International Brotherhood of Electrical Workers, Local 486

National Labor Relations Board - Board Decisions

Jul 29, 1975

219 N.L.R.B. 692 (N.L.R.B. 1975)

692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers, Lo- I. THE BUSINESS OF THE EMPLOYER
cals 486, 588, 326, AFL-CIO and New England
Power Service Company, New England Power
Company, Narragansett Electric Company, Massa-
chusetts Electric Company and The Brotherhood of
Utility Workers of New England , Inc. Case
1-CD-432
July 29, 1975
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed on December 20, 1974, by New
England Power Service Company, New England
Power Company, Narragansett Electric Company,
and Massachusetts Electric Company, herein collec-
tively called the New England Electric System or the
Employer, alleging that International Brotherhood of
Electrical Workers, Locals 486, 588, and 326, AFL-
CIO, herein called I.B.E.W., 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 I.B.E.W. rather than to employees
represented by The Brotherhood of Utility Workers
of New England, Inc., herein called B.U.W.
Pursuant to notice, a hearing was held before
Hearing Officer Francis X. McDonough on January
24, 27, 29, February 11, 12, 14, and 28, 1975. All
parties, including the Employer, I.B.E.W., and
B.U.W., 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, I.B.E.W.,
and B .U.W. 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 made by the
Hearing Officer at the hearing and finds they are free
from prejudicial error. The rulings are hereby af-
firmed. Upon the entire record in this case, including
the aforementioned briefs, the Board makes the fol-
lowing findings:
1 The Employer has requested oral argument . This request is hereby de-
nied as the record and the beefs adequately present the issues and the
positions of the parties.
The parties stipulated, and we find, that the Em-
ployer is a complex of Massachusetts corporations
comprising an electric utility holding company sys-
tem organized and operated under the Public Utility
Holding Company Act of 1935. The parent corpora-
tion is the New England Electric System. The Charg-
ing Parties are four wholly owned subsidiaries. The
Employer is engaged in producing and distributing
electric power; its annual gross revenues are in excess
of $250,000, and it annually receives from other
States goods valued in excess of $50,000. 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 juris-
diction herein.
11. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find , that I.B.E.W.
and B .U.W. are labor organizations within the mean-
ing of Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The work in dispute is "heavy" construction of
transmission lines and high voltage substations and
certain "street work." Heavy construction is various-
ly defined in the record as that involving any substa-
tion or transmission line of 69,000 volts and above,
as well as those which are below 69,000 volts but are
considered heavy due to their size, complexity, par-
ticular terrain, or the level of skill required in their
construction. The street work in dispute includes the
digging of trenches, installing of ducts, and building
of manholes in the Worcester County, Massachu-
setts, area.
B. Background and Facts
The Employer consists of four "operating compa-
nies ;" the New England Power Service Company,
herein the Service Company; and Granite State Elec-
tric, which is the generating and transmission compa-
ny but is not herein involved. The Service Company
is organized to provide needed services for the oper-
ating companies and is comprised of three divisions:
service, engineering , and construction. I.B.E.W. rep-
resents the employees of the construction division.
B.U.W. represents the employees of the operating
companies. The prime responsibility of the operating
companies is the operation and maintenance of all
219 NLRB No. 145
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCALS 486 693
the facilities of the system and the construction of
the distribution (rather than transmission) facilities,
both lines and substations . The Service Company's
responsibility is to perform construction which the
operating companies are not equipped to perform
(generally, construction of transmission lines and
substations) and which the operating companies are
able to perform but cannot due to heavy workloads.
During the 5-year period from 1970 through 1974 the
Service Company built , in terms of dollars , 92 per-
cent of the substations involving heavy construction
and 99 percent of the transmission line projects.
Since the advent of the "energy crisis " at the end of
1973, the System experienced a substantial reduction
in demand for power which reduced the base work-
load of the operating company employees . In order
to keep operating company employees fully em-
ployed, it was deemed necessary by the Employer to
use them on various construction projects that they
would not ordinarily be called upon to perform, and
to cease using outside contractors and temporary em-
ployees . Thereafter, on December 3, 1974, an arbitra-
tor handed down a decision in which he found the
Employer in breach of its contract with the B.U.W.,
in that it used Service Company employees to per-
form work in situations where operating company
employees were subject to layoff or reduction in clas-
sification . The Employer informed I.B.E.W . repre-
sentatives at a meeting on December 11, 1974, that
pursuant to that award it was going to transfer cer-
tain work to employees of the local operating compa-
nies . At the meeting I.B.E.W . Business Agent Jack
Cicero strenuously objected to the work being trans-
ferred and said that they would take any action nec-
essary to retain the work , including a work stoppage.
C. Contentions of the Parties
The I.B.E.W. claims that the disputed work should
be assigned to the employees it represents based on
the Employer's past practice , economy and efficien-
cy, skills, and relative job impact.
The Employer prefers assignment of the work to
the employees represented by I.B.E.W., subject to
limited assignments to the employees represented by
the B .U.W. during such emergency situations as the
construction cutback of the past few years . This pref-
erence is based primarily on considerations of econo-
my and efficiency of operation and relative skill and
experience . The Employer further contends that as-
signment to the employees represented by I.B.E.W. is
consistent with its past practice and relevant contrac-
tual obligations.
Both the Employer and I .B.E.W. contend that the
matter is properly before the Board and that there is
no agreed-upon method for the voluntary settlement
of the instant dispute.
B.U.W. contends that no jurisdictional dispute ex-
ists here . It argues that it does not claim the work in
dispute , but is merely attempting to enforce its con-
tract. B.U.W.'s position is that, pursuant to its con-
tract with the Employer and the recent arbitration
award , in situations where operating company forces
are subject to layoff or reduction in job classification
and where they have the capability to perform the
work involved, such work may not be assigned to
Service Company employees.
D. Applicability of the Statute
Section 10(k) of the Act empowers the Board to
determine a dispute out of which an 8(b )(4)(D)
charge has arisen. However , before the Board pro-
ceeds with a determination of dispute, it must be sat-
isfied that there is reasonable cause to believe that
Section 8(b)(4)(D) has been violated.
As stated above, B.U.W. contends that there exists
no jurisdictional dispute because it is merely attempt-
ing to enforce its contract and is not claiming the
disputed work . In doing so , however , it is in fact
making a claim to the work . Thus , we fail to see how
B.U.W.'s arguments take this controversy outside the
provisions of Section 8(b)(4)(D ). Representatives of
I.B.E.W., after being informed that the Employer in-
tended to transfer certain work from Service Compa-
ny employees to operating company employees, indi-
cated that they would take any action necessary to
retain the work , including a strike.
On the basis of the above-described threat and the
record as a whole , we find there is reasonable cause
to believe that a violation of Section 8(b)(4)(D) has
occurred and that the dispute is properly before the
Board for determination under Section 10(k) of the
Act.
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work af-
ter giving due consideration to various relevant fac-
tors.
1. Certification and collective-bargaining
agreements
There is no evidence that either of the contending
Unions has ever been certified by the Board . None of
the respective collective -bargaining agreements ex-
pressly cover the disputed work. All of the contracts,
both with I.B.E.W. and B.U.W., contain the follow-
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing section B-12 which indicates that Service Compa-
ny employees are:
to handle those types of construction work
which are beyond the ordinary capacity of Op-
erating Company forces to handle either be-
cause of the peculiar nature of such work or be-
cause of its volume in the case of types of work
which the local companies are manned and
equipped to handle.
Construction Department participation in the
sort of activity which is ordinarily handled by
local forces is expected to be on a peak-shaving
basis only. In other words, it is the policy of the
System that, "Local forces shall not be reduced
because of such Construction Department parti-
cipation. These local forces shall be increased as
often as base work loads increase so as to justify
additional personnel on a full time continuing
basis."
The 1974 arbitration award deciding the dispute
between the Employer and B.U.W. interpreted this
clause to mean that Service Company employees
could not perform work that operating company em-
ployees were capable of performing, if the latter em-
ployees were subject to layoff or reduction in classifi-
cation. B.U.W. relies on this award to support its
claim to the disputed work. The evidence shows that
section B-12 evolved from the so-called "Joslin Let-
ter" of 1960 to B.U.W. from a then system vice presi-
dent regarding the resolution of a grievance over the
performance by I.B.E.W.-represented employees of
work claimed by B.U.W. In that letter Joslin explains
the purpose and value of the Service Company and
attempts to assure B.U.W. that the Employer does
not intend to use Service Company employees in
such a manner as to usurp the base workload of the
operating company employees. The record testimony
further confirms that both the early grievance and
the eventual letter dealt solely with distribution of
light construction and not with the heavy construc-
tion involved in this proceeding. Since I.B.E.W. did
not participate in the 1974 arbitration, the award
does not constitute an assignment of the disputed
work and is not controlling herein.2 B.U.W.'s con-
tract right is not a work assignment and hence is not
relevant to the issue now before us, but may be en-
forceable, if at all, at law. Therefore, we find that
neither the agreement nor the interpretation placed
on it is helpful to our determination.
2 Newspaper & Mail Deliverers ' Union of New York City and Vicinity (The
New York Times Company), 152 NLRB 871 (1965).
2. Employer's assignment and practice
The weight of the evidence is that Service Compa-
ny employees have, with infrequent minor excep-
tions , historically performed the disputed work, ex-
cept during the "energy crisis" period of 1974. It is
uncontroverted that during the period 1970-74 Ser-
vice Company employees performed, in terms of dol-
lars, over 99 percent of the transmission line projects
and 92 percent of substation projects. In addition,
the record reveals that from 1952 until 1974 all of the
street work in the Worcester area was performed by
the Service Company. In 1974, the Employer, against
its strong preference, made a decision to transfer
some work normally performed by the Service Com-
pany to the operating company employees in order
that the latter be kept fully employed and in order to
reduce expenses by divesting itself of subcontractors
and temporary employees in the Service Company.
However, the 1974 emergency assignment is not suf-
ficient to override the many years of normal opera-
tion. Therefore, the past practice favors assignment
to the Service Company employees represented by
I.B.E.W.
3. Relative skills, efficiency, and economy of
operation
The Employer urges that the factors of skill, econ-
omy, and efficiency of operation support its pre-
ferred assignment to the employees represented by
I.B.E.W. The Employer argues that it is caught "on a
tightrope" between the need to maintain a "base-
load work force" in the operating companies and the
need to maintain a force with special skills. B.U.W.
contends that its employees have the necessary skills
to perform the disputed work.
The record shows that the operating company em-
ployees have the minimum level of skill necessary to
perform most of the disputed work. However, the
record also reveals that Service Company employees
have generally better developed skills of the type nec-
essary to perform the disputed work, as well as cer-
tain special skills such as dynamiting, welding, and
operating certain heavy equipment. The Employer
points out that superior skill in the Service Company
is partly due to the fact that those employees perform
this type of work on a routine basis rather than just
sporadically. In addition, training and steps in skill
progression are different in the Service Company
than in the operating companies. Furthermore, expe-
rienced Service Company employees are preferred
for street work because of the dangers of cave-in.
Use of Service Company employees provides the
Employer with greater flexibility in planning; they
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCALS 486
can be transferred from project to project without
disrupting the force necessary to perform the base
workload and respond to emergencies at the distribu-
tion level. On the basis of the evidence presented, we
find that the factor of skill , economy, and efficiency
of operation favor assignment to the employees rep-
resented by I.B.E.W.
4. Job impact
The record reveals that if the work were assigned
to employees represented by B.U.W., the Service
Company would be forced to lay off approximately
500 employees, virtually the entire work force. We
are unable to measure the effect on operating compa-
ny forces of assignment to Service Company employ-
ees. Clearly, however, the impact would not be as
severe because some minimum number of employees
must be retained to handle the base workload. Ac-
cordingly , we find that considerations of job impact
favor assignment to the employees represented by
I.B.E.W.
Conclusion
Upon the record as a whole, and after full consid-
eration of all relevant factors involved , we conclude
that the Service Company employees, represented by
I.B.E.W., are entitled to the work , subject to limited
assignments to the operating company employees
695
during emergency situations when the Employer
deems it appropriate . In reaching this conclusion we
have relied on the Employer's preference; the fact
that this assignment is consistent with the Employer's
predominant past practice; the relative skills of the
employees in the contending groups ; the foreseeable
job impact ; the fact that the assignment is consistent
with the relevant collective-bargaining agreements;
and the fact the assignment will result in greater
economy and efficiency of operation. Accordingly,
we shall determine the dispute before us by awarding
the work in dispute to the Employer's employees rep-
resented by I.B.E.W., but not to that Union or 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 Dispute:
Employees of New England Power Service Com-
pany, New England Power Company, Narragansett
Electric Company, and Massachusetts Electric Com-
pany currently represented by International Brother-
hood of Electrical Workers, Locals 486, 588, 326,
AFL-CIO, are entitled to perform the work in dis-
pute , subject to limited assignments to the operating
company employees during emergency situations
when the Employer deems it appropriate.