Electrical Workers Local 369

National Labor Relations Board - Board Decisions

Oct 18, 1966

161 N.L.R.B. 45 (N.L.R.B. 1966)

ELECTRICAL WORKERS LOCAL 369 45
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela
Lions Act as amended we hereby notify our employees that
WE WILL NOT interfere with nor suggest to our employees which union they
should select as their bargaining representative or assist or give support to the
Laborers Union or to any other labor organization of our employees
WE WILL upon request bargain collectively with Teamsters Local No 524
affiliated with International Brotherhood of Teamsters Chauffeurs Warehouse
men and Helpers of America Independent as the exclusive representative of
all of our employees in the bargaining unit described below with respect to rates
of pay wages hours of employment and other terms and conditions of employ
ment and if an understanding is reached embody such understanding in a
signed agreement Said bargaining unit is
All employees of Respondent at its Wapato Washington plant excluding
office clerical employees professional employees laboratory technicians
guards and supervisors as defined in the Act
WE WILL NOT recognize the Laborers Union or any successors thereto for the
purpose of dealing with us concerning grievances labor disputes wages rates
of pay hours of employment, or conditions of work
WE WILL NOT in any manner interfere with, restrain or coerce our employees
in the exercise of their right to self organization to form labor organizations
join or assist the labor organization named above or any other labor organi
zation to bargain collectively through representatives of their own choosing and
to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection and to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as authorized
by Section 8(a)(3) of the Act as modified by the Labor Management Reporting
and Disclosure Act of 1959
All of our employees are free to become or remain or refrain from becoming
or remaining members of the above named or any other labor organizations except
to the extent that this right may be affected by an agreement in conformity with
Section 8 (a) (3) of the Act as modified by the Labor Management Reporting and
Disclosure Act of 1959
HOPCON INC
Employer
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered defaced or covered by any other material
If employees have any question concerning this notice or compliance with its
provisions they may communicate directly with the Board s Regional Office 327
Logan Building 500 Union Street Seattle Washington 98101 Telephone 583-4583
Electrical Workers Local 369, International Brotherhood of Elec-
trical Workers, AFL-CIO, and Its Agent, George F Wode and
Rodger J Henderson (Henderson Electric Co, Inc) and Con
struction and General Laborers Local Union #576, Laborers'
International Union of North America, AFL-CIO Case 9-CD-
85 October 18,1966
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following a charge filed by Rodger J
161 NLRB No 6
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Henderson on November 9, 1965, alleging that Electrical Workers
Local 369, International Brotherhood of Electrical Workers, AFL-
CIO, herein called IBEW, and Its Agent George F Wode, have
violated Section 8(b) (4) (D) of the Act
A hearing was held before Hearing Officer Donald G Logsdon, on
May 11 and 12, 1966 All parties appeared at the hearing and were
afforded a full opportunity to be heard, to examine and cross examine
witnesses, and to adduce evidence bearing on the issues The rulings
of the Hearing Officer are free from prejudicial error and are hereby
affirmed Briefs filed by Rodger J Henderson (Henderson Electric
Co, Inc) and IBEW have been duly considered
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three member panel [Chairman McCulloch and Mem
bers Brown and Zagoria]
Upon the entire record in this case, the Board makes the following
findings
I THE BUSINESS OF THE RESPONDENT
All parties stipulated that Henderson Electric Co, Inc, the
Employer named in the charge filed herein by Rodger J Henderson,
its president (hereinafter referred to as Henderson), is a Kentucky
corporation engaged in the electrical contracting business. During
the past fiscal year it performed services valued at more than $50,000
outside the State of Kentucky, and during the same period it also
purchased, directly from firms located outside the State of Ken
tucky, goods valued in excess of $50,000 Accordingly, we find, in
accord with the stipulation of the parties, that Henderson Electric
Co, Inc., is engaged in commerce within the meaning of the Act,,
and that it will effectuate the policies of the Act to assert jurisdic
tion herein.
11 THE LABOR OROANI'LATIONS INVOLVED
The parties stipulated , and we find, that IBEW and Construction.
and General Laborers Local Union # 576, Laborers' International
Union of North America, AFL-CIO, herein called Laborers, are
labor organizations within the meaning of Section 2(5) of the Act
III THE DISPUTE
A Work in zuue
The work in dispute, as stipulated by the parties at the hearing,
concerns the assignment of the operation of walk behind trenching
machines, such as those known by the trade names Ditch Witch and
ELECTRICAL WORKERS LOCAL 369 47
Arps, when used for digging trenches in which electrical cables, con-
duit, or conductors are to be laid.'
B. Background
The Employer employs principally members of the two above-
mentioned unions, neither of which has been certified by the Board
as representative of any unit of its employees. The Employer's elec-
tricians have been represented by IBEW since 1919. The current con-
tract was negotiated by IBEW and the National Electrical Contrac-
tors Association's Louisville chapter (hereinafter called NECA) of
which the Employer is a member; it is effective from May 1, 1965,
until April 30, 1967. The Employer's laborers have been represented
since 1958 by Laborers, and their current' contract is effective from
July 1, 1965, until June 30, 1968.
Prior to 1960 or 1961, the Employer subcontracted its trenching
work, principally to a Louisville general contractor by the name of
Skilton Const'ruc'tion Co., which employed laborers to dig'the trenches,
first with pick and shovel and then with trenching machines sim-
ilar to those in issue. About 1961 'the Employer acquired two walk-
behind trenching machines known as the Ditch Witch and the Arps,
and since then most of its trenching work has been done by its own
laborers with these machines. In 1963 the Employer was installing
lights on highway 1-65, its trenching Work being done in this man-
ner, when Wode, business manager of IBEW, visited 'the job and told
Henderson he would "pull [his] shop" unless the 'trenching work
was assigned to employees represented by IBEW. This was the first
time IBEW hadclaimed this work. Despite Wode's protest,'the work
was completed by the laborers. Other jobs involving such trenching
were completed by the Employer's laborers without interference from
the IBEW until it undertook a job installing lights on the Watter-
son Expressway in Louisville in the summer of 1965. Vigorous pro-
test by Wode at that time was accompanied by a 4- or 5-day IBEW
work stoppage. Laborers advised Henderson by letter that they were
not relinquishing their claim to the trenching 'work, and Henderson,
in order to 'complete the job without penalty, assigned a member of
IBEW to watch the laborers dig the trenches.
Throughout the summer and autumn of 1965, the 'Employer was
installing lights on another job known' as Standiford Field Air Base
in Louisville, the trenching work being done by laborers with walk-
behind trenching machines. On October '28 Wode visited the jobsite
and, in the presence of an electrician employee, told Noonan, the
I The parties stipulated that the operation of trenching machines , which require the
operator to sit on them , is normally performed by members of the International Union of
Operating Engineers and is not here in issue.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer's vice president, that the members of IBEW would not
install the cables unless the trenches were dug by IBEW members.
Wode also told jobsite foreman, O'Leary, "You are not to install any
cable in the trenches," and informed Noonan, ". . . you put electri-
cians on the trenches and there won't be any problem." The job was
shut down from October 28 until November 8, 1965. On November 7,
1965, Henderson advised IBEW by letter that in order to complete
the job he was, under protest, assigning the trenching, work to
IBEW. Although Henderson contacted an individual member of the
National Joint Board for the purpose of ending the work stoppage
,on November 8, 1965, he advised the Joint Board by telegram that
he was not submitting the dispute to it for determination. Henderson
filed the instant charge on November 8, 1965.
IBEW referred its claim to this work to a joint conference com-
mittee established by its current contract with the Employer. That
committee, in turn, referred the claim to the Council on Industrial
Relations for the Electrical Construction Industry of the United
States and Canada, herein called CIR. On February 16, 1966, the
Council rendered a decision, which is discussed below.
1. Contentions of the parties
The Employer contends that a jurisdictional dispute exists and
that the disputed work should be assigned to members of the Labor-
ers, based on company practice, economy, and efficiency of operation.
IBEW contends there is no jurisdictional dispute, but any award
of the work involved should be made to IBEW members because the
work is covered by its contract as determined by the CIR; IBEW
further contends that its claim is supported by industry practice.
Laborers claims the work on the basis of the past practice and the
Employer's assignment.
2. Applicability of the statute
In accordance with the requirements, of Section 10(k) of the Act,
the -Board must first ascertain whether there is reasonable cause to
believe that a violation of Section 8 (b) (4) (D) of the Act has
occurred.
The record shows that on several occasions during the summer and
fall of 1965, IBEW and Wode threatened to strike, and struck, the
Employer with the object of forcing it to assign to IBEW members
the work of digging electrical cable trenches with walk-behind
trenching machines, and that this work was claimed and being per-
formed by members of Laborers. IBEW does not deny this, but
claims that the Employer was required by its contract to assign the
work to IBEW members. However, this argument is relevant only
ELECTRICAL WORKERS LOCAL 369 49
to the merits of a jurisdictional dispute and not to whether or not
such a dispute exists,' and we shall treat it as such herein Accord-
ingly, we find that there is reasonable cause to believe that Respond-
ent IBEW and its Agent Wode violated Section 8 (b) (4) (D)
C Merits of the dispute
Section 10(k) of the Act requires the Board to make an affirmative
award of disputed work after giving due consideration to all relevant
factors The following factors are asserted in support of the claims
of the parties herein
1 Collective-bargaining contracts
IBEW claims that article 10, section 2 of its NECA contract cov-
ers the disputed work, and that the CIR so determined IBEW con
tends great weight should be given the CIR determination in order
to stabilize conditions in the electrical contracting industry of which
IBEW and the Employer are an "integral part" but Laborers are
"only incidental " The Employer contends the award of the CIR is
not controlling inasmuch as Laborers was not a party to that
proceeding
Article 10, section 2 of the contract between IBEW and NECA
reads as follows "All power threading and power driven machines
shall be operated by workmen in their proper classifications " It is
plain that this provision makes no specific reference to walk behind
trenching machines, and does not assign the operation thereof to elec
tricians Although the trenching machine is a power driven machine
and the contract refers to "power driven machines," the evidence
shows that the contract was not intended to cover all power driven
machines, since several types of power driven machines are operated
by employees other than IBEW members Examples of these are
gasoline saws, tamps, and jack hammers used by members of Labor
ers, and heavy power driven machines used by Operating Engineers
Moreover, the record shows that trenching machines such as the
Ditch Witch and the Arps did not come into use by electrical con
tractors until some years after the initial insertion of this language
in prior contracts
The February 16,1966, decision of the CIR consists of the following
In this specific case as set out in Article X Section 2 of the exist
ing approved agreement , power driven machines shall be oper-
ated by workmen employed under the terms of the agreement
f See Sheet Metal Workers International Association Local 162 (Lusterlits Corp) 151
NLRB 195 Local No 496 United Brotherhood of Carpenters and Joiners of America,
AFL-CIO (J L Williams 4 do) 151 NLRB 758
264-188-67-vii 161-5
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This language is so general in nature that it appears to be simply a
paraphrase of the contract provision itself, and therefore is not help-
ful in deciding the issue before us 8
The Employer's collective bargaining agreement with Laborers
similarly fails to include specific language covering the disputed
work Accordingly, as neither contract includes a specific assignment
of the work in controversy, we find that this factor favors neither
union
2 Employer and area practice
Z he Employer's practice in the past was to subcontract this work
to Skilton, who had employed laborers to dig trenches, fist with
pick and shovel, and then by operating the trenching machines
Thereafter, in 1960 or 1961, the Employer ceased subcontracting this
work by assigning operation of the trenching machines to laborers in
its employ The IBEW did not protest the Employer's practice in
this regard until late 1963 or early 1964, when IBEW threatened a
work stoppage unless the work was assigned to employees represented
by it Thereafter, no further claim for the work was made by IBEW
until the summer of 1965, when, pursuant to threats and a work stop
page by electricians lasting 3 or 4 days, the Employer assigned an
electrician to watch the laborers dig trenches Again, in the fall of
1965 on another project, IBEW protested the Employers use of
laborers to perform trenching, and, after a work stoppage, the
Employer assigned the disputed work to electricians represented by
IBEW As to the Louisville area practice, the record discloses that
some electrical contractors use electricians represented by IBEW to
operate the walk behind trenching machines while others use mem
bers of Laborers The overall picture as to area practice is therefore
mixed It is apparent, therefore, that the Employer's practice favors
awarding the work to Laborers, whereas the area practice favors
neither union
3 Skill, efficiency, economy, and safety factors
As to skill, IBEW admits that skill is not essential in the opera-
tion of walk behind trenching machines, but contends that knowledge
of drawings and specifications is required to determine the size and
direction of the trench to be dug, and that only electricians possess
such knowledge The evidence, however, reveals that trenching is con
ducted under the supervision of a foreman who physically lays out
the trench from written plans which are never referred to by the
operator of the trenching machine on the job regardless of his classi-
a We note also that Laborers was not a party to the proceeding before the CIR and in
view of its obviously vital interest in the work in dispute we find no merit in IBRw s
contention that acceptance of that decision as determinative herein could stabilize condi
tions in the electrical contracting industry
ELECTRICAL WORKERS LOCAL 369 51
fication It therefore appears that the laborers, as demonstrated by
experience, are qualified to perform the disputed work, while the
greater skills of the electricians are not required
As to efficiency and economy, the Employer employs both laborers
and electricians continuously and both are therefore on hand to do
trenching when needed As to safety, the evidence is clear that mem
bers of either union can and have operated trenching machines in the
past with due regard for the safety of men and equipment These
Iactors, therefore, favor neither union
Conclusions as to Merits of the Dispute
It appears fiom the foregoing that none of the relevant factors
favors IBEW alone Thus, although the practice of some electrical
contractors in the area favors making the award to IBEW, the prac
tice of others favois an award to the Laborers Moreover, the
Employer in assigning the work to either union may demonstrably
operate economically, efficiently, and with safety, and the contiacts
between the Employer and the contesting parties do not furnish a
clear cut guide for deciding the issue herein However, we shall award
the work to the employees represented by Laborers We do so particu
lai ly because the greater skill possessed by the electricians is not
required, and the laborers have demonstrated their ability to perform
the work to the complete satisfaction of the Employer, who has
expressed its desire to retain them in the work in accordance with its
past practice Further, upon consideration of the conditions under
which the Employee modified its practice of assigning the disputed
work to laborers in 1965,4 and IBEW's delay in protesting that
assignment for sever al yeas s, these factors also lend support to the
Laborers' claim Accordingly, xe shall determine the dui isdictional
dispute by deciding that the employees represented by Laboieis aee
entitled to perform the woik in dispute 8 In making this deteimina
tion, we are aw ai duig the work to the employees of the Employer
who are currently repo esented by Laborers, but not to that union or
its niembeis
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Relations Act,
as amended , and upon the basis of the foregoing findings and the
* The E W ,Scripps Company The Cleveland Press 156 NLRB 227
s Contrary to the contention of IBEW we do not consider this award inconsistent kith
the Board s decision in International Union of Operating Engineers Local Union 12
(George E Miller Electric Co) 144 NLRB 9 awarding the operation of a Ditch Witch to
employees of Miller represented by a local of IBEW rather than to employees represented
by a local of International Union of Operating Engineers The Board specifically limited
its determination of that dispute to the particular controversy which gave rise to that
proceeding which was clearly distinguishable on its facts
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entire record in this proceeding, the National Labor Relations Board
makes the following determination of dispute.
1. Employees employed as laborers by Henderson Electric Co.,
Inc., currently represented by Construction and General Laborers
Local Union #576, Laborers' International Union of North Amer-
ica, AFL-CIO, are entitled to perform the work of operating walk-
behind trenching machines when used for digging trenches in which
electrical cables, conduit, or conductors are to be laid.
2. Electrical Workers Local 369, International Brotherhood of
Electrical Workers, AFL-CIO, and George F. Wode, its agent, are
not and have not been entitled, by means proscribed by Section 8 (b)
(4) (D) of the Act, to force or require Henderson Electric Co., Inc.,
to award the above work to members of Electrical Workers Local
369, International Brotherhood of Electrical Workers, AFL-CIO.
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Electrical Workers Local 369, International Brother-
hood of Electrical Workers, AFL-CIO, and its agent, George F.
Wode, shall notify the Regional Director for Region 9, in writing,
whether they will or will not refrain from forcing or requiring the
Employer, by means proscribed by Section 8(b) (4) (D) of the Act,
to award the work in dispute to its members rather than to members
of Construction and General Laborers Local Union #576, Laborers'
International Union of North America, AFL-CIO.
Daniel Construction Company, Inc. and United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada , AFL-CIO, Peti-
tioner. Case 11-RC-1.153. October 18,1966
SUPPLEMENTAL DECISION
Pursuant to a Decision and Direction of Election issued by the
National Labor Relations Board on September 21, 1961,1 as amended
on October 19, 1961, an election was conducted on November 16, 1961,
among the employees in the unit found appropriate by the Board.2
The Petitioner, having lost the election, filed objections to the elec-
tion and unfair labor practice charges. Upon the issuance of a com-
i Daniel Construction Company, Inc ., 133 NLRB 264.
a All journeymen plumbers and pipefitters , pipefitter welders, and pipefitter helpers em-
ployed by the Company in building and construction work in the States of North Carolina,
South Carolina , Tennessee , Alabama, Georgia, and Florida (Greenville division), exclud-
ing all other building trades craftsmen , engineers , draftsmen , foremen ( working and non.
working), general foremen, clerical employees , professional employees, watchmen, guards,
and supervisors as defined in the Act.
161 NLRB No. 13.