Laborers Local 172 (Henkels & McCoy)

National Labor Relations Board - Board Decisions

Mar 2, 1994

313 N.L.R.B. 978 (N.L.R.B. 1994)

978
313 NLRB No. 166
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We grant the Intervenor’s posthearing motion to correct the tran-
script, but deny its motion to expand the record.
2 Youse testified that he learned that the Employer had been the
low bidder on the East Gate project by reading a notice in the
‘‘Dodge’’ report of upcoming work in IBEW Local 439’s jurisdic-
tion.
Laborers Local 172, a/w Laborers International
Union of North America, AFL–CIO and
Henkels & McCoy, Inc. and International
Brotherhood of Electrical Workers, Local
Union No. 439, AFL–CIO, Intervenor. Case 4–
CD–854
March 2, 1994
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
The charge in this Section 10(k) proceeding was
filed on December 9, 1992, by the Employer, Henkels
& McCoy, Inc., alleging that the Respondent, Laborers
Local 172, a/w Laborers International Union of North
America, AFL–CIO (Laborers Local 172) violated Sec-
tion 8(b)(4)(D) of the National Labor Relations Act by
engaging in proscribed activity with an object of forc-
ing the Employer to assign certain work to employees
it represents rather than to employees represented by
International Brotherhood of Electrical Workers, Local
439 (IBEW Local 439). The hearing was held on Janu-
ary 22 and 28, February 8 and 17, and March 4, 1993,
before Hearing Officer Allene McNair-Johnson.
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.1
I. JURISDICTION
The Employer, a Pennsylvania corporation with its
primary location in Blue Bell, Pennsylvania, is en-
gaged in the industrial engineering, construction, and
maintenance of overhead and underground electrical,
telephone, and other lines. In the 12 months prior to
the hearing, it derived gross revenues in excess of
$500,000 and during that same period purchased and
received materials and supplies valued in excess of
$50,000 directly from points located outside the Com-
monwealth of Pennsylvania. The parties stipulate, and
we find, that the Employer is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
and that Laborers Local 172 and IBEW Local 439 are
labor organizations within the meaning of Section 2(5)
of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer is a subcontractor which performs en-
gineering, construction, and maintenance of facilities
for electric, telephone and gas companies, and teledata
and industrial firms. Its chairman of the board is Paul
Henkels, who works out of the Employer’s Blue Bell,
Pennsylvania headquarters’ office. Norris Anders is
vice president and division manager for the New Jer-
sey Division in which the instant dispute arose. The
New Jersey Division is divided into three geographic
areas which do primarily underground/conduit work
and a separate electrical department which does high
line, substation, and some conduit work. Merrill
Anders, the New Jersey Division’s manager of oper-
ations, is responsible for the day-to-day operations of
the New Jersey Division underground/conduit work
and reports to Norris Anders.
In late September or early October 1992, the New
Jersey Division successfully bid on a project being run
by general contractor L. F. Driscoll. The subcontract
called for the Employer to perform, among other
things, the installation of electrical and telephone con-
duits, manholes, and gas mains at the East Gate Square
Project located on private property at the intersection
of Routes 38 and 295 in Burlington County, New Jer-
sey. Merrill Anders put together the bid for the work
at East Gate, and because it was his standard practice
to engage laborers to perform the type of work called
for in the subcontract, he based his bid on the pay
rates set out in the Employer’s contract with Laborers
Local 172. Norris Anders signed the contract with
L. F. Driscoll on behalf of the Employer’s New Jersey
Division.
In early December, IBEW Local 439 Business
Agent William Youse discovered that the Employer
had been awarded the subcontract for the East Gate
project.2 He telephoned Robert Frissela, supervisor of
industrial electrical work in the Employer’s Industrial
Division, which operates from Blue Bell, Pennsylvania,
to ask how many people would be needed for the job.
Youse testified that Frissela said he knew nothing
about the job, but that he would look into it and get
back to him.
Thereafter, Henkels, who generally does not become
involved in work assignments, was contacted by Norris
Anders with regard to the East Gate Project. Henkels
testified that Anders told him that there could be a dis-
pute between Laborers Local 172 and IBEW Local 439
concerning the job. Henkels testified that he told
Anders that in order to keep labor peace, Anders
should give the work to the IBEW. Within 3 days of
Youse’s initial inquiry, Frissela telephoned Youse re-
questing two journeymen electricians to report to the
East Gate jobsite to start the job. Youse testified that
the first day his men were on the job, December 8,
1992, his lead journeyman called him to tell him that
the Laborers were claiming the work. In this regard,
979LABORERS LOCAL 172 (HENKELS & MCCOY)
3 Apparently Klimkowski, albeit the record has Anders identifying
the foreman as ‘‘Konolkowski.’’
4 For example, Merrill Anders cited to the following: a struck job
in Merck and White House Station on Route 22; the Camden Co-
Gen generation job, which the general contractor, Utech, took away
from the Employer in order to change the assignment; the Camden
Aquarium; and the Freehold Mall.
5 At the East Gate project, the hands-on conduit work was done
by the electrician members of the mixed work crew, and the laborers
performed the work not associated with the actual handling of the
conduit, such as excavating ditches and sanding the bottom in prepa-
ration for the conduit, and backfilling the trench once the conduit
was in place.
the laborers’ foreman on the job, Joseph Klimkowski,
testified that Laborers Local 172 Business Agent Joe
Jervasi appeared at the jobsite on that date, and that
he, Klimkowski, was told that the Laborers local did
not want electricians on the job. The testimony of
Klimkowski and Merrill Anders reveals that because of
Jervasi’s visit to the jobsite, Klimkowski called his su-
pervisor and then Anders to report on Jervasi’s appear-
ance and actions and that the Employer instructed that
work on the East Gate project should cease imme-
diately. The job was shut down until December 16
when the Employer returned to the jobsite and re-
sumed work there. In order to ‘‘create labor harmony
or peace,’’ the Employer used a composite crew com-
posed of employees represented by IBEW Local 439
and employees represented by Laborers Local 172 to
perform the work in dispute. The East Gate job was
completed around January 10, 1993.
The parties stipulated at the hearing (1) that both
Unions claim the disputed work, and (2) that there is
reasonable cause to believe that Laborers Local 172
has violated 8(b)(4)(D) of the Act by a threat which
it made on or about December 8, 1992, to the Em-
ployer. The stipulation regarding ‘‘reasonable cause’’
does not describe the threat, but there is relevant testi-
mony. Merrill Anders testified that the foreman on the
job3 told him in the second of two telephone conversa-
tions between them on December 8, that Jervasi had
told the foreman that if the Employer did not quit
using the electricians, then not only the East Gate job
but all the work in South Jersey on which laborers
worked for the Employer would be shut down.
B. Work in Dispute
The work in dispute, as stipulated to by the parties,
is the handling and installing of electrical and tele-
phone pipe and conduit, at the East Gate Square
Project located at the intersection of Routes 38 and
295 in Burlington County, New Jersey.
C. Contentions of the Parties
The Employer’s chairman, Henkels, declined to state
a preference for either of the competing Unions, but
emphasized the need for Board resolution of this dis-
pute because it has faced several similar jurisdictional
disputes involving unions from these two trades.4 Be-
cause, he asserts, the Employer is likely again to face
similar disputes in the future, he requests a Board de-
termination outlining the factors appropriately to be
considered by the Employer in making work assign-
ments in the future.
Notwithstanding the Employer’s professed stance of
neutrality concerning the award of the work, Merrill
and Norris Anders testified that the past practice of the
Employer’s New Jersey Division has been to use la-
borers rather than electricians or a composite crew to
perform the kind of work here in dispute. They stated
that they found laborers both skilled and efficient in
performing all required tasks associated with the laying
of conduit and that the Employer had received no com-
plaints by any general contractor or subcontractor nor
from any municipality or municipal inspector about the
quality of the conduit work done by laborers. Econo-
mies of using laborers were derived, they testified,
both from the laborers’ ability to perform a variety of
tasks necessary to complete the job, thereby decreasing
employee downtime, and from their relatively lower
wage rate as compared to the electricians’ scale. Norris
Anders stated that the Employer would have been un-
able to compete successfully for the East Gate Project
had laborers’ rates not been the basis for the bid. In
addition, Merrill Anders described the inefficiencies of
using composite crews, such as occurred here, noting
that there were times during which employees from
one trade would be idle while those from another per-
formed their segment of the job.5 This process, he
claimed, slowed down the pace of the work, thereby
lessening the total number of feet laid per day. Merrill
Anders also noted that there had been repeated com-
plaints from the IBEW Local 439 employees assigned
to the East Gate Project concerning the muddy condi-
tions at the site. He contrasted this with the attitude of
Laborers Local 172 employees, who were accustomed
to working in adverse weather conditions and were
able to continue with the job regardless of the condi-
tions. He also stated that the Employer had no safety
problems during its long practice of using laborers for
the type of conduit work here at issue.
Laborers Local 172 contends that through this pro-
ceeding it is seeking to preserve work traditionally as-
signed to employees represented by it and that despite
Henkel’s direction to Norris Anders assigning the work
to employees represented by IBEW, the Employer’s
true preference for the laborers is revealed in the
emerges Anders brothers’ testimony concerning the
long-established past practice of assigning this type of
conduit work to Laborers-represented employees. La-
borers Local 172 asserts that laborers have the req-
uisite skills to do the work efficiently and economi-
980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cally, and the financial cost basis on which the Em-
ployer has been able to compete for jobs will be im-
paired if it can no longer use them. It joins with the
Employer’s opposition to the work being awarded to a
composite crew, citing the disjointed and inefficient
progress of jobs that are divided into separate oper-
ations. Laborers Local 172 also urges the Board to
consider the fact that more than half its membership is
composed of minorities and that a significant number
of females are members. It urges the Board to recon-
sider its position that race and gender considerations
are not relevant to Section 10(k) proceedings.
IBEW Local 439 asserts that its craft has long en-
gaged in construction site conduit installation and that
the relatively higher skill and training levels of its
members heavily favors the award of the work to
them. Citing decisions by impartial construction indus-
try boards, it argues that IBEW-represented employees
have traditionally been awarded construction site con-
duit work, while the laborers have been restricted to
heavy highway or utility jobs. It further argues that as-
signing the laborers to the project is contrary to the
Employer’s own area practice and runs counter to its
own chairman’s direction. Acknowledging the rational
basis on which the Employer ultimately assigned the
work to a composite crew, IBEW Local 439 neverthe-
less contends that the entire job could have been ac-
complished with greater efficiency had the assignment
been made solely to employees it represents.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated and that
the parties have not agreed upon a method for the vol-
untary adjustment of the dispute.
As noted above, Laborers Local 172 was stipulated
by the parties to have threatened the Employer on or
about December 8, 1992. We find from that stipulation
and the record as a whole, that an object of Local
172’s threat was to force or require the Employer to
assign the disputed work to employees represented by
it. We, therefore, find reasonable cause to believe that
a violation of Section 8(b)(4)(D) has occurred. In addi-
tion, the Employer stated that it would not consent to
submit the dispute to resolution before the AFL–CIO
Joint Board, and based on that statement the parties
stipulated that there is no agreed-upon method for the
voluntary adjustment of the dispute within the meaning
of Section 10(k) of the Act. Accordingly, we find that
the dispute is properly before the Board for determina-
tion.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative award of disputed work after considering various
factors. NLRB v. Electrical Workers IBEW Local 1212
(Columbia Broadcasting), 364 U.S. 573 (1961). The
Board has held that its determination in a jurisdictional
dispute is an act of judgment based on common sense
and experience, reached by balancing the factors in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of the dispute.
1. Certifications and collective-bargaining
agreements
There is no evidence that either Laborers Local 172
or IBEW Local 439 has been certified as the exclusive
collective-bargaining representative of any of the Em-
ployer’s employees. However, the parties stipulated
that the Employer was covered at all relevant times by
collective-bargaining agreements with both Unions: an
agreement between the Camden Division of the South-
ern New Jersey Chapter, Inc., National Electrical Con-
tractors Association and IBEW Local 439, and an
agreement between the Utility and Transportation Con-
tractors Association of New Jersey and Laborers
Locals 472 and 172. Article IX, section 9.2 of the
IBEW contract provides that the union’s jurisdiction
extends to the following:
all work involving the ‘‘installation . . . of all
electrical wiring and equipment, public and pri-
vate, including’’ . . . that ‘‘used in the construc-
tion . . . of buildings . . . all pipelines for elec-
trical wires . . . overhead and underground . . .
laying all ducts for electrical wires . . . pipe and
conduit installation for electrical wires . . . all ex-
cavation and trenching work for electrical installa-
tions . . . [including] forming, manhole prepara-
tion and conditioning, and pipe cutting and
threading . . . all manholes . . . conduits and
supports . . . handling and distributing of all re-
lated materials . . . digging and back filling all
related trenches.’’
In the Laborers agreement, Local 172 is recognized
as the representative of the Employer’s employees
‘‘concerning the clearing, excavating, filling, back-fill-
ing and landscaping of all sites.’’ The unit work is de-
scribed as including the following:
any work performed in connection with pipe or
conduit of all kinds of any description and for
whatever purpose including . . . loading, unload-
ing, installation, distribution or handling of pipe
or conduit of any kind or description . . . all
981LABORERS LOCAL 172 (HENKELS & MCCOY)
6 In considering this factor, we place no reliance on the Employ-
er’s position that its ability to compete for jobs like East Gate is
largely attributable to its using Laborers’ wage rates rather than
higher priced trades or a combination cost from using a mixed trades
crew.
labor work . . . for the construction or installation
of utility lines . . . and whether such work is in-
side or outside of property lines on public or pri-
vate property, on or off streets, on highways, or
on or off building or other construction sites.
As the language of these two agreements shows,
both Unions have an arguable basis for claiming the
work based on the jurisdiction/recognition language set
out in their respective agreements. Consequently, we
find that the evidence bearing on this factor does not
weigh in favor of either group’s claim to the work in
dispute.
2. Employer preference and past practice
The Employer has disclaimed a preference for either
group of employees to perform the work in dispute.
Notwithstanding the personal preferences of Merrill
and Norris Anders for using laborers rather than em-
ployees represented the IBEW Local 439, this dis-
claimer is controlling. Accordingly, employer pref-
erence is neutral and thus not a factor favoring either
group.
With respect to past practice, however, the record
establishes that the Employer’s New Jersey Division,
in which this dispute arose, has through the years con-
sistently awarded conduit installation and related work
to employees represented by the Laborers rather than
employees represented by the IBEW. Both Merrill and
Norris Anders testified to the division’s long-estab-
lished practice of assigning work similar to the dis-
puted work to laborers, citing in support of such as-
signments their satisfaction with the skills, efficiency,
and safety record of the Laborers-represented employ-
ees, the relative competitive advantages of employing
Laborers for the work, and the economies gained by
having a uniform employee crew working in harmony
to complete a project.
Further, the essentially unbroken pattern of the New
Jersey Division’s employing Laborers-represented em-
ployees to perform work of this type is undisputed. Al-
though the Employer’s Electrical and Industrial Divi-
sions may have engaged electricians to perform work
similar to that involved in the instant dispute, the fact
remains that the work was bid by and awarded to the
New Jersey Division. The basis on which the job was
sought and obtained was on a foundation of using a
Laborers-represented work force. Thus, in spite of the
Employer’s initial assignment of the work in dispute to
the IBEW in the interest of preserving ‘‘labor peace,’’
the weight of the evidence warrants a finding that Em-
ployer past practice clearly favors awarding the dis-
puted work to employees represented by Laborers
Local 172.
3. Area practice
There was conflicting testimony presented concern-
ing the prevailing area practice for conduit installation.
Depending on the trade group being represented, the
custom in southern New Jersey was either to employ
Laborers-represented employees or IBEW-represented
employees. There was not sufficient testimony from
disinterested parties to warrant a conclusive finding re-
garding the manner in which jobs in the area are cus-
tomarily assigned. The starkly conflicting testimony
suggests that had the subcontract been awarded to a
different employer or even a different division of the
Employer, a different assignment might have been
shown. Accordingly, this factor does not favor an
award to either group of employees.
4. Economy and efficiency of operations
Employer testimony regarding the New Jersey Divi-
sion’s practice of employing laborers to perform con-
duit and related work emphasized the relative facility
of using only laborers on such projects because of their
ability to handle the entire job without disruptive shift-
ing of particular responsibilities among various trades.
This method eliminates employee downtime and facili-
tates a smoother workflow. Further, the Employer
pointed out that in certain adverse conditions, specifi-
cally the extremely muddy terrain in which the East
Gate Project was being done, using laborers alone
would have resulted in fewer disruptions because they
are more experienced in working in less than ideal set-
tings, enabling them to be more likely to carry out the
job on schedule regardless of conditions.6
The record suggests that certain efficiencies in oper-
ation may be attributable more to having a homo-
geneous group running a job, regardless of trade, rather
than from any particular work quality possessed by
one of the competing groups of employees over the
other. In this regard, the evidence strongly points to
the disadvantages of using combined crews of laborers
and electricians to perform the work in dispute. Thus,
on balance, the weight of the evidence on efficiency
and economy of operations favors an award of the dis-
puted work to employees represented by the Laborers.
5. Relative skills
Although IBEW Local 439 presented evidence to
support its claim that the employees it represents have
better training and skills than those represented by the
Laborers, and are more proficient at laying conduit
than the latter, the record establishes that the Laborers-
represented employees have successfully performed the
982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 In making this award we place no reliance on the Respondent
Laborers Local 172’s argument that the Board should expand the
factors it assesses in resolving jurisdictional disputes to include con-
siderations of race and gender and the resulting impact of its awards
on minority employment opportunities.
8 At the outset of the hearing the Employer requested a ‘‘broad
order’’ so that future disputes between these same Unions would not
arise. The Employer subsequently withdrew that request.
work in dispute on many jobs similar to East Gate.
The record further establishes that the disputed work
does not require the use of highly trained and skilled
craftsmen. Accordingly, we find that this factor does
not favor either employee group.
Conclusions
After considering the above-relevant factors, we
conclude that employees represented by Laborers
Local 172 are entitled to perform the work in dispute.
We reach this conclusion relying on the factors of the
Employer’s past practice in its New Jersey Division
and economy and efficiency of operations.7 In making
this determination, we are awarding the work to em-
ployees represented by the Laborers, not to that Union
or its members. The determination is limited to the
controversy that gave rise to this proceeding.8
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of Henkels & McCoy, Inc. represented
by Laborers Local 172, a/w Laborers International
Union of North America, AFL–CIO, are entitled to
perform the conduit, handling and installation of elec-
trical and telephone pipe and at the East Gate Square
Project in Burlington County, New Jersey.