Electrical Workers, Local No. 610

National Labor Relations Board - Board Decisions

Jun 29, 1976

225 N.L.R.B. 320 (N.L.R.B. 1976)

320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers, Lo-
cal No . 610 and Landau Outdoor Sign Company,
Inc. and Sign Makers and Sign Hangers Local
Union No. 194 , Sheet Metal Workers International
Association .' Case 4-CD-394
ployer performed services valued in excess of $50,000
for customers located outside the Commonwealth of
Pennsylvania, and its gross revenues exceeded
$500,000. 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
purposes of the Act to assert jurisdiction herein.
June 29, 1976
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, PENELLO, AND WALTHER
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find , that IBEW
and Sign Hangers are labor organizations within the
meaning of Section 2(5) of the Act.
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Landau Outdoor Sign Compa-
ny, Inc., herein called Employer, alleging that Inter-
national Brotherhood of Electrical Workers, Local
No. 610, herein called IBEW, violated Section
8(b)(4)(D) of the Act by engaging in certain pro-
scribed activity with an object of forcing or requiring
the Employer to assign certain work to employees
represented by IBEW rather than to employees rep-
resented by Sign Makers and Sign Hangers Local
Union No. 194, Sheet Metal Workers International
Association, herein called Sign Hangers.
Pursuant to notice, a hearing was held before
Hearing Officer Bruce D. Bagley on April 22 and 23,
1976. All parties, including the Employer, IBEW,
and Sign Hangers, appeared at the hearing and were
afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to adduce evidence
bearing on the issues. Thereafter, the Employer and
IBEW filed briefs.
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 au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer, a Pennsylvania corporation with its sole of-
fice in Philadelphia, Pennsylvania, is engaged in
manufacturing, erecting, and maintaining outdoor
signs and billboards. During the past year, the Em-
1 Name appears as amended at the hearing
III. THE DISPUTE
A. Background and Facts
The Employer maintains approximately 160 bill-
boards in the greater Philadelphia-Delaware Valley
area. These billboards consist of removable panels
which are hung on a steel superstructure, and which
form the face of the sign. The sign's message is paint-
ed on these panels by certain of the Employer's em-
ployees who are not involved in this dispute. Approx-
imately every 45 or 60 days, existing panels are
dismantled and usually replaced with newly painted
panels forming new signs. However, it is also com-
mon for a billboard to have its existing panels re-
moved without having new panels installed for a pe-
riod ranging from a day to a few weeks. The task of
dismantling existing signs and installing new panels
is performed for the Employer by two independent
contractors, Ogram Sign Company, herein called
Ogram, and M. W. Wolfe Sign Erectors, Inc., herein
called Wolfe. The employees of both companies who
perform this work are represented by Sign Hangers.
From sundown until midnight, these signs are illu-
minated by floodlights which are operated automati-
cally by timeclocks. In addition, each sign has a
switch, a plug, or a circuit breaker, which controls
the operation of the lights but does not affect the
operation of the timeclock. In those instances when
existing panels are removed and new panels are not
immediately installed, the floodlights are switched
off until such time as the new panels are hung. From
1959 continuously until January 1974, employees
represented by Sign Hangers performed this work of
switching the lights off when removing existing pan-
els and thereafter switching the lights on when in-
stalling new panels. This task can be completed in a
matter of seconds, as it merely involves turning a
switch, removing or inserting a plug, or flipping a
circuit breaker.
225 NLRB No. 58
ELECTRICAL WORKERS , LOCAL NO. 610 321
In January 1974, John Novak, business manager
of IBEW, advised the Employer that the work of
turning the floodlights on and off should be per-
formed by electricians employed by the Employer
and represented by IBEW pursuant to its collective-
bargaining agreement with the Employer. The Em-
ployer refused to assign the work to the electricians.
At approximately the same time, Novak approached
Sy Richardson, business manager of Sign Hangers,
informed him that the work in question should be
performed by IBEW-represented employees, and
asked Richardson to advise the employees repre-
sented by Sign Hangers not to turn the lights on and
off. Thereafter, Richardson so advised the employ-
ees, and they ceased performing the work. However,
in emergencies , the Employer has requested the em-
ployees represented by Sign Hangers to turn the
lights on and off, and these employees have in fact
performed the work on several occasions subsequent
to their initial refusal. Since that time, the Employer
has also instructed the electricians to do the work or
has simply permitted the lights to continue burning
on the signless billboards. On June 13, 1975, the Em-
ployer filed the instant charge.
B. The Work in Dispute
The work in dispute concerns the switching on and
off of the floodlights illuminating the Employer's
outdoor advertising billboards.
C. Contentions of the Parties
At various times between January 1974 and the
date of the hearing in this matter, Sign Hangers has
disclaimed any interest in the performance of the dis-
puted work. In view of this disclaimer, IBEW con-
tends that there is no jurisdictional dispute in this
case. IBEW also argues that the Board is without
jurisdiction in this proceeding on the additional
ground that there is insufficient evidence in the rec-
ord to support a finding of reasonable cause to be-
lieve that IBEW violated Section 8(b)(4)(D). Alterna-
tively, IBEW claims the work on the basis of its
collective-bargaining agreement with the Employer,
area practice, and the factors of safety and relative
skills.
The Employer contends that a jurisdictional dis-
pute exists and that the case is properly before the
Board for determination. As to the merits, it asserts
that assignment of the work to employees repre-
sented by Sign Hangers is consistent with its prefer-
ence and past practice, and is further supported by
considerations of industry practice, efficiency, and
economy of operations.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of 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, and
that there is no agreed-upon method for the volun-
tary settlement of the dispute.
We find no merit in IBEW's contention that no
dispute exists because Sign Hangers has disclaimed
the work. The applicability of Section 10(k) is not
dependent upon "the existence of a dispute between
two or more groups of employees actively competing
for the work assignment." 2 As in Pocahontas, Sign
Hangers purported disclaimer imposes no hardship
and involves no sacrifice or "giving up" by the em-
ployees it represents. For, their employment is still
required to remove and install advertising panels,
and their wages and other benefits were not reduced
by reason of their Union's disclaimer inasmuch as
the disputed work requires only seconds to perform,
and it is therefore not possible to allocate part of
their compensation to this specific task.' Moreover,
employees represented by Sign Hangers have, on oc-
casion, continued to perform the work without (so
far as the record shows) restraint, discipline, or
threats thereof from their Union. Furthermore, it is
clear from the testimony of the business manager of
Sign Hangers and the president of Wolfe that em-
ployees represented by Sign Hangers desire to con-
tinue to perform the disputed work. Accordingly, we
find that under well-established principles Sign Han-
gers purported disclaimer is not effective to extin-
guish the jurisdictional dispute between employees
represented by that labor organization and employ-
ees represented by IBEW.4
We also reject IBEW's contention that the Board
has no jurisdiction in this proceeding because no "in-
ducement or encouragement" within the meaning of
Section 8(b)(4)(D) occurred. As summarized above,
according to Sign Hangers Business Manager Rich-
ardson, IBEW Representative Novak "said that he
would like to have his people do the work. If not it
could possibly lead to a jurisdictional dispute. . . .
He asked me to have my people not turn the switches
2
Local 1291, International Longshoremen 's Association , AFL-CIO (Poc-
ahontas Steamship Company), 152 NLRB 676, 679 (1965)
l We find no support in the record as a whole for IBEW's contention that
the Employer offered additional compensation to individual employees rep-
resented by Sign Hangers if they would perform the disputed work and that
therefore these employees suffered an economic detriment by the disclaim-
er
General Teamsters Local 326, affiliated with International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of America (Eazor Ex-
press , Inc), 203 NLRB 1002 (1973), Local 40, International Brotherhood of
Electrical Workers, AFL-CIO (F & B/Ceco of California, Inc), 199 NLRB
903 (1972), Pocahontas Steamship Company, supra
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on and off." Richardson further testified that "[r]ath-
er than go into a jurisdictional dispute which I felt
was the electrician's jurisdiction, I advised the people
that I didn't think they should do the work." Rich-
ardson also testified that, but for the request of
IBEW, the employees represented by Sign Hangers
would be continuing to perform the work.
Thus, it is clear that employees represented by
Sign Hangers refused to perform the disputed work
as a result of IBEW's request. The real question is:
Did IBEW "induce or encourage" such refusals? In
deciding this issue , we are guided by the holding of
the Supreme Court that "[t]he words `induce or en-
courage' are broad enough to include in them every
form of influence and persuasion." 5 In the instant
case, Novak presented Richardson with a choice be-
tween "go[ing] into a jurisdictional dispute" with
IBEW and advising the employees he represents to
cease performing a task, which, as discussed above,
would result in no economic detriment to those indi-
viduals. Under those circumstances, one could rea-
sonably assume that Richardson would choose the
latter course. Therefore, the natural and probable
consequence of Novak's request was Richardson's
compliance therewith by advising the employees to
refuse to perform the work. Thus, when Novak made
this request to Richardson he was in effect encourag-
ing and inducing employee action thereupon, even
though the act of advising the employees not to per
form the work was left to Richardson. In these cir-
cumstances, we conclude that Novak's request was,
in the words of the Supreme Court, a "form of influ-
ence or persuasion," and, inasmuch as Novak testi-
fied that an object of his conduct was to force or
require the Employer to assign the disputed work to
employees represented by IBEW rather than to em-
ployees represented by Sign Hangers, we are satisfied
that there is reasonable cause to believe that IBEW
violated Section 8(b)(4)(D).6
The parties stipulated, and we find, that at the time
of the instant dispute there did not exist any agreed-
upon or approved method for the voluntary adjust-
ment of the dispute to which all parties to the dispute
were bound. Accordingly, the matter is properly be-
fore the Board for determination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
5 International Brotherhood of Electrical Workers, Local 501 [Samuel Lan-
ge/ v NLRB, 341 U S 694, 701-702 (1951)
In view of this conclusion, we find it unnecessary to pass on the
Employer's contention that IBEW also violated the Act by threatening the
Employer with picketing unless it agreed to assign the work to employees
represented by that Union
make an affirmative award of the disputed work af-
ter giving due consideration to various relevant fac-
tors.
1. Employer's preference and past practice
It is undisputed that, from 1959 until 1974, when
the instant dispute began, the Employer assigned the
work of switching on and off the lights to employees
represented by Sign Hangers and employed by
Ogram and Wolfe. The Employer's past practice,
therefore, is consistent with its preference, and these
factors favor awarding the work to employees repre-
sented by Sign Hangers.
2. Collective-bargaining agreements
The Employer has no collective-bargaining agree-
ment with Sign Hangers. The Employer signed its
first collective-bargaining agreement with IBEW in
1969. The agreement which was in effect at the time
this dispute began is dated June 1972 and provided
as follows in regard to work jurisdiction:
The electrical work to be performed by employ-
ees covered by this Agreement shall include the
manufacture, assembly, cleaning, maintenance
and erection and removal of all electrical signs,
whether of the neon gas tube, receptacle or re-
flector type, and shall include all neon window
signs or other work, the bending, pumping and
repairing of all tubes used as a conductor of
electricity for whatever purpose intended.
Electrical work on such signs shall include at
least one electrician on every electric sign erec-
tion or removal, the installation of all electrical
wiring, apparatus, equipment, units, devices,
connection, repair and servicing of all trans-
formers, wires, cables, conduit and supports and
insulators within or on the sign itself. The elec-
trical work shall also include the installation and
maintenance of time switches, gooseneck reflec-
tors, black light fixtures, floodlights for outdoor
advertising displays, animators, flashers, and all
other equipment necessary in the illumination,
operation or control of the sign, whether a part
of the sign itself or separated from the sign but
required in the illumination, operation or con-
trol.
The question presented is whether the switching on
and off of the floodlights illuminating the Employer's
billboards is "electrical work" within the meaning of
the above provision. Inasmuch as this fob task is not
specifically covered by any of the above contractual
clauses, we will consider the parties' conduct in ren-
ELECTRICAL WORKERS , LOCAL NO. 610 323
dering and receiving performance under the contract
in order to aid us in interpreting its terms. For, "[i]n
cases so numerous as to be impossible of full citation
here, the courts have held that evidence of practical
interpretation and construction by the parties is ad-
missible to aid in choosing the meaning to which le-
gal effect will be given." 7
As discussed above, it is clear that for 5 years after
signing its first collective-bargaining agreement with
IBEW in 1969, the Employer, without objection from
that labor organization, continued its established
practice of having the employees represented by Sign
Hangers perform the disputed work. We find this
practice of the parties to be persuasive evidence that
they did not consider the task of switching on and off
the lights to be "electrical work" falling within the
jurisdiction of IBEW. Accordingly, we conclude that
the factor of collective-bargaining agreements is not
helpful to a determination.
3. Area and industry practice
Concerning area practice, IBEW presented testi-
mony that the principal competitor of the Employer,
the Rollins Company, assigns this work to its em-
ployees represented by IBEW. However, the record
also reveals that another area sign company, United
Outdoor Advertising, has the job task performed by
sign hangers. The evidence relating to area practice
is, therefore, inconclusive.
Concerning industry practice, the Employer pre-
sented testimony by its president and vice president
that sign companies throughout the country, includ-
ing the Rollins Company in locations other than
Philadelphia, assign the work in dispute to employees
represented by Sign Hangers. Rollins in Philadelphia
is apparently the sole exception to this practice of the
industry. The factor of industry practice, therefore,
favors awarding the disputed work to employees rep-
resented by Sign Hangers.
4. Relative skills, efficiency, and economy of
operations
Although the record reveals that both groups of
employees possess the necessary skills to perform the
job task of turning a switch, removing or inserting a
plug, or flipping a circuit breaker, IBEW contends
that the disputed work presents a safety hazard and
therefore only a trained electrician should perform it.
In support of this contention, IBEW cites the in-
stance of an electrician who died after coming into
contact with the electrical apparatus of a Rollins
7 Corbin on Contracts, pt. 3, chap 24, sec 558 (1952)
sign. However, the record reveals that, unlike the
Rollins signs, there are no exposed wires in the elec-
trical boxes attached to the Employer's billboards,
and no individual employed by Ogram or Wolfe has
ever been injured as a result of performing the dis-
puted work. Furthermore, the record also reveals
that the only potential danger involved in performing
the disputed work would result from damage to the
grounding wires or the electrical box itself, and no
special expertise is necessary to recognize the exis-
tence of such a condition. The factor of relative skills
therefore, is not helpful to a determination.
The Employer urges that the factors of efficiency
and economy of operations support an award of the
disputed work to employees represented by Sign
Hangers. Thus, these individuals are able to perform
the work in a matter of seconds in the course of their
normal duties of removing or installing the advertis-
ing panels and at no additional cost to the Employer.
However, were employees represented by IBEW as-
signed this task, they would have to be dispatched to
the location of the sign for the sole purpose of turn-
ing the lights on or off. Since the record clearly estab-
lishes that it would be more economical to utilize
employees represented by Sign Hangers, we find that
the factors of efficiency and economy of operations
favor awarding the work to those employees.
Conclusion
Upon the record as a whole, and after full consid-
eration of all relevant factors involved, we conclude
that the employees represented by Sign Hangers are
entitled to perform the work in dispute. We reach
this conclusion upon the facts that the assignment is
consistent with the Employer's preference, past prac-
tice, and industry practice; it is not clearly inconsis-
tent with area practice or the Employer's collective-
bargaining agreement with IBEW; the employees
represented by Sign Hangers possess the requisite
skills; and such assignment will result in greater effi-
ciency and economy of operations. Accordingly, we
shall determine the dispute before us by awarding the
work in dispute to the employees represented by Sign
Hangers, but not to that Union or its members. In
consequence, we also find that IBEW is not entitled
by means proscribed by Section 8(b)(4)(D) of the Act
to force or require the Employer to assign the disput-
ed work to employees represented by it.
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-
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceeding, the National Labor Relations Board makes
the following Determination of Dispute:
1. Employees represented by Sign Makers and
Sign Hangers Local Umon No. 194, Sheet Metal
Workers International Association, are entitled to
perform the work of switching on and off the flood-
lights illuminating the Employer's outdoor advertis-
ing billboards.
2. International Brotherhood of Electrical Work-
ers, Local No. 610, is not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force or
require Landau Outdoor Sign Company, Inc., to as-
sign the above work to employees represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, International Broth-
erhood of Electrical Workers, Local No. 610, shall
notify the Regional Director for Region 4, in writing,
whether or not it will refrain from forcing or requir-
ing the Employer, by means proscribed by Section
8(b)(4)(D) of the Act, to assign the work in dispute to
employees represented by IBEW rather than to em-
ployees represented by Sign Hangers.