Electrical Workers Local 44 (Utility Builders, Inc.)

National Labor Relations Board - Board Decisions

Dec 12, 1977

233 N.L.R.B. 1099 (N.L.R.B. 1977)

ELECTRICAL WORKERS, LOCAL 44
International Brotherhood of Electrical Workers,
Local 44, AFL-CIO and Utility Builders, Inc. and
Local Union No. 400 of the International Union of
Operating Engineers, AFL-CIO and Laborers
International Union of North America, AFL-CIO,
Montana District Council of Laborers. Case 19-
CD-267
December 12, 1977
ORDER GRANTING MOTION AND
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
of the trade. All work outside of that property line
on transmission lines, overhead or underground,
would be to the outside branch of the trade. Now,
to go further, we have agreements with the
various international unions within the property
lines that would be referred to as the building
trades.
[U]nder the inside branch of the trade all of the
agreements we have - and we have the AFL-
CIO Disputes Board that can settle disputes. As
far as the IBEW is concerned, we will recognize
those agreements for that portion of the trade.
On April 11, 1977, the National Labor Relations
Board issued its Decision and Order Quashing
Notice of Hearing in the above-captioned proceed-
ing,' finding that all parties to the instant jurisdic-
tional dispute are bound to a voluntary method for
the adjustment of such disputes through the proce-
dures established by the Impartial Jurisdictional
Disputes Board. Thereafter, on April 28, 1977,
Utility Builders, Inc. (hereinafter the Employer),
Local Union No. 400 of the International Union of
Operating Engineers, AFL-CIO (hereinafter Operat-
ing Engineers), and Laborers International Union of
North America, AFL-CIO, Montana District Coun-
cil of Laborers (hereinafter called Laborers), filed a
joint request for review of the Board's Decision,
contending that the Board erred in finding that
Respondent International Brotherhood of Electrical
Workers, Local 44, AFL-CIO (hereinafter called
IBEW Local 44), is a member of the Building and
Construction Trades Department, AFL-CIO, and
hence bound to abide by the rules and procedures of
the Impartial Jurisdictional Disputes Board (IJDB)
for the settlement of jurisdictional disputes.
In support of their position, the joint petitioners
(Employer, Operating Engineers, and Laborers) rely
on certain undisputed testimony in the record to the
effect that IBEW Local 44 is a so-called outside
branch of the IBEW and, as such, is not subject to
the IJDB procedures for the resolution of disputes
involving so-called outside work. The work in
dispute in this proceeding is considered such outside
work. Thus, Russell Williams, International repre-
sentative of the IBEW, testified in relevant part as
follows:
[U ]nder the constitution that we have, it provides
that all work within a property line such as a
building . . . would fall within the inside branch
The job that we are in dispute on now is
considered, as far as the IBEW, as the outside. It
would be given - in our estimation . . . to the
outside branch of the trade ....
* * *
Over the years, because of our agreements with
the utility companies, and through the AFL-CIO,
it was agreed over the years, because of our
classifications and our performing the work . . .
that the outside branch of the trade would not
come under the AFL-CIO Jurisdictional Dispute
Board [sic].
In addition, Vincent J. Bosh, assistant business
manager and vice president of Local 400, Operating
Engineers, corroborated Williams' testimony. Thus,
Bosh testified as follows:
Q. Are IBEW unions under the building
trades?
A. The IBEW unions, part of them, are under
the Building Trades Council, but the part in
question here is not under the building trades.
Q. What part of that IBEW union is involved
here that is not a part of the building trades?
A. Local 44, I don't think they are in the
trades, but they are outside linemen and they are
not recognized nationally as construction unions.
IBEW Local 44 has not responded to the joint
request for review of the Board's Decision. And,
although the foregoing testimony stands uncontrad-
icted on the record, no documentary proof was
offered to establish that IBEW Local 44 is, in fact,
considered by the Building and Construction Trades
Council, AFL-CIO, to be an outside local and that it
is, therefore, exempt from the procedures established
228 NLRB 1334(1977).
233 NLRB No. 146
1099
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the IJDB. Nevertheless, in light of the foregoing
testimony and IBEW Local 44's failure to respond to
the joint request for review, we accept as true the
joint petitioners' assertion that IBEW Local 44 is not
bound to the IJDB. Furthermore, we note that the
Board has, in several decisions over the years,
recognized the distinction between "inside" and
"outside" locals of the IBEW and taken official note
of the fact that the latter are not subject to the
procedures for the resolution of jurisdictional dis-
putes established by the Building and Construction
Trades Department, AFL-CIO.2
ORDER
Based on the foregoing, as well as the fact that the
work here in dispute, as described below, is admit-
tedly "outside work" as defined by the IBEW, we are
satisfied that we erred in finding that IBEW Local 44
is bound to the procedures of the IJDB for the
resolution of this dispute. Accordingly, as not all of
the parties to the instant dispute are bound to the
IJDB, we have decided to grant the joint request of
the Employer, Operating Engineers, and Laborers
and to determine the dispute on its merits.
The Dispute
A. The Work in Dispute
The work in dispute, as previously described in our
Decision and Order Quashing Notice of Hearing in
this case, is as follows:
The operation of all mechanical equipment used
in excavating, backfilling, and repaving of trench-
es and any other operation of equipment used in
the project of installing underground communica-
tion or electrical duct lines and manholes on
projects performed by Utility Builders, Inc., in the
State of Montana.
The finegrading of trenches, shoveling work,
placement of separators between ducts, installa-
tion and placement of underground duct work
and the pouring and placement of concrete
around the duct system and all other miscellane-
ous associated tasks on projects performed by
Utility Builders, Inc., in the State of Montana.
B. Background and Facts of the Dispute
The background and relevant facts surrounding
this dispute are set forth in our prior Decision and
Order as follows:
2 See, e.g., Local Union 825, International Union of Operating Engineers,
AFL-CIO (Nichols Electric Company). 137 NLRB 1425, 1429 (1962);
International Union of Operating Engineers, Local Union No. 12 (George E.
Miller Electric Company), 144 NLRB 9, 12 (1963); Local Union No. 181,
The Employer was awarded a contract to
perform the disputed work by the Mountain Bell
Telephone Company. The Employer is a member
of a multiemployer collective-bargaining group
known as the Montana Contractors Association.
Through this Association it has been a party to
various collective-bargaining agreements, includ-
ing one with the Laborers. Through that multiem-
ployer association and an association known as
the Montana Heavy, Highway and Building
Contractors Joint Council, the Employer is also
signatory to a collective-bargaining agreement
with the Operating Engineers. The Employer has
no contract with IBEW Local 44.
Pursuant to its above bargaining agreements,
the Employer assigned the operation of all
mechanical equipment used in the excavating,
backfilling, and repaving to its employees repre-
sented by the Operating Engineers, and the work
of fine grading of trenches and placement of
underground ducts and the pouring and place-
ment of concrete and related operations to its
employees represented by the Laborers. The
Employer began work on the project on August
16, 1976. A few days earlier, IBEW Local 44
Business Agent Gordon Mahood sent a letter to
the Employer's president, R. H. Blakeslee, re-
questing a prejob conference on the project and
asking the Employer to sign a "letter of assent"
binding it to a current collective-bargaining
agreement between IBEW Local 44 and a
multiemployer association known as Western
Line Contractors Chapter, Inc., NECA, Inc.
Blakeslee declined to sign the letter of assent,
stating that the Employer intended to perform the
work as it had done in the past by assigning it to
its employees who are represented by the Labor-
ers and the Operating Engineers.
Thereafter, Mahood telephoned Blaskeslee and
told him that the Employer's assignment of the
work in dispute was "unsatisfactory," and that
IBEW Local 44 would not allow any other crafts
to do work on the project. When Blakeslee
indicated he would not change his position,
Mahood threatened to go to Mountain Bell.
Subsequently, Mahood wrote a letter to Moun-
tain Bell requesting that any work being per-
formed by the Employer be suspended and that
the project be completed by a contractor employ-
ing IBEW Local 44 members. Thereafter, on
August 31, 1976, an IBEW Local 44 picket
appeared at the Employer's project carrying a
International Union of Operating Engineers. AFL-CIO (Service Electric
Company), 146 NLRB 483, 485 (1964); International Brotherhood of
Electrical Workers of Fort Lauderdale, Florida, Local 728, AFL-CIO (Ebasco
Services, Incorporated), 153 NLRB 873, 875-876 (1965).
1100
ELECTRICAL WORKERS, LOCAL 44
placard reading, "Utility Builder-Unfair-
IBEW."2 Personnel working at the construction
site refused to cross the picket line and work on
the project was temporarily suspended.
2 IBEW Local 44 stipulated at the heanng that the picket line was
authorized by it.
Based on the evidence that an authorized agent of
IBEW Local 44 demanded that the Employer assign
the disputed work to employees represented by that
labor organization, and that, thereafter, IBEW Local
44 authorized picketing of the Employer in support
of such demand, which picketing halted the Employ-
er's operations, the Board concluded that reasonable
cause exists to believe that IBEW Local 44 had
violated Section 8(b)(4)(D) of the Act.
Having found, supra, that all parties are not bound
to a voluntary method for the adjustment of this
dispute, we find that this dispute is properly before
the Board for determination.
C. Contentions of the Parties
The Employer contends that the work of operating
all mechanical equipment used in excavating, back-
filling, and repaving of trenches, and any other
operation of equipment used in the project of
installing underground communication or electrical
duct lines and manholes on projects performed by it
in the State of Montana, should be assigned to its
employees who are represented by Operating Engi-
neers. The Employer also contends that the work of
backfilling of trenches, shoveling work, placement of
separators between ducts, installation and placement
of underground duct work, and the pouring and
placement of concrete around the duct system, and
all other miscellaneous associated tasks on projects
performed by it in the State of Montana should be
assigned to its employees who are represented by
Laborers. The Employer bases these contentions
upon its actual assignment of the work and its
preference; its collective-bargaining agreements with
Operating Engineerings and Laborers; its historic
practice of assigning the work to employees repre-
sented by these unions; the proven skills of these
employees; the resultant economy and efficiency of
its operations; and the fact that it does not have a
collective-bargaining contract with IBEW Local 44.
The Operating Engineers and Laborers essentially
agree with the Employer's position. IBEW Local 44,
on the other hand, contends that the work in dispute
should be assigned to employees represented by it on
the basis, inter alia, of industry practice, the Employ-
3 Radio & Television Broadcast Engineers Lnion, Local 1212, International
Brotherhood of Electrical Workers, AFL C(O lColumrnhia Broadcasting
Systeml v. N.L. RB., 364 U.S. 573 (1961).
er's past practice, the overall knowledge and skills
which IBEW members possess with respect to
communications systems, and the facts that members
of a sister IBEW local have performed similar work
for Mountain Bell Telephone Company, and IBEW-
represented employees will have further responsibili-
ties after the ducts are in place.
D. 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 various factors.3 The Board has
held that its determination in a jurisdictional dispute
is an act of judgment, based on commonsense and
experience, reached by balancing those factors
involved in each particular case.4
The following factors are relevant in determining
the dispute before us:
1. Certification and collective-bargaining
agreements
The parties stipulated that none of the unions here
involved has ever been certified by the Board as
bargaining representative of the Employer's employ-
ees with respect to the disputed work. The Employer,
however, has had a long and continuing bargaining
relationship, and successive contracts, with both
Operating Engineers and Laborers since at least
1948. The Employer's most recent contracts with
Operating Engineers and Laborers, effective at all
times material herein, cover a variety of work on
traditional construction projects, including such
things as "duct lines, pipelines, sewers, water mains,
excavation and backfill . . . paving and like opera-
tions, street and sewer grading and all similar
projects, and excavation and removal or disposal of
earth, rock and like material."
IBEW Local 44, known as an outside lineman
union of electrical workers, is party to a collective-
bargaining agreement with a multiemployer associa-
tion known as Western Line Constructors Chapter,
NECA, Inc. The Employer is not a member of that
association and therefore is not bound to its current
contract with IBEW Local 44. In 1973 and 1974 the
Employer signed letters of assent agreeing to be
bound to IBEW Local 44's then current contract
with the foregoing association. The last of these
letters of assent expired by its own terms on May 31,
1974.
In view of the foregoing, we find that the factor of
collective-bargaining agreements favors awarding the
4 International Association of Machinists, Lodge No. 1743, AFL CIO (J
A. Jones Construction Company). 135 NLRB 1402 (1962).
1101
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work to employees represented by Operating Engi-
neers and Laborers.
2. The employer's practice
As stated, the Employer has had successive
collective-bargaining agreements with Operating
Engineers and Laborers since at least 1948. Pursuant
to these agreements, the Employer has consistently
assigned work similar to that here in dispute to its
employees represented by those labor organizations.
In addition, the record shows that the Employer has
performed 15 to 18 jobs for Mountain Bell Tele-
phone Company which are similar to the job where
this dispute arose. In each of those jobs, with a single
exception, the Employer has awarded the work to its
employees who are represented by Operating Engi-
neers and Laborers. On one occasion in 1974, the
Employer briefly used a backhoe operator represent-
ed by IBEW in a trenching operation. That employee
was terminated after a few days when he accidentally
cut an existing telephone cable. He was then replaced
by an employee represented by Operating Engineers
and IBEW did not object to this substitution.
Accordingly, we find that the Employer's consistent
past practice of assigning similar work to employees
represented by Operating Engineers and Laborers
favors an award to these employees here.
3. Area and industry practice
There are three other utility contractor companies
in Montana which, with the Employer, perform a
substantial amount of Mountain Bell's underground
conduit projects. These firms,5 like the Employer, are
members of the Montana Contractors Association,
Inc., and, also like the Employer, signatory to that
Association's labor agreements with Operating Engi-
neers and Laborers. Pursuant to these contracts,
these employers have made the same assignments of
work as were made by the Employer.
IBEW Local 44 presented evidence that a substan-
tial amount of Mountain Bell's underground conduit
work is performed by employees of Mountain Bell
who are represented by sister locals of IBEW. IBEW
Local 44 also presented testimony that its contract
with Western Line Constructors Chapter of NECA
covers the work here in dispute and that the
construction firms which are members of that
association regularly assign the work in dispute to
employees represented by IBEW Local 44 or IBEW
Local 532. The latter is not involved in this
proceeding.
Based on the foregoing, we are satisfied that some
contractors in the State of Montana utilize employ-
5 Falls Construction (Great Falls), Felton Construction (Missoula), and
Lochrem Construction (Billings).
ees represented by IBEW to perform the disputed
work while others, such as the Employer, use
employees represented by Operating Engineers and
Laborers. Accordingly, we find that the factor of
area practice is inconclusive and does not clearly
favor either group of employees.
4. Relative skills and safety
Operating Engineers and IBEW Local 44 each
claims that its members are fully skilled and trained
to perform the disputed work safely. Each labor
organization presented considerable evidence with
respect to the skills and training of its members in
performing certain tasks. Both unions have extensive
apprenticeship training programs. However, while
IBEW's training deals heavily with the installation
and maintenance of electrical, communication, and
utility transmission lines, Operating Engineers train-
ing is devoted exclusively to the operation and
maintenance of the various pieces of heavy construc-
tion equipment used in earth-moving and construc-
tion operations. Since the work here in dispute
involves the operation of mechanical equipment used
in excavating and backfilling trenches, the factor of
skills and training tends to favor employees repre-
sented by Operating Engineers.
With respect to that portion of the disputed work
assigned to employees represented by Laborers, the
evidence as to skills was less sharply drawn. Thus,
the work of finegrading the trenches, the laying of
the duct, and the pouring of concrete can apparently
be learned quickly and without much training.
Accordingly, the factor of skills as to this work is
neutral.
5. Economy and efficiency of operation
The Employer contends that its overall operations
function more efficiently and economically with the
use of employees represented by Operating Engineers
and Laborers. Thus, the Employer, in addition to its
periodic work for Mountain Bell Telephone Compa-
ny, is engaged in extensive water, sewer, sidewalk,
curb, and gutter construction in which it utilizes
employees represented by Laborers and Operating
Engineers. If the Employer were to be required to
assign the disputed work to employees represented
by IBEW Local 44, it would have to maintain
separate crews; one for its underground conduit
work, which normally lasts 30 to 60 days, and
another for its water, sewer, sidewalk, curb, and
gutter work. On the other hand, if the work were
assigned to employees represented by Operating
Engineers and Laborers, the Employer would have
1102
ELECTRICAL WORKERS, LOCAL 44
the flexibility of transferring its employees from one
task to another as the need arose. Based on these
considerations, we find that the factor of economy
and efficiency of operations favors the Employer's
assignment of the work to employees represented by
Operating Engineers and Laborers.
Conclusion
Upon the record as a whole, and after full
consideration of all relevant factors involved, we
conclude that employees who are represented by
Local Union No. 400 of the International Union of
Operating Engineers, AFL-CIO, and employees
represented by Laborers International Union of
North America, AFL-CIO, Montana District Coun-
cil of Laborers, are entitled to perform the work in
dispute. We reach this conclusion on the basis of the
Employer's assignment and preference, the Employ-
er's collective-bargaining agreements with these two
labor organizations, the Employer's historic and
consistent practice of assigning the work to these
employees, the relatively greater skills of employees
represented by Operating Engineers in operating the
mechanical equipment here involved, and the fact
that the Employer's assignment will result in greater
efficiency and economy of operations. In making this
determination, we are awarding the work in question
to employees represented by the foregoing labor
organizations, but not to those unions or their
members.
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 entire record in this
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Employees of Utility Builders, Inc., who are
represented by Local Union No. 400 of the Interna-
tional Union of Operating Engineers, AFL-CIO, are
entitled to perform the following work:
The operation of all mechanical equipment used
in excavating, backfilling, and repaving of trench-
es and any other operation of equipment used in
the project of installing underground communica-
tion or electrical duct lines and manholes on
projects performed by Utility Builders, Inc., in the
State of Montana.
Employees of Utility Builders, Inc., who are
represented by Laborers International Union of
North America, AFL-CIO, Montana District Coun-
cil of Laborers, are entitled to perform the following
work:
The finegrading of trenches, shoveling work,
placement of separators between ducts, installa-
tion and placement of underground duct work
and the pouring and placement of concrete
around the duct system and all other miscellane-
ous associated tasks on projects performed by
Utility Builders, Inc., in the State of Montana.
2. International Brotherhood of Electrical Work-
ers, Local 44, AFL-CIO, is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force
or require Utility Builders, Inc., to assign the
disputed work to employees represented by that
labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, International Broth-
erhood of Electrical Workers, Local 44, AFL-CIO,
shall notify the Regional Director for Region 19, in
writing, whether or not it will refrain from forcing or
requiring the Employer, by means proscribed by
Section 8(b)(4XD) of the Act, to assign the disputed
work in a manner inconsistent with the above
determination.
1103