188 N.L.R.B. 255 (N.L.R.B. 1971)

Electrical Workers, Local 145

National Labor Relations Board - Board DecisionsJan 29, 1971

188 N.L.R.B. 255 (N.L.R.B. 1971)

ELECTRICAL WORKERS , LOCAL 145 International Brotherhood of Electrical Workers, AFL-CIO, Local No. 145 and Camanche Machine Tool Company, Inc. Case 38-CD-46 January 29, 1971 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, BROWN , AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by Camanche Machine Tool Company, Inc., hereinafter called Camanche or Employer, alleg- ing that International Brotherhood of Electrical Workers, AFL-CIO, Local No. 145, hereinafter called the IBEW, had violated Section 8(b)(4)(D) of the Act. A hearing was held pursuant to notice at Rock Island, Illinois, on July 8 and 9, 1970, before Hearing Officer Glenn A. Zipp. The Employer; the IBEW; and the Millwrights & Machine Erectors, Lo- cal 2158, United Brotherhood of Carpenters and Join- ers of America, AFL-CIO, hereinafter called the Millwrights, appeared at the hearing and were afford- ed full opportunity to be heard, to examine and cross- examine witnesses , and to adduce evidence bearing on the issues . The Employer, the IBEW, and the Mill- wrights have filed briefs with the Board. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: I THE BUSINESS OF THE EMPLOYER Camanche Machine Tool Company, Inc., is an Iowa corporation engaged at Camanche, Iowa, in the business of maintenance machine work, inplant con- tract maintenance work, and the fabrication and de- sign of automated machinery. During the past 12 months, the Employer provided services in excess of $50,000 for E. I. DuPont de Nemours & Company at its Clinton, Iowa, facilities. E. I. DuPont de Nemours & Company is a Del- aware corporation engaged in the manufacture of cel- lophane and polyethylene products at its facilities located in Clinton, Iowa. During the past 12 months, DuPont purchased and received at its Clinton, Iowa, facilities materials and supplies from outside the State of Iowa costing more than $50,000. 255 Accordingly, we find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II THE LABOR ORGANIZATIONS INVOLVED The parties stipulated , and we find, that the IBEW and the Millwrights are labor organizations within the meaning of Section 2 (5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute Camanche has four operating divisions at its Cam- anche, Iowa, facility: heavy truck maintenance; weld- ing fabrication; machine shop; and "outside" work. There are 21 employees divided among these operat- ing divisions, with most employees being expected to perform various tasks in several divisions. The em- ployees are represented by the Millwrights and have been since October 27, 1969, when, as the result of a Board election, it was certified in Case 38-RC-756 as the exclusive bargaining representative of all pro- duction, maintenance, and service employees em- ployed by Camanche. The certified unit is covered by two labor agree- ments, one covering employees when working at the shop and another covering employees working out- side the shop at the premises of another employer. Camanche became signatory to a field (outside shop) labor agreement between the Millwrights and the Eastern Iowa Association of Plumbing, Heating and Cooling Contractors on November 3, 1969. Later, on March 20, 1970, Camanche and the Millwrights signed a shop agreement covering the wages, hours, and conditions of employment of all of Employer's production and maintenance employees, including truckdriver employees. Camanche does not now have, nor has it ever had, a collective-bargaining agreement with Local 145 of the IBEW. Although Camanche, prior to October 1969, had labor agreements with several other unions, it has no current labor agreement with any labor or- ganizations other than the aforementioned agree- ments with the Millwrights. In March 1969, Camanche entered into a contract with DuPont to "do all things necessary to install twenty-one (21) automatic core starters on casting machines at DuPont's plant at Clinton , Iowa ... " This contract involved the conversion of cline winders located in the plant from manual wind to an automat- ic wind. To accomplish the conversion a new auto- matic core starter assembly had to be installed. Camanche commenced to perform this work shortly 188 NLRB No. 38 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereafter, using a four- to five-man crew. Portions of this installation work involved some electrical work. During the period of time Camanche employees were working on the core starter installation job at DuPont, members of the IBEW employed by various electrical contractors were also doing work at the Du- Pont premises, including electrical work on the cast- ing machines involved herein, which brought them in contact with the Camanche employees. These mem- bers of the IBEW working for other contractors began to make inquiries of their union officials concerning Camanche employees performing certain electrical work on the core starters. On November 26, 1969, Richard Rohwer, assistant business manager of the IBEW, visited DuPont's plant buyer, Quinton Smith, and stated that he heard Camanche was doing electrical work with nonunion electricians . Again on April 13, 1970, Rohwer visited Smith and advised Smith about Camanche's activi- ties. Smith stated he would contact Camanche. Roh- wer called Smith on April 24, 1970, to see if Camanche had been contacted. According to the un- contradicted testimony, of Smith, Rohwer on either April 13 or April 24 stated "that if Camanche did not come around they [the IBEW] would consider it a jurisdictional dispute." Smith relayed to Williams, Camanche's president, the details of these two conver- sations. In addition to this, according to Williams, Smith, on April 24, told Williams that DuPont did not want any labor trouble such as pickets or strikers. While there is some conflict in testimony as to wheth- er Smith at this time also told Williams that if the problem with the IBEW could not be worked out, the DuPont-Camanche contract would be terminated and whether DuPont's assistant buyer, Kent, in a telephone conversation with Williams on April 27, 1970, told Williams that since there seemed to be no way to resolve the dispute DuPont would have to terminate the contract, it is clear that during the Wil- liams-Kent conversation on April 27, the DuPont- Camanche contract was terminated. At that time only 18 of the 21 installations had been completed. According to Williams, on April 24, 1970, after his conversation with Smith, Williams called Richard Willaert, business manager of the IBEW, and in- quired whether there was any way to iron out the differences. Willaert stated there wasn't any way ex- cept by giving the work to the members of the IBEW. Williams further testified that during this conversa- tion Willaert stated the disputed electrical work would have to be assigned to an electrical subcontrac- tor or he would picket the job. Willaert denied that he threatened to picket. On the same day as his conversa- tion with Willaert and Smith, Williams contacted at least one electrical contractor, Langrehr Electric, in an attempt to subcontract the electrical work, but such a subcontract could not be worked out. On April 25, 1970, Williams telephoned Crider, business manager for the Millwrights, and stated that the IBEW would picket DuPont if the Millwrights were not removed from the job. Crider replied, as he had previously stated during the March 1970 contract negotiations, that the Millwright's contract covered the work which the IBEW claimed and that Williams should go to the National Labor Relations Board to settle this matter. B. The Work in Dispute The work involved concerns the assignment of the electrical portion of heavy machine installation at the Clinton, Iowa, facility of E. I. DuPont de Nemours & Co. The particular job that gives rise to this dispute concerns the installation of 21 automatic core starter assemblies on as many casting machines which con- vert cellophane from a liquid to solid sheets of film. The purpose of the modification is to convert the core winder mechanism from a manual operation in re- moving and replacing the completely wound cello- phane cores with unwound cores to an automatic process. Basically, as Williams outlined the conver- sion procedures, the manual core winder is removed and taken to the Camanche machine shop where main and subsidiary holes are bored into the shaft. Air clutches are mounted and four limit switches are in- stalled on the shaff assembly. The core winder, as modified, is then brought back to DuPont and placed back in the casting machine. A pneumatically operat- ed knife is then hooked up. Conduit is hung and wires pulled through it for the electrical hook up of a relay control cabinet and operation panel. Indicator posi- tions are hooked up and adjusted for the roll and pneumatic assembly. A disconnect devise is installed as are lead wires running to and from the motor con- trol center box. The conversion process for each machine requires about 2 weeks to complete with a four- to five-man crew. According to Williams, approximately 45 per- cent of the total man-hours are spent on electrical work. The electrical work involves the hooking up of the electrical control circuitry with the relay and pneumatic panels. All the electrical installation was performed by a Camanche employee with an elec- trical engineering degree and he was assisted by trained helpers. At the time of the hearing 20 of the core starter assemblies had been completed. DuPont's mainte- nance department employees performed the work which needed to be completed on the core starters left unfinished when the Camanche contract was termi- nated. One automatic core starter remains to be in- stalled. There are no more casting machines ELECTRICAL WORKERS , LOCAL 145 manufacturing cellophane to be converted from a manual to an automatic operation. However, future work to be let at this DuPont fa- cility through competitive bid will involve other mechanical-electrical modifications including the installation of sledging equipment to automatically cut film on the Company's Clysar (polyethylene) line (work similar to the automatic core starter assembly installation). At present, because of the instant dis- pute, Camanche is temporarily prohibited from bid- ding at DuPont on any mechanical-electrical modifications or installations of equipment . Accord- hig to the testimony of Smith, DuPont's plant buyer, the outcome of this 10(k) proceeding will determine whether DuPont contracts any future work to Cam- anche. C. Contentions of the Parties The IBEW contends , inter alia, that Camanche vol- untarily terminated its contract with DuPont covering the disputed work and that there is no longer an active work dispute to consider pursuant to Section 10(k). It also urges that there is no reasonable cause to believe that Section 8(b)(4)(D) has been violated because there are not two unions or employee groups actively competing for the assignment of the work in question and there is no assignment of work in dispute because Camanche voluntarily terminated its contract with DuPont before filing charges with the Board. Finally, it argues that there is no reasonable cause to believe that any representative of the IBEW unlawfully threatened Williams in violation of Section 8(b)(4)(D). On the other hand, the IBEW also con- tends that if the Board should find reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated the work in dispute should be assigned to its members. The Millwrights takes the position that the Employ- er has properly made the assignment in accordance with its established past practice of assigning its em- ployees to do this work. More specifically, the Mill- wrights argues that it has been certified to represent all of Camanche's "production, maintenance and service employees" whereas the IBEW having no rela- tionship whatsoever with the Employer seeks not only to have its members perform the work but also seeks to have the work performed through another subcon- tractor. The Millwrights points out that Williams tes- tified that the most efficient and economical way for Camanche to operate is by having its own employees working constantly by interchanging them between the "inside" and "outside" operations. Finally, the Millwrights contends that the Employer's operations are organized on an industrial, basis and that the 257 maintenance and installation work now in question is not normally recognized as building and construction work so therefore the traditional craft practices appli- cable to normal construction work are inapplicable to this dispute. Camanche reiterates the contentions of the Mill- wrights pointing out that it has followed its present assignment procedures since the Company was first organized and that to force the Employer to change its assignment procedures would make its operations less efficient and more costly. D. Applicability of the Statute Before the Board may proceed to a determination of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is a reasonable cause to believe that Section 8(b)(4)(D) had been violated. The record is clear and uncontroverted that during April 1970 Rohwer, assistant business manager for the IBEW, spoke with Smith, DuPont's plant buyer, on two occasions about the matter now before us and on one of these occasions Rohwer stated to Smith that "If Camanche did not come around they would con- sider a jurisdictional dispute." Smith understood Rohwer's statement to mean that there were going to be "labor problems" involving the possible use of picketing and strikes unless this matter was settled in favor of the IBEW. Smith informed Williams of his deep concern over the matter. Williams attempted to resolve the dispute with the IBEW and investigated the possibility of subcontracting but to no avail. Thereafter, it appears Camanche was forced to wit- ness the cancellation of its contract to install the auto- matic core starters before the job had been completed. It further appears that since that time DuPont had declined to allow Camanche to bid on any work at its Clinton, Iowa, facility until this dispute is resolved. The record reveals that the IBEW took the position that if they did not get the disputed work they would consider it a "jurisdictional dispute." Although this position, clearly in the nature of a threat in our view, was directed at DuPont rather than the Employer, it is reasonable to infer that it was plainly the intention of the IBEW to force the Employer to reassign the work then being done by its employees represented by the Millwrights to employees represented by the IBEW. It is further evident from the record that the Millwrights, when informed of the work dispute, spe- cifically claimed the work by taking the position that it wanted the Employer to continue its present work assignment . We therefore find, contrary to the Respondent's contentions, that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred, and the dispute is properly before the 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board of determination under Section 10 (k) of the Act.' E. Merits of the Dispute As stated in the J. A. Jones case,2 we shall , pursuant to the Supreme Court's C. B.S. decision ,3 determine in this case presented for resolution under Section 10(k) of the Act the appropriate assignment of the disputed work after taking into account the evidence support- ing the claims of the parties and balancing all relevant factors. 1. Collective-bargaining agreement The Millwrights has been certified by the Board as the collective-bargaining agent for all the Employer's production, maintenance, and service employees who have been assigned to perform the installation work now in dispute. The IBEW is not now nor has it ever been a party to a collective-bargaining agreement with Camanche. 2. Company and industry practice Camanche's normal practice is to have its own em- ployees do all the work on a particular job such as the control involved herein. Indeed, it appears that on only two previous occasions Camanche subcontract- ed small electrical maintenance jobs to electrical con- tractors rather than assigning its own employees to perform the work. The IBEW urges that the work in dispute is normal- ly considered construction work thereby requiring ap- plication of the normal practices in the construction industry, i.e., the employees represented by the IBEW perform all such electrical work. The Millwrights, on the other hand, claims that this is not construction work and therefore construction industry practices are inapplicable. It appears from the record that tradi- tional craft line distinctions of the building trades are not normally applicable to work performed by con- tractors such as the Employer. While it is arguable that some portion of the work involved herein might fall within the scope of the traditional craft distinc- tions, the work, taken in its entirety, is really more akin to maintenance work. Indeed, DuPont, both be- fore it contracted with Camanche and after the Cam- anche contract was terminated, used its own maintenance employees to perform the conversion of the equipment precipitating this dispute. The record reveals that craft distinctions normally are not fol- ' Although Respondent 's conduct may also be violative of other sections of the Act not alleged in the complaint , it is clear that this dispute revolves around Camanche 's work assignments which do plainly give rise to a viola- tion of Section 8(bx4)(D). 2 Internationa l Association of Machinists, Lodge No. 1743, AFL-CIO (J. A Jones Construction Company). 135 NLRB 1402. f N L.R.B. v. Radio & Television Broadcast Engineers Union, et a! (Colum- bia Broadcasting System), 364 U S 537. lowed by maintenance contractors like Camanche in the area , and, in fact it is common for one union to represent all employees of such a contractor regard- less of craft distinction. 3. Efficiency, economy, and flexibility of operations The assignment made by Camanche to its own em- ployees is the most economical. If the Employer should be required to subcontract the electrical por- tion of its work this would increase its operating costs and force it to either allow some of its own employees to remain idle or to lay off some of its employees for lack of work. Because Camanche performs a wide variety of diverse maintenance jobs, its full-time em- ployee work force must be capable of doing many diverse tasks, each requiring differing skills. Conse- quently, an assignment other than as made by the Employer, in this instance would severely affect the efficiency and flexibility of operations of the Employ- er by restricting its ability to properly allocate its pres- ent work force. 4. Skill of the employees The IBEW has attempted to portray the employees of Camanche represented by the Millwrights as not possessing the requisite skills required to install the electrical portions of the work in dispute. However, DuPont's representatives indicated that Camanche had performed the work giving rise to the dispute as competently as any of DuPont's other contractors doing like work, and would, but for this dispute, be willing to allow Camanche to bid on other DuPont contracts. Further, the record shows that the installa- tion work was both performed and supervised by a Camanche employee having a degree in electrical en- gineering and that the Millwrights requires, as part of their apprentice training program, the completion of at least one course on the principles of electricity and electrical wiring. Conclusions Upon the record as a whole, and after full consider- ation of all relevant factors involved, we believe that the employees of Camanche who are currently repre- sented by the Millwrights, rather than electrical work- ers represented by the IBEW, are entitled to the work in dispute. We reach this conclusion relying upon the Employer's assignment of the disputed work to its employees, the fact that the assignment is consistent with the Employer's past practice and the Board certi- fication and current collective-bargaining contract, the fact that the employees represented by the Mill- ELECTRICAL WORKERS, LOCAL 145 259 wrights possess the requisite skills to perform the work, and that such an assignment will result in effi- ciency and economy of operations. Accordingly, we shall determine the dispute before us by awarding both the work in dispute and any similar electrical work required as part of any contract Camanche may obtain in the future, at the Clinton, Iowa, facility of E. I. DuPont de Nemours & Company for the installa- tion or modification of heavy machinery to its em- ployees represented by the Millwrights, but not to the Union or its members.4 In consequence, we also find that the IBEW had not, and is not entitled by means prescribed by Section 8(b)(4)(D) of the Act, to force or require the Employer to assign the disputed work to its 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 pro- ceeding, the National Labor Relations Board hereby makes the following determination of the dispute: 1. Employees of Camanche Machine Tool Compa- ny, Inc., who are currently represented by Millwrights & Machine Erectors, Local 2158, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are entitled to perform the work in, dispute on the core starter assemblies as well as any future similar elec- trical work required as part of any contract Camanche may obtain for heavy machinery installation or mod- ification work at the Clinton, Iowa, facility of E. I. DuPont de Nemours & Company. 2. International Brotherhood of Electrical Workers Local No. 145, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Camanche Machine Tool Company, Inc., to assign such work to electrical workers represented by International Brotherhood of Electrical Workers Local No. 145, AFL-CIO. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Brotherhood 4 The IBEW contends that the Board's assignment of work in dispute should be limited only to the work actually giving rise to the dispute, namely, the electrical work involved in the installation of the automatic core starter assemblies . We disagree . It is clear that the underlying dispute extends be- yond the confines of this particular job to all jobs involving heavy machinery installation or modification that may in the future be performed by Camanche's employees at DuPont 's Clinton, Iowa , facility. Further , DuPont has indicated that it will bar Camanche from bidding on any of its future contracts at its Clinton, Iowa, facility until this dispute is resolved . Accord- ingly, we have made the work assignment to cover all heavy machinery installation work which Camanche may perform at DuPont 's Clinton, Iowa, facility. Building and Construction Trades Council of Las Vegas, and Local 525 (Charles J. Dorfman), 173 NLRB No. 208; International Union of Operating Engineers, Local 66, AFL-CIO (Frank P. Badolato & Son). 135 NLRB 1392. We further note, however , that the assignment made in this case in no way obligates DuPont to give preference to Camanche in bidding on DuPont's contracts or forces DuPont to contract work only to Camanche. of Electrical Workers, Local 145, AFL-CIO, shall no- tify the Officer-in-Charge, Subregion 38, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to electrical workers represented by the IBEW, rather than to employees represented by the Millwrights. MEMBER BROWN, dissenting: I cannot agree that the conduct at issue in this situation consistutes a jurisdictional dispute which is appropriately handled in a proceeding under Section 10(k) of the Act. Rather, this is a classic example of a demand for the cessation of business between two companies which may violate another provision of Section 8(b)(4) but is not within Section 8(b)(4)(D). While I recognize that it is possible for a dispute to fall within two parts of Section 8(b)(4), that is not the case here, in my view. As set forth in the majority opinion, DuPont sub- contracted to Camanche the work of converting core winders from manual to automatic wind. At this same time various electrical subcontractors were perform- ing work on DuPont's premises, including some work on the same machines as Camanche was converting. Camanche's employees were represented by Mill- wrights, and the electrical contractors' employees were represented by IBEW. The latter employees communicated with agents of their union, who de- manded of DuPont that it replace Camanche with an electrical subcontractor.' That this is the full import and effect of IBEW's demands upon DuPont is recog- nized by my colleagues, as evidenced by the fact that throughout their opinion they are (as they must be) concerned entirely with the fact that DuPont canceled its contract with Camanche and had declined since that time to allow Camanche to bid on any work at the Clinton, Iowa, facility. In this same connection, I note that their statement of conclusions, too, is direct- ed to the right of Camanche to bid for other work at DuPont's Clinton, Iowa, facility. But this is not a proper concern of this Board in determining a work assignment dispute. I am, of course, fully aware of prior decisions by this Board holding that Section 8(b)(4)(D) applies to an indirect attempt to force an assignment of work S While the IBEW representative did tell DuPont 's plant buyer that "if Camanche did not come around [the IBEW] would consider it a jurisdiction- al dispute ," this is ambiguous particularly in light of the fact that no previous or late demand that Camanche replace its own employees with IBEW mem- bers is detailed and the inference drawn by the majority to this effect does not withstand analysis. Surely, the IBEW 's use of the words "jurisdictional dispute" is not determinative , but even where such a dispute may exist the statement that it does is not necessarily a threat to attempt to force a reassign- ment by unlawful means. Here is the only evidence of any reference to picketing or to threats to picket involved statements by DuPont's agent to Camanche that DuPont did not want any labor trouble such as pickets or strikers and that IBEW would picket DuPont if employees represented by Millwrights were not removed , and no showing is made that such threats had in fact been made to Dupont. 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from employees of one employer to those of another, and I have participated in many of them. However, the real nature of the relief sought by the union must be determined in deciding whether the appropriate method of proceeding has been adopted 6 On the facts of the present case I cannot conclude that the under- lying demand justifies invoking the extraordinary provisions of Sections 10(k) and 8(b)(4)(D), for they aie being used to prohibit the IBEW from interfering in the subcontracting relationship between DuPont 6 In this connection , see Member Fannmg's dissenting opinion in Local 19, International Longshoremen 's Association, AFL-CIO (Marine Association of Chicago), 151 NLRB 89, 98. While I participated with the majority in that case , it was because I did not agree with Member Fanning that on the facts there the dispute was solely one of contract interpretation not cognizable under Section 10(k) and Camanche. I am not aware of any Section 10(k) proceeding in which the dispute has involved action by a labor organization against two stranger compa- nies to secure replacement of one of them. Rather, this is more akin to so many secondary boycott situations we have viewed under Section 8(b)(4)(B), especially in the construction industry, where a labor organization has taken action against a neutral general contractor to secure replacement of one of the subcontractors on a jobsite who has nonunion employees or employees represented by some rival union. As I construe the dispute here, I would find that no dispute cognizable under Section 10(k) has been shown to exist and I would quash the Notice of Hear- ing.