Local 683, Electrical Workers

National Labor Relations Board - Board Decisions

Feb 14, 1980

247 N.L.R.B. 1097 (N.L.R.B. 1980)

LOCAL 683, ELECTRICAL WORKERS
International Brotherhood of Electrical Workers,
Local Union No. 683, AFL-CIO and Laborers'
International Union of North America, Local 423,
AFL-CIO and Ducore, Inc. Case 9-CD-367
February 14, 1980
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by Laborers' International Union of
North America, Local 423, AFL-CIO, herein called
Laborers,' alleging that International Brotherhood of
Electrical Workers, Local Union No. 683, AFL-CIO,
herein called Electrical Workers, had violated Section
8(b)(4)(D) of the Act by engaging in certain proscrib-
ed activity with an object of forcing or requiring
Ducore, Inc., herein called the Employer, to assign
certain work to employees represented by Electrical
Workers, rather than to employees represented by
Laborers.
Pursuant to notice, a hearing was held before
Hearing Officer James E. Horner on November 6,
1979.2 All parties appeared and were afforded full
opportunity to be heard, to examine and cross-exam-
ine witnesses, and- to adduce evidence bearing on the
issues. Thereafter, the Employer and Laborers filed
briefs.
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 Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudical error. They are hereby affirmed.
Upon the entire record in this proceeding, and the
briefs of the parties, the Board makes the following
findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the
Employer, a Nevada corporation with its principal
place of business in Reno, Nevada, is engaged in the
business of concrete sawing and quarrying. During the
past year it purchased goods and materials valued in
' On December 5, 1979, Laborers requested that this charge be withdrawn
as the Employer filed a charge identical to it at the hearing. The Employer has
filed an opposition to Laborers' request, noting that the Regional Director has
advised that he will not proceed with the Employer's charge because the basis
for that charge is the same as that in the instant case. We deny the withdrawal
request. Laborers has shown neither an agreed-upon method for settlement,
247 NLRB No. 154
excess of $50,000 which were shipped to it directly
from points outside the State of Nevada. The parties
stipulated, and we find, that the Employer is engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act. We further find that it will effectuate
the purposes of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS
The parties stipulated, and we find, that Laborers
and Electrical Workers are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The work in dispute involves one phase of the
installation of a wire-guided forklift guidance system,
known by its trade name of Logisticon, at the Sears,
Roebuck & Co. warehouse in Columbus, Ohio. The
phase in dispute involves the installation of the guide
wires which are imbedded in the concrete floor. The
wire is placed into the concrete by first cutting grooves
with a diamond blade concrete-cutting machine, and
then inserting the wire in the grooves, which are later
filled with epoxy. After installation of the wires, the
wires are energized with a low amount of direct
current.
On June 8, the Employer contracted with Logisti-
con Corporation to install 60,300 feet of these guide
wires at the Sears warehouse. On June 25, the
Employer executed an "assent" to Laborers collective-
bargaining agreement, and, on the same date, assigned
the work in dispute to employees represented by
Laborers. The Employer completed the installation of
the first track of wire in early July. Shortly after its
completion, the Employer was informed that Electri-
cal Workers claimed the project.
In early September, work was begun on the second
track with the Employer utilizing laborers. At that
time, the union steward for Electrical Workers again
made a claim for the work and insisted that the job be
stopped. Later, the lights were turned out in the work
area by the steward for Electrical Workers, and the
Employer was informed that employees of the electri-
cal subcontractor would not turn the electricity on
until the laborers left the premises. Since that time,
these laborers have worked when electrical workers
were not present and have occasionally used 400-foot
nor a resolution of the dispute, and the issue raised by the charge is still
pending. Processing of another charge would now involve needless duplica-
tion of efforts, and we find that proceeding on Laborers' charge will effectively
settle the dispute before us.
All dates are in 1979, unless otherwise indicated.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
extension cords to get electrical power from another
building.
Subsequently, Electrical Workers submitted the
dispute to the Impartial Jurisdictional Disputes Board,
which awarded the work to employees represented by
Electrical Workers. The Employer informed the IJDB
that it was not a party to, nor would it be bound by,
that decision.
B. The Work in Dispute
The work in dispute herein is the installation of wire
guidepaths for use in a remote control forklift truck
system by the Employer at the Sears warehouse in
Columbus, Ohio, including the cutting of grooves in
concrete floors, the laying of wire in said grooves, and
the filling and leveling of said grooves with epoxy.
C. Contentions of the Parties
The Employer contends that the work should be
assigned to employees represented by Laborers be-
cause of its collective-bargaining agreement with that
labor organization, the skill and efficiency of the
laborers, and its past practice of awarding the work to
laborers.
Laborers contends that the work should be assigned
to the employees it represents, based on the Employ-
er's assignment and preference, industry practice, and
the proven efficiency of laborers.
Electrical Workers takes the position that the IJDB
award and the memorandum of understanding be-
tween its International Union and the Laborers'
International, both of which give this work to employ-
ees represented by Electrical Workers, are binding on
these parties, and should be followed. It contends that
because the work involves the installation of wire that
will eventually carry electricity it should be performed
by electrical workers.
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 and
that the parties have no agreed-upon method for the
voluntary adjustment of the dispute.
As set forth previously, the Employer was twice
informed that Electrical Workers claimed the work in
dispute. When work continued, the union steward for
Electrical Workers turned off the lights in the job area,
announcing the lights would not be restored until the
laborers left. This made work on the project impossi-
ble for a time; later, arrangements were made for the
laborers to work at night when electrical workers were
not present, or for long extension cords to be used to
get the needed electricity from another building. Based
on the foregoing, and on the record as a whole, we
find that an object of Electrical Workers' action in
turning off the electricity was to force or require the
assignment of the disputed work to employees repre-
sented by it. Accordingly, we find that reasonable
cause exists to believe that Section 8(b)(4)(D) of the
Act has been violated.
As to whether an agreed-upon method exists for the
voluntary adjustment of the dispute, we find, on the
record before us, no merit in Electrical Workers'
contention that the Employer is bound by the IJDB
award. The Employer was not a party to the proceed-
ing, and its collective-bargaining agreement with
Laborers does not provide for submission of a jurisdic-
tional dispute to the IJDB. Since the Employer, a
necessary party, is not bound by the IJDB decision, we
find that no agreed-upon method exists for the
voluntary adjustment of the dispute to which all
parties are bound. Accordingly, we find 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 the Board to make
an affirmative award of disputed work after giving due
consideration to various relevant factors.
1. Certification and collective-bargaining
agreements
Neither of the labor organizations involved herein
has been certified by the Board as the collective-
bargaining representative for a unit of the Employer's
employees. However, the Employer has assented to
Laborers' local contract in Ohio. This factor favors the
award of the disputed work to employees represented
by Laborers.
2. Employer assignment and preference
On June 25, the Employer assigned the disputed
work to employees represented by Laborers. The
record indicates that the Employer maintains a
preference for this assignment. These factors support
an award of the work to the employees represented by
Laborers.
3. Company and industry practice
The Employer is the only company installing the
specific system involved here. In approximately half of
its installation projects for Logisticon, the Employer
has used electrical workers for some parts of the job
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LOCAL 683, ELECTRICAL WORKERS
and laborers for other parts, and has awarded one
entire project to electrical workers. The other projects
have been handled completely by laborers.
In similar projects with other employers in the area,
employees represented by both Laborers and Electri-
cal Workers have handled tasks similar to the disputed
work here. Since both laborers and electrical workers
have performed these tasks, these factors favor neither
group of employees.
4. Relative skills
The evidence indicates that the disputed work
involves no special skills, and that both groups are
equally qualified to do the job. Thus, this factor favors
neither group of employees.
5. Economy and efficiency
The record establishes that laborers presently per-
form the work in a competent manner to the satisfac-
tion of the Employer. There is no contention by
Electrical Workers that employment of electrical
workers would result in greater efficiency or in an
economic benefit for the Employer. Rather, on the one
occ- ion where the Employer used electrical workers
for aal entire Logisticon project, they proved to be very
inefficient and the project cost much more than
projects completed by laborers. This factor favors the
award of the work to employees represented by
Laborers.
6. International agreement
Laborers' and Electrical Workers' Internationals
have an international memorandum of understanding
which states in pertinent part as follows: "Chase and
channeling shall be performed by the Electrical
Workers." While the two Unions are signatories to
this agreement, the Employer is not and thus is not
bound by it.' Nevertheless, since the terms of this
agreement call for the assignment of the disputed
work to electrical workers, this factor favors the
award of the work to employees represented by
Electrical Workers.
' Construction and General Laborers Local No. 132. AFL-CIO (Brockway
Glass Company, Inc). 224 NLRB 117,119-120(1976).
' Although the telegram referred to "the decision of March 5, 1926," we
assume the IJDB actually meant its decision of May 5, 1926. a copy of which
was put into evidence. That decision was entitled. "Cutting of Chases and
Channels in Brick, Tile and other Masonry," and read as follows:
Inasmuch as no other trades except the Bricklayers. Plumbers and
Steamfitters and Electricians have claimed this work, it is decided that
7. Award by the IJDB
Although, as indicated in section D above, we do
not consider this award binding on the Employer, we
do consider it a factor in determining the proper
assignment of the work in dispute. However, we are of
the opinion that this award should not be given
controlling weight. The record does not indicate what
evidence was presented in the proceedings which
formed the basis for this award, and the award itself
simply consists of a telegram stating that the award
was based on the decision of record of March 5, 1926,4
and trade practice, and predicated upon particular
facts and evidence before it. Without knowing what
those particular facts were, we are unable to evaluate
the award according to our own standards to deter-
mine the degree of deference to which it is entitled.
This factor, therefore, favors neither group of employ-
ees.
Conclusion
Upon the record as a whole, and after consideration
of all relevant factors involved, we conclude that the
employees who are represented by the Laborers are
entitled to perform the work in dispute. We reach this
conclusion relying on the collective-bargaining agree-
ment, the economy and efficiency of operations, and
the Employer's assignment and preference, all of
which favor an award of the disputed work to
employees represented by the Laborers. We find that
these factors outweigh the International agreement
between the Laborers and the Electrical Workers
International, which is the only consideration favoring
a contrary award of the disputed work. In making this
determination, we are assigning the work to employees
represented by Laborers, but not to that Union or its
members. The determination in this case 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
proceeding, the National Labor Relations Board
hereby makes the following Determination of Dispute:
the cutting of chases and channels in brick, tile and other masonry is the
work of the Bricklayers, except that the Plumbers and Steamfitters and
Electricans shall have jurisdiction to installation of their respective work.
Laborers was not a party to the 1926 dispute.
' Member Jenkins regards this award as typical of those made by this
tribunal, and thus does not regard such awards as meriting inclusion among
our customary criteria for determining jurisdictional disputes.
1099
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Employees of Ducore, Inc., who are represented
by Laborers' International Union of North America,
Local 423, AFL-CIO, are entitled to perform the
work of the installation of wire guidepaths for use in a
remote control forklift truck system by the Employer
at the Sears warehouse in Columbus, Ohio, including
the cutting of grooves in concrete floors, the laying of
wire in said grooves, and the filling and leveling of said
grooves with epoxy.
2. International Brotherhood of Electrical Workers,
Local Union No. 683, AFL-CIO, is not entitled by
means proscribed by Section 8(b)(4)(D) of the Act to
force or require Ducore, Inc., to assign the disputed
work to employees represented by that labor organiza-
tion.
3. Within 10 days from the date of this Decision and
Determination of Dispute, International Brotherhood
of Electrical Workers, Local Union No. 683, AFL-
CIO, shall notify the Regional Director for Region 9,
in writing, whether or not it will refrain from forcing
or requiring Ducore, Inc., by means proscribed by
Section 8(b)(4)(D) of the Act, to assign the disputed
work in a manner inconsistent with the above determi-
nation.
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