Electrical Workers Local 125 (Loy Clark Pipeline Co.)

National Labor Relations Board - Board Decisions

Oct 22, 1997

324 N.L.R.B. 809 (N.L.R.B. 1997)

809
324 NLRB No. 133
ELECTRICAL WORKERS IBEW LOCAL 125 (LOY CLARK PIPELINE CO.)
1 Dates refer to 1997 unless otherwise indicated.
International Brotherhood of Electrical Workers,
Local 125, AFL–CIO and International Union
of Operating Engineers, Local 701, AFL–CIO
and Loy Clark Pipeline Company
International Union of Operating Engineers, Local
701, AFL–CIO and Loy Clark Pipeline Com-
pany. Cases 36–CD–207 and 36–CD–209
October 22, 1997
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On April 8, 1997,1 International Union of Operating
Engineers, Local 701, AFL–CIO (Local 701) filed a
charge in this Section 10(k) proceeding against Inter-
national Brotherhood of Electrical Workers, Local 125,
AFL–CIO (Local 125), alleging that Local 125 vio-
lated Section 8(b)(4)(D) of the National Labor Rela-
tions Act by engaging in proscribed activities with an
object of forcing the Employer, Loy Clark Pipeline
Company, to assign certain work to employees rep-
resented by Local 125 rather than to employees rep-
resented by Local 701. On May 2, 1997, Loy Clark
Pipeline Company (the Employer) filed a charge in this
proceeding against Local 701, alleging that it violated
Section 8(b)(4)(D) of the Act by engaging in pro-
scribed activities with an object of forcing it to con-
tinue to assign certain work to employees represented
by Local 701 rather than to employees represented by
another union. The hearing was held on June 3 and 4,
before Hearing Officer Leora Watkins.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.
I. JURISDICTION
The parties stipulated that the Employer, an Oregon
corporation, is engaged in the business of utility con-
tracting with its principal office in Beaverton, Oregon,
where during the past year, a representative period, it
received revenues in excess of $50,000 for services
performed directly for customers outside the State of
Oregon. We find that the Employer is engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
The parties stipulated, and we find, that International
Brotherhood of Electrical Workers, Local 125, AFL–
CIO, and International Union of Operating Engineers,
Local 701, AFL–CIO, are labor organizations within
the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer provides a broad range of support
services necessary in utility construction work, such as
paving, saw cutting, concrete work, asphalt paving,
drilling, and equipment rental. To accomplish these
various jobs, it employs approximately 225 employees,
including teamsters, laborers, and steamfitters-plumbers
in addition to operating engineers and electricians. The
Employer is party to several collective-bargaining
agreements, including a building and trades agreement,
a mainline agreement, and a distribution agreement
covering work done by these various crafts.
The Employer performed some jobs under ‘‘off-the-
dock’’ contracts with public utilities, including Port-
land General Electric (PGE), whereby it would provide
manpower and equipment as needed to supplement the
utilities’ own work crews to complete a particular task.
The Employer’s president, Clark, testified that when
requested to provide such services he would decide
which craft and type of equipment to dispatch to best
fulfill the ‘‘off-the-dock’’ work order.
In early February, the Employer was asked to pro-
vide ‘‘off-the-dock’’ excavation services at a PGE job.
When the Employer’s Local 701-represented operating
engineer arrived at the site, however, a Local 125 fore-
man refused to allow him to perform the work because
he did not possess a Local 125 card. Local 125 Busi-
ness Manager Bill Miller thereafter told Clark that by
sending a non-Local 125-represented employee to do
the work, he had ‘‘upset the apple cart’’ and that there
were going to be a lot of problems. Later in February,
another Local 701 operating engineer was also denied
permission to perform work at a PGE-job location.
Miller told Clark that by sending the wrong people to
these worksites, the Employer was not honoring its
agreements and that he would so inform other employ-
ers (utilities) with which Loy Clark sought to do busi-
ness. Miller stated further that he would tell such em-
ployers that Loy Clark was no longer in compliance
with its collective-bargaining agreement with Local
125. Thereafter, Miller advised Clark that the situation
could be resolved if the Local 701 operators also held
a Local 125 card, i.e., became Local 125 members. In
a series of letters and conversations, the Employer and
Local 125 attempted to work out the mechanics of
such dual membership. By letter dated April 9, Local
701 notified the Employer that it would not passively
allow its membership and work to be stolen and
planned to take a variety of steps, including ‘‘appro-
priate economic action against the Company’’ to force
it to comply with its obligations to Local 701.
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810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. Work in Dispute
The disputed work involves the digging, placement
of fill, and backfilling of trenches in the public utility
easements related to the underground installation of
electric power lines and electric power vaults for Port-
land General Electric and other utility companies.
C. Contentions of the Parties
The Employer placed in the record evidence estab-
lishing that Respondent Local 125 violated Section
8(b)(4)(D) of the Act by threatening, in writing and in
conversation, to take actions which would result in the
Employer’s losing business unless it used Local 125-
represented employees to perform the work in dispute.
The Employer also presented evidence in support of its
contention that Respondent Local 701 violated Section
8(b)(4)(D) of the Act by threatening to engage in ‘‘ap-
propriate economic action’’ against the Employer if it
reassigned the disputed work away from employees it
represented. The Employer’s president, Clark, testified
that the assignment of the disputed work to employees
represented by Local 701 was in conformance with its
long-established past practice as well as with its collec-
tive-bargaining agreement with Local 701, and was
more efficient and economically sound than assigning
the work to Local 125-represented employees.
At the end of the second day of the hearing in this
proceeding, counsel for Local 125 stated on the record
that the parties had engaged in off-the-record discus-
sions and agreements which resulted in Local 125
‘‘agree[ing] that Loy Clark . . . can assign the work
that is described in the Notice of Hearing to the Inter-
national Union of Operating Engineers, Local #701.
And IBEW Local #125 will not dispute the assignment
of that work to the operating engineers, [or] threaten
Loy Clark Pipeline for assigning that work to the oper-
ating engineers . . . .’’
In addition, in response to the hearing officer’s reci-
tation of the understanding which had been reached, all
parties stated on the record that they expected that the
Board would award the disputed work to employees
represented by Local 701. The parties waived the filing
of briefs.
D. Applicability of the Statute
Before the Board may proceed with a determination
pursuant to Section 10(k) of the Act, it must be satis-
fied that there is reasonable cause to believe that Sec-
tion 8(b)(4)(D) has been violated and that the parties
have not agreed on a method for the voluntary adjust-
ment of the dispute.
As stated above, unrefuted testimony and documen-
tary evidence was presented at the hearing establishing
that Respondent Local 125 sought to have the disputed
work reassigned to employees it represented, and that
it warned the Employer that by giving the work to
Local 701-represented employees, there were going to
be a lot of ‘‘problems.’’ It is also unrefuted that Local
701 notified the Employer that if it lost the disputed
work, it would take unspecified ‘‘economic action’’
against the Employer in furtherance of the interests of
the employees it represented in obtaining the work.
We find reasonable cause to believe that violations
of Section 8(b)(4)(D) have occurred and that there ex-
ists no agreed-on method for voluntary adjustment of
the dispute within the meaning of Section 10(k) of the
Act.
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 frequently stated, the determination in a
jurisdictional dispute case is an act of judgment based
on common sense and experience in weighing these
factors. The following factors are relevant in making
a determination of the dispute before us.
1. Board certification and relevant collective-
bargaining agreements
The parties stipulated at the hearing that there is no
outstanding Board certification relevant to the work in-
volved in this proceeding of either International Broth-
erhood of Electrical Workers, Local 125, AFL–CIO, or
International Union of Operating Engineers, Local 701,
AFL–CIO.
The Employer is party to collective-bargaining
agreements with both Local 701 and Local 125. As a
member of the Distribution Contractors Association,
the Employer is party to the National Distribution and
Utilities and Maintenance Agreement with Inter-
national Union of Operating Engineers, with which
Local 701 is affiliated. That agreement covers, inter
alia, the ‘‘repair, maintenance, construction, installa-
tion, treating and reconditioning of pipeline systems
. . . as well as cable, conduit, telephone lines, power
lines, . . . commonly referred to as ‘distribution or
utility work,’ defined as follows: generally speaking,
from the first metering station, connection similar or
related facility, at which point mainline pipeline or
cable construction ceases.’’ Through its affiliation with
the Northwest Line Constructors Chapter of the Na-
tional Electrical Contractors Association, the Employer
is also party to a collective-bargaining agreement with
Local 125 covering, inter alia, ‘‘electrical underground
construction work’’ including ‘‘not only new installa-
tion work but shall also govern the repair, mainte-
nance, . . . the handling and operating of all equip-
ment used . . . on the job site . . . .’’ As each labor
organization has a collective-bargaining agreement
with the Employer which arguably supports its claim
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811ELECTRICAL WORKERS IBEW LOCAL 125 (LOY CLARK PIPELINE CO.)
to the work in dispute, this factor does not favor either
of the competing unions.
2. Employer preference and past practice
The Employer’s president, Clark, testified that the
Employer prefers that employees represented by Local
701 perform the disputed work, in accordance with its
original assignment. He also testified that the Em-
ployer has historically performed this type and similar
work on jobsites in the area using Local 701-rep-
resented employees. Accordingly, we find that the fac-
tor of employer preference and past practice favors an
award of the disputed work to employees represented
by Local 701.
3. Area and industry practice
William H. Moe, owner of W.G. Moe & Sons, a
general excavating contracting company, as well as the
president of the Oregon/Southwest Washington branch
of the Associated General Contractors, testified that
throughout his 30 years in the business, his company
has performed work of the same type as that in dispute
for area utility companies using Local 701-represented
employees. Respondent Local 125 presented no coun-
tervailing evidence. Thus, this factor favors an award
of the disputed work to employees represented by
Local 701.
4. Relative skills
The Employer presented evidence that Local 701-
represented employees possess the skills required to
perform the work in dispute and that the Employer and
the contractors for whom the work was being per-
formed have been satisfied with the employees’ per-
formance. Local 125 presented no affirmative evidence
regarding the relative skills of the employees it rep-
resents. Accordingly, this factor favors an award of the
disputed work to employees represented by Local 701.
5. Economy and efficiency of operations
Clark testified that it is more efficient and economi-
cal to use employees represented by Local 701 than
Local 125-represented employees to perform the work
in dispute. Noting the Local 701-represented employ-
ees’ greater familiarity and experience related to the
operation of the equipment involved in the perform-
ance of the disputed work, the Employer stated that it
could accomplish the job more expeditiously by using
employees represented by Local 701.
Based on the testimony presented, we find that this
factor favors awarding the disputed work to Local 701-
represented employees.
Conclusion
Upon the record as a whole, and after consideration
of all the relevant factors involved, we conclude that
the Employer’s employees who are represented by
International Union of Operating Engineers, Local 701,
AFL–CIO are entitled to perform the work in dispute.
We reach this conclusion based on the Employer’s as-
signment, preference, past practice, area practice, and
economy and efficiency of operations. In addition, we
rely on the parties’ record statements essentially con-
senting to the Board entering an award of the work in
this manner. In making this determination, we are
awarding the work in question to employees who are
represented by International Union of Operating Engi-
neers, Local 701, AFL–CIO, but not to that Union or
its members. The present determination is limited to
the particular controversy which gave rise to this pro-
ceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Re-
lations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this pro-
ceeding, the National Labor Relations Board makes the
following Determination of Dispute.
1. Employees of Loy Clark Pipeline Company who
are represented by International Union of Operating
Engineers, Local 701, AFL–CIO are entitled to per-
form the work of digging, placement of fill, and back-
filling of trenches in the public utility easements relat-
ed to the underground installation of electric power
lines and electric power vaults for Portland General
Electric and other utility companies.
2. International Brotherhood of Electrical Workers,
Local 125, AFL–CIO is not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force or re-
quire Loy Clark Pipeline Company to assign the dis-
puted work to employees represented by that labor or-
ganization.
3. Within 10 days from the date of this Decision and
Determination of Dispute, International Brotherhood of
Electrical Workers, Local 125, AFL–CIO shall notify
the Regional Director for Region 19, in writing, wheth-
er or not it will refrain from forcing or requiring Loy
Clark Pipeline Company, by means proscribed by Sec-
tion 8(b)(4)(D) of the Act, to assign the disputed work
in a manner inconsistent with the above determination.
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