191 N.L.R.B. 145 (N.L.R.B. 1971)

IBEW, Local 497

National Labor Relations Board - Board DecisionsJun 14, 1971

191 N.L.R.B. 145 (N.L.R.B. 1971)

IBEW , LOCAL 497 International Brotherhood of Electrical Workers Lo- cal 497 and International Brotherhood of Electrical Workers, AFL-CIO and Kemper Construction Co. and Laborers Local Union No. 1151, AFL-CIO Case 19-CD-170 June 14, 1971 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, BROWN, AND KENNEDY This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following charges filed by Kemper Construction Co., hereinafter called the Employer, alleging that International Broth- erhood of Electrical Workers Local 497 and Interna- tional Brotherhood of Electrical Workers, AFL-CIO, hereinafter called the IBEW, had violated Section 8(b)(4)(D) of the Act. A hearing was held before Hear- ing Officer Patrick H. Walker on March 4 and 5, 1971. Laborers Local Union No. 1151, AFL-CIO, here- inafter called Laborers; IBEW; and the Employer ap- peared at the hearing and were afforded full oppor- tunity to be heard, to examine cross-examine witnesses, and to adduce evidence bearing on the issues. There- after, the Employer and the 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 powers in connection with this case to a three-member panel. The rulings of the Hearing Officer made at the hear- ing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case the Board makes the following findings: 1. THE EMPLOYER The parties stipulated that the Employer is a Cali- fornia corporation engaged in the construction of tun- nels at the Third Power House construction project at Grand Coulee Dam, Washington. It is a member of the Inland Empire Chapter of the Associated General Con- tractors. During the past year, a representative period, the Employer performed services for customers located outside the State of Washington valued in excess of $50,000. The Employer is a subcontractor to the joint venture of Vinnell-Dravo-Lockheed-Mannix, the gen- eral contractor on the Third Power House construction and hereinafter called the Joint Venture. Upon the facts so stipulated, we find that Kemper Construction Co. is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. 191 NLRB No. 32 II THE LABOR ORGANIZATION 145 The parties stipulated, and we find, that the IBEW and the Laborers are labor organizations within the meaning of the Act. III. THE DISPUTE A. The Work in Dispute The work in dispute is the removing and replacing of stringer lights in the tunnels in connection with Grand Coulee Dam Third Power House construction. B. Background and Facts of the Dispute The Employer, as a subcontractor, is engaged solely in the construction of tunnels, whose primary purpose is to house electrical transmission cables for the trans- mittal of generated power from the Grand Coulee Dam to an electrical switchyard. The Employer's only work is the excavation and lining of the tunnels with con- crete. It performs no electrical installation nor any elec- trical maintenance work in the tunnels. In the perform- ance of the tunnel work, which began in July 1970, the Employer employs miners who are represented by the Laborers. The miners drill the rock facings of the tun- nel, charge the drilled holes, and blast and "muck out" the blasted rock. To enable the miners to visualize the work they are performing, temporary electric stringer lights are strung along the side of the tunnel. These stringer lights are 110-volt extension cords with a num- ber of 110-volt light bulbs attached thereto at 15-foot intervals. Before each blast the stringer lights must be un- plugged and moved back a sufficient distance from the blast area so that the light bulbs will not be damaged. After the blast the stringer lights must be plugged in again and returned to their former position. The record shows that the time required to remove and return these lights is approximately 6 to 10 minutes. As it is necessary to perform this operation about two or three times during each 8-hour shift, a total of about 18 to 30 minutes is spent doing the disputed work per 8-hour shift. When it commenced work on the project the Employer assigned the work of removing and replacing the stringer lights to the miners who are represented by the Laborers. Edward Hearne, the labor relations manager of the Joint Venture, testified that at noontime on October 19, 1970, the electricians employed by C. D. Draucker Company, the electrical subcontractor for the Joint Venture, and hereinafter called Draucker, walked off the job in part to protest the Employer's assignment to its miners represented by the Laborers of the removing 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and replacing of the stringer lights.' The electricians returned to the project on the swing shift that evening but refused to work regularly for the Employer in the tunnels until the dispute was settled. On occasion, Draucker sent electricians over when needed. On Octo- ber 20, 1970, representatives of the Joint Venture, the Employer, and the IBEW met to try to reach an agree- ment concerning the disputed work. According to Hearne, on October 20, the Employer's representative stated that "he would not have Electricians on each of the three shifts, only if he needed them, and this would not include the moving of the stringer lights." Hearne testified that at another meeting on October 28, 1970, representatives of the Joint Venture, the Employer, the Associated General Contractors, the IBEW, and the Laborers were present. At this time, according to Hearne, the parties agreed that the only dispute was over "the moving of temporary lights, the stringer lights." On November 25, 1970, the IBEW by a letter to Draucker informed it that it had no objections to Draucker's furnishing electricians to the Employer upon its request, pending the outcome of a settlement of its jurisdictional claim to move stringer lights by the National Joint Board for the Settlement of Jurisdic- tional Disputes, hereinafter called the Joint Board. Thereupon the work stoppage ceased. According to James Rafferty, Draucker's electrical superintendent and project manager, on October 19, 1970, the Employer advised Draucker that it did not want electricians on the two night shifts, the swing and graveyard shifts. Rafferty testified that the electricians left the project at lunchtime that day because "we [Draucker] would not have any more electricians going over at nights." C. L. Richardson, the IBEW's business manager and chief executive officer, testified that the Employer on October 13 or 14, 1970, "said do not send any more electricians to the second and third shift." He also said that the IBEW "had been doing this work on the east side on the tunnel, all the way through, around the clock, and then over to this job [the west tunnel] for better than six weeks." In addition he said that this upset the electricians who proceeded to walk off the job at noontime on October 19, 1970. According to Rich- ardson, at the October 20 meeting, the Employer's rep- resentative "took a flat position that he was not going to hire electricians on the second'and third shift and that that wasn't electrical work and that the miners were claiming this work, and threw it into a jurisdic- tional dispute." ' Apparently in walking off the jobsite the electricians were also protest- ing the.Employer's notification to Drauckec,on October 16 or 17 that henceforth it would no longer use electricians on a regular basis on the "swing" and "graveyard" shifts. On November 11, 1970, the Joint Board sent a letter to the Employer, whom it termed the "Subcontractor," and to the Joint Venture, whom it termed the "Con- tractor," informing them that a claim had been made by the IBEW for "removal of temporary lights, string- ers, and power feeders and reinstallation after blasting operations in tunnel, Grand Coulee Dam project, Grand Coulee Dam, Washington." On November 11, 1970, the Employer sent a telegram to the Joint Board advising it that, as a member of the Associated General Contractors, it is not signatory to any agreements designating the Joint Board as an agency for settling jurisdictional disputes, is not bound by any decisions of the Joint Board, and would not participate in any ac- tion of the Joint Board. On January 29, 1971, the Joint Board issued an award, stating that there was "no basis to change the contractor's assignment" as to "removal of temporary lights, stringers and electrical power feeders and rein- stallation after blasting in tunnell [sic]." The award designated the "contractor" as the Joint Venture and the "subcontractor" as the Employer. There is some dispute among the parties concerning to whom the Joint Board awarded the disputed work. However, in light of our findings hereinafter we find it unnecessary to resolve the dispute. The record does not show whether the IBEW or the Laborers participated in the Joint Board proceeding. Evidence was presented that the Laborers Interna- tional was directly contacted by the Joint Board con- cerning the dispute and pursuant thereto sent the La- borers Local a letter asking for information so that it could prepare a case. The Laborers forwarded the re- quested information to its International. C. The Contentions of the Parties The Employer contends that it has a consistent his- tory of assigning the disputed work to its miners repre- sented by the Laborers, that the assignment herein was pursuant to its collective-bargaining agreement with the Laborers, and that the assignment is supported by area and industry practice. The Employer also argues that minimal skills are required to perform the disputed assignment and that its assignment is efficient, economical, and has proven satisfactory. The IBEW asserts that it has a contractual right to perform all the temporary electrical maintenance work including the installing„ maintenance, shifting,;, and, re pairing of all wiring for temporary light,,. heat, _ an-i power and, the maintenance,, of pumps; , fans, blowers and other electrical equipment in. . .,tunnels." Finally, the IBEW, analogizing to the "work, preservation" cases , contends that it did not violate. Section 8(b)(4)(D) of the Act and was engaging in protected primary activity in attempting to enforce the aforemen- IBEW , LOCAL 497 tioned "work preservation" clause by walking off the job because of its claim to the electrical maintenance work on the second and third shifts. The Laborers did not file a brief with the Board, but on the record it asserted that its members are entitled to the disputed work as they have been performing this work in this area for many years. 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 be- lieve that Section 8(b)(4)(D) has been violated. As set forth previously , it is undisputed that the IBEW walked off the project at noontime on October 19, 1970, and thereafter until November 25, 1970, refused to work regularly for the Employer in the tunnel or in any of the shafts because of its claim to perform all electri- cal maintenance work , including the disputed work, on the swing and graveyard shifts. We find that the IBEW caused a work stoppage on the Employer 's jobsite with the object of requiring the Employer to assign the disputed work to its members. We also conclude that the Joint Board award was not an effective voluntary adjustment of the dispute , within the meaning of Section 10(k), since all the parties did not participate in the proceeding , did not join in the submission to the Joint Board , and did not agree to be bound by the decision. Before making a jurisdictional dispute determination the Board is not required to find that a violation of Section 8 (b)(4)(D) did in fact occur, but only that rea- sonable cause exists to find such a violation . Without ruling on the credibility of the testimony in issue, on the basis of the entire record , we find that there is reasona- ble cause to believe that a violation of Section 8(b)(4)(D) has occurred and that the dispute is prop- erly before the Board for determination. E. 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 relevant factors .2 The Board has held that its determination in a jurisdictional dis- pute is an act of judgment based upon common sense and experience, reached by balancing those factors in- volved ' in a particular case-.' 2 N.L R.B. v. Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers (Columbia Broadcasting System), 364 U.S. 573. International Association of Machinists (J. A. Jones Construction Com- pany), 135 NLRB 1402. 147 The following factors are relevant in making the de- termination of the dispute before us: 1. Company practice The Employer presented evidence that it has consist- ently, throughout its history, assigned the disputed work to its miners who are represented by the Labor- ers, and that since the commencement of its work on the Grand Coulee Dam Third Power House construc- tion project it has assigned the disputed work to its employees represented by the Laborers. Electricians employed by Draucker testified that they too removed and replaced stringer lights but the record also shows that this was done principally at a time when it was necessary for them to remove and replace damaged sockets, bulbs, or floodlights. Electri- cians also stated that they repaired damaged cables but this work comes within the regular electrical mainte- nance work assigned to Draucker by the Joint Venture for all subcontractors. 2. Area and industry practice The Employer presented evidence that on similar tunnel construction jobs in the State of Washington, including one tunnel project constructed at Grand Coulee Dam for the Bureau of Reclamation in 1967 and various other tunnel projects in the Grand Coulee area, the work of moving the stringer lights was per- formed by miners represented by the Laborers. The Employer also adduced evidence that on similar tunnel construction projects across the country the work of moving stringer lights had been performed by miners represented by the Laborers. 3. Economy and efficiency The Employer presented evidence that it is more economical and efficient to assign the disputed work to its miners represented by the Laborers as electricians are paid almost twice as much as laborers, and if the Employer were required to perform the disputed work with electricians, it would necessitate the additional employment and consequent added cost of an electri- cian on the swing and graveyard shifts. As this would be the only work for the electrician during the shifts, save for emergency electrical maintenance, an electri- cian would work at the most one-half hour of the 8- hour shift and would have to be paid for the full shift. As opposed to this, the Employer stated that the costs of performing the disputed work with its miners repre- sented by Laborers are negligible as there are miners on the job during all the shifts and the work of moving the stringer lights has been and can be performed by the miners as they walk back from the tunnel heading before and after blasting operations. 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Skills of the employees The evidence shows that the Employers miners pos- sess the skills necessary to perform the disputed work. The record does not support the IBEW's contention that such work requires the greater skills of electri- cians. The evidence shows that it is a relatively simple matter to remove and replace stringer lights and that the assignment of the disputed work to electricians would result in a substantial underutilization of their greater skills. 5. Collective-bargaining agreements The Employer testified that, as a member of the As- sociated General Contractors, it has a collective-bar- gaining agreement with the Laborers. The IBEW adduced evidence that on March 11, 1970, a letter of assent was entered into between the IBEW and the Joint Venture covering the installation and maintenance of temporary lighting and power for the duration of the Joint Venture's contract with the Bureau of Reclamation on the Grand Coulee Dam Third Power House and Forebay Dam. By the letter's terms the Joint Venture agreed to comply with all of the terms and conditions of employment contained in the master collective-bargaining agreement and all ap- proved amendments thereto between the Central Divi- sion, Inland Empire Chapter, National Electrical Con- tractor Associates, hereinafter called NECA, and the IBEW, effective from July 1, 1966, through June 30, 1970. At the time the letter was executed, negotiations had just been completed between the IBEW and the NECA, and the Joint Venture had gone over the amendments and agreed to them before it signed the letter of assent. On June 2, 1970, the Joint Venture subcontracted its temporary power and lighting work to Draucker, who agreed to abide by the terms of the aforesaid NECA-IBEW master agreement and ex- ecuted a separate contract reflecting such understand- ing. But there is no evidence that the Employer was party to any arrangement entered into by the Joint Ventur(or Draucker with the IBEW as indicated by the fact that the Employer testified that as a member of the Associated General Contractors it has its own agree- ment with the Laborers. CONCLUSIONS Upon the record as a whole, and after full considera- tion of all relevant factors, we believe that the work in dispute should be assigned to the miners employed by the Employer and currently represented by the Labor- ers, rather than to electricians represented by the IBEW. We reach this conclusion relying upon the Em- ployer's assignment of the removing and replacing of the stringer lights to its own employees, the fact that the assignment is consistent with the Employer's past practice and area and industry practice; the fact that the Employer's employees possess the requisite but mi- nor skills involved; the lack of need for the special skills of electricians represented by the IBEW; and the fact that the assignment to the Employer's employees will result in efficiency and economy of operations. In making this determination, we shall award the disputed work to the Employer's employees who are represented by the Laborers but not to that Union or to its members. In consequence, we shall also deter- mine that the IBEW was not and is not entitled, by means proscribed 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 Re- lations Act, as amended, and on the basis of the forego- ing findings and the entire record in this case, the Na- tional Labor Relations Board makes the following determination of dispute: A. Employees of Kemper Construction Co., cur- rently represented by Laborers Local Union No. 1151, AFL-CIO, are entitled to perform the following work: Removing and replacing of stringer lights in the tunnels in connection with Grand Coulee Dam Third Power House construction. B. International Brotherhood of Electrical Workers Local 497 and International Brotherhood of Electrical Workers, AFL-CIO, are not entitled by means pro- scribed by Section 8(b)(4)(D) of the Act to force or require Kemper Construction Co. to assign all the above-described work to its members or to employees that it represents. C. Within 10 days from the date of this Decision and Determination of Dispute, International Brotherhood of Electrical Workers Local 497 and International Brotherhood of Electrical Workers, AFL-CIO, shall notify the Regional Director for Region 19, in writing, whether they will refrain from forcing or requiring Kemper Construction Co., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute exclusively to individuals that they represent, rather than to employees of Kemper Construction Co., represented by the Laborers Local Union No. 1151, AFL-CIO.