Local 701, IBEW

National Labor Relations Board - Board Decisions

Apr 23, 1981

255 N.L.R.B. 1157 (N.L.R.B. 1981)

LOCAL 701, IBEW 1157
Local 701, International Brotherhood of Electrical
Workers and The University of Chicago d/b/a
Argonne National Laboratory and Lodge No.
2458, International Association of Machinists
and Aerospace Workers, AFL-CIO. Case 13-
CD-284
April 23, 1981
DECISION AND DETERMINATION OF
DISPUTE
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by The University of Chicago
d/b/a Argonne National Laboratory, herein called
the Employer or Argonne, alleging that Local 701,
International Brotherhood of Electrical Workers,
herein called the Electrical Workers, violated Sec-
tion 8(b)(4)(D) of the Act by engaging in certain
proscribed activity with an object of forcing or re-
quiring the Employer to assign certain work to its
members rather than to employees represented by
Lodge No. 2458, International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, herein
called the Machinists.
Pursuant to notice, a hearing was held before
Hearing Officer Edward D. Klaeren on November
24 and December 2, 4, 5, and 9, 1980. All 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 Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The Employer is an Illinois nonprofit corpora-
tion operating as a unit of The University of Chica-
go, a private educational institution. It is located in
Argonne, Illinois. Most of Argonne's funds are
provided under a contractual agreement between
The University of Chicago and the United States
Government acting through the Department of
Energy (hereinafter DOE). Under the terms of this
contract, The University of Chicago operates Ar-
gonne for the purpose of engaging in experimental
testing of various types, including work with
atomic particles and other radioactive materials. In
the last 12 months, Argonne had revenues in excess
of $2 million and it purchased and received materi-
als in excess of $50,000 from points outside the
State of Illinois.
At the hearing, the Electrical Workers moved to
dismiss the charge in this proceeding, arguing that
255 NLRB No. 148
the Board lacks jurisdiction under Section 2(1) and
(2) of the Act. It contends that the United States
Department of Labor (hereinafter DOL) and DOE,
which are exempted from the Act's coverage pur-
suant to Section 2(2) therof, are necessary parties
to this dispute and therefore, without joining them
as parties to the instant dispute, the Board is pre-
cluded from making a determination in the instant
case. The Electrical Workers further argues that if
the National Labor Relations Board asserts juris-
diction here it will exceed its delegated powers in
that it will deprive employees of a right granted to
them by Congress to receive an area standards
wage pursuant to the Davis-Bacon Act.' Finally, it
argues that due process will be denied because the
Board's determination would be based upon evi-
dence adduced at a hearing at which necessary par-
ties to the dispute were not present and were not
afforded the opportunity to participate fully.
The evidence shows that, under its contract with
DOE, Argonne submits proposals to DOE and
DOE authorizes Argonne to proceed on a propos-
al-by-proposal basis. DOE reimburses Argonne for
certain expenses, including wages and the cost of
employee benefit plans. DOE does not have input
with regard to the hiring, discharging, layoff,
recall, or work assignments of employees. DOE
neither participates in Argonne's collective-bargain-
ing negotiations nor has input into decisions made
during the utilization of the grievance procedure
by Argonne employees. DOE approves any major
changes in employee benefits and has veto power
on cost reimbursements to Argonne under its bene-
fit plans. Article XXIV, paragraph 24.5, of the con-
tractual agreement between DOE and Argonne
refers to work covered by the Davis-Bacon Act
and provides as follows:
The University and ERDA [now DOE] have
agreed upon a procedure under which ERDA
will determine when work to be undertaken at
the Laboratory Facilities [Argonne] is covered
by the Davis-Bacon Act. When it is deter-
mined that the Davis-Bacon Act does cover a
particular work project the University shall
procure by subcontract the covered work.
Any subcontract entered into under this sec-
I The Davis-Bacon Act, as amended (40 U.S.C. 276a-276a-7), provides
that certain contracts over 2,000 entered into by any executive agency
for construction, alteration, or repair (including painting or decorating) of
public buildings or public works within the United States shall contain a
provision to the effect that no laborer or mechanic employed directly
upon the site of the work contemplated by the contract shall receive less
than the prevailing rates of wages as determined by the Secretary of
Labor. The term "wages" as used in the Davis-Bacon Act includes the
basic hourly rate of pay, the rate of contribution irrevocably made by an
employer pursuant to a fund, plan, or program, and the rate of costs to
the employer which may be reasonably anticipated in providing certain
bona fide fringe benefits.
LOCAL 701, IBEW 157
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion shall contain the provisions relative to
labor and wages required by law to be includ-
ed in contracts for the construction, alteration
and/or repair, including painting and decorat-
ing, of a public building or public work. When
requested by ERDA, any such subcontract
shall be submitted for ERDA approval.
Pursuant to this provision of the contract, Ar-
gonne submits a proposal to DOE for approval in-
cluding work to be done by Argonne employees
(and thus, "non-covered" under the Davis-Bacon
Act) and work to be done by outside contractors
(and thus, "covered" under the Davis-Bacon Act).
DOE then makes the final determination on which
work is to be "covered" under the Davis-Bacon
Act and therefore given to an outside contractor.
Once it is determined that certain work on an Ar-
gonne project is "covered" by the Davis-Bacon
Act, DOL makes a prevailing wage determination
for those employees who are to perform the work.
It is undisputed that Argonne is not an exempt
entity. However, as described above, Argonne has
a close relationship with the two exempt govern-
mental agencies, DOE and DOL. The standard for
ascertaining whether the Board's assertion of juris-
diction over an employer with close ties to an
exempt entity is warranted is the "right of control"
test set forth in National Transportation Service,
Inc., 240 NLRB 565 (1979). This test requires a de-
termination to be made as to whether the nonex-
empt employer retains sufficient control over its
employees' terms and conditions of employment so
as to be capable of collective bargaining with the
employees' representative. We find that Argonne,
the Employer herein, retains such control. Thus,
while the Employer has entered into a contractual
agreement with DOE, it retains the authority to
hire, fire, lay off, and recall employees and to
assign work to employees. It determines all the
terms and conditions of employment and engages
in collective bargaining with its employees. It re-
tains the power to resolve grievances with its em-
ployees. Although DOE has the power to veto
cost reimbursement under the contract and to ap-
prove major changes in benefit plans, it has never
controlled the wages and benefits that Argonne
provides its employees as a result of the collective-
bargaining process. Similarly, we find that DOL
has no control over the Employer's operations
whatsoever. Under the contract, DOL's role is lim-
ited to setting an area wage standard once a deter-
mination has been made by DOE that certain work
is "covered" under the Davis-Bacon Act.
In light of the foregoing, it is evident that the
Employer has retained virtually full control over
matters affecting wages, hours of employment, and
working conditions, and is therefore capable of en-
gaging in meaningful collective bargaining. Ac-
cordingly, we deny the Electrical Workers motion
to dismiss and find that the Employer is engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act and that it will effectuate the policies
of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that Local
701, IBEW, and Lodge 2458, IAM, are labor orga-
nizations within the meaning of Section 2(5) of the
Act.
III. THE DISPUTE
A. The Work in Dispute
The work in dispute involves all installation of
cable tray and cable currently being performed by
the Employer's technicians within an area known
as the beam line, which extends between the Rapid
Cycling Synchrontron (RCS) and a neutron target
in connection with the Intense Pulse Neutron
Source (IPNS) project at 9700 South Cass Avenue,
Argonne, Illinois.
B. Background and Facts of the Dispute
Since 1971, the Employer's technicians have
been represented by the Machinists through succes-
sive collective-bargaining agreements. Prior to the
present IPNS project at Argonne, there was a simi-
lar larger project entitled the ZGS project which
began in 1959 and continued until 1979. The ZGS
project involved the utilization of cable tray and
cable to supply power from the AC disconnects to
the diagnostic equipment within the beam line area
(similar to work which is that in dispute herein).
At least since 1965, the Employer's technicians per-
formed this work on the ZGS project and are as-
signed to perform this work on the IPNS project.
On both projects, the laying of cable tray and
cable from power substations to the AC discon-
nects outside the beam line area has been and is
done by electricians who are represented by the
Electrical Workers by virtue of a collective-bar-
gaining agreement with the resident electrical con-
tractor.
In October 1971, Stan Perry, a business repre-
sentative of the Electrical Workers, made a claim
for the disputed work on the ZGS project to the
Employer's attorney, George Lubben. Lubben told
Perry that the Employer's people were not repre-
sented by the Electrical Workers. In mid-Novem-
ber 1971, Perry and Lubben had another meeting
in which Lubben again informed Perry he could
not have the work. In response, the Electrical
LOCAL 701, IBEW 1159
Workers attorney, Hugh Arnold, said, "We will do
whatever we have to to get Argonne to give us the
work even if we have to put up a picket line and
get NLRB jurisdiction in the matter." There was
no picketing or other action in 1971.
The IPNS project began its first phase of con-
struction in 1979. Pursuant to its contract with
DOE, the Employer submitted to DOE the differ-
ent duties on the proposed project together with its
recommendations for Davis-Bacon determinations.
DOE found the installation of cable tray and cable
from the AC disconnects to the IPNS project
within the beam line area to be "non-covered"
work and thus this work was given to the Employ-
er's technicians. Under a Davis-Bacon determina-
tion issued August 12, 1980, DOE found the laying
of cable tray and cable from the power substations
to the AC disconnects outside the beam line area to
be "covered" work and thus this work was as-
signed to the resident electrical contractor, who
has a contract with Electrical Workers.
Rudolph Bouie, the Employer's plant manager
and supervisor of the IPNS project, testified that,
in November 1979, he met with the Electrical
Workers present business representative, Jerry
O'Conner, and other representatives from most of
the major trades. At this meeting, O'Conner told
Bouie that the Davis-Bacon determination on the
installation of cable tray and cable from the AC
disconnects to the IPNS project made no sense and
he was going to get it turned around. O'Conner
and Bouie had another meeting in December 1979,
in which Bouie showed O'Conner the work and
explained the Davis-Bacon determinations to him.
O'Conner made no inquiry at either of these meet-
ings about the wages received by the Employer's
technicians.
In early March 1980, the Employer's attorney,
Lubben, received letters from O'Conner and from
the Operating Engineers Local 150 business repre-
sentative, Paul Wood. Both letters inquired about
the Employer's alleged failure to pay area stand-
ards on the project. On March 4, 1980, Lubben and
Bouie met with several union representatives in-
cluding O'Conner and Wood, during a regular
meeting of the Depage County Building Trades
Association. During the meeting, Wood made
claim by the Operating Engineers for the work
being done on the beam line. O'Conner then ac-
cused the Employer of failing to meet area stand-
ards. In response, Lubben accused O'Conner of
using area standards as a subterfuge, disguising the
fact that he had been trying to get the work for
many years. O'Conner replied that he did not want
to talk to Lubben anymore, that he had been at this
for 9 years and was no longer going to waste his
time on it.
On March 14, 1980, Operating Engineers Local
150 began picketing the Employer's entrances. Fol-
lowing the filing of a charge with the Board by the
resident outside contractor, Power Systems, Inc., in
Case 13-CD-273, Local 150 ceased picketing. The
Electrical Workers then began picketing and con-
tinued to picket the Employer until April 14, 1980,
when an injunction restraining such conduct was
obtained. The picket signs read:
Argonne National Laboratory
violating area standards,
Local 701, not an attempt
to organize.
On March 27, 1980, Power Systems filed a
charge against the Electrical Workers in Case 13-
CD-275. Notices of 10(k) hearings issued for the
above charges against the Electrical Workers and
Operating Engineers Local 150 and the two cases
were consolidated for hearing on April 14, 1980.
At the hearing, both unions disclaimed interest in
the disputed work and the hearing was adjourned.
By a letter dated May 20, 1980, the Regional Di-
rector dismissed the charges against both unions as
a result of their disclaimers.
On May 30, 1980, and July 10, 1980, due to fur-
ther proposals made by the Employer, DOE issued
further Davis-Bacon determinations on the IPNS
project. These determinations made no change in
the work assignments in dispute in this case. Nev-
ertheless, Plant Manager Bouie met with Union
Representatives O'Conner and Wood on May 30,
1980, and in mid-July 1980 to discuss the determi-
nations. At both meetings, O'Conner expressed the
view that more work on the cable tray and cable
should be "covered" under the Davis-Bacon deter-
minations and therefore assigned to the Electrical
Workers. Each time, Bouie specifically informed
O'Conner that there was no change from the previ-
ous Davis-Bacon determinations. Thus, the work
which is the subject of the instant dispute contin-
ued to be "non-covered" and assigned to the Em-
ployer's technicians.
On October 14, 1980, Bouie was summoned to
the resident construction trailer office to meet with
O'Conner. Bouie again explained the Davis-Bacon
determination to O'Conner but O'Conner claimed
the disputed work and threatened to picket the
Employer. On October 16, 1980, O'Conner met
with Attorney Lubben. After telling Lubben he
only cared about what the Employer's technicians
get paid, O'Conner made another claim for the dis-
puted work. O'Conner made no inquiry regarding
LOCAL 70!, BEW
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the technicians' wages at this meeting. After the
meeting, Lubben called DOE and requested that it
send a representative to observe the disputed work.
Subsequently, DOE personnel observed the work
and DOE reaffirmed its earlier determination that
the disputed work was "non-covered." Lubben
called O'Conner with this information on October
17, 1980. On October 20, 1980, Lubben received a
letter from the Electrical Workers attorney, Hugh
Arnold, concerning the Employer's alleged failure
to pay area standards. The following morning the
Electrical Workers pickets appeared along the pe-
rimeter of the Employer's property. The picket
signs stated:
Local 701
Argonne National Laboratory not
meeting area standards.
No attempt to organize any employees.
The picketing continued until November 14, 1980.
C. The Contentions of the Parties2
The Employer contends that a jurisdictional dis-
pute exists and there is reasonable cause to believe
that Section 8(b)(4)(D) of the Act has been violat-
ed. It further contends that the disputed work
should be awarded to employees represented by
the Machinists on the basis of the parties' collec-
tive-bargaining agreement, efficiency and economy
of operations, skills and safety, the Employer's past
practice and current assignment of the work; and
the Davis-Bacon Act determinations on the IPNS
project.
The Electrical Workers contends that there is no
reasonable cause to believe that it violated Section
8(b)(4)(D) of the Act because it does not claim the
disputed work for the employees it represents,
since the sole purpose of its picketing was to
inform the public that the Employer's employees
are receiving substandard wages as a result of the
Davis-Bacon Act determination.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the 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 not agreed upon
a method for the voluntary adjustment of the dis-
pute.
1. It is settled law that a jurisdictional dispute no
longer exists where "one of the competing unions
or parties effectively renounces its claim to the
2 The Electrical Workers did not submit a brief to the Board.
work." 3 However, the record indicates that since
November 1979 the Electrical Workers has claimed
the work in dispute and has challenged the validity
of the Davis-Bacon determinations concerning the
work assignments. Thus, in November and Decem-
ber 1979, the Electrical Workers business repre-
sentative, O'Conner, complained to the Employer's
plant manager about the Davis-Bacon determina-
tions. After a meeting with the Employer's repre-
sentatives, Lubben and Bouie, on March 4, 1980,
the Electrical Workers began picketing the en-
trances of the Employer sometime after March 14,
1980, and continuing until April 14, 1980. At the
subsequent hearing on a charge filed against Elec-
trical Workers for this conduct, the Electrical
Workers disclaimed interest in the work and the
hearing was adjourned. In light of the Electrical
Workers disclaimer, the Regional Director dis-
missed these charges against Respondent on May
20, 1980.
After the above series of events, the Electrical
Workers again made claims for the disputed work
and threatened to picket the Employer. When the
Employer confirmed that the work assignments
would remain constant, the Electrical Workers
again picketed the Employer from October 21,
1980, until November 14, 1980. The charge was
filed in the instant case, and the Electrical Workers
provided written notification to all parties that it
disclaimed any interest in the disputed work as it
had done in the previous case and filed a Motion
To Quash the Notice of Hearing on or about No-
vember 21, 1980. The Hearing Officer referred the
motion to the Board. In the circumstances present-
ed herein, we shall not give effect to the disclaimer
and we shall deny Respondent's motion.
The Board has found that a disclaimer of work
in a jurisdictional dispute cannot be given effect if
it appears that the charged union is engaging in the
practice of a hollow disclaimer for the purpose of
avoiding an authoritative decision on the merits.4
This is precisely the situation presented here. For
the second time a charge has been filed against the
Electrical Workers concerning the issue herein, and
for the second time it has disclaimed interest in the
disputed work. After its previous disclaimer, it
wasted little time to again claim interest in the dis-
puted work. It thus appears the Workers is at-
tempting to avoid any definitive resolution of the
s N.LR.B. v. Plasterers' Local nion No. 79, Operative Plasterers' and
Cement Masons' International Assn., AFL-CIO Texas State Tile and Ter-
razzo Co.], 404 U.S. 116, 134-135 (1971); see General Building Laborers'
Local Union No. 66 of the Laborers' International Union of North America
(Georgia-Pacific Corporation), 209 NLRB 611 (1974).
' Laborers' International Union of North America, Laborers' District
Council of Western Pennsylvania and Local 91a AFL-CIO (Brockway
Glass Company, Inc.), 226 NLRB 142, 143 (1976).
LOCAL 701, IBEW 1161
issues and is seeking to escape the consequences of
its unlawful actions. Under these circumstances,
such an empty disclaimer cannot be given effect
and, therefore, the Electrical Workers motion to
quash the notice of hearing is denied.
2. The Electrical Workers denies that its picket-
ing of the Employer's IPNS project was for pur-
poses violative of Section 8(b)(4)(D) and contends
that the sole object of the picketing was to protest
the substandard wages being paid to the Employ-
er's technicians as a result of the Davis-Bacon Act
determinations. In support of its position, the Elec-
trical Workers notes that, at all times it picketed
the Employer, it was advising the public that the
Employer failed to pay prevailing wages as re-
quired by the Davis-Bacon Act to its employees
performing certain construction work. However,
while this might support a finding that one object
of the picketing may have been to protest the Em-
ployer's wage scale, the Board must still determine
whether there is reasonable cause to believe that an
object of the picketing was also to force or require
the Employer to assign the work to individuals
represented by the Electrical Workers. One pro-
scribed object is sufficient to bring a union's con-
duct within the ambit of Section 8(b)(4)(D).5
The evidence discloses that the Electrical Work-
ers has continuously, through a series of meetings
with Attorney Lubben and Plant Manager Bouie,
asserted its claim regarding the work in dispute and
orally challenged the Davis-Bacon determinations
since November 1979. At each meeting with the
Employer, the Electrical Workers object was to
obtain the Employer's reassignment of the work in
dispute to the individuals it represents by pressur-
ing the Employer to redefine the work as "cov-
ered" under the Davis-Bacon Act. Both occasions
when Respondent picketed the Employer's prem-
ises in 1980 closely followed these abortive claims
for the disputed work. Additionally, there is no
evidence that Respondent ever made an inquiry
about the wages the Employer paid its technicians,
and there is no evidence to indicate the Employer
paid a substandard wage. In these circumstances,
we conclude that there is reasonable cause to be-
lieve that an object of the Electrical Workers pick-
eting was to force and require the Employer to
assign the work in dispute to individuals it repre-
sents, 6 and, accordingly, we find that a jurisdic-
5 See Cement Masons Local Union No. 577 (Rocky Mountain Prestress.
Inc.), 233 NLRB 923, 924 (1977); Painters and Drywall Finishers. Local
Union No. 79, affiliated with International Brotherhood of Painters and
Allied Trade. AFL-CIO (Richard O'Brien Plastering Co.), 213 NLRB 788,
790 (1974).
6 See Cement Masons Local Union No. 577, supra at 925; Sheet Metal
Workers International Association, Local Union No. 420. AFL-CIO (Rusco
Building Systems, a division of Rusco Industries, Inc.), 198 NLRB 1207,
1209 (1972).
tional dispute cognizable under Section 8(b4)(D)
exists.
3. No party contends and no evidence was pre-
sented at the hearing that there exists an agreed-
upon method for the voluntary resolution of the
dispute which is binding on all the parties. Accord-
ingly, we conclude 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) requires the Board to make an af-
firmative award of disputed work after giving due
consideration to and balancing all of the relevant
factors involved.7 The Board has held that its de-
termination in a jurisdictional dispute is an act of
judgment based on commonsense and experience in
weighing these factors. 8
The following factors are relevant in making a
determination of the dispute before us:
I. Collective-bargaining agreement
The Employer and the Machinists have been
parties to successive collective-bargaining agree-
ments since 1971 and are parties to a current col-
lective-bargaining agreement effective June 26,
1980. In this agreement, the Employer recognizes
the Machinists as the representative of all techni-
cians (health physics technicians and reactor opera-
tors) located at its Argonne facility. Although the
contract does not specifically mention the work in
dispute, in article II, section 2.4, the Employer
"agrees to continue its past practices with respect
to the assignment of work to employees covered
by this Agreement .... " The disputed work falls
within this category because the Employer has as-
signed similar work to its technicians since at least
1965. The Employer does not have a collective-
bargaining agreement with the Electrical Workers.
Thus, the existence of the collective-bargaining
agreement between the Employer and the Machin-
ists favors assignment of the work in dispute to the
employees represented by the Machinists.
2. Employer's assignment and past practice
As mentioned above, the Employer currently as-
signs the disputed work to its technicians represent-
ed by the Machinists. This assignment has been the
practice of the Employer at least since 1965 when
the Employer was working on the ZGS project.
The evidence indicates that the laying of cable
trays and cable from the AC disconnects to the
7N.L.R.B v. Radio & Television Broadcast Engineers Union. Local
1212, International Broherhod of Electrical Workers. AFL-CIO [Colum-
bia Broadcasting System]. 364 U.S. 523 (1961).
International Associatio,, of Machinists. Lodge Vo. 1743, AFL-CIO (J
A. Jonel Construction Comnpany). 135 NLRB 1402. 1411 (1962).
LOCAL 701, IBEW
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IPNS project presently being done by its techni-
cians is similar to the work they did on the ZGS
project. The evidence further indicates that the em-
ployees of the resident electrical contractor (who
are represented by the Electrical Workers) have
laid the cable tray and cable from the power sub-
stations to the AC disconnects on both the ZGS
and IPNS projects. Thus, the Employer's current
assignment and past practice favors assignment of
the work in dispute to employees represented by
the Machinists.
3. Economy and efficiency of operations
While the technicians who perform the disputed
work have done this work several years, the evi-
dence shows that the procedures for installation of
the cable trays and cable which is now being done
by the technicians does not differ greatly from the
techniques used by the Electrical Workers electri-
cians to lay cable trays and cable from the AC dis-
connects to the power substations outside the beam
line area. However, the evidence indicates that the
technicians have a good working knowledge of the
equipment, and do not require supervision because
they can read blueprints for the project. The evi-
dence also indicates that, in contrast to the electri-
cians represented by the Electrical Workers, the
technicians are permanent employees, and can
maintain the beam line for the duration of the pro-
ject. Thus, while electricians represented by the
Electrical Workers could perform the disputed
work, the factors of efficiency, continuity of the
work force, and economy of operations favor as-
signment of the work in dispute to the employees
represented by the Machinists.
4. Relative skills and safety
The evidence establishes that, in general, the em-
ployees represented by the Machinists are more
highly skilled in performing the type of work in
dispute than are the individuals represented by the
Electrical Workers. Most of the technicians have
an engineering background. The technicians are
able to read the markings on the cables, work with-
out supervision, and read the blueprints for the
project. They also know how to operate, maintain,
and alter their work. Nevertheless, the evidence
also indicates that it takes no particular skill to lay
cable trays and cable and these skills are common
to electrical installation. Regarding safety, the evi-
dence indicates that the technicians are instructed
on Argonne safety and operational procedures due
to the radiation dangers in the area. All Argonne
personnel have their exposure to radiation closely
monitored. Conversely, while the employees repre-
sented by the Electrical Workers could be instruct-
ed on safety and operation, they are more transient
and therefore cannot be as closely monitored for
exposure to radiation. Thus, while the difference in
skills does not necessarily favor assignment of the
disputed work to employees represented by either
the Machinists or the Electrical Workers, the
safety factors involved favor assignment of the
work to employees represented by the Machinists.
5. The Davis-Bacon Act determinations
A determination was made by DOE that the dis-
puted work is "uncovered" and thus assignable to
Argonne's technicians. Pursuant to its collective-
bargaining agreement with the resident electrical
contractor, the Electrical Workers is performing
the work DOE determined to be "covered" which
is laying cable tray and cable from the power sub-
station to the AC disconnects outside the beam line
area. Thus, the determinations made under the
Davis-Bacon Act favor assignment of the work to
employees represented by the Machinists.
Conclusion
Upon the record as a whole, and after considera-
tion of all relevant factors involved, we conclude
that the employees of the Employer who are repre-
sented by the Machinists are entitled to perform
the work in dispute. We reach this conclusion rely-
ing on the contract between the Employer and the
Machinists, the Employer's past practice and pres-
ent assignment of the work, efficiency, economy,
and control of operations, safety, and the Davis-
Bacon Act determinations. In making this determi-
nation, we are awarding the work in question to
the employees who are represented by the Machin-
ists, but not to that Union or its members. 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
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Employees of The University of Chicago
d/b/a Argonne National Laboratory, who are rep-
resented by Lodge No. 2458, International Associ-
ation of Machinists and Aerospace Workers, AFL-
CIO, are entitled to perform the work involving all
installation of cable tray and cable being performed
within an area known as the beam line, which ex-
tends between the Rapid Cycling Synchrontron
(RCS) and a neutron target in connection with the
Intense Pulse Neutron Source (IPNS) at the locale
at 9700 South Cass Avenue, Argonne, Illinois.
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LOCAL 701, IBEW 1163
2. Local 701, International Brotherhood of Elec- tional Brotherhood of Electrical Workers, shall
trical Workers, is not entitled by means proscribed notify the Regional Director for Region 13, in
by Section 8(b)(4)(D) of the Act to force or require writing, whether or not it will refrain from forcing
The University of Chicago d/b/a Argonne Nation- or requiring the Employer, by means proscribed by
al Laboratory to assign the disputed work to em- Section 8(b)(4)(D) of the Act, to assign the disput-
ployees represented by that labor organization. ed work in a manner consistent with the above de-
3. Within 10 days from the date of this Decision termination.
and Determination of Dispute, Local 701, Interna-