Electrical Workers Local 125 (Loy Clark Pipeline)

National Labor Relations Board - Board Decisions

Sep 29, 1998

326 N.L.R.B. 1160 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1160
International Brotherhood of Electrical Workers,
Local No. 125, AFL–CIO and Loy Clark Pipe-
line Company

Laborers’ International Union of North America,
Construction and General Laborers Union, Lo-
cal 320 and Loy Clark Pipeline Company. Cases
36–CD–210 and 36–CD–211
September 29, 1998
DECISION AND DETERMINATION OF DISPUTE
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On July 3, 1997, Loy Clark Pipeline Company (the
Employer) filed a charge in Case 36–CD–210 against
International Brotherhood of Electrical Workers, Local
No. 125, AFL–CIO (Local 125 or IBEW Local 125),
alleging that Local 125 violated Section 8(b)(4)(D) of the
Act by engaging in proscribed activities with an object of
forcing the Employer to assign certain work to employ-
ees represented by Local 125 rather than to employees
represented by other labor organizations. On July 9,
1997, the Employer filed a charge in Case 36–CD–211
against Laborers’ International Union of North America,
Construction and General Laborers Union, Local 320,
AFL–CIO (Local 320 or Laborers Local 320), alleging
that it violated Section 8(b)(4)(D) of the Act by engaging
in proscribed activities with an object of forcing it to
continue to assign certain work to employees represented
by Local 320 rather than to employees represented by
another union. A hearing was held on September 10–12,
1997, before Hearing Officer Leora Watkins.1
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 re-
cord, the Board makes the following findings.
I. JURISDICTION
The parties stipulated that the Employer, an Oregon
corporation, is engaged in the business of utility contract-
ing with its principal office in Beaverton, Oregon, where
during the past year, a representative period, it received
revenues in excess of $50,000 for services performed
directly for customers outside the State of Oregon. We
find that the Employer is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.

1 During the hearing, the Employer moved to consolidate this pro-
ceeding with Cases 36–CD–207 and 36–CD–209, which were then
pending before the Board. Those cases dealt with a similar work dis-
pute involving the Employer, IBEW Local 125, and Operating Engi-
neers Local 701. The Board issued its Decision and Determination of
Dispute in the earlier proceeding on October 22, 1997 (324 NLRB
812). In the hearing in this case, the Employer submitted the transcript
of the hearing in the earlier cases, as well as certain exhibits, as relevant
background for the events in this case, and we have considered that
evidence. We also note that, notwithstanding the existence of the two
cases, the Employer does not seek a broad order. Accordingly, we
deny the Employer's motion to consolidate.
The parties stipulated, and we find, that International
Brotherhood of Electrical Workers, Local No. 125, AFL–
CIO and Laborers’ International Union of North Amer-
ica, Construction and General Laborers Union, Local
320, AFL–CIO are labor organizations within the mean-
ing of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The instant proceeding grows out of the same se-
quence of events which gave rise to a Decision and De-
termination of Dispute which issued October 22, 1997.2
Since 1956, the Employer has performed construction
work in the utility industry (natural gas, power, and tele-
phone) providing paving, saw cutting, concrete work,
asphalt paving, drilling, and equipment rental. It em-
ploys about 225 full-time employees in a variety of
crafts, including teamsters, steamfitters-plumbers, car-
penters, operating engineers, laborers, and electricians, as
required to complete a particular project. The Employer
has been party to several collective-bargaining agree-
ments covering work done by these various crafts.
The Employer had contracted with Portland General
Electric (PGE) to perform work which entailed: (1) ex-
cavating trenches or holes in the ground through which
conduit is placed and (2) installing conduit and vaults
and other tasks which, when completed, allow nonener-
gized cable to be installed in the conduit. The Em-
ployer’s long-established practice had been to assign this
work to a crew composed of employees represented by
the Teamsters, Operating Engineers, and Laborers, the
size and composition of which depended on the particu-
lar project. Teamsters would bring in the equipment and
materials to the jobsite; Operating Engineers would op-
erate the backhoes, drilling machines, and other equip-
ment necessary to move and place the conduit, vaults,
and other materials; and Laborers would cut and install
the conduit, as well as remove and clean the bits for the
directional drilling machine. From 19913 until mid-1997,
the Employer was party to a collective-bargaining
agreement with IBEW Local 125, and, pursuant to this
agreement, this composite crew also occasionally in-
cluded a few IBEW-represented “groundmen” (also re-
ferred to as “grunts”) who helped the Operating Engi-
neers and Laborers with simple tasks, not associated with
running the machinery or other specialized work.
In early 1997, under a contractual agreement with
PGE, the Employer dispatched a crew of operating engi-
neers to an excavating job. These employees were met at
the jobsite by a Local 125 foreman who refused to permit
the operating engineers to work because they did not
2 See 324 NLRB 812, described in fn. 1, supra.
3 In 1991 the Employer also entered into an additional agreement
covering “unity work,” whereby it would employ employees from
IBEW Local 125, Plumbers, and Operating Engineers on a single pro-
ject site.
326 NLRB No. 111
ELECTRICAL WORKERS IBEW LOCAL 125 (LOY CLARK PIPELINE) 1161
possess a Local 125 card. This encounter led to discus-
sions between Local 125 Business Manager Bill Miller
and the Employer’s president, Ron Clark, relative to Lo-
cal 125’s interest in the work being performed.4 Local
125 was seeking to require the work to be done exclu-
sively by employees holding its membership card, irre-
spective of the employee’s affiliation with any other un-
ion or craft. In the course of their discussions, Miller
stated that by sending non-IBEW-represented employees
to perform the work, the Employer had “upset the apple
cart” and that there would be problems. In a subsequent
written communication, Miller warned the Employer that
its continued failure to staff such projects with IBEW-
represented employees would result in its informing
other employers with which the Employer sought to do
business that the Employer was not keeping up its end of
the bargaining agreement with IBEW.
Local 125’s efforts to require that all workers at the
PGE jobsites carry its membership cards led to the Oper-
ating Engineers' threatening economic action against the
Employer in order to preserve the job assignment. In
addition, the Operating Engineers filed unfair labor prac-
tice charges against Local 125, resulting in the jurisdic-
tional dispute determination referred to above. In light of
IBEW Local 125’s continuing efforts to require that
IBEW-represented employees be assigned to perform
“electrical apparatus work,” Laborers Local 320 also
notified the Employer by letter of June 7, 1997, that it
would “take all action, including appropriate economic
action, if necessary, to protect work which we believe is
within our historical area of performance.”
On June 4, 1997, at the close of the hearing in the
above-referenced jurisdictional dispute between Local
125 and the Operating Engineers, Local 125 asserted that
it would no longer dispute the work there at issue and
that it would not contest its assignment by the Employer
to the Operating Engineers. Local 125 asserted at that
time that it was withdrawing from/canceling its bargain-
ing agreement with the Employer through National Elec-
trical Contractors Association (NECA). Thereafter how-
ever, by letter of June 18, 1997, Local 125’s business
representative charged that the Employer had violated its
collective-bargaining agreement by not abiding by the
“historic line crew structure” on a project, i.e., by failing
to use employees represented by Local 125.
B. Work in Dispute
The disputed work is described as “electrical apparatus
work” and includes the installation and placement of
vaults; installation, placement, and grouting of conduit;
and installation and pulling of measuring devices and
work related thereto in the public easement related to
underground installation of electric power lines and elec-
tric power vaults for Portland General Electric.

4 See 324 NLRB 812 for fuller discussion of these events.
C. Contentions of the Parties
IBEW Local 125 does not concede that a dispute exists
and has filed a Motion to Quash. In support of its mo-
tion, Local 125 asserts that on June 4, 1997, it voluntarily
terminated its contract with the Employer, that in corre-
spondence dated July 1, 1997, Local 125 further advised
the Employer that it was terminating its “letter of assent”
through NECA which covered “unity work” and had
given rise to their bargaining relationship, and that since
that time it has not sought and does not seek work as-
signments from the Employer. Local 125 also contends
that the Employer is not a disinterested party, but rather
is using this proceeding to obtain the Board’s sanction on
its decision to assign the work to Laborers Local 320. In
addition, Local 125 contends that neither it nor Local 320
has engaged in conduct violative of Section 8(b)(4)(D).
Arguing in the alternative, IBEW Local 125 contends
that the Board should find that the work in dispute prop-
erly belongs to employees it represents. Emphasizing the
greater skills and training Local 125-represented em-
ployees possess with regard to work associated with elec-
trical parts and equipment, it contends that both safety
and efficiency will be enhanced by their performance of
the work.
Laborers Local 320 asserts that Local 125’s position
has been inconsistent and that its current contention that
it is not claiming the work is disingenuous. It notes that
throughout the spring of 1997, IBEW Local 125 pres-
sured the Employer, through threats of labor disputes and
other forms of harassment, to assign conduit installation
and related work to its members rather than to individu-
als represented by other labor organizations, including
Local 320. In addition, Laborers Local 320 states that it
is entitled to the disputed work by virtue of the Em-
ployer’s assignment and preference, past practice, and
the skill, training, and expertise of the employees it rep-
resents.
The Employer also points out that IBEW Local 125’s
actions have been inconsistent—first, making demands
for the disputed work, proposing a dual membership ar-
rangement, and seeking to enforce its position through
economic pressure; then purportedly disclaiming the
work; and thereafter, filing grievances and alleging viola-
tions of job safety standards based on the fact that em-
ployees other than those it represents were doing the
work. The Employer contends that IBEW Local 125’s
pattern of conduct establishes that it continues to have an
interest in the work assignment, its assertions to the con-
trary notwithstanding.
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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1162
agreed on a method for the voluntary adjustment of the
dispute.
As stated above, documentary evidence and testimony
presented at the hearing establish that Respondent IBEW
Local 125 sought to have the work in dispute reassigned
to employees it represents, that it sought to prevent non-
IBEW-represented employees from carrying out the
work, and that it warned the Employer that problems
would result—including possible interference with the
Employer’s business relationships with other contrac-
tors––if the IBEW were not assigned the work. We find
that, notwithstanding IBEW Local 125’s contention that
it no longer has any interest in performing this or other
work for the Employer, its conduct suggests that it had
and continues to have an interest in the work in dispute.
Further, it is undisputed that Laborers Local 320 told the
Employer that it would take “all action, including appro-
priate economic action” against the Employer if employ-
ees it represented lost the work in dispute.
Based on our findings, we find reasonable cause to be-
lieve that violations of Section 8(b)(4)(D) have occurred
and that there exists no agreed-on method for the volun-
tary adjustment of the dispute within the meaning of Sec-
tion 10(k) of the Act. Accordingly, we deny IBEW Lo-
cal 125's Motion to Quash.
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board make
an affirmative award of the disputed work after giving
due consideration to various relevant factors. As the
Board has frequently stated, the determination in a juris-
dictional dispute case is an act of judgment based on
common sense and experience in weighing these factors.
The following factors are relevant in making a determi-
nation of the dispute before us.
1. Board certification and relevant collective-bargaining
agreements
The parties stipulated at the hearing that there is no
outstanding Board certification relevant to the work in-
volved in this proceeding of either International Brother-
hood of Electrical Workers, Local No. 125, AFL–CIO or
Laborers’ International Union of North America, Con-
struction and General Laborers Union, Local 320, AFL–
CIO.
The Employer, through its membership in the Distribu-
tion Contractors Association, is party to a collective-
bargaining agreement with Laborers Local 320, and it is
undisputed that this agreement encompasses the work in
dispute. The Employer and Laborers Local 320 have had
a collective-bargaining relationship for approximately 40
years.
Although the Employer and Local 125 were party to a
collective-bargaining agreement from 1991 until mid-
1997 that arguably encompassed the work in dispute,
Local 125 terminated this agreement in mid-1997, and it
is undisputed that the Employer is not presently a party
to any collective-bargaining agreement with Local 125.
We find that this factor favors awarding the work in
dispute to employees represented by Laborers Local 320.
2. Employer preference and past practice
The Employer’s president, Ron Clark, testified that the
Employer prefers that employees represented by Labor-
ers Local 320 perform the disputed work, in accordance
with its original assignment. He also testified that the
Employer has historically assigned this type and similar
work on jobsites in the area using Local 320-represented
employees. Accordingly, we find that the factor of em-
ployer preference and past practice favors an award of
the disputed work to employees represented by Laborers
Local 320.
3. Area and industry practice
The vice president/northwest division manager of
Henkels and McCoy Inc., a nationwide contractor for the
utility industry, testified that his company has a collec-
tive-bargaining relationship with IBEW Local 125 and
that it utilizes Local 125-represented employees to per-
form tasks similar to those involved in the disputed work.
He noted, however, that Henkels & McCoy does not
have a collective-bargaining relationship with the Labor-
ers.
While no other employer testified in this proceeding
regarding its practice, the Employer introduced into evi-
dence the transcript from the prior proceeding in which,
inter alia, William M. Moe, owner of general contractor
W. G. Moe & Sons, testified that his company has em-
ployed Laborers to perform work similar to that in dis-
pute in both of these proceedings.
As there is evidence that employers vary in their as-
signment of work like that in dispute, we conclude that
this factor does not favor either of the competing Unions.
4. Relative skills
Representatives of Laborers Local 320 and the Em-
ployer testified that employees represented by Local 320
have the skills and training to perform the work in dis-
pute safely, soundly, and skillfully. Peter Lahmann, an
instructor for the Northwest Laborers/Employers Train-
ing Trust, testified as to the training his organization pro-
vides in various aspects of construction work in order to
develop and ensure proficiency in such work, including
that required to perform the work at issue in this proceed-
ing.
IBEW Local 125 presented witnesses who testified
that employees whom it represents undergo extensive
training in all areas of work related to electrical construc-
tion and that IBEW program trainees are better equipped
to perform the work in dispute more skillfully and more
safely than those lacking such specific training.
As employees represented by each competing Union
receive relevant training and have demonstrated the abil-
ELECTRICAL WORKERS IBEW LOCAL 125 (LOY CLARK PIPELINE) 1163
ity to perform the disputed work, we find that this factor
does not favor either group of employees.
5. Economy and efficiency of operations
Clark testified that it is more efficient and economical
to use employees represented by Laborers Local 320 than
IBEW Local 125-represented employees to perform the
work in dispute. Clark noted that its use of Laborers,
whom he has found to be skilled in performing the dis-
puted work, has resulted in jobs of high quality, and that
his company’s long and harmonious relationship with
Local 320 has helped him complete jobs in a timely and
efficient way. Based on this unrebutted testimony, we
find that this factor favors awarding the disputed work to
Local 320-represented employees.
Conclusion
On the record as a whole, and after consideration of all
the relevant factors involved, we conclude that the Em-
ployer’s employees who are represented by Laborers’
International Union of North America, Construction and
General Laborers Union, Local 320, AFL–CIO are enti-
tled to perform the work in dispute. We reach this con-
clusion based on the Employer’s assignment, preference,
past practice, the collective-bargaining agreement, and
economy and efficiency of operations. This determina-
tion is limited to the particular controversy which gave
rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
1. Employees of Loy Clark Pipeline Company who are
represented by Laborers’ International Union of North
America, Construction and General Laborers Union, Lo-
cal 320, AFL–CIO are entitled to perform “electrical
apparatus work,” including installation and placement of
vaults; installation, placement, and grouting of conduit; in-
stallation and pulling of measuring devices; and work re-
lated thereto, in the public easement related to underground
installation of electric power lines and electric power vaults
for Portland General Electric.
2. International Brotherhood of Electrical Workers,
Local No. 125, AFL–CIO is not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force or re-
quire Loy Clark Pipeline Company to assign the disputed
work to employees represented by that labor organiza-
tion.
3. Within 10 days from the date of this Decision and
Determination of Dispute, International Brotherhood of
Electrical Workers, Local No. 125, AFL–CIO shall no-
tify the Regional Director for Region 19, in writing,
whether or not it will refrain from forcing or requiring
Loy Clark Pipeline Company, by means proscribed by
Section 8(b)(4)(D) of the Act, to assign the disputed
work in a manner inconsistent with the above determina-
tion.