Laborers Local 472 (Henkels & Mccoy)

National Labor Relations Board - Board DecisionsOct 5, 1989

296 N.L.R.B. 1113 (N.L.R.B. 1989)

LABORERS LOCAL 472 (HENKELS & MCCOY) Heavy and General Construction Laborers' Local Union No. 472, a/w Laborers ' International Union of North America, AFL-CIO and Hen- kels & McCoy, Inc. and International Brother- hood of Electrical Workers, Local No. 262. Case 22-CD-538 October 5, 1989 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS The charge in this Section 10 (k) proceeding was filed June 27, 1989, by the Employer, Henkels & McCoy , Inc., alleging that the Respondent, Heavy and General Construction Laborers' Local Union No. 472, a/w Laborers' International Union of North America, AFL-CIO (Laborers Local 472), violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to employees represented by International Brother- hood of Electrical Workers, Local No. 262 (Elec- trical Workers Local 262). The hearing was held July 26, 1989,1 before Hearing Officer Collette Sarro. 2 The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board affirms the hearing officer's rulings, finding them free from prejudicial error. On the entire record, the Board makes the following find- ings. 1. JURISDICTION The Employer, a Pennsylvania corporation with an office in Burlington , New Jersey , is a contractor engaged in gas, electrical, telephone , and utility construction . In the 12 months prior to the hearing, it derived gross revenues in excess of $50 ,000 for performance of services for customers located out- side the State of New Jersey . The parties stipulate, and we find, that the Employer is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and that Laborers Local 472 and Elec- trical Workers Local 262 are labor organizations within the meaning of Section 2(5) of the Act. ' All dates are in 1989 unless otherwise indicated. 2 Electrical Workers Local 262 did not participate in the hearing II. THE DISPUTE 1113 A. Background and Facts of Dispute On May 12 , the Employer entered into a subcon- tract with Vollers Excavating & Construction, Inc. for the construction of manholes and the installa- tion of telephone and electrical ducts and conduits at the Merck, Sharp & Dohme construction project in Readington , New Jersey . The Employer is a member of the Utility and Transportation Contrac- tors Association of New Jersey , which has a col- lective-bargaining agreement with Laborers Local 472. On or around May 30, the Employer began the construction using employees represented by Laborers Local 472. The Employer is also a member of the Plainfield Division of the Northern New Jersey Chapter, Na- tional Electrical Contractors Association (NECA), which has a collective-bargaining agreement with Electrical Workers Local 262. On June 2, Electri- cal Workers Local 262 sent the Employer a letter stating that the Employer was in violation of the contract between NECA and Electrical Workers Local 262 and that Electrical Workers Local 262 was submitting the matter to NECA's Labor-Man- agement Committee. On June 7, Paul Henkels, the Employer 's chairman and chief executive officer, sent a letter to Electrical Workers Local 262 offer- ing to have the dispute determined by a panel of arbitrators or a neutral third party acceptable to all parties involved. Electrical Workers Local 262 did not respond to this letter . On June 19, a hearing was held before the NECA Labor-Management Committee. The Employer was not represented at the hearing. The Committee ruled that the Em- ployer was in violation of the collective-bargaining agreement. On June 21 , Henkels sent a letter to Richard Tis- siere, president and business manager of Laborers Local 472, informing him that as a result of the NECA decision, the Employer would be reevaluat- ing its assignment of the work to Laborers Local 472. On June 23, John Hibbs, secretary-treasurer of Laborers Local 472 telephoned Henkels and told him that the work in question belonged to employ- ees represented by Laborers Local 472. Additional- ly, Hibbs told Henkels that if the Employer tried to do the work with employees represented by Elec- trical Workers Local 262, Laborers Local 472 would picket the job. Hibbs further stated that "this was not an idle threat" and that Laborers Local 472 would do "everything within their power" to do the job. At Henkels' suggestion, Hibbs sent a letter to Henkels advising him that if the work was assigned to Electrical Workers Local 296 NLRB No. 142 1114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 262, Laborers Local 472 would exercise its "legal and economic rights" against the Employer. On June 27, Henkels sent a letter to Electrical Workers Local 262 and to NECA3 offering to enter into a settlement of the dispute whereby the Employer would assign a portion of the work to employees represented by Electrical Workers Local 262. Henkels testified that neither Union agreed to sit down and attempt to resolve the dis- pute. On June 28, the NECA Labor-Management Committee issued a final notice for the Employer to comply with the labor-management decision of June 19. On June 29, Henkels sent another letter to Electrical Workers Local 262 and NECA, stating that until the NLRB makes its determination, there is nothing more that the Employer can or will do. B. Work in Dispute The work in dispute involves the construction of manholes and installation of telephone and electri- cal ducts and conduits at the Merck, Sharp & Dohme construction site in Readington, New Jersey. C. Contentions of the Parties The Employer contends that reasonable cause exists to believe that Laborers Local 472 violated Section 8(b)(4)(D) of the Act and that the work in dispute should be awarded to the employees repre- sented by Laborers Local 472. The Employer bases its contention on the Employer's past practice and preference, area practice, and economy and effi- ciency of operations. The Employer argues that there is no voluntary method for determining this dispute. Laborers Local 472 also contends that there is no voluntary method for determining this dispute. Without addressing the allegations concerning the violation of Section 8(b)(4)(D) of the Act, Laborers Local 472 contends that the work should be awarded to employees it represents based on the Employer's past practice and preference, area prac- tice, and economy and efficiency of operations. D. Applicability of the Statute Before the Board may proceed with a determina- tion of a 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 and that the parties have not agreed on a method for the voluntary adjustment of the dis- pute. As discussed above, Hibbs specifically stated to Henkels that Laborers Local 472 would picket the 3 A copy of this letter was sent to Laborers Local 472 jobsite if the work was performed by employees represented by Electrical Workers Local 262, that it was not an idle threat and that it would do ev- erything within its power to do the job. Addition- ally, the record indicates that neither Electrical Workers Local 262 nor Laborers Local 472 re- sponded favorably to the Employer's offer to submit the dispute to a neutral third party or to enter into a settlement satisfactory to all parties in- volved. We find reasonable cause to believe that a viola- tion of Section 8(b)(4)(D) has occurred and that there exists no agreed method for voluntary adjust- ment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dis- pute is properly before the Board for determina- tion. E. Merits of the Dispute Section 10(k) requires the Board to make an af- firmative 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 bal- ancing the factors involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the determination of the dispute. 1. Collective-bargaining agreements The Employer, through its membership in the Utility and Transportation Contractors Association of New Jersey, has a collective-bargaining agree- ment with Laborers Local 472. The agreement covers employees engaged in all work concerning the clearing , excavating, filling, back-filling, and landscaping of all sites . The agreement lists specific job duties including installation, distribution, or handling of pipe or conduit work of any kind or description and installation of manhole erectors. The Employer, through its membership in NECA, is party to a collective-bargaining agree- ment with Electrical Workers Local 262 , covering employees engaged in the installation , operation, maintenance , and repair of all electrical wiring and equipment . The agreement lists specific job duties including laying ducts for electrical wires, manhole preparation and conditioning , and all pipe and con- duit installation for electrical wires . We find that the factor of collective-bargaining agreements favors neither party. LABORERS LOCAL 472 (HENKELS & MCCOY) 2. Employer preference and past practice For the past 5 years, the Employer has used em- ployees represented by Laborers Local 472 for all its electrical and telephone conduit jobs in northern New Jersey .4 The Employer has never used em- ployees represented by the Electrical Workers for its electrical and telephone conduit jobs in New Jersey . The Employer prefers to assign the conduit and manhole work on the Merck , Sharp & Dohme project to employees represented by Laborers Local 472. We therefore find the factor of employ- er preference and past practice favors an award to employees represented by Laborers Local 472. 3. Area practice Donald Waters, president of Associated General Contractors of New Jersey, an association of 130 of the largest contractors in New Jersey, testified that the general practice among contractors in northern New Jersey was to use employees represented by Laborers Local 472 for work of the kind in dis- pute. Hibbs testified that the area practice has been to assign the disputed work to employees represented by Laborers Local 472. We find that the factor of area practice favors an award to employees repre- sented by Laborers Local 472. 4. Economy and efficiency of operations The Employer's New Jersey operations manager testified that Electrical Workers Local 262 was claiming only the conduit and manhole excavation and not the digging of ditches, sanding of the bottom of the ditch, and backfilling . The work as- signed to Laborers Local 472 includes all of these tasks . Thus, the Employer can complete the entire project with one crew of employees if the disputed work is awarded to employees represented by La- borers Local 472. ' It has used employees represented by Laborers Local 172, for similar job- in southern New Jersey. 1115 The record indicates that the Employer has used the same crews of employees represented by La- borers Local 472 for 5 or more years , that these crews require less supervision than other crews and that the project would be completed in less time if the Employer exclusively uses employees repre- sented by Laborers Local 472 .5 We find that the factor of economy and efficiency of operations favors an award to employees represented by La- borers Local 472. Conclusions After considering all the relevant factors, we conclude that employees represented by Laborers Local 472 are entitled to perform the work in dis- pute . We reach this conclusion relying on the Em- ployer's preference and past practice , area practice, and economy and efficiency of operations. In making this determination , we are awarding the work to employees represented by Laborers Local 472, not to that Union or its members . The deter- mination is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. Employees of Henkels & McCoy, Inc. represent- ed by Heavy and General Construction Laborers' Local Union No. 472, a/w Laborers' International Union of North America, AFL-CIO are entitled to perform the construction of manholes and the in- stallation of telephone and electrical ducts and con- duits at the Merck , Sharp & Dohme Construction site in Readington , New Jersey. s The Employer also indicates that it would be more economical to award the disputed work to employees represented by Laborers Local 472 because their hourly rates are lower than employees represented by Electrical Workers Local 262 The Board does not consider wage differ- entials as a proper basis for awarding disputed work. Painters Local 91 (Frank M Burson. Inc.), 265 NLRB 1685, 1687 (1982); Stage Employees IATSE Local I (American Broadcasting Co.), 249 NLRB 1090, 1093 (1980).