Electrical Workers Local 357 (Western Diversified Electric)

National Labor Relations Board - Board Decisions

Jul 29, 2005

344 N.L.R.B. 1239 (N.L.R.B. 2005)

ELECTRICAL WORKERS LOCAL 357 (WESTERN DIVERSIFIED ELECTRIC)
344 NLRB No. 147
1239
International Brotherhood of Electrical Workers,
Local 357 AFL–CIO and Western Diversified
Electric and International Union of Operating
Engineers, Local 12, affiliated with the Building
and Construction Trades Department, AFL–
CIO. Case 28–CD–259
July 29, 2005
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act. The
charge was filed on September 9, 2002, by Western Di-
versified Electric (the Employer), and alleges that Inter-
national Brotherhood of Electrical Workers, Local 357,
AFL–CIO (IBEW) violated Section 8(b)(4)(D) of the Act
by engaging in proscribed activity with an object of forc-
ing the Employer to assign certain work to employees it
represents rather than to employees represented by Inter-
national Union of Operating Engineers, Local 12, affili-
ated with the Building and Construction Trades Depart-
ment, AFL–CIO (Operating Engineers). The hearing
was held on October 8, 2002, before Hearing Officer
Winkfield F. Twyman Jr.
The Board affirms the hearing officer’s rulings to the
extent consistent with this Decision and Determination of
Dispute. On the entire record, the Board makes the fol-
lowing findings.
I. JURISDICTION
The Employer is an electrical contractor performing
work in Clark County, Nevada. All parties stipulated
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
IBEW and Operating Engineers are labor organizations
within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background
The Employer installs street lighting and traffic signals
at traffic intersections throughout Clark County, Nevada.
One of the tasks involved is trenching work, i.e., the dig-
ging of trenches. Some of that work is performed with
heavy equipment.
Since its incorporation in 1992, the Employer has been
a signatory to an agreement with IBEW covering so-
called outside work. Outside work is electrical work
performed over 5 feet away from a building, including
street lighting, traffic signals, power lines, and telephone
work. During the entire period 1992 to the present, the
Employer has assigned its trenching work to its employ-
ees represented by IBEW. The work is performed by
employees classified under the agreement as heavy
equipment operators.
In May 2000, Operating Engineers claimed the trench-
ing work performed by the Employer at the Camino del
Norte jobsite. At that time, Operating Engineers had no
contractual relationship with the Employer. In response
to the claim, the Employer filed an 8(b)(4)(D) charge,
Case 28–CD–246, against Operating Engineers. Prior to
the hearing, however, Operating Engineers disclaimed
the work in dispute. In June 2000, the Employer, as a
member of the Nevada Contractor’s Association, entered
into a labor agreement with Operating Engineers for the
first time. It remained covered by that agreement at all
times relevant to this proceeding.
In December 2001, Operating Engineers again claimed
the Employer’s trenching work, at the I-15 channel pro-
ject. Operating Engineers filed a grievance against Las
Vegas Paving, the general contractor that had subcon-
tracted the lighting and signal work to the Employer,
contending that the work should be performed by em-
ployees represented by Operating Engineers. Operating
Engineers also threatened to pursue actions against other
general contractors, potentially affecting the Employer’s
ability to obtain work. The Employer informed IBEW
that it was considering reassigning its trenching work to
Operating Engineers. IBEW responded by stating that it
would take economic action against the Employer if the
trenching work were reassigned to employees repre-
sented by Operating Engineers.
B. Work in Dispute
The work in dispute is the trenching work performed
in connection with the installation of street lighting and
traffic signals at various traffic intersections throughout
Clark County, Nevada.
C. Contentions of the Parties
As an initial matter, Operating Engineers participated
at the hearing only long enough to state its claim to the
work at issue and to advance certain defenses to the no-
tice of hearing. Its representative withdrew from the
hearing before the merits of the dispute were litigated.
Operating Engineers did, however, file a posthearing
brief.
Operating Engineers asserts that it is entitled to the
work under the terms of its agreement with the Nevada
Contractor’s Association. It contends, however, that the
notice of hearing should be quashed, because (1) the
work in dispute was defined in overly broad geographic
terms, and (2) all parties to this proceeding are obligated
by a jurisdictional dispute resolution mechanism. With
respect to the first of those reasons, Operating Engineers
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1240
contends that Board law disfavors an area-wide award in
cases in which the charged party (here, IBEW) represents
the employees to whom the work is awarded. With re-
spect to the second reason, Operating Engineers contends
that all parties here are bound by the Plan for the Settle-
ment of Jurisdictional Disputes in the Construction In-
dustry (the Plan), promulgated by the Building and Con-
struction Trades Department of the AFL–CIO, and in-
corporated into its labor agreement with the Nevada Con-
tractor’s Association. Operating Engineers contends that
the Plan is binding on all national and international un-
ions affiliated with the AFL–CIO’s Building and Con-
struction Trades Department and their local constituent
bodies, including both Operating Engineers and IBEW.
IBEW, for its part, admits that it threatened economic
action against the Employer if the work in dispute was
reassigned to Operating Engineers. IBEW contends,
however, that there is no voluntary, agreed-upon method
for settling the dispute. Specifically, it contends that it
has not agreed to submit jurisdictional disputes for reso-
lution under the Plan. With respect to the merits, it con-
tends that, taking into account the labor agreements, em-
ployer preference and past practice, area practice, skills,
and economy and efficiency of operations, the work in
dispute should be awarded to employees it represents.
IBEW requests a broad order.
The Employer, in agreement with IBEW, contends that
there is no agreed-upon method of resolving the dispute.
It further contends that the facts establish reasonable
cause to believe that Section 8(b)(4)(D) of the Act has
been violated. On the merits, it agrees with IBEW that
the work should be awarded to employees represented by
IBEW. Like IBEW, the Employer also requests a broad
order.
D. Applicability of the Statute
Before the Board may proceed with a determination of
the 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) has been violated. This, in turn, re-
quires a finding that: (1) there are competing claims to
the disputed work between rival group of employees, and
(2) a labor organization has used proscribed means to
enforce its claim to the work in dispute. Before address-
ing the merits of the dispute, the Board must also find
that the parties have not agreed on a method for the vol-
untary adjustment of the dispute.1

1 Teamsters Local 259 (Globe Newspaper Co.), 327 NLRB 619, 622
(1999); Laborers Local 113 (Super Excavators), 327 NLRB 113, 114
(1998); Laborers’ District Council of West Virginia (Michel, Inc.), 325
NLRB 1058, 1059 (1998).
We find that there is reasonable cause to believe that
Section 8(b)(4)(D) has been violated. At the hearing,
Operating Engineers’ attorney, Koppelman, stated that
the work in dispute had been resolved at the two unions’
international level in favor of the Operating Engineers.
Operating Engineers has a history of asserting a right to
the work in dispute, culminating in its filing of a griev-
ance against the general contractor that subcontracted the
work to the Employer, and its threat to take similar ac-
tion against other general contractors that might do busi-
ness with the Employer.2 After Operating Engineers
filed its grievance against the general contractor, IBEW
made a claim for the work. It informed the Employer
that, if the Employer reassigned the work to Operating
Engineers, the Employer would incur economic sanc-
tions, specifically strikes and picketing, from IBEW. It
is well settled that the threat to cause a work stoppage or
engage in other economic reprisals to support a claim for
disputed work in these circumstances provides a reason-
able cause to believe that Section 8(b)(4)(D) has been
violated. Teamsters Local 179 (USF Holland, Inc.), 334
NLRB 362, 363 (2001).
We further find that there is no agreed-upon method
for voluntary adjustment of the dispute in this case.
Notwithstanding Operating Engineers’ contention that
the Plan binds both unions, there is no evidence in the
record that the Plan applies to IBEW’s claim of the work.
IBEW claims the work under its outside agreement with
the Employer, and that agreement, which is part of the
record, makes no reference to the Plan. In addition,
IBEW’s business manager testified, without contradic-
tion, that the Plan was not applicable to that agreement,
but applied only to the inside agreement between IBEW
and the Employer, which does not cover the work in dis-
pute. In these circumstances, we find that Operating
Engineers’ motion to quash should be denied.3
Accordingly, we find that this dispute is properly be-
fore the Board for determination.

2 Operating Engineers has not argued the applicability of Labors
(Capital Drilling Supplies), 318 NLRB 809, 810 (1995) (union’s griev-
ance against general contractor that work has been subcontracted in
breach of a lawful union signatory clause does not constitute a claim for
the work vis-a-vis the subcontractor).
3 Operating Engineers first addressed its motion to quash to the hear-
ing officer, who denied it, and it renewed the motion before the Board.
The hearing officer erred in ruling on the motion because the issues it
raised are appropriately resolved only on a full record after a complete
10(k) hearing. See Carpenters Local 558 (Joyce Bros. Storage), 331
NLRB 1022, 1023 (2000). We find, however, that the hearing officer’s
ruling did not prejudice any party, because the effect of the ruling was
to allow the parties to proceed to the hearing and to develop a record.
ELECTRICAL WORKERS LOCAL 357 (WESTERN DIVERSIFIED ELECTRIC) 1241
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 (Co-
lumbia 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 ex-
perience, reached by balancing the factors involved in a
particular case. Machinists Lodge 1743 (J. A. Jones
Construction), 135 NLRB 1402 (1962).
The following factors are relevant in deciding this dis-
pute.
1. Certification and collective-bargaining agreements
Neither IBEW nor Operating Engineers has been certi-
fied to represent any of the Employer’s employees. The
record establishes, however, that each union has an
agreement with the Employer covering the disputed
work. Accordingly, we find that the factors of certifica-
tion and collective-bargaining agreements do not favor
awarding the disputed work to either group of employ-
ees.
2. Employer preference and past practice
The Employer prefers to assign the work to employees
represented by IBEW. In the past, it has always assigned
the disputed work to employees represented by IBEW.
Accordingly, these factors favor awarding the disputed
work to employees represented by IBEW.
3. Area practice
The Employer presented evidence that, in Clark
County, IBEW has historically performed the trenching
work related to the installation of street lighting and traf-
fic signals. There was no evidence that Operating Engi-
neers-represented employees perform the disputed work
in the area. Accordingly, this factor favors an award of
the work in dispute to employees represented by IBEW.
5. Relative skills
The Employer presented evidence that the work in dis-
pute requires employees to operate certain heavy equip-
ment, and that IBEW-represented employees have the
appropriate training and skills to do so. No evidence was
presented regarding the skills of the employees repre-
sented by Operating Engineers. Accordingly, this factor
favors an award of the work in dispute to employees rep-
resented by IBEW.
6. Economy and efficiency of operations
The Employer presented evidence that it would be
more costly if Operating Engineers performed the dis-
puted work because of their higher wage scale. However,
in assessing the factors of economy and efficiency of
operations, the Board does not consider wages to be rele-
vant. Electrical Workers Local 3 (Slattery Skanska, Inc.),
342 NLRB 173, 177 fn. 9 (2004), citing Laborers Local
320 (Northwest Metal Fab & Pipe), 318 NLRB 917, 919
fn. 6 (1995); Bakery Workers Local 205 (Metz Baking
Co.), 339 NLRB 1095, 1098 (2003), citing Painters Lo-
cal 91 (Frank M. Burson, Inc.), 265 NLRB 1685, 1687
(1982). In addition, the Employer contends that it would
be more efficient to continue to use IBEW-represented
employees. In particular, the Employer’s project man-
ager testified that the IBEW-represented employees can
be assigned other work and perform multiple tasks on
jobsites. By contrast, Operating Engineers-represented
employees only operate heavy equipment. As a conse-
quence, using Operating Engineer-represented employees
would require the Employer to pay them for periods of
time when they are not trenching but cannot perform
other work. Accordingly, we find that this factor favors
awarding the disputed work to employees represented by
IBEW.
CONCLUSION
After considering all the relevant factors, we conclude
that employees represented by IBEW are entitled to per-
form the work in dispute. We reach this conclusion
based on the factors of employer preference and past
practice, area practice, relative skills, and economy and
efficiency of operations.
In making this determination, we are awarding the
work to employees represented by IBEW, not to that
union or its members.
F. Scope of the Award
The Employer and IBEW requested that the Board is-
sue a broad award assigning the disputed work to IBEW-
represented employees for all future work. Usually,
however, 10(k) awards are limited to the jobsite or job-
sites where the unlawful 8(b)(4)(D) conduct occurred or
was threatened. There are two prerequisites for a broader
award: (1) there must be evidence that the work in dis-
pute has been a continuous source of controversy in the
relevant geographic area and that similar disputes may
recur; and (2) there must be evidence demonstrating the
charged union’s proclivity to engage in further unlawful
conduct in order to obtain work similar to that in dispute.
See, e.g., Laborers International (Paschen Contractors),
270 NLRB 327, 330 (1984) (citing Electrical Workers
Local 104 (Standard Sign), 248 NLRB 1144, 1147–1148
(1980)).
Here, although the IBEW stated it would take eco-
nomic action regarding this dispute, there is no evidence
that it has a proclivity to engage in unlawful conduct of
this nature, or that it would do so in the future to obtain
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1242
work similar to the work in dispute. Moreover, as Oper-
ating Engineers contends, the Board customarily declines
to grant a broad, area-wide award in cases where the
charged party represents the employees to whom the
work is awarded and to whom the employer contem-
plates continuing to assign the work. See Pipefitters Lo-
cal 562 (Systemaire, Inc.), 321 NLRB 428, 431 (1996),
and cases cited. Accordingly, our award will be limited
to the controversy at the jobsites that gave rise to this
proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute:
Employees of Western Diversified Electric, Inc., who
are represented by International Brotherhood of Electri-
cal Workers, Local 357, AFL–CIO, are entitled to the
trenching work at the jobsites that gave rise to this pro-
ceeding.