile long and
crosses the Thames River . A parallel new bridge which
handles the traffic flowing in the opposite direction was
recently constructed . Both bridges are interlocutory
segments of the 1-95 system.
The Company commenced work on the project in
the summer of 1972. The electrical work started in
November or December 1973, when the Company
removed some of the old light poles and conduits. This
removal work was performed by the Company's em-
ployees and is not in dispute in this proceeding because
it was never claimed by Local 90. There was a total of
approximately 75 employees on the job , of which ap-
proximately 35 were laborers.
Dick Panagrossi, Jr., was the assistant business
manager of Local 90 until the death of his father,
Dominick Panagrossi, on February 9, 1974, when
Panagrossi , Jr., became the business manager. He was
formally confirmed as business manager on March 6,
1974.
Panagrossi , Jr., became aware of this DeFelice job in
the winter of 1972 , when an IBEW subcontractor, Co-
kin, told Panagrossi , Jr., that he, Cokin, was interested
in putting in a bid to L. G. DeFelice to perform the
work in dispute. Cokin is the subcontractor who per-
formed similar work on the Westerly bridge job.
In March 1973 , Panagrossi, Sr., called William
Miller, superintendent of lighting and traffic for DeFe-
lice, and asked how Miller was going to operate the
New London bridge job . Miller responded that he was
going to operate it with his own personnel, the Labor-
ers and Operating Engineers, the people who work for
the Company under union agreements . Panagrossi, Sr.,
I Herein called Electricians or Local 90
2 Herein called Association or CCIA
3 Herein called Employer or Company.
4 Herein called Engineers or Operating Engineers
5 Herein called Laborers
6 The parties also stipulate that both Connecticut Construction Industries
Association, Inc , the Charging Party herein , and its members , either collec-
tively or individually, are engaged in commerce within the meaning of the
Act
217 NLRB No. 112
ELECTRICAL WORKERS, LOCAL 90
told Miller that his son, Panagrossi , Jr., would call
Miller.
About April 1973, Panagrossi, Jr., called Miller and
asked how Miller was going to operate the Gold Star
Memorial Bridge job. Miller answered that he was run-
ning the job with his own personnel which are Operat-
ing Engineers , Laborers , and Teamsters . Panagrossi,
Jr., asked for a "temporary contract" or we claim the
work. Miller explained that he had no agreement with
the IBEW but did have contracts with the Laborers and
Operating Engineers and therefore had no choice but
to use these people. Panagrossi, Jr., then said, "You
won't, you will not operate with your own personnel,"
and stated that this was his work and that he was going
to get the work.
On July 10, 1974, Victor Hallberg, president of L. G.
DeFelice, met with Panagrossi, Jr. Panagrossi, Jr.,
said the conduit and electrical work on the Gold Star
Bridge in New London was his jurisdiction and he
wanted the Company to have his Local 90 electricians
perform the work. Hallberg stated that the Company
had already assigned the work to the Laborers and the
Operating Engineers who were presently performing
that work and that as far as he, Hallberg, was con-
cerned this was the work of Laborers and Operating
Engineers. Hallberg also stated that, through the
CCIA, the Company had a collective-bargaining agree-
ment with the Laborers and Operating Engineers, but
the Company did not have any agreement with Local
90 or any other Electrician Union. Panagrossi, Jr., said
that he wanted the Company to have Local 90 people
do the work by using a subcontractor with whom Local
90 had an agreement, and in that way the Company
wouldn't have to have an agreement with his local.
Hallberg said that was not acceptable . Panagrossi, Jr.,
then said he would like the Company to use at least one
Local 90 man to perform this work along with the other
employees the Company had already assigned. Hall-
berg said he didn't think that would be acceptable to
the company people and that it wasn't acceptable to
Hallberg because it wasn 't economically advantageous
and the work was already assigned. Hallberg further
said that he would talk to his people and get back to
Panagrossi, Jr., in a few days and that the Company has
been doing this work for a couple of years with Operat-
ing Engineers and Laborers and that if Panagrossi, Jr.,
felt strongly that it was his work he should talk to the
Laborers Union and to Sonny Mertz of the Operating
Engineers . As the meeting was ending Hallberg asked
Panagrossi, Jr., "Is it my understanding that you want
representation on this job?" Panagrossi, Jr., either re-
sponded, "Vic, I want job opportunities for people who
are qualified electricians. You take it from there," or
"You take it from there." About 8 or 10 days after the
July 10 , 1974, meeting Hallberg advised Panagrossi,
645
Jr., that the Company could not use any Local 90
electricians or contractors.
On July 31, 1974, John Silva, business agent for Lo-
cal 547 Laborers, advised Hallberg that Local 90 was
going to picket the job the following day and that the
Laborers would cross the picket line because the work
in dispute was covered in the Laborers collective-bar-
gaining agreement and that this was Laborers work.
Local 90 picketed the jobsite at four locations from
August 1 to 15, 1974, and the picket sign read, "To the
Public, Employees performing electrical work on this
job site are doing so under substandard conditions.
There is no strike here. This is for purpose of informa-
tion only. Local #90, International Brotherhood of
Electrical Workers." On August 1, 1974, the employees
of DeFelice represented by the Carpenters Union
refused to cross the picket line for that 1 day. Around
August 2, 1974, the employees represented by the
Painters Union, who were employed by a subcontractor
(Langeni) refused to cross the picket line for that day.
On August 1, 1974, the charge against the Electricians
was filed.
B. The Work in Dispute
The work in dispute involves the installation of elec-
trical conduits, wiring, light poles, lights, and related
work, which includes but is not limited to the installa-
tion of junction boxes, pulling of wire, and the splicing
and laying of wire, when performed on the bridge and
approaches to the bridge and highways on the Gold
Star Memorial Bridge project, in Groton, Connecticut.
C. Contentions of the Parties
The Electricians contends the hearing herein should
be quashed on the grounds that there was an agreed-
upon method for settlement by which all parties were
bound. Further, while the Electricians takes the posi-
tion that it has not made claim to the work, it does
indicate it would accept an assignment of the disputed
work if it were awarded to the Electricians. Moreover,
the Electricians does not disclaim the disputed work
nor does any other party raise such contention. The
Electricians, however, is somewhat equivocal as to
whether it was seeking an assignment of the disputed
work to be performed only on the bridge itself or
whether it would accept similar work off the bridge for
which DeFelice has the contract to perform.
Subsequent to the instant charges, and prior to the
hearing, the Electricians filed a request for an award for
the disputed work with the Impartial Jurisdictional
Disputes Board for the Construction Industry, herein
called IJDB. The Electricians also reties on a recent
decision by the IJDB, issued October 25, 1974, which
awarded the disputed work to the Electricians over the
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Engineers and Laborers. However, the Company con-
tends that it is not bound to the Joint Board and is
therefore not bound to its awards.
The Charging Party, Laborers, and Engineers simi-
larly contend that the disputed work is covered by the
terms of the Company's collective-bargaining agree-
ments with both the Laborers and Engineers, but no
agreement with the Electricians. The work in dispute
was assigned to both Laborers and Engineers who are
to date still engaged in such work. DeFelice uses mixed
crews of Laborers and Engineers to perform the dis-
puted work, some of which is performed by members
of either Union without distinction as to their craft.
The employees to whom the disputed work is assigned
are for the most part "permanent" employees of DeFe-
lice, and thus work for the Company from jobsite to
jobsite. Also, while working on the Gold Star Bridge
they have been intermittently used for nonelectrical
work on the bridge or at other sites. Therefore, the
Company, Laborers, and Engineers contend that the
work in dispute properly belongs to the Laborers and
Engineers based on the contracts and present work
assignment.
The Electricians,' Laborers, and Engineers all sub-
scribe to the new Plan for the Settlement of Jurisdic-
tional Disputes and are bound thereto. The Charging
Party contends that the Employer, DeFelice, is not
bound to any procedure or plan for the adjustments of
jurisdictional disputes, nor is DeFelice bound by virtue
of its membership in Connecticut Construction Indus-
tries Association, Inc., or any other association. -Also
the Charging Party contends that DeFelice has not
otherwise agreed to be bound to any method or proce-
dure for the settlement of such disputes.
The Electricians, contrary to the other parties,
claims that DeFelice is bound, or has otherwise agreed
to be bound, by virtue of its contractual provisions in
its collective-bargaining agreement with the Engineers.
The clause relied on by the Electricians is article III,
section 2, which reads as follows:
Jurisdictional disputes involving any other labor
organization shall be processed in accordance with
a voluntary settlement procedure as may be mutu-
ally agreed to by the parties, if any.
The Electricians argues that the interpretation of this
section is that, since the Operating Engineers has
agreed to a voluntary settlement procedure, the other
party is bound thereto, and since the Operating Engi-
neers is bound to the new Joint Board, so is the Com-
pany. We do not agree with the Electricians interpreta-
tion of this contractual provision. Further, the
I Local 90 is an "inside" local vis-a-vis an outside IBEW local and thus
subscribed to the new Plan for the Settlement of Jurisdictional Disputes
under the IJDB
Charging Party avers that, notwithstanding such an
ambiguous contractual provision, the other -parties are
not bound thereby, and thus there is no agreed-upon
method or procedure for the settlement of such dis-
putes.
D. Applicability of the Statute
Before the Board may proceed with a determination
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) had been violated and that there is
no agreed-upon method for the voluntary adjustment
of the dispute.
The record establishes that there is reasonable cause
to believe that Section 8(b)(4)(D) has been violated.
The record shows that Panagrossi , Jr., sought to obtain
the work being performed by the Laborers and Engi-
neers for the Electricians . When he did not obtain the
assignment of the disputed work he picketed the job.
We find that the purpose of the pickets was to protest
the Employer 's assignment of the disputed work to the
Laborers and Engineers , and not as Panagrossi, Jr.,
alleged that the picketing was to protest the Employer's
failure to pay area standard wages; i.e., to protest the
Employer's failure to pay the prevailing wage rates to
the Engineers and/or Laborers engaged in the disputed
work . Panagrossi , Jr.'s investigation as to whether or
not area standard wages were being paid was not
thorough and therefore inaccurate . As a result of the
picketing the Carpenters and Painters each refused to
cross the picket line for a day.
The record further establishes that there is no
agreed-upon method for settling the dispute . All parties
to a dispute , including the employer , must be bound
before the Board will defer to a voluntary agreed-upon
method to settle a dispute .' The record shows that the
Company is not bound to the IJDB and it follows that
there is no voluntary method of dispute settlement in
this case.
In view of the foregoing, we find that there is reason-
able cause to believe that there has been a violation of
Section 8(b)(4)(D) of the Act, and that the dispute is
properly before the Board for determination. -'
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after giving
due consideration to all relevant factors involved. The
following are relevant in making a determination of the
dispute before us:10
8 See, e g ., Carpenters Local 1622 (0. R Karst), 139 NLRB 591 (1962).
9 For the reasons stated above, we find that the Electricians motion to
quash is without merit and therefore we deny said motion.
'° International Association ofMachimsts; Lodge No. 1743, AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402, 1410 (1962)
ELECTRICAL WORKERS, LOCAL 90
1. Certifications and collective-bargaining agreements
There is no evidence that any of the labor organiza-
tions involved herein has been certified by the Board as
the collective-bargaining representative for a unit of the
Employer's employees.
The Employer, DeFelice, has statewide collective-
bargaining agreements with both the Laborers and En-
gineers, but no agreement with the Electricians. As the
Employer has no agreement with the Electricians and
the Employer's agreements with the Laborers and En-
gineers cover the work in dispute, the collective-bar-
gaining factor tends to support the award to the Labor-
ers and Engineers.
2. Company and area practices
The Employer has assigned the work in dispute to
members of the Engineers and Laborers and has been
satisfied with their work performance. The record indi-
cates that much of the work in dispute has not as yet
been performed or assigned, but in accord with the
Company's past practice it is to be assigned to its em-
ployees represented by the Laborers and Engineers
Unions and foremen. The Company's past practice fa-
vors the present assignment of the disputed work to the
Laborers and Engineers.
The area practice indicates that some employers in
the area in the past have used Laborers and Engineers
to perform similar work to that which is in dispute and
other employers have used Electricians for such work.
Therefore, evidence as to area practice is inconclusive
as the record indicates a mixed past practice in the area.
3. Relative skills, efficiency of operations, and
economy
The employees of DeFelice represented by the La-
borers and Engineers possess sufficient skills to per-
form the tasks involved herein, inasmuch as they have
been performing this work for many years. Installing
conduit, which is the physical placing of 2-inch pipe
and screwing it together, does not require much in the
way of skill or training. Where particular skill is neces-
sary the Employer utilizes people who are probably
more skilled for the task than the Electricians. For
example, engineers are used to operate the winches on
a tough or long pull of wire. Furthermore, although no
state licenses are required for any of the work in dis-
pute, the Company has two employees who have mas-
ters licenses and eight employees, of which four are
laborers and four are engineers, who possess a regular
E-'l license. In addition, the laborer, Crisensa, who was
647
engaged in the conduit installation on this job, has
engaged in this type of work for more than 10,000
hours and is very well qualified. The general foreman
has been installing this material since 1952, and has
performed in a major part of the highway illumination
in Connecticut and is licensed. Moreover, a comparison
between the work procedure and assignments utilized
by the Company and the disclaimers of certain portions
of the work involved in the dispute by the Electricians
shows that the Electricians (Local 90) does not con-
sider much of this work within its jurisdiction.
Regarding the efficiency of the operation the record
shows that the Company's present operations permit
statewide movement and transfer of its employees
whereas the Electricians have limited jurisdiction
which does not provide for such movement. Because of -
this the Company would have to lay off employees
rather than employ them on other jobs in other areas.
The Company presently employs eight employees con-
tinuously and statewide for electrical and other work.
With continuity of employment, in spite of the fact that
electrical work is sporadic, the Company can retain its
employees at other tasks, and, if there are mistakes or
changes on the job, the Company's employees are on
the job to make the changes. The members of the La-
borers and Engineers also provide flexibility in that
they perform a great many other duties on the job.
Therefore, their time is used efficiently because the
aspect of the work being claimed by the Electricians is
not a full-time operation and members of the Electri-
cians do not perform the other operations.
If the Company were required to follow the proce-
dure used on the westerly bridge under the Electricians
agreement, the Company may be compelled to hire
three or four electricians, one of which is to watch the
wheel, another to soap the wire, and another to drive
the pickup truck. This would not only be highly ineffi-
cient, but it would also be uneconomical.
On the basis of the foregoing, we find the skills neces-
sary to perform the tasks and the efficiency and
economy of the operation favor the assignment of the
work to the Laborers and Engineers.
Conclusion
Upon the entire record, after full consideration of all
relevant factors here involved, we believe that the work
in dispute should be awarded to employees represented
by the Laborers and Engineers. The fact that the Em-
ployer's assignment conforms to the contracts and to
its own past practice, the fact that the laborers and
engineers employed by the Employer not only have the
requisite skills but are familiar with all facets of the
work, and the attendant efficiency and concurrent eco-
nomics of utilizing the services of the laborers and -
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engineers for all tasks necessary for the work when
performed on the bridge and approaches to the bridge
and highways, lead us to conclude that the Employer's
assignment of work to the laborers and engineers is a
proper one. Therefore , we shall assign the work in ques-
tion to employees of the Employer who are represented
by the Laborers and Engineers. In making this determi-
nation , which is limited to the controversy that gives
rise to this proceeding, we are not assigning the work
to the Laborers or Engineers or their members.
Scope of the Award
The Employer requests an award covering all of its
projects in the State of Connecticut, contending that
such an award is necessary because of the likelihood
that the dispute will occur on future construction jobs
on which it is involved. However, we do not find the
record evidence herein sufficient to establish a pattern
of misconduct suggestive of a likelihood that this dis-
pute will extend to other jobsites or recur in the future.
Accordingly, we do not believe that the broad order
requested by the Employer is appropriate at this time
and, therefore, the determination herein shall apply to
the project presently under consideration.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Re-
lations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this proceed-
ing, the National Labor Relations Board hereby makes
the following Determination of Dispute:
1. Employees of L. G. DeFelice, Inc., who are repre-
sented by Local 547, Laborers International, Union of
North America, AFL-CIO, and by Local 478, Interna-
tional Union of Operating Engineers, AFL-CIO, are
entitled to perform the installation of electrical con-
duits, wiring, light poles, lights, and related work,
which includes but is not limited to the installation of
junction boxes, pulling of wire, and the splicing and
laying of wire, when performed on the bridge and ap-
proaches to the bridge and highways on the Gold Star
Memorial Bridge project, Groton, Connecticut.
2. International Brotherhood of Electrical Workers,
Local 90, AFL-CIO, is not entitled by means pros-
cribed by Section 8(b)(4)(D) of the Act to force or
require the Employer, L. G. DeFelice, Inc., to assign
the above work to employees represented by it.
3. Within 10 days from the date of this Decision and
Determination of Dispute, International Brotherhood
of Electrical Workers, Local 90, AFL-CIO, shall
notify the Regional Director for Region 1, in writing,
whether or not it will refrain from forcing or requiring
the Employer, by means proscribed by Section
8(b)(4)(D) of the Act, to assign the work in dispute to
employees represented by it rather than to employees
represented by Local 547, Laborers International
Union of North America, AFL-CIO, and Local 478,
International Union of Operating Engineers,
AFL-CIO.