254 N.L.R.B. 1406 (N.L.R.B. 1981)

Electrical Workers Local 702

National Labor Relations Board - Board DecisionsMar 16, 1981

254 N.L.R.B. 1406 (N.L.R.B. 1981)

1 1 10(k) 8(b)(4)(D) D. Lorimor llinois $250,000 $50,000 2(6) 11. 2(5) Ill. T H E 1)ISPUTE Di.rpute 702 * Coneen 1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 702, International Brotherhood of Electrical Workers, AFL-CIO and Central Illi- nois Public Service Company and Local Union No. 148, International Union of Operating En- gineers, AFL-CIO. Case 14-CD-6 March 16, 1981 DECISION AND DETERMINATION O F DISPUTE This is a proceeding under Section of the National Labor Relations Act, as amended, follow- ing a charge filed by Central Illinois Public Service Company, herein called the Employer, alleging that Local Union No. 702, International Brother- hood of Electrical Workers, AFL-CIO, herein called IBEW 702, violated Section of the Act. Pursuant to notice, a hearing was held before Hearing Officer Theron on October 28 and 29 and November 6, 1980. The Employer, IBEW 702 and Local Union No. 148, International Union of Operating Engineers, AFL-CIO, herein called IUOE 148, appeared at the hearing and were afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evi- dence bearing on the issues. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They 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 find, that the Em- ployer, an corporation with its principal place of business in Springfield, Illinois, is engaged in business as a public utility furnishing electricity and gas to customers in the State of Illinois. During the past year, the Employer had gross rev- enues in excess of and purchased coal and other materials valued in excess of from suppliers outside the State of Illinois. The parties also stipulated, and we find, that the Employer is engaged in commerce within the meaning of Sec- tion and (7) of the Act, and that it will effectu- ate the purposes of the Act to assert jurisdiction herein. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that IBEW 702 and IUOE 148 are labor organizations within the meaning of Section of the Act. 254 NLRB No. 186 A. Background and Facts of the The Employer is a public utility engaged in the distribution of electricity and natural gas. It oper- ates five power plants located in central and south- ern Illinois, including the plant in Coffeen, Illinois. The Coffeen power plant consists of a power sta- tion, switch yard, and several substations. Employ- ees represented by IUOE 148 operate and maintain the switchyard, which receives electricity from the power station and routes that current into a trans- mission line. Employees represented by IBEW 702 operate and maintain the transmission lines and substations whose function, in contrast to the switchyard, is to transform the incoming electricity from one voltage level to another. In 1979, the Employer began operating the new Coffeen East, Southwest, and North substations1 as well as a 2-mile 69 KV transmission line which tied the North, East, and Southwest substations in with the already existing South substation. The Employ- er assigned the work at the new substations and transmission line to employees represented by IBEW 702. On or about July 31, the Employer in- formed IUOE 148 of the work assignment and IUOE 148 immediately filed a grievance with the employer challenging the assignment. On Septem- ber 9, after IUOE 148 and the Employer had se- lected an arbitrator and invited IBEW 702 to par- ticipate in tripartite arbitration, which it declined to do, the Employer received a letter from IBEW which threatened "to use all available means, up to and including a strike, if necessary to prevent reas- signment" of the work in dispute. The Employer then filed the instant charge. B. The Work in Dispute The work in dispute involves the operation, in- spection, and maintenance of electrical transform- ers, breakers, switches, and related equipment lo- cated in the Southwest Coffeen, East Coffeen, and North Coffeen substations located adjacent to the Employer's Coffeen, Illinois, power station, and the maintenance of the 69 KV loop transmission line located at Coffeen, Illinois. C. The Contentions of the Parties The Employer contends that a jurisdictional dis- pute exists and that, based on its past practice, pref- erence, and economy, the disputed work should continue to be assigned to employees represented by IBEW 702. At the time of the hearing, only a portion of the North sub- station was in operation. 8(b)(4)(D) con- 8(b)(4)(D) lqk) 8(b)(4)(D) 8(b)(4)(D) 8(b)(4)(D) affili- with Theatrical & (King 860, 8(b)(4)(D) 1qk) lqk ) factors.* case.3 1. & Local (1961). 3 fnrerna~ionol Associalion OJ Machinisrs. .Vo. 1743. A F L - C f O M Consrruc~ion 135 1407 LOCAL UNION NO. 702. IBEW IUOE 148 moves to dismiss the charge and quash the hearing, contending that there is no rea- sonable cause to believe Section has been violated. Alternatively, it contends that tactual arbitration exists as a means to resolve the dispute, and that the work in dispute should be reassigned to employees represented by IUOE 148 because of company and industry practice, the IUOE 148-Employer collective-bargaining agree- ment, Board certification, and its apprenticeship program. IBEW 702 takes the position that its threat to strike creates reasonable cause to believe Section would be violated; no voluntary means of settling the dispute exists; and the factors of company practice, its apprenticeship program, ex- perience and expertise, and the Employer's prefer- ence weigh in favor of continuing the assignment of the work in dispute to employees represented by IBEW 702. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the dispute pursuant to Section of the Act, it must be satisfied that there is reasonable cause to believe that Section has been violated and that the parties have not agreed upon a method for the voluntary adjustment of the dis- pute. IUOE 148 contends that there is no reasonable cause to believe Section has been violat- ed because the strike threat in IBEW 702's Septem- ber 9 letter is meaningless in view of he no-strike clause in IBEW 702's collective-bargaining agree- ment. In determining whether reasonable cause exists to believe Section was violated, however, the Board considers whether the union threatened to strike, not whether it might breach the contract by carrying out the threat. IUOE 148 also contends that the Board should defer resolution of the dispute because both Unions, in their respective collective-bargaining agreements with the Employer, have an obligation to arbitrate any dispute it might have with the Em- ployer. The record shows, however, that IBEW 702 has consistently refused to participate in tripar- tite arbitration of the dispute. It is well established that, even though both Unions' contracts with the Employer include an arbitration clause, the Board will not defer to arbitration if all parties have not agreed to be bound by a single tripartite arbitra- tion. International Photographers Local 659, ared International Alliance of Stage Employees and Moving Picture Machine Operators of the United States Canada, AFL-CIO Broadcasting Company), 216 NLRB 862 (1975). On the basis of the entire record, we conclude that there is reasonable cause to believe that a vio- lation of Section has occurred and that there exists no agreed-upon method for the volun- tary adjustment of the dispute within the meaning of Section of the Act. Accordingly, we hereby deny IUOE 148's motion to dismiss the charge and quash the hearing and find that this dis- pute is properly before the Board for determina- tion. E. Merits of the Dispute Section of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various The Board has held that its determination in a jurisdic- tional dispute is an act of judgment based on com- monsense and experience reached by balancing those factors involved in a particular The following factors are relevant in making the determination of the dispute before us: Collective-bargaining agreements and certification Both Unions have collective-bargaining agree- ments with the Employer and the Board has certi- fied IUOE 148 to represent production and mainte- nance workers at the Coffeen "power station." The evidence shows that neither IUOE 148's contract nor its certification expressly includes the disputed work, and that IBEW 702's agreement covers the Employer's Eastern Division of which the Coffeen power plant is not a part. These factors do not favor awarding the work in dispute to one group of employees rather than to the other. 2. Employer and area practice For years, the employees represented by IBEW 702 have operated and maintained the 69 transmis- sion substations, 283 distribution substations, 135 small distribution substations, and 1,980 miles of the 69 KV transmission line in the Employer's service area and, at the Coffeen power plant, also operated and maintained two substations which are not in- cluded in the disputed work. This weighs in favor of awarding the work to employees represented by IBEW 702. The evidence presented to show area practice consists of the work assignment at another public utility where employees represented by IUOE 148 perform all of the electrical work at the power N.L.R.B. v . Television Broadcast Engineers Union, 1212. International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting System), 364 U.S . 573 Lodge A. Jones Company). NLRB 1402 (1962). 1408 i.e., po,wer sufficient .dispute lO(k) a Cof- 5 Gmrnmnt Plinting Ofhcc: 1982-361-S/1 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant, including work on transformers, breakers, and switches, and employees represented by IBEW 702 perform the relay work located off the power plant property. The work assignment of only one other employer hardly evinces area practice, and this factor does not favor either party. 3. Skill, experience, and expertise The record indicates that employees represented by IUOE 148 sporadically work on transformers as part of their operation and maintenance of the Em- ployer's switchyards. However, employees repre- sented by IUOE 148 do not do any work on trans- mission lines while employees represented by IBEW 702 daily operate and maintain the trans- formers and use such specialized equipment as may be necessary. Therefore, although employees repre- sented by IUOE 148 may possess sufficient skill to perform part of the disputed work, on trans- formers, it is clear that employees represented by IBEW 702 possess the experience, expertise, and skills to perform all of the work in dispute, and this weighs in favor of awarding the work to them. 4. Apprenticeship program For the past 28 years, IBEW 702 has conducted an apprenticeship program geared solely to train employees to perform transmission and distribution substation work. IUOE 148 and the Employer es- tablished an apprenticeship program which became operative in August 1980 and involves training in the general skills and knowledge needed by plant personnel. IBEW 702's well-established pro- gram is tailored to the work in dispute and favors awarding the work to employees represented by IBEW 702. 5. Efficiency and economy of operation Presently, employees represented by IUOE 148 routinely work substantial overtime and thus the addition of the work in dispute would probably re- quire more overtime or the hiring of extra man- power, whereas the present work force of employ- ees represented by IBEW 702 is to per- form the disputed work as well as its other work assignments. This factor weighs in favor of award- ing the work in dispute to employees represented by IBEW 702. 6. Employer preference The record shows that the Employer assigned the work in to employees represented by IBEW 702 because of the employee's experience and expertise gained by operating and maintaining similar equipment and facilities at the Employer's other power plants. The Employer's preference weighs in favor of awarding the work in dispute to employees represented by IBEW 702. Conclusion Upon the record as a whole, and after full con- sideration of all relevant factors involved, we con- clude that employees who are represented by the IBEW 702 are entitled to perform the work in dis- pute. We reach this conclusion on the basis of the Employer's practice and preference, economy, the employee's experience and expertise, and IBEW 702's well-established apprenticeship program. In making this determination, we are awarding the work in question to employees who are represented by IBEW 702, but not to that Union or its mem- bers. The present determination is limited to the particular controversy which gave rise to this pro- ceeding. DETERMINATION O F DISPUTE Pursuant to Section of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceeding, the National. Labor Relations Board makes the following Determination of Dispute: Employees of Central Illinois Public Service Company who are represented by Local Union No. 702, International Brotherhood of Electrical Work- ers, AFL-CIO, are entitled to perform the oper- ation, inspection, and maintenance of electrical transformers, breakers, switches, and related equip- ment located in the Southwest Coffeen, East feen, and North Coffeen substations located adja- cent to the Employer's Coffeen, Illinois, power sta- tion and the maintenance of 69 KV loop transmis- sion line located at Coffeen, Illinois. U.S.