Intl. Brotherhood Electrical Wkrs.,

National Labor Relations Board - Board Decisions

Dec 15, 1969

180 N.L.R.B. 138 (N.L.R.B. 1969)

138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers,
Local 113, AFL-CIO, and Westland Theatres, Inc.
and Local 62 , International Alliance of Theatrical
Stage Employees & Moving Picture Machine
Operators of the United States and Canada,
AFL-CIO. Case 27-CD-104
If. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that IBEW
and Local 62 are labor organizations within the
meaning of Section 2(5) of the Act.
December 15, 1969
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, BROWN , AND ZAGORIA
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended,
following a charge filed by Westland Theatres, Inc.,
herein called Westland, alleging a violation of
Section 8(b)(4)(D) by International Brotherhood of
Electrical Workers, Local 113, AFL-CIO, herein
called IBEW. Pursuant to notice, a hearing was held
on July 29, 1969, in Colorado Springs, Colorado,
before Robert Sysak, Hearing Officer. Westland,
IBEW, and Local 62, International Alliance of
Theatrical Stage Employees & Moving Picture
Machine Operators of the United States and
Canada, AFL-CIO, herein called Local 62 and
IATSE, appeared at the hearing and were afforded
full opportunity to be heard, to examine and to
cross-examine witnesses, and to adduce evidence
bearing on the issues. All parties filed briefs with the
National Labor Relations Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the Hearing Officer's
rulings 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 COMPANY
The parties stipulated to the following facts:
Westland is engaged in the business of operating
motion picture theatres in Colorado Springs,
Pueblo, and Grand Junction, Colorado. During the
year preceding the hearing Westland handled in the
course and conduct of its business operations within
the State of Colorado a gross volume of business in
excess of $1,000,000. The Employer has processed
film received directly from producers located outside
of the State of Colorado, the cost of which exceeds
$50,000. We find, accordingly, that Westland is
engaged in commerce within the meaning of the Act
and that it will effectuate the policies of the Act to
assert jurisdiction herein.
111. THE DISPUTE
A. Background and Facts of the Dispute
The Employer owns and operates 15 theatres in
Colorado Springs, Pueblo, and Grand Junction,
Colorado, of which 7 are drive-in theatres. The
Employer is presently constructing the Falcon
Drive-In at Templeton Gap Road in Colorado
Springs. Construction began in June 1969. The
dispute concerns the attachment of junction boxes
and speaker units to speaker poles, and the
installation of sound equipment in the projection
room. The president of Westland Theatres testified
that Westland is the general contractor, and that
Westland has a contract with Hardy Whitlock, the
contractor on the buildings. Westland has a direct
contract with Berwick Electric Company, herein
called Berwick, for the electrical wiring at the
Drive-In. Berwick employed members of IBEW.
Berwick installed conduits and other electrical
systems required for wiring speakers and low
voltage lights on approximately 350 speaker poles
on the Drive-In lot, including the wiring of other
electronic equipment necessary for the operation of
the motion picture machinery. On July 7, 1969,
Berwick completed its work to the point of looping
the wires on the 350 speaker poles preparatory to
their connection to junction boxes, and their
attachment to speaker units. Thereafter, on July 7,
1969, the Employer assigned to its employees, who
are members of IATSE and Local 62, the work of
attaching junction boxes and speaker units to
speaker poles. The Employer's employees worked
under the direction of Clinton E. Winans.'
On the day that Westland's employees started
attaching the junction boxes and speaker units to
speaker poles, Waldo Pendleton, business agent for
IBEW, spoke to Winans at the jobsite and stated
that Westland was doing IBEW work. Pendleton
asked Winans to speak to Donlon, business agent
and secretary-treasurer of IBEW, but Winans
refused. Thereafter, on July 9, 1969, IBEW placed a
picket on the job. The picket signs alluded to the
substandard wages and conditions at the
construction site. The electricians, the sheet metal
men, and tile men walked off the job when the
picketing began. The job of attaching junction boxes
and speaker units to speaker poles was completed
'Although Winans does perform work for theatre owners other than
Westland through his own company, Theatre Sound Service, it is clear
that , in performing the work in dispute here, he is an employee of
Westland , he is on call to Westland which has first priority over his
services , he is on Westland's payroll, and Westland makes the customary
employee withholdings from his paycheck
180 NLRB No. 20
INTL. BROTHERHOOD ELECTRICAL WKRS., 139
nearly 5 days after the picketing began . Thereafter,
Berwick and its employees , represented by IBEW,
returned to the jobsite and were performing certain
electrical work at the time of the hearing.
Local 62 was certified by the Board on April 9,
1962, to represent Westland employees at the
designated theatres in the following unit: "All
employees in the projection room and stage
departments, including projectionists , stage-hands
and/or all employees in the two departments
employed by the Employer....'
Westland and Local 62 have been parties to a
contract effective July 1, 1966, to June 28, 1969.
The parties were engaged in negotiations at the time
of the hearing and they had mutually agreed to
operate under the previous contract pending a new
agreement . Section 11 of the contract defines the
scope of work in the unit as follows: "any
projectionist or stage-hand employed by the
Employer to perform work , labor or render service
in respect to the operation or repair of moving
picture machine equipment , projection sound
equipment , other sound equipment , closed circuit
TV equipment, film screenings , film handling in or
out of the projection booth , and all stage equipment
used on any stage . (Any service performed by an
IATSE sound engineer at the present shall continue
to be in effect.)" Section 21 of the contract provides
that for sound service , maintenance , and repairs to
equipment : "At least one projectionist shall be in
attendance for all sound service work, and during
the installation and/or repair to sound or projection
equipment in the projection room or pertaining
thereto ." However , there is no direct reference in
the contract to the utilization of Local 62 members
on speaker poles insofar as new construction is
concerned . Although there is a contract between
IBEW and Berwick, it does not specifically state
that members of IBEW shall perform the disputed
work.
B. The Work in Dispute
The work in dispute is twofold. First is the
dispute concerning the attachment of junction boxes
to speaker poles and the connection of speaker
units. This work has been completed. Second there
is the dispute concerning the wiring or connection of
wires to amplifiers and sound heads in the
projection room of the Drive-In theatre.
C. The Contentions of the Parties
Westland contends that assignment of the
disputed work to IATSE not only was justified, but
was necessary under the collective-bargaining
agreement executed with IATSE well prior to
IBEW's original notification to Westland that it
desired to perform the disputed work. Westland also
contends that the disputed work has continually
been performed at its theatres by members of
IATSE to its satisfaction.
IBEW contends that the issue is essentially over
the work of making the final connections to the
wiring and equipment already installed by employees
represented by IBEW at the speaker poles and in
the projection room, and that the job of making
final electrical connections of wiring to terminals,
whether at the speaker poles or in the booth, falls
within the classical work of the electrician and
outside the normal basic skills and work of the
motion picture operator. Further, IBEW contends
that new construction is involved here and that
Employer's assignment to Local 62 of removal of
speakers every season is not binding. Finally, IBEW
contends that there is no clear-cut Employer
assignment here because of the ambiguous position
occupied by Clinton Winans, since Winans
apparently made the decision that when the
electrical work progressed to the point of final
connections he would cease using Berwick's IBEW
employees and make the connections himself or
supervise Local 62 men in such installation.
Local 62 contends that Berwick was not engaged
to connect the amplifiers and sound heads in the
projection room or to connect the speakers to the
junction boxes on the speaker poles. Further, Local
62 contends that whether Winans is considered an
employee of Westland or an independent contractor
is not really germane since the work had been
assigned to members of Local 62. Finally, Local 62
contends that its members possess greater experience
in performing the disputed work.
D. Applicability of the Statute
Before the Board may proceed with a
Determination 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.
The charge herein alleges a violation of Section
8(b)(4)(D) of the Act. The record shows that on or
about July 9, 1969, the Respondent, through its
agents, induced and encouraged individuals
employed by Westland and other employers to
engage in a refusal in the course of their
employment to perform services for Westland, and
threatened Westland with an object of forcing and
requiring Westland to reassign work presently
assigned to members of Local 62 to members of
IBEW. We conclude that 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.
E. Merits of the Dispute
1. Collective-bargaining agreement
On July 1, 1966, Westland became a party to an
agreement with Local 62 effective until June 28,
1969. The parties mutually agreed to operate under
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the previous contract during the pending
negotiations . The agreement defines the scope of
work , and provides that " At least one projectionist
shall be in attendance for all sound service work,
and during the installation and/or repair to sound
or projection equipment in the projection room or
pertaining thereto."
Theatre Sound Service , a corporation which
performs sound system services in Denver , has been
a party to a contract with IATSE since May 1962.
Clinton Winans and his wife are the only employees
and stockholders of Theatre Sound Services . Neither
Westland nor Theatre Sound Service has a contract
with IBEW.
Berwick Electric Company is a party to a
contract with IBEW . Berwick has never been a
party to a contract with IATSE.
Notwithstanding Westland ' s contention that its
contract with IATSE required the assignment of the
disputed work to IATSE members, we find the
contract does not unambiguously cover such work.
Thus, it is clear that such contract cannot be
regarded as a significant factor favoring an award to
IATSE.
2. Company and industry practices
The record contains a great deal of testimony
concerning industry custom and practice and the
Employer's practice regarding the work in dispute,
including evidence as to who did the work on
particular projects in Colorado Springs, and in other
cities in the State of Colorado. Westland owns all of
the five drive-in theatres in Colorado Springs, and
there is evidence that work similar to that in dispute
was performed at several of these theatres, as well
as at some hardtop theatres Westland owns, by
members of IATSE. There is also evidence that
members of IATSE have performed the work in
dispute at Westland theatres in other cities.
There is also evidence in the record that members
of IBEW have performed work of installing the
wiring on sound systems at theatres in other cities in
Colorado. We conclude that while IBEW may have
performed some facet of the disputed work in other
theatres in Colorado, it has been Westland's practice
to assign the work in dispute to members of IATSE.
3. Relative skills
Both IBEW and Local 62 possess the necessary
skills and tools to perform the disputed work.
IBEW trains licensed electricians by providing a
formal apprenticeship program which includes
training in reading schematic drawings and making
connections for specialized equipment . Local 62
members acquire their training and skill by
maintaining and servicing theatre sound equipment.
They are not required to have a license to install the
disputed sound systems.
Clearly, both Unions can perform the task of
connecting the speaker pole wires to junction boxes
and to the speakers. As to the disputed work of
wiring or terminating wires to amplifiers and sound
heads in the projection booth, it is clear that
members of Local 62 or IATSE have done this
work for Westland at its other theatres. The work in
the projection booth requires a certain amount of
skill in applying solder to terminals. The record
indicates that Winans, a member of IATSE, has
done this work in the past for Westland and that he
has used IATSE members to assist him. There is
also evidence that IBEW members have the required
skill to perform soldering, and that they have
worked on a variety of sound equipment for some
other employers. As both Unions possess the
necessary skills, we conclude that this factor affords
no basis to disturb Westland's assignment to its
employees, who are members of IATSE and have
performed the disputed work to the satisfaction of
Westland.
4. Efficiency and economy
Westland asserts that it prefers to have its own
employees, represented by Local 62, and IATSE,
perform the disputed work to attaching the junction
boxes and speaker units to the speaker poles, and
the wiring of the amplifiers and sound heads in the
projection booth, on the ground that the work can
be performed more efficiently under Westland's
traditional method, through Winans and IATSE,
than if IBEW were to receive the work. Westland
points to flexibility factors, such as the inspection,
maintenance , removal and replacement of speakers
at drive-ins by the regular employees of Westland,
all of whom are members of IATSE. Westland
contends that the members of IATSE are
experienced in performing the work in question,
whereas the members of IBEW lack similar
experience and therefore could not perform the work
efficiently. Thus, it appears that the factor of
efficiency favors the assignment to IATSE.
5. Gain or loss of jobs
Westland contends that should the Board
determine that IBEW is to perform the disputed
work at all theatres, whether traditional indoor or
outdoor, that there would be less work for the
members of IATSE who are regular employees of
Westland. We conclude that as it has been the
prevailing practice of Westland to assign the work
to its employees, assignment of the disputed work to
IBEW would result in a loss of job opportunities for
Westland's employees.
INTL. BROTHERHOOD ELECTRICAL WKRS., 141
CONCLUSIONS
Based upon the entire record and after full
consideration of all relevant factors involved, we
think that the work assignment to Westland's
employees represented by IATSE and Local 62 is
proper. This determination is limited to the
particular controversy giving rise to the dispute.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act , as amended , and upon the basis of
the foregoing findings, the National Labor Relations
Board hereby makes the following Determination of
Dispute.
1. Employees employed by Westland Theatres,
Inc., as projectionists and currently represented by
International Alliance of Theatrical Stage
Employees and Moving Picture Machine Operators,
and Local 62, are entitled to install the junction
boxes and speaker units to speaker poles, as well as
the wiring of amplifiers and sound heads in the
projection booth of the Falcon Drive-In theatre at
Colorado Springs, Colorado.
2. The International Brotherhood of Electrical
Workers, Local 113, is not and has not been
entitled, by means proscribed by Section 8(b)(4)(D)
of the Act, to force or require Westland Theatres,
Inc., to assign the above work to its members.
3. Within 10 days from the date of this Decision
and Determination of Dispute, the International
Brotherhood of Electrical Workers, Local 113, shall
notify the Regional Director for Region 27, in
writing, whether they will or will not refrain from
forcing or requiring Westland, by means proscribed
by Section 8(b)(4)(D) to assign the work in dispute
to employees represented by IBEW Local 113,
rather than Westland's employees represented by
IATSE, and Local 62.'
,in view of our Decision herein, Respondent's Motion to Dismiss the
proceeding is hereby denied The Board has often held that a jurisdictional
dispute is not moot despite the completion of the work involved where
there is nothing to indicate that such disputes will not arise in the future