Int'l Brotherhood, Electrical Workers, Local 728

National Labor Relations Board - Board DecisionsJun 29, 1965

153 N.L.R.B. 873 (N.L.R.B. 1965)

INT'L BROTHERHOOD, ELECTRICAL WORKERS, LOCAL 728 873 executive employees, confidential employees, foremen, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 5. At all times material, and particularly since January 1, 1963, the Union has been the exclusive representative of all the employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 6. By refusing and failing to bargain with the Union, upon its request, and by unilaterally subcontracting its maintenance operations without first notifying and con- sulting with the Union as the exclusive representative of the employees in the afore- said appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 7. By the foregoing conduct, the Respondent has also interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them in Section 7 of the Act, and has thereby committed unfair labor practices within the meaning of Section 8 (a)( I) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] International Brotherhood of Electrical Workers of Fort Lauder- dale, Florida, Local 728, AFL-CIO and Ebasco Services, Incor- porated . Case No. 12-CD-SO. June 29, 1965 DECISION AND ORDER QUASHING NOTICE OF HEARING This is a proceeding pursuant to Section 10 (k) of the National Labor Relations Act, as amended, following a charge filed by Ebasco Serv- ices, Incorporated, herein called Ebasco, alleging that International Brotherhood of Electrical Workers of Ft. Lauderdale, Florida, Local 728, AFL-CIO, herein called IBEW, in violation of Section 8(b) (4) (D) of the Act, had engaged in and induced the employees of Ebasco to engage in a strike for the purpose of forcing and requiring Ebasco to assign particular work to employees represented by the Respondent IBEW rather than to employees represented by Local Union No. 719 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, herein called Plumbers. A hearing was held before Hear- ing Officer James L. Jeffers, on August 17 and 18, 1964. All parties appeared at the hearing and were accorded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing upon the issues. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Briefs were filed by all parties and have been duly considered. Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three-member panel [Members Fanning, Brown, and Jenkins]. 153 NLRB No. 68. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in this case, the Board makes the following findings : 1. As stipulated by the parties, Ebasco is engaged in commerce within the meaning of the Act. 2. IBEW and Plumbers are labor organizations within the meaning of the Act. 3. The dispute : FACTS Ebasco is the prime contractor for the construction of units 3 and 4 at the Florida Power and Light Company's steam power plant located at Port Everglades, Florida. Each powerhouse unit consists of a boiler, turbine, generator, auxiliary transformer, and main trans- former.' In addition to the powerhouse units, it appears that Ebasco is also responsible for certain electrical installations in the switchyard which is located some 400 feet south of the main transformer. The auxiliary transformer is located at ground elevation due south of the generator and supplies power for the startup of the auxiliary switch gear and various plant auxiliary motors. The main transformer is located about 50 feet south of the auxiliary transformer. Both trans- formers are mounted on concrete pillars. During the construction of these foundations and the mounting of the transformers thereon, Ebasco employed various building and construction craftsmen such as operating engineers, carpenters, cement finishers, and ironworkers. The work in dispute involved the unloading, handling, distributing, and installation of the pumps, oil piping, and heat exchangers on both transformers in unit 4. Although IBEW had performed the identical work in unit 3, Plumbers demanded the work in unit 4. After receiv- ing notice of an award of the disputed work to Plumbers by the National Joint Board for the Settlement of Jurisdictional Disputes, hereafter called the Joint Board, Ebasco assigned the work accord- ingly. When employees represented by Plumbers began doing the work, IBEW picketed the jobsite causing about 350 of the 450 employ- ees belonging to various crafts to leave their jobs. Contentions of the Parties Both Unions advance various reasons why the disputed work should be awarded to their members. However, Plumbers, as well as Ebasco, contends that all the parties to the dispute are bound by the award of the Joint Board and therefore moved that the notice of hearing be quashed. IBEW contends, on the other hand, that it is not bound by decisions of the Joint Board with respect to outside electrical con- struction work. ' Like units 1 and 2 which were constructed by the Bechtel Corporation , these units are of the outdoor type ; i.e , they are not enclosed in a building. INT'L BROTHERHOOD, ELECTRICAL WORKERS, LOCAL 728 875 Applicability of the Statute Section 10(k) of the Act, which directs the Board to hear and deter- mine disputes out of which Section 8(b) (4) (D) charges have arisen, .also contains mandatory limitations upon the Board's authority to -make a determination of dispute in certain circumstances. Thus, Sec- tion 10(k) provides in pertinent part : ... the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practices shall have arisen, unless ... the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. [Emphasis supplied.] The Board has consistently held that the purpose of this provision is to afford the parties an opportunity to settle jurisdictional disputes among themselves without Government intervention whenever pos- sible.2 In deference to that policy, the Joint Board was established with knowledge of this Board for the purpose of considering and deciding disputes in the building and construction industry .3 Accord- ingly, the Board has quashed the notice of hearing in the 10(k) pro- ceeding where all the parties to the dispute are bound to submit to the Joint Board procedure,4 and where there does not exist a Joint Board determination that both unions involved in a particular dispute are in a status of noncompliance with its awards.5 Since both Ebasco and Plumbers concede that they are bound by the Joint Board award herein, the threshold issue is whether there exists an agreed-upon method for the voluntary adjustment of the dis- pute notwithstanding IBEW's contention to the contrary. While the record shows that there are se` eral means by which an employer may 2Ironworkers Local No. 708 , International Association of Bridge, Structural and Orna- mental Ironworkers , AFL-CIO (Armco Drainage and Metal Products Co , Inc.), 137 NLRB 1753, 1756 ; Millwrights Local 1102 , United Brotherhood of Carpenters and Join- ers of America, AFL-CIO (Don Cartage Co., Inc ,), 121 NLRB 101, 106; Local Union No. 1, Sheet Metal Workers International Association , AFL, et al. ( Meyer Furnace Com- pany ), 114 NLRB 924 , 929-930; Local Union No. 9, Wood, Wire, and Metal Lathers In- ternational Union, AFL (A. W. Lee, Inc.), 113 NLRB 947 , 953; Wood, Wire and Metal Lathers International Union, et al (Acoustical Contractors Association of Cleveland), 119 NLRB 1345 ; International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , Local #236 ( Wm. F. Traylor ), 97 NLRB 1003 , 1005-1006; United Brotherhood of Carpenters and Joiners of America, Local 943 , A. F. of L. (Manhattan Construction Company, Inc ), 96 NLRB 1045 , 1047-1048. a See, e g., The Plumbing Contractors Association of Baltimore , Maryland , Inc, at al., 93 NLRB 1081 , 1084; Manhattan Construction Company, Inc ., supra; A. W. Lee, Inc., supra; Meyer Furnace Company, supra ' See the Armco Drainage , Acoustical Constractors Assn. , A. W. Lee, Inc., and Man- hattan Construction Co cases, supra. 5 Lathers Local Union No 62, Wood, Wire & Metal Lathers International Union AFL- 010 (Below d Co. Accousties, Inc.), 150 NLRB 21. See also Procedural Rules and Regulations of the National Joint Board for Settlement of Jurisdictional Disputes , Build- ing and Construction Industry ( 1963 ), p 19; Strand, Jurisdictional Disputes in Con- struction : The Causes , The Joint Board, and the NLRB ( 1961 ), p. 98. 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subject itself to the jurisdiction of the Joint Board,e a union's affili- ation with the Building,and Construction Trades Department, here- after called the Department, is the sole prerequisite for the Joint Board's assertion of jurisdiction over disputes in which it becomes involved with other unions so affiliated. IBEW contends that it has not agreed to be bound by the Joint Board's awards with respect to outside line construction work.' This contention is based in part on undisputed testimony in the record that IBEW pays a per capita tax to the Department only on its inside elec- tricians numbering some 150,000 out of total membership of approxi- mately 810,000. Because of the following considerations, we find it unnecessary to decide herein whether IBEW's affiliation with the Department is qualified, and the jurisdiction of the Joint Board cor- respondingly limited, as contended by that Union. During the course of the hearing, as well as in its brief, IBEW admitted that the disputed work with respect to the auxiliary trans- former is normally performed by its "inside" electricians on whom IBEW pays a per captita tax to the Department.8 The same work in the construction of unit 3 was assigned by Ebasco to the inside electri- cians. The inside electricians also brought the buss (a heavily insu- lated aluminum plate approximately 8 to 10 inches square) from the generator to the main transformer on unit 3. While it appears that the work on the main transformer in unit 3 was performed by outside elec- tricians," the record does not show whether this division of work between IBEW's inside and outside branches is arbitrary or represents a compromise between the jurisdictional claims advanced by the respec- tive branches. The testimony of John McKim Parker, IBEW's Direc- 9 Procedural Rules , op. cat at 1-2 ; Strand , op. cit . at 125-129. ' The Board has accepted this contention in previous cases See Local Union 825, In- ternational Union of Operating Engineers ( Nichols Electric Company ), 137 NLRB 1425, enfd. 326 F 2d 218 ( C A 3) , International Union of Operating Engineers , Local Union No. 12 ( George E. Miller Electric Company ), 144 NLRB 9 , Local Union No. 181, Interna- tional Union of Operating Engineers , AFL-CIO ( Service Electric Company ), 146 NLRB 483 However , in all of those cases the employers had not stipulated to the Joint Board with respect to disputes involving outside work. This ground alone ; I e , the employer has not agreed to be bound , has prompted us to find the nonexistence of an agree-upon method for adjusting the dispute See, e g ., Local 964 , United Brotherhood of Carpenters and Joiners of America , AFL-CIO (Robert A. W Carleton, d/b/a Carleton Brothers Com- pany ), 141 NLRB 1138 , Carpenters District Council of Denver & Vicinity, AFL-CIO (J O. Veteto and Son ), 146 NLRB 1242 ; Local 69, United Association of Journeymen and Apprentices of the Plumbing and Pspefitting Industry of the United States and Canada, AFL-CIO ( Bellezza Company , Inc ), 149 NLRB 599; Local 690, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Pipe Linings. Inc ). 150 NLRB 496. Consequently, we do not deem the Nichols Electric line of cases controlling where, as here, the employer is stipulated to the Joint Board and abides by its awsrd 8Indeed, the outside electiicians who performed work on the auxiliary transformers in units 1 and 2 worked under the " inside" electricians agreement The record does not show whether IBEW paid a per capita tax on these electricians while they were working under the inside agreement 6 The main transformer raises the generator voltage from 20,900 volts to 144 ,900 volts, and the stepped-up current is then conducted by copper wire to a switchyard located 400 feet to the south . From this point the poiser is transmitted by transmission lines to various parts of the Florida Power and Light Company ' s distribution system. INT'L BROTHERHOOD, ELECTRICAL WORKERS, LOCAL 728 877 tor of Construction and Maintenance Operations, reflects the existence of an internal conflict between these two branches with respect to this work. Notwithstanding its contention that outside line work com- mences at the main transformer, which, it argues, is a part of the power-transmission system, IBEVV contests the jurisdiction of the Joint Board with respect to all the disputed work including the work on the auxiliary transformer normally performed by inside electri- cians. Under these circumstances, and in the state of the record, we are unable to determine what is "inside" and what is "outside" work. Nor are we able to determine clearly from the record where the power- transmission system begins. However, since part of the work in dis- pute is clearly within the jurisdiction of the Joint Board, we believe it would be unwise, because of the peculiar facts in this case, to frag- mentize the dispute by making a partial work determination herein. IBEW contends also that our determination relative to the jurisdic- tion of the Joint Board in the instant case is controlled by our finding in the Nichols case.10 The dispute in Nichols arose from the use at a construction site of power-driven equipment (auger and derrick) for digging holes in connection with the erection of electrical transmission line poles. This work is encompassed in the category of construction work exempted from the jurisdiction of the Department by the action of its 1939 convention; i.e., work involving the erection of "power lines" and/or "towers for the purpose of carrying electrical transmission lines of public utilities." Thus, the Board held that the IBEW had not agreed to submit to the Joint Board procedures in that case.'1 In Miller Electric 12 the dispute arose from the operation of a Ditch Witch, a trenching machine used to cut a trench along a highway in which a conduit for electric cable was laid. Since the dispute involved powerline construction work, the Board followed Nichols. Nichols was followed again in Service Electric 13 because it appeared in the latter case that the disputed hydra-lift work was to be confined to the substation which, the record revealed, was a part of the power-trans- mission system. Consequently, there existed in none of these cases the peculiar facts which we deem controlling in the instant case. Based on these considerations, and the entire record, we find that there exists herein an agreed-upon method for the voluntary adjust- ment of the dispute within the purview of Section 10 (k) of the Act. We shall therefore quash the notice of hearing. [The Board quashed the notice of hearing]. "Local Union 825, International Union of Operating Engineers ( Nichols Electric Com- pany ), 137 NLRB 1425, enfd. 326 F. 2d 213 (C.A. 3). "It is our understanding that at the present time this same situation continues, and that IBEW still has not submitted to the Joint Board its claims regarding "outside" work. l2International Union of Operating Engineers , Local Union No. 12 ( George E Miller Electric Company ), 144 NLRB 9 13 Local Union No 181, International Union of Operating Engineers , AFL-CIO (Service Electric Company ), 146 NLRB 483.