Local No. 1823 Electrical Workers

National Labor Relations Board - Board Decisions

May 29, 1975

218 N.L.R.B. 17 (N.L.R.B. 1975)

LOCAL NO. 1823 ELECTRICAL WORKERS
Local No. 1823, International Brotherhood of Electri-
cal Workers, AFL-CIO and Electro-Media of
Colorado, Inc. and Communications Workers of
America, AFL-CIO. Case 27-CD-173
May 29, 1975
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENIUNS, AND
KENNEDY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges initially filed on October 3, 1974, by
Electro-Media of Colorado, Inc. (herein called
Electro-Media), alleging that Local No. 1823, Inter-
national Brotherhood of Electrical Workers, AFL-
CIO (herein called the Electrical Workers or the
Respondent), had violated the Act by engaging in
certain proscribed activity with an object of forcing
or requiring the assignment of certain work described
below to employees represented by the Electrical
Workers rather than to employees represented by
Communications Workers of America, AFL-CIO
(herein called the Communications Workers or
CWA).
A hearing was held before Hearing Officer Allison
E. Nutt on December 16, 1974. 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 on the issues.
Thereafter, the Employer, the Respondent, and the
Communications Workers filed briefs which have
been duly considered.
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 rulings made by the
Hearing Officer at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, including the
briefs of the parties, the Board makes the following
findings:
I. THE BUSINESS OF THE EMPLOYER
The Employer, a Colorado corporation, is engaged
in the business of installing sound systems and
equipment, including telephones. It yearly receives
goods valued at more than $50,000 directly from
1 The purchase order provides that the Employer furnish the sound and
T.V. systems complete and operating as per plans, specifications, and
addendums , and that the systems include : an intercom system, an
administrative communication system , as per redesign by the electrical
engineer ; a classroom speaker assembly, an auditorium sound system, a
218 NLRB No. 5
17
outside the State of Colorado, and in October 1974 it
was performing certain work under a contract with
Edward Electric Construction Company in the
approximate amount of $19,000. We find that the
Employer is engaged in commerce within the
meaning of the Act, and that it will effectuate the
purposes of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the
Electrical Workers and the Communications Work-
ers are labor organizations within the meaning of
Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is generally engaged in providing
services in several audiovisual fields, described as
closely allied, yet individually different. These
include the audio field, where it designs, sells, and
installs all types of audio, sound reinforcement, and
intercommunication equipment; the interconnect
field, which includes equipment installation design
and the sale and installation of telephone PBX key
equipment and related telephone products; the
multimedia audiovisual field, which involves the
design, sale, and installation of audio and video
equipment similar to the telephone because of its
similar switching equipment and random-access
digital retrieval systems; the audiovisual and instruc-
tional field, including language laboratories and
learning systems, other areas of learning such as
driver-training line equipment and video surveil-
lance; and the custom equipment field, including
custom fabrication and design of certain status
equipment involving solid state digital read-out types
of circuitry. Its operations cover Colorado and
portions of Wyoming, Nebraska, New Mexico, and
Arizona.
In the instant proceeding, the Employer is engaged
as a subcontractor to furnish, install, and make final
connection to console and auditorium sound and
T.V. equipment at the Thornton high school project
at Thornton, Colorado, pursuant to a purchase
order' issued by Edward Electric Construction
Company, the prime contractor, and to maintain the
same during a 1-year warranty period following
installation. Although Edward is obligated to per-
form initial wirepulling and conduit installation
work, the Employer's technicians may supervise the
classroom projector system, a music room system , and a television system.
The Employer is to furnish all equipment , components, cable, etc., to insure
an operating system and to make final connection to console and
auditorium systems. Edward , on the other hand , was to pull all cable and
mount and connect speakers.
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Edward electricians performing that work. The
Employer provides the labor for the work it performs
at the Thornton project.
On -August 14, 1974, the Employer's technician,
Roland Frederickson, commenced the final hookup
work on the console, by uncoiling the house system
cable to prepare it for hooking down into the
console. At this point, his work was interrupted, and
he was unable to perform the remaining hookup
tasks, which included putting the tags in sequence,
dressing them into the console, soldering the wires
down, tying them off, dressing them, and trouble-
shooting his work.
As to the cause of the interruption, Edward J.
Zaker, the Respondent's business representative,
testified that pursuant to instructions from Dennis
Thuis, the Respondent's business manager, he visited
the Thornton project with a sign and leaflets stating
that Electro-Media was paying substandard wages.
When he arrived, he conferred with Gene Willis, an
Edward foreman and told him that Electro-Media
was paying substandard wages and that his instruc-
tions were to display the sign and pass out the leaflets
at the Employer's gate "if Electro-Media stayed on
the job." Willis replied that Zaker was, in effect,
requiring the removal of Frederickson inasmuch as
he, Willis, would not shut down the Thornton project
for one man. While Zaker waited; Willis absented
himself and on his return told Zaker that Frederick-
son was leaving the project. Zaker thereupon
withdrew from the' premises.
Frederickson's version of the interruption was, that
while at work on the console on the first day, he was
interviewed by Willis; one Clark, Respondent's job
steward for` Edward; Jeff Grazzi, a member of the
Respondent; and Zaker. Frederickson claimed that
he overheard Zaker say to 'Grazzi that the Employer
would have to leave the job, which statement Zaker
denied. On the following day, when Frederickson
returned to the jobsite, Willis told Frederickson that
he was to supervise the work of an electrician who
would do the hookup work. Frederickson observed
the electrician for the remainder of that day and part
of the next day and during that period provided him
with a soldering iron and explained the sequence of
the cables and how to attach them. It appears that
Frederickson did not perform any of the work tasks
himself. In this regard, Dennis L. Thuis, the
Respondent's business manager, testified that imme-
diately following the commencement of Frederick-
son's work on the project he spoke to Mr. Wright of
Edward regarding permission for Frederickson to
supervise the installation and conceded suggesting to
Wright that the Employer could come out on the
project and "supervise the people that did it, whoever
did it." Thuis, on the other hand, denied that he or
the Respondent was seeking the Communications
Workers represented jobs at the Thornton jobsite.
B. The Work in Dispute
The work here in dispute involves the installation
and maintenance of the console and auditorium
sound and T.V. systems and other installation and
maintenance work at the Thornton High School
project in Thornton, Colorado, pursuant to Electro-
Media's subcontract with Edward Electric Construc-
tion Company.
C. The Contentions of the Parties
The Respondent contends that there is no reason-
able cause to believe that it violated Section
8(b)(4)(D) of the Act on the ground that at no time
did it, nor does it now, claim the disputed work for
the employees it represents, and that at all material
times herein its sole purpose has been merely to
inform the public of substandard wage rates alleged-
ly being paid by Electro-Media. In support of its
contention it urges that the reassignment of the work
by Edward did not result in the award of work to its
members and no picketing occurred.
The Employer contends that it assigned the
connection work to employees represented by the
Communications Workers because it was bound to
do so by its collective-bargaining contract with the
CWA and, further, that the Respondent is unable to
furnish qualified workers for the final connection
work because the sound systems, individually tai-
lored to the customers' needs, are first assembled in
its shop before installation and therefore require that
the assembly workers perform the installation work.
The Communications Workers claims the work on
the basis of its collective-bargaining contract with the
Employer.
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 (1) there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated, and (2) the parties have not agreed upon
methods for the voluntary adjustment of the dispute.
The Respondent denies that its threat to picket the
Thornton School project was for purposes violative
of Section 8(b)(4)(D) and contends that its sole
picketing object was to protest the Employer's
substandard wages. In support of its contention,
Thuis testified that he had a survey made of Electro-
Media's wage rates, which purportedly indicated that
its rates were substandard. However, it appears that
the survey was outdated, in that it considered only
LOCAL NO. 1823 ELECTRICAL WORKERS
Electro-Media's earlier wage rates, which were flat
rates, and did not reflect its current wage rates, which
are by indices and categories. Thuis in fact testified
that he did not know what Electro-Media's wage
rates were in August 1974, when the instant dispute
occurred, and that one would have to be "an
engineer, or at least a design person to get the rate." 2
Nor did he investigate or compare the several fringe
benefits in the current Electro-Media collective-
bargaining contract with ' those in the Electrical
Workers contract with sound, communications and
telephone interconnect companies of Denver, Colo-
rado, offered by it for wage rate comparisons.
In our view, these facts, coupled with the above-
described testimony relative to Frederickson's dis-
placement from his job, clearly establish reasonable
cause to believe that an object of the Respondent's
threat to picket was to force the removal, from their
installation and maintenance work performed for the
Employer at the Thornton project, of employees
represented by the Communications Workers, and
thereby to force the reassignment of that work from
employees of the Employer to members of the
Respondent.
The parties have not agreed upon methods for the
voluntary adjustment of the dispute.
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work after
giving due consideration to various relevant factors.
As the Board has stated, the determination in a
jurisdictional dispute case is an act of judgment
based on commonsense and experience in weighing
these factors .3 The following factors are relevant in
making a determination of the dispute before us.
1. Certification and collective-bargaining
contracts
Neither of the labor organizations involved herein
has been certified by the Board. However, the
Employer and the Communications Workers have
maintained collective-bargaining relations for several
years and are currently parties to a contract effective
from April 1, 1974, to March 31, 1977, which covers
the employees who have been performing the
disputed work. The current subcontract between
Edward and Electro-Media requires Electro-Media
to furnish the particular equipment described and
provide the labor for the installation and mainte-
nance thereof at the Thornton High School project.
2 See Painters & Drywall Finishers, Local No. 79, affiliated with
International Brotherhood of Painters and Allied Trades, AFL-CIO (Richard
O'Brien Plastering Co), 213 NLRB No. 106 (1974).
3 N.L.R.B v. Radio and Television Broadcast Engineers Union, Local
19
Since its inception in 1969, the Employer has hired
no employees represented by the Electrical Workers
and has never had collective-bargaining agreements
with that Union. Accordingly, we fmd that the
contractual relationship between the Communica-
tions Workers and the Employer favors the Commu-
nications Workers.
2. Company practice
The Employer's past and present practice has been
to assign work of the type here in dispute to its
employees who are represented by the Communica-
tions Workers. Accordingly, we find that the compa-
ny practice favors assignment to employees repre-
sented by the Communications Workers. As to the
area practice, sound system installation work in the
Denver area is performed by seven or eight employ-
ers under contract with the Electrical Workers, by
two employers under contract with the Communica-
tions Workers, and by some nonunion employers.
Area practice thus appears inconclusive, and we
therefore find that this factor favors neither group of
employees.
3. Skills, efficiency, and economy of
operations
Employees represented by the Communications
Workers have demonstrated to the Employer's
satisfaction, since its inception in 1969, that they
possess the knowledge and skills necessary to
perform the disputed work in a highly competent
fashion.
The Employer uses its own technicians to perform
the work at the Thornton project because of their
firsthand knowledge of the complexities of the
equipment to be installed, of the manufactured
components comprising the equipment, which they
obtain from the manufacturer, and of the design,
fabrication, installations, and maintenance of the
systems, all of which they perform. According to the
Employer, this use of its employees also increases its
efficiency, as evidenced by the fact that in the
Thornton project one of its employees designed and
installed a detection device known as a Vandalarm
system which, because it is not a standard compo-
nent on the console, thereby demands a type of work
that requires more than mere technical installation
skill but also particular knowledge of this system.
As to economy of operations, the Employer points
out that its subcontract with Edward requires it to
maintain the installed systems at the Thornton
1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 U S. 573 (1961); International Association of
Machinists, Lodge No 1743, AFL-CIO (J. A. Jones Construction Company),
135 NLRB 1402 (1962).
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
project for a 1-year warranty period, a task which it
contends can obviously be performed more economi-
cally by the employees who installed it. The
Employer further contends that the Respondent's
conduct causing an employee of the Employer to be
ousted from his job and forced to supervise an
electrician hired to perform his work, would, if
continued, necessarily decrease the Employer's effi-
ciency and increase its labor costs.
On the basis of the foregoing, we conclude that the
factors of specialized skills, efficiency, and economy
strongly favor award of the disputed work to
employees represented by the Communications
Workers.
5. The Employer's assignment of work
We find that the Employer's assignment of the
disputed work to employees represented by the
Communications Workers was based on sound
business considerations, including economy, efficien-
cy, and maintenance of a stable work force.
Conclusion
Upon the record as a whole, and after full
consideration of all relevant factors involved, we
conclude that the Employer's employees who are
represented by the Communications Workers are
entitled to the work in dispute. In reaching this
conclusion, we have particularly relied on the
Employer's assignment of the work to its employees;
the fact that this assignment is consistent with the
Employer's past practice and its current collective-
bargaining agreement with the Communications
Workers; the fact that employees represented by the
Communications Workers possess the requisite skills
to perform the work; and the efficiency and economy
of operations which result from such assignment. We
shall, therefore, determine the dispute before us by
awarding the work involved herein to those employ-
ees represented by the Communications Workers,
but not to that Union or its members.
Scope of Award
The Communications Workers requests a broad
work award, contending that it is necessary to avoid
similar disputes which are likely to occur in the
future at other construction sites on which it is
performing similar installation work. We do not find
the record evidence herein sufficient to establish a
pattern of misconduct suggestive of a likelihood that
this dispute will extend to other jobsites or recur in
the future. Accordingly, we do not believe that the
broad order requested by the Communications
Workers is appropriate at this time and, therefore,
the determination herein shall apply only to the
Thornton High School project presently under
consideration.
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 Electro-Media of Colorado, Inc.,
represented by Communications Workers of
America are entitled to install and maintain the
console and auditorium sound and T.V. systems and
other aforedescribed installation and maintenance
work involved at the Thornton High School project
in Thornton, Colorado.
2. Local No. 1823, 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 the assignment of the above work to
its members or to employees it represents.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local No. 1823,
International Brotherhood of Electrical Workers,
AFL-CIO, shall notify the Regional Director for
Region 27, in writing, whether it will refrain from
forcing or requiring, by means proscribed by Section
8(b)(4)(D) of the Act, the assignment of the work in
dispute to employees represented by the Electrical
Workers, rather than to employees represented by
the Communications Workers.