Local 538, Intl. Brthd. of Electrical Wkrs.

National Labor Relations Board - Board Decisions

Jan 20, 1970

180 N.L.R.B. 840 (N.L.R.B. 1970)

840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 538 , International Brotherhood of
Electrical Workers , AFL-CIO and Public Service
Company of Indiana , Inc. and Local Union No.
1393, International Brotherhood of Electrical
Workers , AFL-CIO. Case 25-CD-80
January 20, 1970
DECISION AND DETERMINATION OF
DISPUTE
11. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find , that Locals
538 and 1393, International Brotherhood of
Electrical Workers , AFL-CIO, are labor
organizations within the meaning of the Act.
III. THE DISPUTE
A. The Background Facts
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended,
following the filing of charges by Public Service
Company of Indiana , Inc., herein called the
Employer or Company , alleging that Local Union
No. 538 , International Brotherhood of Electrical
Workers , AFL-CIO, herein called Local 538 or
Respondent , had violated Section 8 (b)(4)(D) of the
Act by engaging in certain proscribed activity with
an object of forcing or requiring the Employer to
assign the work in dispute to members of Local 538
rather than to Company employees represented by
Local Union No. 1393, International Brotherhood
of Electrical Workers , AFL-CIO, herein referred to
as Local 1393 . Pursuant to notice , a hearing was
held before Hearing Officer Arthur G . Lanker on
September 10 and 11, 1969.' All parties appearing
at the hearing were afforded full opportunity to be
heard , to examine and cross -examine witnesses, and
to adduce evidence bearing on the issue . Thereafter,
a brief was filed by the Employer.
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 rulings of the
Hearing Officer made at the hearing and finds that
they are free from prejudicial error . The rulings are
hereby affirmed . The Board has considered the
Employer ' s brief and the entire record in this case
and hereby makes the following findings:
1. THE BUSINESS OF THE COMPANY
Public Service Company of Indiana, Inc., is an
Indiana Corporation which generates, transmits,
distributes and sells electric energy to customers
throughout the State of Indiana. The parties
stipulated, and we find, that Public Service
Company is engaged in interstate commerce within
the meaning of the Act. Accordingly, we find that it
will effectuate the purposes of the Act to assert
jurisdiction herein.
'All dates are 1969 unless stated otherwise
The Employer is in the process of constructing a
new generating station in Cayuga, Indiana. The
project was begun in May 1967 and is scheduled for
completion in May 1972. The project requires the
installation of two five hundred megawatt electronic
generating units and related facilities.
Commonwealth Electric Company and Hatfield
Electric Company are under contracts to the
Employer for the construction of the station and
installation of certain electrical equipment. For such
installation, Commonwealth and Hatfield use their
own employees, all of whom are represented by
Local 538.
After the equipment is installed, several tests must
be performed on it before the equipment is put into
operation to insure that it will function properly
when energized. This testing involves, inter alia, the
removal of relays from larger components for
purposes of testing, their transportation to and from
a testing area, and their reinstallation after the test
is completed. It also involves the connection and
disconnection of test leads to oil circuit breakers.
This work connected with the testing is done by
company employees who are represented by Local
1393.
The present controversy relates to the
disconnecting and reinstallation work incidental to
the testing of these components. Thus, it appears
that some time prior to April, Respondent took the
position that its members should be allowed to
perform the tasks of removing and reinstalling
relays. In early April, Leo McDaniel, Respondent's
business manager met with Darrah, a company
official, and stated Respondent's position. According
to McDaniel, Darrah told him this was contrary to
the Company's policies. Thereafter, the matter was
discussed again by a Local 538 steward and Jerry
Baker, Local 1393's Assistant Business Manager.
According to Baker, the Local 538 steward at this
time stated he felt the work belonged to members of
Local 538.
Charles W. Lee, a senior equipment tester and
member of Local 1393, testified that on June 26, he
and another tester, Dick Brown, went to the jobsite
to conduct a test on a circuit breaker. At about the
time the equipment was set up, they were
approached by a Local 538 job steward who wanted
to know what the two were doing. The steward upon
being told stated, "This is our work, stop it." The
team continued working, but after the steward came
180 NLRB No. 129
LOCAL 538, INTL. BRTHD . OF ELECTRICAL WKRS. 841
back again, Lee stopped testing and reported the
incident to Everette Bailey, Business Agent for
Local 1393. Bailey assured Lee that the work was
properly assigned to Local 1393. Thereupon Lee
returned to work. The testing was stopped again
after the steward returned and told Lee "I thought I
told you to quit ... You better quit or I'll get some
men over here that will stop you." Lee did some
testing later that afternoon. Testing was also
conducted, apparently without incident, on the
following day, Friday, June 27.
On Monday, June 30, testing was resumed.
Shortly after the men started , however, the Local
538 steward again appeared at the jobsite.
According to Lee, the steward told the Local 538
electricians . to put up their tools, that they
were going to leave the job site." Within about half
an hour, all electricians had walked off the job.
At or about 10:55 that morning, William E.
Ward, the Employer's construction superintendent,
informed Labor Relations Manager Stoelting, that
the Hatfield and Commonwealth employees had
walked off the job because of the testing being
conducted by the Company. On July 3 the parties
held a meeting on the jobsite to attempt to settle the
dispute.
According to Stoelting, McDaniel initially took
the position at the meeting that all the testing at the
site should be done by members of Local 538 until
such time as the equipment was turned over to the
Company. The Company asserted that testing was
traditionally reserved for its own employees who are
represented by Local 1393. At this point McDaniel
retreated from a demand for all testing and stated
that Local 538 people should be permitted to
connect and disconnect the test equipment leads to
the piece of equipment being tested . McDaniel
argued a 538 member should assist in the testing
because it was necessary for safety . The parties
agreed that McDaniel would consult with an
International representative and contact Stoelting
later . The work stoppage ceased on July 7.
McDaniel and Stoelting again discussed the
situation on July 8 . Although insisting that all the
test work should be done by Local 538, McDaniel
stated he would agree to allowing Local 1393
members to carry out the testing provided an
electrician from Local 538 was assigned to assist by
hooking up and disconnecting the leads to the test
equipment . Additionally, McDaniel at this point
reasserted Respondent's claim that Local 538
members should be allowed to take the relays out of
the cabinets of the equipment and deliver them to
the Local 1393 employees who were testing. It
appears that the testing will not be completed until
1972.
B. The Work in Dispute
The work in dispute is limited to removing relays
for purposes of testing , their reinstallation after
testing, and the connection and disconnection of test
leads from the test equipment to the component
being tested. The parties agree that the actual
testing is properly assigned to employee-members of
Local 1393.
C. Contentions of the Parties
Public Service Co., Inc., the Employer and
Charging Party, contends that Respondent Local
538 violated Section 8(b)(4)(D) of the Act by
striking in an effort to have Public Service
Company assign the work in question to employees
represented by Local 538. Public Service Company
further contends that the work has always been
assigned to employee-members of Local 1393; and
that such work should properly be awarded to
members of Local 1393 in view of (a) industry and
area practice; (b) considerations of economy and,
efficiency, safety and reliability of test results; (c)
the Employer's construction contract with Hatfield
and Commonwealth, its labor agreement with Local
1393, and the history of the bargaining relationship
between the Employer and Local 1393. Local 1393,
Hatfield, and Commonwealth took positions
basically consistent with that taken by the Employer
regarding the assignment of the work in question.
Respondent filed no brief but contended at the
hearing that the work in question should be assigned
to its members. In support of its position,
Respondent cites the practice in its territorial
jurisdiction of performing the type of work in
question for other employers and the assignment of
the work in question to Local 538 by its and Local
1393's International.
D. Applicability of the Statute
Before the Board may proceed with a
determination of a 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. As set forth previously the
Respondent has demanded the work incidental to
relay testing. Lee testified that on several occasions
testing of the oil circuit breaker was interrupted by
a Local 538 steward who stated the work belonged
to Local 538 and told Lee to "Stop it." The steward
also told Lee, "Well, you better quit or I'll get some
men over here that will stop you." Moreover, on
June 30, 1969, at the request of the steward, about
50 Local 538 electricians (employees of Hatfield and
Commonwealth) walked off the job. On these facts,
we are satisfied that there is reasonable cause to
believe that an object of the strike was to force the
Employer to assign the disputed work to employees
represented by Respondent Union, rather than these
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represented by Local 1393.
On the basis of the entire record, we find 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
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
1. Collective bargaining and union agreements
There is no evidence indicating that a Board
Certification covers the disputed work.
The Employer since 1937 has recognized Local
1393 as collective-bargaining representative for its
employees and has had labor agreements with it.
The current contract provides that:
The Company agrees that it shall not let out
under contract any work which is ordinarily done
by its permanent union members if , as a result
thereof it would become necessary to reduce in
classification any of such permanent union
employees.
The Employer offered testimony that the work in
question has traditionally been done by its own
employees and that it was pursuant to the
aforestated contract clause that the disputed work
was assigned to members of Local 1393. Although
the contractors, Commonwealth and Hatfield, are
under contract to the Employer for construction and
other services as requested by the Employer, this
contract does not require that Commonwealth and
Hatfield employees do the work in question. The
Employer has no employees represented by, nor any
agreement with, Local 538. Moreover, the record
does not indicate the Employer has ever contracted
out the work in question or assigned it to Local 538.
Local 538 also claims the disputed work by virtue
of a decision of its and Local 1393's parent
International granting the work in question to Local
538. It is noted however that although the two locals
by virtue of the International Union ' s constitution,
appear bound by the International 's resolution of a
dispute, they differ over the interpretation of the
decision. In this regard, Local 1393 took the
position at the hearing that the International's
determination deals only with electrical work that is
classified as construction work . It argued that the
testing involved herein is not a part of construction
and hence , is beyond the scope of that decision. In
any event, the Employer neither submitted to the
jurisdiction of the International , nor considers itself
bound by the International's decision. Accordingly,
'N L.R B. Y Radio Television Broadcast Engineers Union Local 1212,
International Brotherhood of Electrical Workers /Columbia Broadcasting
System/, 364 U.S. 573.
we find that neither the collective- bargaining
agreements , nor the inter-union award favors
assigning the work to Local 538.
2. Company, industry, and area practice
The record shows the Company has never
assigned this type of work to Respondent's members
or otherwise contracted it out. Moreover the present
assignment is consistent with the Company's
traditional practice. Accordingly, we find this factor
favors Local 1393.
Evidence as to industry and area practice is
inconclusive . The record shows instances in which
construction unions as well as nonconstruction
unions have performed work similar to that in
question here.
3. Skills and efficiency
There is no showing that the disputed work
requires skill not possessed by employee-members of
Local 1393. On the contrary, Company witnesses
testified that members of Local 1393 are highly
skilled and trained by the Employer for the
sophisticated work involved and have performed it
in a satisfactory manner . Additionally the record
shows that while members of Local 538, claim only
the removal of relays from circuits for the purpose
of testing and their reinstallation after testing and
the connecting and disconnecting of test leads to oil
circuit breakers, the claimed work is an integral part
of the testing and involves a continuous process, all
of which employee-members of 1393 can and have
performed. Thus assignment to employee-members
of 538 of only the work they claim would result in
the fragmentation of the job into separate
operations . Accordingly, from the standpoint of
efficiency, these facts favor an award consistent with
that made by the Employer.
4. Safety
At the hearing, Respondent contended that
considerations of safety favored awarding the
disputed work to its members. The record, however,
does not reveal that assignment of the work in
dispute to either union , as opposed to the other, will
enhance job safety.
CONCLUSION
Having considered all pertinent factors, we
conclude that employees represented by Local 1393
are entitled to perform the work in dispute.
Members of Local 1393 are at least as skilled as are
members of Local 538 insofar as the disputed work
is concerned and the Employer has been satisfied
with the quality of their work and their safety
record . Moreover, the assignment to
employee-members of Local 1393 is consistent with
LOCAL 538, INTL. BRTHD . OF ELECTRICAL WKRS.
the past practice of the Employer and is not
otherwise inconsistent with any other area or
industry practice. We conclude from all the
foregoing that the Employer's assignment of work
to employee-members of Local 1393 should not be
disturbed. On the basis of the entire record,
therefore , we shall determine the existing
jurisdictional controversy by awarding to the
employees employed by the Company and
represented by Local 1393, rather than to
individuals represented by Local 538, the removal of
relays and reinstallation after testing and the
connection and disconnection of test leads to oil
circuit breakers. The present determination is
limited to the particular controversy which gave rise
to this proceeding.
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
case , the National Labor Relations Board makes the
following determination of dispute:
843
I: Individuals employed by the Employer and
represented - by Local 1393, International
Brotherhood of Electrical Workers , AFL-CIO, are
entitled to perform the work of testing including the
removal of relays, their reinstallation after testing
and connection and disconnection of test leads from
oil circuit breakers at the generating station under
construction at Cayuga , Indiana.
2. Local 538, International Brotherhood of
Electrical Workers , AFL-CIO is not entitled by
means proscribed by Section 8(b)(4)(D ) of the Act
to force or require Public Service Company of
Indiana , Inc. to assign such work to individuals
represented by the aforesaid union.
3. Within 10 days from the date of this Decision
and Determination of Dispute , Local No. 538,
International Brotherhood of Electrical Workers,
AFL-CIO, shall notify the Regional Director for
Region 25 , in writing, whether or not it will refrain
from forcing or requiring Public Service Company,
Inc. by means proscribed by Section 8(b)(4)(D) to
assign the work in dispute in a manner inconsistent
with the above determination.