Local 2, Electrical Workers

National Labor Relations Board - Board Decisions

May 30, 1975

218 N.L.R.B. 92 (N.L.R.B. 1975)

92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 2, International Brotherhood of Electrical
Workers, AFL-CIO and Clarence McAlister and
The Welsbach Corporation and Local 513 , Interna-
tional Union of Operating Engineers , AFL-CIO.
Case 14-CD-500
May 30, 1975
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Clarence McAlister, an individu-
al, on December 20, 1974, alleging that Local 2,
International Brotherhood of Electrical Workers,
AFL-CIO, violated Section 8(b)(4)(D) of the Act by
threatening officers and employees of the Welsbach
Corporation in order to force or require the corpora-
tion to assign work to members of Local 2 rather
than to Clarence McAlister. A hearing was held on
January 14, 1975, before Hearing Officer James R.
Neely, Jr. All parties appeared at the hearing and
were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce
evidence bearing upon the issues.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The rulings of the Hearing Officer are free from
prejudicial error and are hereby affirmed. Local 513,
Charging Party Clarence McAlister, and Local 2
filed briefs which have been duly considered. On
February 7, 1975, Local 513 and Charging Party
McAlister filed a motion to reopen the record or, in
the alternative, for submission of evidence.' There-
after, Local 2 filed a brief in opposition.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE COMPANY
Welsbach is a Delaware corporation engaged in the
construction of traffic signals and street lighting in
the State of Missouri and at various sites located
throughout the United States. Welsbach annually
purchases supplies and materials valued in excess of
$50,000 directly from locations outside the State of
1 In their motion, Charging Party and Local 513 aver that subsequent to
the hearing in this case the Employer assigned the work of operating the
self-propelled concrete saw at a different worksite to Charging Party, and
that at the time the assignment was made Charging Party's supervisor told
him that the Company was making the assignment to him in conformance
with a 1958 award.
Missouri. We find that Welsbach is engaged in
commerce within the meaning of the Act and it will
effectuate the policies of the Act to assert jurisdiction
herein.
H. THE LABOR ORGANIZATIONS INVOLVED
It was stipulated and we find that Local 2,
International Brotherhood of Electrical Workers,
AFL-CIO, and Local 513, International Union of
Operating Engineers, AFL-CIO, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
In 1971 Welsbach was a member of the St. Louis
chapter of the Associated General Contractors. The
AGC has a collective-bargaining agreement with the
Operating Engineers and, although Welsbach with-
drew from AGC, it has remained a party to that
agreement. Welsbach is now engaged solely in the
installation and repair of traffic signals and street
lights and is a member of the National Electrical
Contractors Association. NECA has a bargaining
agreement with IBEW. Welsbach employs nine
IBEW members and one operating engineer, Charg-
ing Party Clarence McAlister.
On July 22, 1974, the Company was installing
traffic signals at Bellefontaine and Chambers Roads
in St. Louis County. That morning Welsbach
Supervisor Gary Jones was announcing work assign-
ments when employee Larry Jahner, an IBEW
member, asked who was going to cut road raceways
for the installation of detector loops at the worksite.
Jones replied that McAlister, who was already at the
worksite cutting channels, had the assignment. When
Jahner protested that this work belonged to the
IBEW, Jones told Jahner to call his union hall.
Jahner did so and Jones then spoke with Local 2
Business Manager Robert Missey who also claimed
the work for IBEW. Jones explained to Missey that
Welsbach had only 2 hours of work left at the site
and Missey agreed that he would not object to the
Company finishing the job with McAlister if the men
would agree. Missey also told Jones that he could not
order the men to work but he would not object if
they decided to work. Jones volunteered to pay one
IBEW member the higher rate of pay of an operator
for 2 hours. Jahner then went out to work and the job
was completed.
We hereby deny the motion (1) because there is no indication that the
work assignment averred to therein involved the same work in dispute in
this proceeding, and (2) even assuming, arguendo, that it involved the same
work, it would not materially alter our decision and, consequently, does not
warrant the resulting delay of our determination in this proceeding.
218 NLRB No. 3
LOCAL 2, ELECTRICAL WORKERS 93
Thereafter, Welsbach's district manager, Kenneth
Sipe, after calling Welsbach's home office and
making inquiries of local contractors, concluded that
it was both local and national practice for NECA
members to assign the work in question to IBEW
members. On the basis of this information, Sipe
called Operating Engineers Local 513's president,
John Murphy, in early August and informed him
that Welsbach intended to assign the work to the
IBEW. Murphy indicated he would abide by
whatever assignment the Company made.
In October the Company had a job at Dorsett and
McKelvey Roads which involved cutting channels
for detector loops. A few days before the job was
scheduled to begin, Jones called Local 2's assistant
business manager, Monte Haddox, to tell him that
the Company had assigned the work to the IBEW.
During this conversation, Haddox allegedly told
Jones that if the channels were cut by someone other
than an IBEW operator IBEW members would not
install the wires.
On October 29, when the work was scheduled to
begin, Jones went to the worksite. John Nova, an
assistant business manager for Local 513, Operating
Engineers, was also at the site. Jones informed Nova
that the IBEW would not install wires unless an
IBEW operator cut the raceways and that the
Company had decided to assign the work to the
IBEW. Nova claimed jurisdiction over the work and
asked Jones if the Company would stop work to
allow the two Unions to settle the issue. Jones
agreed, but thereafter the Unions were unable to
resolve the matter and on November 5, 1974,
Welsbach made a written assignment of the work to
the IBEW.
B. The Work in Dispute
The work in dispute is the operation of a self-
propelled saw used to cut road surface raceways for
the installation of detector loops for electric traffic
signals at Dorsett and McKelvey Roads, St. Louis
County, Missouri. Such loops consist of a wire which
detects the presence of vehicles at the signals.
C. The Contentions of the Parties
The Charging Party and Local 513, Operating
Engineers, contend that until October 29, 1974,
Welsbach had assigned all work with the self-
propelled saw to a member of the Operating
Engineers. The Charging Party and Local 513 further
contend that Welsbach changed this assignment
because of the action taken by IBEW members on
July 22, 1974, and because of statements made by
IBEW Representative Haddox to Jones that electri-
cians would not lay wire in raceways that were not
cut by IBEW men. Finally, the Operating Engineers
asserts that not only the past practice of this
Company but also area practice and factors such as
efficiency and competency favor assignment of this
work to members of the Operating Engineers.
The IBEW moved to quash the 10(k) notice of
hearing on the grounds that there is no reasonable
cause to believe that Section 8(b)(4)(D) has been
violated because the Company made a voluntary
assignment of the work to the IBEW prior to its
commencement. In the alternative, if the - Board
determines there is a dispute under Section 10(k), the
IBEW contends that area practice, efficiency, and
economy of operation, as well as the Company's
assignment and preference, favor awarding the work
to employees represented by the IBEW.
D. Applicability of the Statute
Before the Board may proceed to a determination
of a dispute under 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, which is binding on
all parties, for the voluntary adjustment of the
dispute.
As to the latter aspect of this case, the parties
stipulated that there was no agreed-upon method for
resolving the dispute. In this regard, the record shows
that Local 2 is an outside local of the International
Union, and that outside locals of the IBEW are not
members of the AFL-CIO Building Trades Council
and do not consider themselves bound by Disputes
Board decisions.
With respect to the issue of whether reasonable
cause exists to believe that Section 8(b)(4)(D) has
been violated, as noted above, Jones, the Company's
supervisor, testified at the hearing in this case that,
during a conversation he had with Haddox, the
business agent of Local 2, a few days before work
was scheduled to commence at the Dorsett and
McKelvey Roads jobsite, Haddox told him that the
employees he represented would not install wires in
channels which were cut ' by "unauthorized person-
nel" or "scab labor." Haddox denied making any
threatening statements to Jones.
Local 2 contends that even if Haddox made the
statement attributed to him by Jones the decision to
assign the work to IBEW members had already been
made. In this regard, Local 2 contends that it is
significant that the Company did not file an
8(b)(4)(D) charge growing out of the work assign-
ment but rather the charge was filed by McAlister
based on what Local 2 characterizes as "pure
hearsay." We disagree.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In determining whether the dispute is properly
before us and that we have jurisdiction under 10(k)
of the Act, we need not resolve the conflict in
testimony or determine whether Local 2 actually
made the threat it is alleged to have made. We need
only find that there is "reasonable cause to believe
that Section 8(b)(4)(D) has been violated."
Consequently, we find the record evidence suffi-
cient to establish "reasonable cause" to so believe.2
Contrary to the contention of Local 2, we find no
significance in the fact that the alleged threat was
conditioned upon the Company's assigning the work
to other employees, and that the Company had
already decided to assign the disputed work to the
employees Local 2 represents .3 Section 8(b)(4)
prohibits all threats to take action in support of 'the
objects specifically set forth therein, regardless of the
imminence of the action threatened or whether the
action threatened is conditioned upon some other
event occurring first .4 As we find reasonable cause to
believe that such a threat was made in this case, we
find the matter 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 the Board to make
an affirmative award of the disputed work after
giving due consideration to all relevant factors. The
following factors are relevant in determining the
dispute before us.5
1. Relevant collective-bargaining agreements
The Employer is a member of the National
Electrical Contractors Association and a signatory to
the agreement between NECA and Local 2. Article
II, section 5, of the agreement prohibits the Employ-
er from assigning work within the jurisdiction of the
union to employees outside the bargaining unit.
Although nowhere in the agreement is the work
jurisdiction of the Union specified, Local 2 argues
that the operation of trenching equipment is specifi-
cally referred to in the wage classification provisions
of the contract, and that that classification covers the
operation of the self-propelled concrete cutting saw
in dispute herein.
2 Locals 138, 138A, 138B, 1380 and 138D, International Union of
Operating Engineers, AFL-CIO (Cafasso Lathing & Plastering, Inc.), 149
NLRB 156 at 158, Si . 5, and accompanying text (1964).
3 Nor do we place any significance in the fact that McAlister rather than
the Employer filed the instant charge , or that McAlister may have filed this
charge on the basis of indirect evidence . That the Employer chose not to file
a charge has no relevancy to the question of whether a jurisdictional dispute
exists. As for the IBEW 's contention that the charge was founded on
hearsay insofar as McAlister is concerned , the charge only initiates our
processes and in and of itself does not constitute evidence of the alleged
violation.
Although the Employer is no longer a member of
the Associated General Contractors, it remains a
party to the agreement between the AGC and Local
513 of the Operating Engineers. Article IV, section
4.07, of that agreement refers to the operation of self-
propelled concrete saw "on paving work." Article
XVII, dealing with job classifications and wage rate,
alludes to concrete saw (self-propelled). The agree-
ment does not, however, specifically cover the work
in dispute here-cutting slots for detector loops.6
We conclude that neither agreement is determina-
tive.
2. The Employer's assignment and past
practice
For many, years, prior to October 1974 the
Employer assigned all work with the self-propelled
concrete saw to employees represented by the
Operating Engineers. This past practice, however, is
largely negated by the fact that the Company now
limits itself to the installation of street lights and
traffic signals and to repair work as opposed to the
road building and paving operations it performed in
the past.
With respect to the Employer's current assignment
and preference, Welsbach's district manager, Ken-
neth Sipe, testified that he decided in August 1974 to
assign the disputed work to employees represented
by Local 2 because he was convinced that area and
national practice favored such an assignment. Sipe
further testified that he made known his decision to
both Unions in late August and that a written
assignment of the disputed work to Local 2 was
prepared at his direction in November. On this
record, it is clear that the Employer voluntarily
assigned the disputed work to Local 2, some months
before the conversation between Jones and Local 2
representative, Haddox, discussed supra. According-
ly, we find that the Employer's assignment favors
employees represented by Local 2.
3. Area practice
As indicated above, the Employer's district manag-
er testified that his investigation of area practice
revealed that the disputed work was generally
assigned to employees represented by Local 2. A
4 See, e.g., United Steelworkers of America, AFL-CIO, and its Local No.
4454 (Continental Can Company, Inc.), 202 NLRB 652 (1973).
5 N.L.RB. v. Radio and Television Broadcast Engineers Union, Local
1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 U.S. 573, 586 ( 1961); InternattonalAssociation of
Machinists, Lodge No. 1743, AFL-CIO (J A. Jones Construction Company),
135 NLRB 1402 , 1411 (1962)
6 Local 2 makes no claim to the operation of the concrete saw for paving
or highway construction and concedes that such work belongs to the
Operating Engineers.
LOCAL 2, ELECTRICAL WORKERS 95
representative of the association to which the
Employer belongs testified that the general practice
within the Missouri Valley Chapter of NECA is that
electricians perform all the work of installing traffic
signals , including the use of self-propelled saws for
cutting slots for detector loops. Finally, an officer of
the area's largest outside electrical contractor testi-
fied that it is the practice of that contractor,
consistent with general practice in the St . Louis area,
that the disputed work is done by Local 2 employees.
Although Local 513 adduced testimony that some
area contractors have used operating engineers to cut
detector loop slots , we find that area practice favors
assignment of the work to employees represented by
Local 2.
by the Operating Engineers have no bearing on this
dispute. Thus, Local 2 notes that the outside
electricians were not a party to any of these awards
and that none of the awards involved work that is
completely comparable to the work involved here.
Although we do not consider the National Joint
Board awards binding on the Employer or Local 2,
we do consider such awards as a factor in determin-
ing the proper assignment of disputed work . Howev-
er, in view of all the circumstances , including area
practice to the contrary , we fmd that the awards
submitted in evidence by the Operating Engineers
should not be given controlling weight herein.
Conclusion
4. Efficiency, competency, and economy of
operations
Company Supervisor Jones testified that assign-
ment of the disputed work to employees represented
by Local 2 allowed the Company to complete the
entire job using only two or three men rather than
the four or five employees required when the work
was assigned to the Operating Engineers . Although
he acknowledged that he was unable to provide
specific cost figures , Company District Manager Sipe
testified that the Company believed it was more
economical and a better utilization of its manpower
to assign the work to Local 2 . We conclude that the
factors of efficiency and economy favor assignment
of the work to employees represented by Local 2.
Local 513 maintained that its apprentice program
includes training for the job while the IBEW
program does not. Charging Party McAlister ac-
knowledged , however, that he had no special training
on the particular saw involved here. Furthermore,
both Jones and' Sipe indicated their satisfaction with
the job performance of the Local 2 member who
operated the saw in accordance with the Company's
October assignment of the disputed work . Conse-
quently, we do not find that factors of skills or
competency favor assignment of the work to the
employees represented by either Union.
5. Joint Board decisions
Local 513 contends that decisions by the National
Joint Board favor awarding the disputed work to the
Operating Engineers . In support of this contention,
Local 513 submitted several Joint Board awards
pertaining to the operation of self-propelled concrete
saws . Local 2 maintains that the awards submitted
Upon consideration of all relevant factors, we
conclude that the Employer's employees who are
represented by Local 2, IBEW, are entitled to the
work in dispute . We reach this conclusion upon the
Employer's assignment of the disputed work to these
employees, the fact that the assignment is consistent
with the area practice, that employees represented by
Local 2 possess the requisite skills to perform the
work, and that such an assignment will result in
greater efficiency and economy of operations. Ac-
cordingly , we shall determine the dispute before us
by awarding the work in . dispute at the Dorsett and
McKelvey Roads worksite in St . Louis County,
Missouri , to those employees represented by Local 2,
but not to that Union or its members . In conse-
quence, we fmd that Local 513, Operating Engineers,
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 employees
represented by it.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and on the basis of the
foregoing findings and the entire record in this
proceeding , the National Labor Relations Board
hereby makes the following Determination of Dis-
pute:
Employees of the Welsbach Corporation , who are
represented by Local 2, International Brotherhood of
Electrical Workers , AFL-CIO , are entitled to per-
form the work consisting of the operation of a self-
propelled concrete saw for the cutting of slots for
detector loops for actuated traffic signals at the
Dorsett and McKelvey Roads worksite in St. Louis
County, Missouri.