Electrical Workers, Local No. 46

National Labor Relations Board - Board Decisions

Mar 15, 1974

209 N.L.R.B. 741 (N.L.R.B. 1974)

ELECTRICAL WORKERS, LOCAL NO. 46
International Brotherhood of Electrical Workers, and
its Local No. 46 and Sanford Productions, Inc. and
Studio Transportation Drivers, Local No. 399,
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America.
Case 19-CD-220
March 15, 1974
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Sanford Productions, Inc.,
hereafter called the Employer, alleging a violation of
Section 8(b)(4)(D) by International Brotherhood of
Electrical Workers, and its Local No. 46, hereafter
called the IBEW and Local 46 or the Respondents.
The charge alleges, in substance, that the Respon-
dents threatened to picket, and did picket, the
Employer with an object of forcing or requiring the
Employer to assign the operation and maintenance
of certain portable generators to its members rather
than to members of Studio Transportation Drivers,
Local No. 399, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, hereafter called Teamsters. Pursuant to
notice, a hearing was held on July 17, 1973, at
Seattle, Washington, before Hearing Officer Paul
Eggert. The IBEW, Local 46, and the Employer'
appeared and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and
to adduce evidence bearing on the issues. The
Employer and the Respondents filed briefs which
have been duly considered by the Board.2
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 rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated that the Employer is a
California corporation with its office and principal
place of business in Los Angeles, California, and that
1 Although notified , the Teamsters declined to participate in the heanng.
2 The IBEW filed a motion to correct the record to change the word
"members" to "member" in a stipulation agreed to by the parties at the
heanng. The Employer opposes this motion. For the reasons hereinafter
741
it engages in the production of motion pictures in
Los Angeles and at various locations throughout the
United States. In the course and conduct of its
business, the Employer annually purchases and
receives goods directly outside the State of California
which are valued in excess of $50,000.
We 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 ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the IBEW,
Local 46, and the Teamsters are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background
The Employer is engaged in the production of
motion pictures on location in various parts of the
United States. At the time the dispute in this
proceeding took place, the Employer was engaged in
the production of a film entitled "Cinderella Liberty"
in and around Seattle , Washington. The Employer
leased a mobile studio from Creative Bus Rentals,
Inc., for this particular production. This mobile
studio is composed of a tractor with two electrical
generators located behind the cab, and a trailer
which houses cameras, lighting equipment, sound
equipment, wardrobe, props, and special effects.
The disputed work involves the starting, operation,
and maintenance of two electrical generators used to
produce power for lighting and other filmmaking
equipment. The generators operate independently of
each other; one being used primarily as a backup for
the other. To start the generator, the operator opens
the air and exhaust pipes, flips a fuel switch, turns an
ignition key, allows the engine to idle for a minute,
and then adjusts knobs to regulate engine speed and
voltage. All of the controls are located in the cab of
the truck. Thereafter, the generators operate auto-
matically without maintenance or monitoring. To
stop the generator, the procedures outlined above are
simply reversed. A fail-safe device stops the system in
the case of a malfunction.
The Employer assigned the work in dispute to the
driver of the tractor, a member of the Teamsters.
This driver is the same individual who designed and
built the generator system, the operation and
maintenance of which is in dispute here. The
discussed, we find no ment in the distinction the IBEW seeks to draw and it
could not, in any way, affect our disposition of the issues herein
Accordingly , we hereby deny the IBEW's motion to correct the record.
209 NLRB No. 98
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer has a collective -bargaining agreement with
the Teamsters covering drivers . No collective-bar-
gaining relationship exists between the Employer and
the IBEW or Local 46.
On May 29 , IBEW International Representative
Don McPherson called Eugene Levy (the Employer's
production accountant and production assistant
responsible for obtaining the mobile unit used here)
and asked him to meet the following day to discuss
the operation of the generators . On the following
day, Levy met with McPherson and Mr . Olson, who
is business representative for Local 46, and, after
discussing the matter, both McPherson and Olson
demanded that the disputed work be assigned to
their members . The next morning McPherson repeat-
ed the demand and further said that the IBEW
would picket if the disputed work was not immedi-
ately assigned to their members . Levy rejected this
demand . That same day, a single picket appeared
with a sign which read:
SANFORD PRODUCTIONS UNFAIR
REFUSES TO ASSIGN
ELECTRICAL WORK TO ELECTRICIANS
INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS
Thereafter, the Employer filed the instant charge.
B. The Work in Dispute
The work in dispute is the starting, operation, and
maintenance of certain portable generators housed in
a mobile studio leased by the Employer from
Creative Bus Rentals, Inc., which are used to
produce power for lighting and other filmmaking
equipment.
C. Position of the Parties
The Employer contends that its assignment to an
employee represented by the Teamsters is based on
the skills and work involved , company and industry
practice , and the efficient operation of its business.
The Employer further contends that the Board's
decision in CECO3 is controlling and that the
existing assignment is consistent with a relevant
arbitration award.
The IBEW and Local 46 contend that there is no
jurisdictional dispute because picketing was wholly
informational in character and because the disputed
work involved only a single employee . The Respon-
dents further contend that the Employer should not
be allowed to invoke the protection of the Act
because it allegedly was unlawfully engaged in
business in the State of Washington at the time the
dispute occurred. The IBEW did not state a position
on any factor to support its claim for the disputed
work. In a letter to the Board's Regional Director
dated June 7, 1973, Local 46 purported to disclaim
"any claim to jurisdiction" over the work in dispute.
The Teamsters, as previously indicated, did not
appear at the hearing nor file a brief. In a letter to the
Board's Regional Director dated June 1, 1973, the
Teamsters indicated that it disclaimed any interest in
the work in dispute here.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of 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 Respondents contend that the object sought
by them does not come within paragraph (D) of
Section 8(b)(4), which speaks in terms of work
assignments to "employees," because here the disput-
ed work involves a portion of the duties of a single
employee represented by the Teamsters. We find no
merit in this contention. We do not read the term
"employees" in paragraph (D) as limiting the scope
of the proscription in Section 8(b)(4) to situations
where the object is to seek the work of two or more
persons. The potential impact on the employer would
not be significantly different because a party seeks to
overturn an assignment of work involving two
persons as opposed to one person. There is no logical
reason for Congress to have created such a distinc-
tion. Furthermore, we know of no language in the
legislative history of paragraph (D) of Section 8(b)(4)
which would support such a contention. Respon-
dents further contend that the Employer was
unlawfully engaged in business in the State of
Washington at the time of the dispute and is
therefore not entitled to invoke the protection of the
Act. We likewise find no merit in this contention. An
employer's qualifications to do business under state
law is an extraneous matter which is not involved in
the application or enforcement of our Act. Finally,
the Respondents contend that the picketing was
wholly informational in character. As set forth
previously, the Respondents made a demand for the
disputed work on May 30. The following day the
IBEW repeated the demand and threatened to picket
if the demand was not met. The Employer rejected
the demand and that same day a single picket
3 Local 40, International Brotherhood of Electrical Workers, AFL-CIO (F
& B/CECO of California, Inc), 199 NLRB 903
ELECTRICAL WORKERS , LOCAL NO. 46
appeared at the worksite. Consequently, we find that
the instant picketing was an attempt by the IBEW to
force assignment of the work in dispute to its
members.
Concerning the Teamsters disclaimer of any
interest in the disputed work, we note that an
employee represented by the Teamsters has been
performing the disputed work and that the purported
disclaimer imposed no hardship and involved no
sacrifice on their membership. In such circum-
stances, we will follow our usual practice and give no
effect to such a disclaimer.4
We likewise find ineffective Local 46's purported
disclaimer of interest in the disputed work. The
IBEW and Local 46 are both jointly charged as the
Respondents in this proceeding because of evidence
that they acted in concert in attempting to acquire
the work in dispute for their members. Although
Local 46 has disclaimed, no such disclaimer has been
made by the IBEW. In such circumstances, we
consider Local 46's disclaimer to be meaningless and
we accord it no effect.
On the basis of the entire record, and in view of the
absence of an agreed-upon method binding on all the
parties for resolving the dispute, we conclude that
there is reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred and 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 that the Board
make an affirmative award of the disputed work
after giving due consideration to the various relevant
factors involved.5 The following factors are relevant
in making a determination of the dispute before us.
1. Collective-bargaining agreements
Neither Union is the certified bargaining represent-
ative of any employee of the Employer. There is
testimony that Charles Enzen, the individual as-
signed to perform the disputed work by the Employ-
er, is a member of the Teamsters and that the
Teamsters has a contract with the Employer .6
However, lacking the contract in evidence, there is
no basis to determine whether it covers the actual
work in dispute. For that reason, and in view of the
absence of any contractual relationship between the
Employer and the Respondents, we conclude that
this factor does not support the claim of either party.
F& BICECO, supra
s International Association of Machinists, Lodge No 1743, AFL-CIO (J.
A. Jones Construction Co), 135 NLRB 1402
6 The agreement was not available at the time of the heanng and the
parties agreed that the Employer would submit a signed copy of the current
743
2. The Employer's assignment, preference,
and economy of operations
Under the existing assignment, an employee
represented by the Teamsters drives the tractor-
trailer which houses the electrical generators to the
worksite and there performs the functions encom-
passed by the disputed work. If the disputed work
were awarded to employees represented by the
IBEW and Local 46, it would continue to be
necessary to retain the employee represented by the
Teamsters to drive the tractor-trailer to the worksite.
Thus, in such circumstances, the Employer would
have to incur the expense of employing an additional
employee to perform the disputed work presently
being satisfactorily performed by the employee
represented by the Teamsters.
Accordingly, inasmuch as the assignment of the
disputed work to an employee represented by the
Teamsters contributes to the economy of the Em-
ployer's operations, we find that this factor favors an
award to the employee represented by the Teamsters.
3. Skills and training
Although the routine starting, operation, and
maintenance of the generators require little in the
way of special skills,7 a limited training period is
necessary before an individual is qualified to perform
all of the various operations in dispute.
The employee represented by the Teamsters has
been performing the disputed work and already
possesses the requisite training. Moreover, this same
employee represented by the Teamsters designed and
built the generator system.
Accordingly, this factor favors an assignment to
the employee represented by the Teamsters.
4. Employer and industry practice
The mobile studio which houses the generators in
dispute is the only one in existence and was being
used for the first time by the Employer here. In the
past the Employer used another mobile studio-"Cin-
emobile"-operated by an employee represented by
the Teamsters. Although there are differences in the
makeup and operation of the instant system and the
"Cinemobile," they are differences without a distinc-
tion in effecting the assignment of the disputed work
here. Furthermore, we have previously found that the
"Cecomobile," a third type of mobile studio used in
the industry, properly used employees represented by
the Teamsters to operate its automatic generators.
agreement within 7 days of the close of the heanng . No such document has
been received by us
r A major breakdown in the generator system would, of course, present a
different situation. We consider a major breakdown , however, to be beyond
the scope of the disputed work herein.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
See Local 40, International Brotherhood of Electrical
Workers, AFL-CIO (F & B/CECO of California,
Inc.), 199 NLRB 903. Accordingly, we find that
Employer and industry practice favor an award of
the disputed work to the employee represented by the
Teamsters.
Conclusion
Having considered all the pertinent factors herein,
we conclude that the employee represented by the
Teamsters is entitled to perform the work in dispute.
In making this determination, we are assigning the
disputed work to the employee represented by the
Teamsters, but not to that Union or its members.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings, the National Labor Relations
Board hereby makes the following Determination of
Dispute:
1. The employees represented by Studio Trans-
portation Drivers, Local No. 399, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, are entitled to perform
the starting, operation, and maintenance of certain
portable generators housed in a mobile studio leased
by Sanford Productions, Inc., from Creative Bus
Rentals, Inc., which are used to produce power for
lighting and other filmmaking equipment.
2. International Brotherhood of Electrical Work-
ers and its Local No. 46 are not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force
or require Sanford Productions, Inc., to assign such
work exclusively to individuals represented by the
aforesaid labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, International Broth-
erhood of Electrical Workers, and its Local No. 46,
shall notify the Regional Director for Region 19, in
writing, whether or not it will refrain from forcing or
requiring Sanford Productions. Inc., by means
proscribed by Section 8(b)(4)(D) of the Act, to assign
the work in dispute in a manner inconsistent with the
above determination.