Local Un. No. 44, Electrical Wkrs.

National Labor Relations Board - Board Decisions

Jun 13, 1974

211 N.L.R.B. 517 (N.L.R.B. 1974)

LOCAL UN. NO. 44, ELECTRICAL WKRS. 517
Local Union No. 44, International Brotherhood of
Electrical Workers, AFL-CIO and The Montana
Power Company.' Case 19-CD-223
in commerce within the meaning of Section 2(6) and
(7) of the Act, and that it will effectuate the purposes
of the Act to assert jurisdiction herein.
June 13, 1974
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed on December 18, 1973, by The
Montana Power Company, alleging that Local
Union No. 44, International Brotherhood of Electri-
cal Workers, AFL-CIO (hereafter Local 44), 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 Local 44 rather than to
employees represented by Local Union 375, Interna-
tional Union of Operating Engineers, AFL-CIO
(hereafter Local 375).
A hearing was held before Hearing Officer Robert
J. Janowitz on February 7, 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. All parties waived filing of
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 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, the Board
makes the following findings:
1. THE BUSINESS OF EMPLOYER
The parties stipulated, and we find, that The
Montana Power Company is a public utility incorpo-
rated in the State of Montana, where it is engaged at
several locations within the State providing gas,
electric, and water service. During the past year, a
representative period, the Employer's gross volume
of business exceeded $500,000 and, during the same
period, it purchased goods and materials from
sources directly outside the State of Montana valued
in excess of $50,000.
Accordingly, we find that the Employer is engaged
I The Employer's name appears as amended at the hearing.
2 The remaining divisions are headquartered in Billings, Bozeman, Great
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Local 44
and Local 375 are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The parties stipulated that there is a work dispute
as defined in Sections 10(k) and 8(b)(4)(D) of the Act
and that this dispute concerns the assignment of the
following work task: The digging and backfilling, by
heavy equipment, of electrical ditches used solely for
the burying of the underground electrical cables
within the geographical boundaries of The Montana
Power Company's Butte division.
B. Background and Facts of the Dispute
As noted previously, the Employer provides elec-
tric, gas, and water services for the State of Montana.
The Employer's statewide system is divided into
seven administrative divisions with this proceeding
involving only the Employer's Butte, Montana,
division.2 The Butte division is divided into electric
and gas departments with members of Local 44
assigned to the electric department and members of
Local 375 assigned to the gas department. Local 44
has members operating in all of Employer's seven
divisions and its collective-bargaining agreement
with Employer is a statewide one. Local 375 has
members operating only out of the Butte and
Missoula divisions and has separate collective-bar-
gaining agreements with Employer covering these
employees.
In order to provide its services, the Employer is
often called upon to install underground electrical
facilities and gas lines, which, necessarily, entails the
digging and backfilling of ditches into which these
systems are placed.
Three types of ditches are dug depending upon the
type of system to be installed; a ditch for electrical
facilities only, a ditch for gas lines only, and a "joint
use ditch" for the installation of both gas and electric
systems. This dispute does not involve the latter two
types of ditches, the digging of which, Local 44
concedes, is within the jurisdiction of Local 375. All-
electric ditches constitute approximately 15 percent
of the Employer's total ditchdigging. Additionally,
Falls, Helena , Lewiston, and Missoula.
211 NLRB No. 31
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because exclusively electrical ditches are smaller than
other kinds, 50 percent of the all-electric ditches are
dug by handheld equipment. Local 375 concedes that
when handheld equipment is to be utilized in the
digging of an exclusively electrical ditch, such work is
properly within Local 44's jurisdiction. Thus the
dispute involves only the digging and backfilling of
exclusively electrical ditches by heavy equipment,
which Local 375 contends is equipment upon which
a driver is seated.
Placing electrical facilities underground did not
take place in the Butte division until the mid-1960's.
Since that time the disputed work has been per-
formed by members of Local 375. However, in 1971,
during the course of renegotiating their statewide
collective-bargaining agreement , the Employer and
Local 44 amended the provisions on "Work Rules"
to read: "Trenching and backfilling of trenches when
done by employees of the Company shall be done by
employees covered by this Agreement whenever such
trenches are to be used exclusively for electric
facilities."
In the summer of 1973, a member of Local 44
working in the Butte division filed a grievance
protesting the assignment of heavy equipment to a
member of Local 375 working on an exclusively
electrical ditch. Several meetings were held among all
the parties in an attempt to resolve the dispute. With
neither Local desiring to be bound by the arbitration
machinery in the other's contract, attempts to
voluntarily adjust the matter broke down. On
December 10, 1973 , a meeting was held between
representatives of both the Employer and Local 44
during which the business agent for Local 44
informed Employer's representatives that failure to
assign the disputed work to members of Local 44
would result in a strike. The following week,
Employer filed the charge in this proceeding. Since
that time members of Local 44 have dug exclusively
electrical ditches but this work has not been
performed by the operation of heavy equipment. All
parties stipulated at the hearing held in this proceed-
ing that there is a jurisdictional dispute within the
meaning of Sections 10(k) and 8(b)(4)(D) of the Act.
C. Contention of the Parties
Employer does not take a formal position that one
Local should be awarded the work rather than the
other, but does contend that an award to Local 44
would be more economical insofar as such an award
would eliminate the possibility of Local 44 workers
having to wait for an operating engineer to arrive at
the worksite, and provide greater flexibility in,
determining daily work assignments. The Employer
further contends that there would be no diminution
of work for the operating engineers, currently three
in number, because there is ample work for them in
the gas department.
Local 44 argues that its claim to the disputed work
is consistent with both the terms of its collective-
bargaining agreement and industry practice. It also
emphasizes the Employer's practice in its six other
divisions as supporting its claim to the disputed
work. Finally, Local 44 contends that its members
are more aware of the potential hazards in working
with energized electrical lines and, therefore, safety
considerations militate in favor of awarding the work
in dispute to its members.
Local 375 contends that its collective-bargaining
agreement covers the work in dispute as witnessed by
the Employer's past practice in the Butte division. It
disputes Local 44's view that safety considerations
favor either Union and points to the greater degree
of skill its members have accumulated through
experience in performing the work.
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.
The record indicates that after Employer had
assigned the disputed work to a member of Local
375, a representative of Local 44, on or about
December 10, 1973, threatened Employer with a
work stoppage with an object of forcing or requiring
the Employer to assign the disputed work to
members of Local 44 rather than to members of
Local 375. Accordingly, we conclude that reasonable
cause exists to believe Section 8(b)(4)(D) of the Act
has been violated and that the dispute is properly
before the Board for determination pursuant to
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 .3 As the
Board has stated, the determination in a jurisdiction-
al dispute is an act of judgment based on common-
sense and experience in weighing these factors.4
The following factors are relevant in making a
determination of the dispute before us:
3 N.L R.B v . Radio and Television Broadcast Engineers Union , Local 4 International Association of Machinists , Lodge No. 1743, AFL-CIO (J
1212, International Brotherhood of Electrical Workers, AFL-CIO, 364 U S. A Jones Construction Company), 135 NLRB 1402.
573 (1961).
LOCAL UN. NO. 44, ELECTRICAL WKRS. 519
1. Certification and collective-bargaining
agreements
Neither labor organization herein has been certi-
fied by the Board as the collective-bargaining repre-
sentative for a unit of the Employer's employees.
The relevant portions of Employer's collective-
bargaining agreement with Local 44 are set out under
section III, supra. The collective-bargaining agree-
ment between Employer and Local 375 contains the
following language: "All employees of Montana
Power Company performing work as portable
equipment operators in Silver Bow County, Montana
shall be members of Local Union No. 375.'15 Local
375 contended at the hearing that "portable equip-
ment" means equipment upon which a driver is
seated. In view of the Employer's past assignment of
the disputed work to members of Local 375, who
customarily operate heavy equipment upon which a
driver is seated, we conclude that interpretation is
reasonable. However, the Employer also concedes
that the relevant language of both agreements is
apparently inconsistent insofar as either could
support an assignment of the disputed work. In
agreement with the Employer, we conclude that
neither Local has a greater claim to work by virtue of
its applicable collective-bargaining agreement.
2. Industry practice
There is testimony by representatives of Local 44
that other public utilities in the area have labor
agreements with sister locals which assign the
disputed work to members of those locals. Testimony
was also received relative to other utility contractors
who have agreements with Local 44. It appears that
these contractors also assign the work in dispute,
pursuant to those contracts, to members of Local 44.
Upon the foregoing, we conclude the industry
practice favors an award to the members of Local 44.
3. Skills and training, safety
Local 44 and the Employer have a statewide joint
apprenticeship program whereby operation of the
equipment involved is taught to apprentices. This
program is not, however, established in the Butte
division, although there is testimony which indicates
that the program could easily be adopted in the Butte
division. While Employer and Local 375 have no
formal training programs, Employer's witness testi-
fied that the Local 375 members are engaged in a
program where its members learn through experi-
ence.
Both Locals have at all times demonstrated an
ability to utilize the equipment and, in agreement
with the Employer, we conclude that the relative
skills of both are similar and do not favor an award
to either party.
As noted previously, Local 44 contends that safety
considerations favor an award to its members
because the latter are more familiar with the
potential effects of working with energized electrical
facilities; however, the record also indicates that the
operation of the equipment by the members of Local
375 has never resulted in any accidents incident to
performance of the disputed work. We do not believe
that the type of work involved here requires an
intricate knowledge of the potential hazards involved
and, on the basis of both parties' past performance of
the disputed work, we conclude that safety consider-
ations do not favor either party.
4. Economy
Before the outbreak of this dispute, members of
Local 375 performed the disputed work. The Em-
ployer contends, however, that its operation would
be more economical if members of Local 44 were
awarded the work insofar as such an award would
provide greater flexibility in scheduling job tasks and
eliminate the possibility that members of Local 44,
who install all electric facilities, might be unable to
perform installations if an operating engineer were
not available at the time. The Employer also assures
that an award to members of Local 44 would not
result in significant diminution of work tasks for
Local 375 members who would still perform the
disputed work when all-gas or joint use ditches must
be dug. We conclude, then, that economic considera-
tions favor an award to members of Local 44.
5. Employer's assignment, preference, and
past practice
The Employer, pursuant to its agreement with
Local 375, assigned the disputed work to the latter's
members up until the outbreak of this dispute. Since
that time, the digging of exclusively electric ditches
has been performed by members of Local 44 utilizing
handheld equipment. The Employer's Missoula
division is the only other division where operating
engineers are employed and, in that division, the
disputed work is performed by members of Local 44.
Local 375 contends that the assignment of such work
to members of Local 44 in the Missoula division is
based on a difference in contract language appearing
in the collective-bargaining agreement covering
operating engineers in that division, but that agree-
ment is not in the record.
The Employer makes no formal request for an
5 Butte , Montana, is in Silver Bow County.
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
award to either party but, as indicated above, does
contend that it would be more economical if the
disputed work were awarded to members of Local
44. Apparently, then, the basis for the Employer's
initial assignment to Local 375 members derives
from the Employer 's view that any other assignment
would be in derogation of its collective -bargaining
agreement with Local 375. We have, however,
previously concluded , as the Employer concedes,
that the language of the competing collective-bar-
gaining agreements is irreconcilable so that , while the
Employer's previous assignment favors the members
of Local 375, the emphasis to be accorded that
assignment is tempered by the Employer's preference
and customary practice in its other divisions.
Conclusion
Upon the entire record in this case, and after full
consideration of all relevant factors involved, we
conclude , on balance , that Employer's employees
represented by Local 44 are entitled to perform the
work in dispute . We reach this conclusion based on
several considerations , among them the Employer's
practice in its other divisions of allocating the
disputed work based upon the type of facilities to be
installed , the added efficiency and economy such an
award would permit, the area practice of awarding
such work to members of Local 44, and the fact that
such an award will not result in any significant
diminution of work tasks for Local 375. We shall,
therefore , determine the existing jurisdictional con-
troversy by awarding the work in dispute at the
Employer's Butte division to its employees represent-
ed by Local 44, but not to that Union. Our 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
hereby makes the following Determination of Dis-
pute:
Employees of The Montana Power Company who
are represented by Local Union No. 44, Internation-
al Brotherhood of Electrical Workers, AFL-CIO, are
entitled to perform with heavy equipment, the work
of digging and backfilling of electrical ditches used
solely for the burying of underground electrical
cables within the geographical boundaries of The
Montana Power Company's Butte division.