Local 211, International Brotherhood Of Electrical Workers, Afl--Cio1 (United Technicians)

National Labor Relations Board - Board Decisions

Sep 25, 1985

276 N.L.R.B. 512 (N.L.R.B. 1985)

512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 211 , International Brotherhood of Electrical
Workers, AFL-CIO' (United Technicians) and
Local 13000,' Communications Workers. of
America , AFL-CIO. Cases 4-CD-645 and 4-
CD-650
25 September 1985
DECISION AND'DETERMINATION OF
DISPUTE
By MEMBERS DENNIS, JOHANSEN, AND'
BABSON
The charges in this Section 10(k) proceeding
were filed on 1 February 19852 and 22 April by
Local 13000, Communications Workers of Amer-
ica, AFL-CIO (Local 13000), alleging that the Re-
spondent, Local 211, International Brotherhood of
Electrical Workers, AFL-CIO (Local 211); violat-
ed Section 8(b)(4)(D) of the National Labor Rela-
tions Act by engaging in proscribed activity with
an object of forcing United Technicians (the Em-
ployer) to assign certain work to employees it rep-
resents rather than to employees represented by
Local 13000. An order consolidating the cases and
a notice of hearing was issued 2 May. The hearing
was held 22 May before Hearing Officer .Judith I.
Katz. 3
The National Labor Relations Board had dele-
gated its authority in, this proceeding to a three-
member panel.
The Board affirms the hearing officer's rulings,
finding them free from prejudicial error. On the
entire record, the Board makes the following find-
ings.
1. JURISDICTION
The Employer, a sole, proprietorship, with of-.
fices in Conshohocken, Pennsylvania, is engaged in
installing and servicing telephone, cable, and data
communication systems. During the past year, the
Employer provided services valued in excess of
$50,000 directly to customers located outside the
Commonwealth of Pennsylvania. The parties stipu-
late, and we find, that the Employer is engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act, and that Local 211 and Local 13000
are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
The Respondent 's name appears as amended at the hearing
2 All dates are in 1985 unless otherwise stated
3 The parties appeared and were afforded full opportunity to be heard,
to examine and cross -examine witnesses , and to adduce evidence bearing-
on the issues The Employer was unrepresented at the hearing
276 NLRB No. 29
II. THE DISPUTE
A. Background and Facts-of Dispute
Perini Corporation is the general contractor en-
gaged in constructing the Enclave luxury condo-
minium building in Atlantic City, New Jersey. In
January 1985 Pegasus Communications subcon-
tracted with the Employer to install a cable televi-
sion system -at the Enclave.4 The Employer as-
signed the work to its own employees represented
by Local 13000.
Scott Bobbin, sole owner and president of the
Employer, testified that he has always employed
Local 13000-represented employees since the Com-
pany began its business 3 years ago. The Employer
is a party to a collective-bargaining agreement with
Local 13000; the agreement is effective from 1
March 1985 to 28 February 1986. The Employer
has no collective-bargaining agreement with Local
211.
On 29 January Local 13000-represented employ-
ees Robert Bodine and Brian Bobbin arrived at the
Enclave building to begin the cable television
work. Perini Representative Steven Stein directed
them to the "head" electrician on the jobsite. Ac-
cording to Bodine's testimony, . the electrician
claimed he had to contact Local 211 officers before
Bodine and Bobbin could proceed with their work.
When the electrician failed to reach the officials,
Bodine testified he and Bobbin left the site.
On 31 January Bodine and Bobbin returned to
the Enclave site and were approached by Ernie
Kinsell, who identified himself as Local 211's union
steward. According to Bodine, Kinsell instructed
the employees to cease working while he checked
with Local 211 officers to determine whether they
could perform the work. Kinsell returned and told
them to get "off the job.". Bodine testified that he
told Kinsell they would be back, and Kinsell re-
sponded that "they" would take "further action."
Brian Bobbin testified that Kinsell stated at the
time that the cable TV work "was an exclusive
IBEW job, and that only IBEW workers are sup-
posed to work on it." Thereafter, Perini Represent-
atives Steven Stein and Roger Pelletier approached
Bobbin and told him not to return to the job until a
solution was reached. Kinsell later asked Bobbin if
Local 13000-represented employees would be re-
turning to the jobsite. When Bobbin responded af-
firmatively, Kinsell said, "We may walk."
Brian Bobbin and Bodine never returned to com-
plete the cable television work. Bobbin testified
that Craig Braubaker, owner of Pegasus Communi-
• 4 Pegasus is presumably a subcontractor of Perini, but the record fails
to disclose their exact relationship
ELECTRICAL WORKERS IBEW LOCAL 211 (UNITED TECHNICIANS) 513
cations, told him by telephone that they could not
fall behind on the contract, and that if there was a
slowdown or shutdown of the job, he ' might " "lose
his contract." Subsequently, Pegasus terminated its
contract with the. Employer and subcontracted the
cable television work to LWD, another employer
who employs Local 211-represented workers.
Local 211-represented employees have continued
to perform the work and, according' to George
Fenwick, Local 21-1 assistant business agent, the
work has almost been completed.
In April 1985 United Technologies5 subcontract-
ed with the Employer to install'a telephone system
at the Enclave building. Once again, Local 13000-
represented employees were assigned the work.
Employee Robert Bodine testified that Kinsell ap-
° proached . him and apprentice technician Thomas
Rice on the site and, said, "What are you doing
back here." Rice also testified that later the -same
day Kinsell told him Local 211 did not recognize
Local 13000-represented employees at the jobsite.
According to Rice,. Kinsell then walked a few feet
away to speak with Perini Representatives Roger
Pelletier and Rocco Carbone. Rice testified he .
overheard Kinsell tell tliem- that "if we was in,
they was out, and they would walk off." Despite
this controversy,. Local 13000-represented employ-
ees have continued to perform the'telephone instal-
lation work.
B. Work in Dispute
The disputed work involves installing a MATV
systems by installing cables, risers, and outlet
plates, and- also installing a telephone, system by re-
terminating existing cables. and running riser cables
to the main private branch exchange, at the En-
clave condominium building, Dover Street, and the
Boardwalk, Atlantic City, New Jersey.
C. Contentions of the Parties
Local 211 contends there is no reasonable cause
to believe . that it threatened to violate Section
8(b)(4)(D) of the Act, asserting that the only evi-
dence concerning threats of work stoppage in-
volved statements made by its steward, Ernie Kin-
sell. Local 211 maintains , however , that a steward'
has no authority under its bylaws to initiate a work,
stoppage , and that any alleged statement made was,
ambiguous or did not contain an element of threat-
or coercion . Alternatively, Local 211 asserts that,
should the Board find there is reasonable cause, it
should only ' make an award concerning the ' tele-
5 United Technologies is also presumably a subcontractor of Perini, but
the record fails to disclose their exact relationship
6 A MATV system is, a private cable TV system operated by a single
dish
phone- work, since the cable television work is
complete. On the merits, Local 211 argues the fol-
lowing factors favor a work assignment to employ-
ees it represents: area practice,. skills and, experi-
ence, general contractor's preference, and labor
harmony. -
Local 13000 contends there is reasonable cause
to believe Section_ 8(b)(4)(D) was violated when
Kinsell threatened Local 13000-represented em-,
ployees and Perini representatives that Local 211-
represented electricians would "walk off" the job-
site in both January (MATV work) and April (tele-
phone, work). Local 13000 further. asserts that the
Board should award the disputed work to employ-
ees it represents based, on its collective-bargaining
agreement with the Employer, employer and indus-
try practice, skills,' efficiency of operation, and em-
ployer preference.
D. Applicability of the Statute
Before the Board may determine a dispute under.
Section 10(k) of the Act, it must be satisfied that
there is reasonable' cause to ' believe Section
8(b)(4)(D) has been violated, and that the parties
have' not agreed on a method for voluntary adjust-
ment of the dispute.
As noted 'above, Brian-Bobbin's unrefuted testi-
mony shows Kinsell"threatened that Local'211-rep-
resented electricians would walk off the job if
Local 13000-represented employees returned-6 the'
jobsite. As a result, Local 13000-represented em-
ployees never returned to perform the cable televi-
sion work, and the Employer's contract with Pega-.
sus was subsequently terminated. Another subcon-
tractor employer, who employs Local 211-repre-
sented employees, was hired instead.
Furthermore, on 14 April when Local 13000-rep-
resented' employees went to :the Enclave to per-
form the telephone work, once again Kinsell
claimed the work for employees represented by
Local' 211, and told Perini representatives that
Local 211 would walk off the job if Local 13000-
represented employees continued to perform the
work.
Kinsell's threats to strike unless Respondent-rep-
resented employees performed the work clearly es-
tablish reasonable cause to believe Section -
8(b)(4)(D) has been violated.?
' Brewery Workers Local 9 (Miller Brewing Co), 256 NLRB 660, 662
(1981) -
We reject the Respondent's contention that, because the Local's
bylaws prohibit stewards from causing a work stoppage, reasonable cause
cannot be found Even though a union's contract , constitution , or bylaws
may prohibit it or its agents from engaging in a stoke, a threat'to stoke
does not become hollow See Teamsters Local 6 (Anheuser-Busch), 270
NLRB 219, 220 (1984) -
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to Local 211's mootness contention concern-
ing the cable television work, the Board has held
that completed work does not render a jurisdiction-
al dispute moot if there is evidence of past similar
disputes, or there are no assurances that a dispute
will not occur again ." Here, we have direct''evi-
dence that after the cable TV dispute in January,
the parties engaged in another dispute in April con-
cerning similar work (i.e., " installation of a tele-
phone system).
On the basis of the above-described threats and
the record as a. whole, we find reasonable cause to
believe that Section 8(b)(4)(D) has been violated.
There is no contention that an agreed-upon method
exists for voluntary adjustment of the dispute
within the meaning of Section 10(k) of the Act.
Accordingly, we find that the dispute is properly
before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an af-
firmative award of disputed work after considering
various factors. NLRB v. Electrical Workers IBEW
Local 1212 (Columbia Broadcasting), 364 U.S. 573
(1961). The Board has held that its determination in
a jurisdictional dispute is an act of judgment based
on common sense and experience, reached by bal-
ancing the factors involved in a particular case.,
Machinists Lodge 1743 (J. A. Jones Construction),
135 NLRB 1402 (1962).
The following factors are relevant in making the
determination of this dispute.
1. Certification and collective-bargaining
agreements
No party contends that the Board has certified
either Union involved in the dispute as the collec-
tive-bargaining representative for a unit of the Em-
ployer's employees.
The Employer, however, has entered into a col-
lective-bargaining agreement with Local 13000, ef-
fective 1 March 1985 to 28 February 1986. The
agreement recognizes Local 13000 as the exclusive
representative for employees classified as "Appren-
tice, Technician, and Technician's Helper." Em-
ployees in these categories regularly perform work
such as that in dispute.9 Thus, we find this factor
8 Plumbers Local 201 (Shaker, Inc), 271 NLRB 650 (1984), and Sheet
Metal Workers Local 541 (Kingery Construction), 172 NLRB 1046, 1049
(1968)
Local 211 asserts, however, that Penni 's prejob conference agree-
ment with the Building Trades Council (BTC) controls the determination
of this factor Local 211 is affiliated with the BTC, but Local 13000 is
not Although Local 21 l's business agent Fenwick testified that Perini's
agreement with the BTC covered the work in dispute, and that Local
211 gave assurances there would be no work stoppages if the disputed
work was assigned to employees represented by it, no agreement was in-
troduced into evidence The Board has held that no weight can be at-
favors assignment of the telephone work, but not
the cable television work,' ° to. employees repre-
sented by Local 13000.
2. Employer preference and past practice
The Employer has consistently assigned work
similar to that in dispute to ,its own employees rep-
resented by Local 13000. The Employer has never
assigned any work to Local 211-represented em-
ployees. -
Scott Bobbin, sole owner and president of the
Employer, testified he maintained a crew of "20 em-
ployees, represented by Local 13000, and that he
preferred to assign the disputed work to those em-
ployees. • -
We find therefore the factor of employer prefer-
ence and past practice favors an award' to Local
13000-represented employees." -
3. Area and industry practice
Employees represented by Local 211 have in-
stalled private and public cable television systems
.in the Atlantic City area since 1977. Local' 211's-
business agent Fenwick testified that, as a member.
of the BTC, Local 211-represented employees have
been involved with every construction project of
casinos, highrise and office buildings, and apart-
ments in the Atlantic City area.
Fenwick also testified that Local 211-represented
employees have installed telephone systems for pri-
vate companies ,in Atlantic City, such as the Atlan-
tic Casino , but that Local 827 , International Broth-
erhood of Electrical Workers , AFL-CIO repre-
senting New Jersey Bell employees ,- usually per-
forms such work in the area.
tached to an agreement unless it is before the Board Teamsters Local 505
(Sandblasting Co), 240 NLRB 960, 963 (1979) Therefore , we will not
consider that agreement in this determination
Even if the agreement was before the Board , we-would accord it no
significance Where a general contractor has an agreement arguably cov-
ering the disputed work with one of the unions involved, the Board nev-
ertheless looks only to the collective-bargaining relationship of the sub-
contractor employer performing the work in issue See Glassworkers
Local 767 (Sacramento Metal), 228 NLRB 200, 201-202 (1977), and Oper-
ating Engineers Local 139 (McWade; Inc.), 262 NLRB 1300, 1302-03
(1982)
Local 211 has no collective -bargaining agreement with the Employer
subcontractor Therefore , any agreement that Penni has with the BTC
does not bind the Employer or Local 13000
10 The Employer was not a party to the collective-bargaining agree-
ment with Local 13000 until approximately 1 month after this work com-
menced See Operating Engineers Local 18 (Luedtke Co.), 264 NLRB 858,
861 (1982)
' i Local 211 maintains that the general contractor 's preference is con-
trolling, and not the Employer subcontractor's preference Fenwick testi-
fied that Perini representatives preferred to have Local 211-represented
employees perform the disputed work The Board has previously found,
however , that it is the preference of the employer subcontractor rather
than the general contractor which should be considered as a factor in de-
termining an award of disputed work See Operating Engineers Local 139
(McWade. Inc.), supra at 1301-02
ELECTRICAL WORKERS IBEW LOCAL 211 (UNITED TECHNICIANS)
- There-is no evidence showing that Local 13000-
represented employees have installed cable televi-
sion or telephone systems in Atlantic City. Robert
Bodine, who has worked for the Employer 1-1/2-
years, testified he has never done work for the Em-
ployer in the Atlantic City area.
Therefore, the evidence shows a consistent area
practice' for assignment of the cable television
work, but not the telephone work, to Local 211-
represented employees. Accordingly, this factor
favors an assignment of the cable work to employ-
ees represented by Local 211.1'2
4. Relative skills,
We find that both groups of employees are capa-
ble of performing the, disputed work, since they
have performed similar work in the past. Thus, we
find, the skill factor does not favor assignment to
either competing, employee group.
i Efficiency and economy of operation
Scott Bobbin testified that if Local 211-represent-
ed employees were awarded the disputed work, a
nonworking foreman would be assigned to super-
vise the work of two other employees. Bobbin ex-
plained that the disputed work requires special
skills, and since he is not- familiar with Local 211-
represented ' employees' work, a nonproductive su-
pervisor "would have to be assigned to the job.
Presently, the Employer has only two individuals
performing, the work,, a working foreman, and a
helper. Thus, the Employer would be required to
hire an -unnecessary -employee if the work were as-
signed to Local 211-represented employees.
Accordingly, this factor favors an award to em-
ployees represented by Local 13000.
12 The record' contains no significant evidence of industry practice.
515
Conclusions
After considering all the relevant factors, we
conclude that employees represented by Local
13000 are entitled to perform the work in dispute.
We reach this conclusion relying on Local 13000's
collective-bargaining agreement with the Employer
(as to the telephone 'work), the Employer's prefer-
ence and past practice, and -economy and efficiency
of operation. In making this determination, we 'are
awarding' the work to employees represented' by
Local 13000, not to that Union or its members. The
determination is limited,- to' the controversy that
gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes' the
following Determination of Dispute.
1. Employees of United Technicians represented
by Local 13000, Communications Workers , of
America, AFL-CIO are entitled ' to install` a
MATV ° system by installing cables, risers, "''and
outlet plates,' and to install a telephone system by
reterminating existing cables and ^ running riser
cables to the main private branch exchange, at the
Enclave condominium liuild%ng, Dov'er' Street, and
the Boardwalk, Atlantic City, New°7ersey. '
2. Local 211, International Brotherhood of Elec-
trical Workers, AFL-CIO is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to
force United Technicians to assign the disputed
work to employees represented by it. ,
3. Within 10 ,days from, this date, Local 211,
International Brotherhood of Electrical Workers,
AFL-CIO shall notify the Regional Director 'for
Region 4' in writing whether it 'will refrain from
forcing the Employer, by means proscribed by Sec-
tion 8(b)(4)(D), to assign the disputed work in a
manner inconsistent with this determination.