Local 2, Electrical Workers

National Labor Relations Board - Board DecisionsMay 30, 1975

218 N.L.R.B. 92 (N.L.R.B. 1975)

92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 2, International Brotherhood of Electrical Workers, AFL-CIO and Clarence McAlister and The Welsbach Corporation and Local 513 , Interna- tional Union of Operating Engineers , AFL-CIO. Case 14-CD-500 May 30, 1975 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MURPHY 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 Clarence McAlister, an individu- al, on December 20, 1974, alleging that Local 2, International Brotherhood of Electrical Workers, AFL-CIO, violated Section 8(b)(4)(D) of the Act by threatening officers and employees of the Welsbach Corporation in order to force or require the corpora- tion to assign work to members of Local 2 rather than to Clarence McAlister. A hearing was held on January 14, 1975, before Hearing Officer James R. Neely, Jr. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing upon the issues. 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 are free from prejudicial error and are hereby affirmed. Local 513, Charging Party Clarence McAlister, and Local 2 filed briefs which have been duly considered. On February 7, 1975, Local 513 and Charging Party McAlister filed a motion to reopen the record or, in the alternative, for submission of evidence.' There- after, Local 2 filed a brief in opposition. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE COMPANY Welsbach is a Delaware corporation engaged in the construction of traffic signals and street lighting in the State of Missouri and at various sites located throughout the United States. Welsbach annually purchases supplies and materials valued in excess of $50,000 directly from locations outside the State of 1 In their motion, Charging Party and Local 513 aver that subsequent to the hearing in this case the Employer assigned the work of operating the self-propelled concrete saw at a different worksite to Charging Party, and that at the time the assignment was made Charging Party's supervisor told him that the Company was making the assignment to him in conformance with a 1958 award. Missouri. We find that Welsbach is engaged in commerce within the meaning of the Act and it will effectuate the policies of the Act to assert jurisdiction herein. H. THE LABOR ORGANIZATIONS INVOLVED It was stipulated and we find that Local 2, International Brotherhood of Electrical Workers, AFL-CIO, and Local 513, International Union of Operating Engineers, AFL-CIO, are labor organiza- tions within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute In 1971 Welsbach was a member of the St. Louis chapter of the Associated General Contractors. The AGC has a collective-bargaining agreement with the Operating Engineers and, although Welsbach with- drew from AGC, it has remained a party to that agreement. Welsbach is now engaged solely in the installation and repair of traffic signals and street lights and is a member of the National Electrical Contractors Association. NECA has a bargaining agreement with IBEW. Welsbach employs nine IBEW members and one operating engineer, Charg- ing Party Clarence McAlister. On July 22, 1974, the Company was installing traffic signals at Bellefontaine and Chambers Roads in St. Louis County. That morning Welsbach Supervisor Gary Jones was announcing work assign- ments when employee Larry Jahner, an IBEW member, asked who was going to cut road raceways for the installation of detector loops at the worksite. Jones replied that McAlister, who was already at the worksite cutting channels, had the assignment. When Jahner protested that this work belonged to the IBEW, Jones told Jahner to call his union hall. Jahner did so and Jones then spoke with Local 2 Business Manager Robert Missey who also claimed the work for IBEW. Jones explained to Missey that Welsbach had only 2 hours of work left at the site and Missey agreed that he would not object to the Company finishing the job with McAlister if the men would agree. Missey also told Jones that he could not order the men to work but he would not object if they decided to work. Jones volunteered to pay one IBEW member the higher rate of pay of an operator for 2 hours. Jahner then went out to work and the job was completed. We hereby deny the motion (1) because there is no indication that the work assignment averred to therein involved the same work in dispute in this proceeding, and (2) even assuming, arguendo, that it involved the same work, it would not materially alter our decision and, consequently, does not warrant the resulting delay of our determination in this proceeding. 218 NLRB No. 3 LOCAL 2, ELECTRICAL WORKERS 93 Thereafter, Welsbach's district manager, Kenneth Sipe, after calling Welsbach's home office and making inquiries of local contractors, concluded that it was both local and national practice for NECA members to assign the work in question to IBEW members. On the basis of this information, Sipe called Operating Engineers Local 513's president, John Murphy, in early August and informed him that Welsbach intended to assign the work to the IBEW. Murphy indicated he would abide by whatever assignment the Company made. In October the Company had a job at Dorsett and McKelvey Roads which involved cutting channels for detector loops. A few days before the job was scheduled to begin, Jones called Local 2's assistant business manager, Monte Haddox, to tell him that the Company had assigned the work to the IBEW. During this conversation, Haddox allegedly told Jones that if the channels were cut by someone other than an IBEW operator IBEW members would not install the wires. On October 29, when the work was scheduled to begin, Jones went to the worksite. John Nova, an assistant business manager for Local 513, Operating Engineers, was also at the site. Jones informed Nova that the IBEW would not install wires unless an IBEW operator cut the raceways and that the Company had decided to assign the work to the IBEW. Nova claimed jurisdiction over the work and asked Jones if the Company would stop work to allow the two Unions to settle the issue. Jones agreed, but thereafter the Unions were unable to resolve the matter and on November 5, 1974, Welsbach made a written assignment of the work to the IBEW. B. The Work in Dispute The work in dispute is the operation of a self- propelled saw used to cut road surface raceways for the installation of detector loops for electric traffic signals at Dorsett and McKelvey Roads, St. Louis County, Missouri. Such loops consist of a wire which detects the presence of vehicles at the signals. C. The Contentions of the Parties The Charging Party and Local 513, Operating Engineers, contend that until October 29, 1974, Welsbach had assigned all work with the self- propelled saw to a member of the Operating Engineers. The Charging Party and Local 513 further contend that Welsbach changed this assignment because of the action taken by IBEW members on July 22, 1974, and because of statements made by IBEW Representative Haddox to Jones that electri- cians would not lay wire in raceways that were not cut by IBEW men. Finally, the Operating Engineers asserts that not only the past practice of this Company but also area practice and factors such as efficiency and competency favor assignment of this work to members of the Operating Engineers. The IBEW moved to quash the 10(k) notice of hearing on the grounds that there is no reasonable cause to believe that Section 8(b)(4)(D) has been violated because the Company made a voluntary assignment of the work to the IBEW prior to its commencement. In the alternative, if the - Board determines there is a dispute under Section 10(k), the IBEW contends that area practice, efficiency, and economy of operation, as well as the Company's assignment and preference, favor awarding the work to employees represented by the IBEW. D. Applicability of the Statute Before the Board may proceed to a determination of a dispute under 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 there is no agreed-upon method, which is binding on all parties, for the voluntary adjustment of the dispute. As to the latter aspect of this case, the parties stipulated that there was no agreed-upon method for resolving the dispute. In this regard, the record shows that Local 2 is an outside local of the International Union, and that outside locals of the IBEW are not members of the AFL-CIO Building Trades Council and do not consider themselves bound by Disputes Board decisions. With respect to the issue of whether reasonable cause exists to believe that Section 8(b)(4)(D) has been violated, as noted above, Jones, the Company's supervisor, testified at the hearing in this case that, during a conversation he had with Haddox, the business agent of Local 2, a few days before work was scheduled to commence at the Dorsett and McKelvey Roads jobsite, Haddox told him that the employees he represented would not install wires in channels which were cut ' by "unauthorized person- nel" or "scab labor." Haddox denied making any threatening statements to Jones. Local 2 contends that even if Haddox made the statement attributed to him by Jones the decision to assign the work to IBEW members had already been made. In this regard, Local 2 contends that it is significant that the Company did not file an 8(b)(4)(D) charge growing out of the work assign- ment but rather the charge was filed by McAlister based on what Local 2 characterizes as "pure hearsay." We disagree. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In determining whether the dispute is properly before us and that we have jurisdiction under 10(k) of the Act, we need not resolve the conflict in testimony or determine whether Local 2 actually made the threat it is alleged to have made. We need only find that there is "reasonable cause to believe that Section 8(b)(4)(D) has been violated." Consequently, we find the record evidence suffi- cient to establish "reasonable cause" to so believe.2 Contrary to the contention of Local 2, we find no significance in the fact that the alleged threat was conditioned upon the Company's assigning the work to other employees, and that the Company had already decided to assign the disputed work to the employees Local 2 represents .3 Section 8(b)(4) prohibits all threats to take action in support of 'the objects specifically set forth therein, regardless of the imminence of the action threatened or whether the action threatened is conditioned upon some other event occurring first .4 As we find reasonable cause to believe that such a threat was made in this case, we find the matter 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 the Board to make an affirmative award of the disputed work after giving due consideration to all relevant factors. The following factors are relevant in determining the dispute before us.5 1. Relevant collective-bargaining agreements The Employer is a member of the National Electrical Contractors Association and a signatory to the agreement between NECA and Local 2. Article II, section 5, of the agreement prohibits the Employ- er from assigning work within the jurisdiction of the union to employees outside the bargaining unit. Although nowhere in the agreement is the work jurisdiction of the Union specified, Local 2 argues that the operation of trenching equipment is specifi- cally referred to in the wage classification provisions of the contract, and that that classification covers the operation of the self-propelled concrete cutting saw in dispute herein. 2 Locals 138, 138A, 138B, 1380 and 138D, International Union of Operating Engineers, AFL-CIO (Cafasso Lathing & Plastering, Inc.), 149 NLRB 156 at 158, Si . 5, and accompanying text (1964). 3 Nor do we place any significance in the fact that McAlister rather than the Employer filed the instant charge , or that McAlister may have filed this charge on the basis of indirect evidence . That the Employer chose not to file a charge has no relevancy to the question of whether a jurisdictional dispute exists. As for the IBEW 's contention that the charge was founded on hearsay insofar as McAlister is concerned , the charge only initiates our processes and in and of itself does not constitute evidence of the alleged violation. Although the Employer is no longer a member of the Associated General Contractors, it remains a party to the agreement between the AGC and Local 513 of the Operating Engineers. Article IV, section 4.07, of that agreement refers to the operation of self- propelled concrete saw "on paving work." Article XVII, dealing with job classifications and wage rate, alludes to concrete saw (self-propelled). The agree- ment does not, however, specifically cover the work in dispute here-cutting slots for detector loops.6 We conclude that neither agreement is determina- tive. 2. The Employer's assignment and past practice For many, years, prior to October 1974 the Employer assigned all work with the self-propelled concrete saw to employees represented by the Operating Engineers. This past practice, however, is largely negated by the fact that the Company now limits itself to the installation of street lights and traffic signals and to repair work as opposed to the road building and paving operations it performed in the past. With respect to the Employer's current assignment and preference, Welsbach's district manager, Ken- neth Sipe, testified that he decided in August 1974 to assign the disputed work to employees represented by Local 2 because he was convinced that area and national practice favored such an assignment. Sipe further testified that he made known his decision to both Unions in late August and that a written assignment of the disputed work to Local 2 was prepared at his direction in November. On this record, it is clear that the Employer voluntarily assigned the disputed work to Local 2, some months before the conversation between Jones and Local 2 representative, Haddox, discussed supra. According- ly, we find that the Employer's assignment favors employees represented by Local 2. 3. Area practice As indicated above, the Employer's district manag- er testified that his investigation of area practice revealed that the disputed work was generally assigned to employees represented by Local 2. A 4 See, e.g., United Steelworkers of America, AFL-CIO, and its Local No. 4454 (Continental Can Company, Inc.), 202 NLRB 652 (1973). 5 N.L.RB. v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting System], 364 U.S. 573, 586 ( 1961); InternattonalAssociation of Machinists, Lodge No. 1743, AFL-CIO (J A. Jones Construction Company), 135 NLRB 1402 , 1411 (1962) 6 Local 2 makes no claim to the operation of the concrete saw for paving or highway construction and concedes that such work belongs to the Operating Engineers. LOCAL 2, ELECTRICAL WORKERS 95 representative of the association to which the Employer belongs testified that the general practice within the Missouri Valley Chapter of NECA is that electricians perform all the work of installing traffic signals , including the use of self-propelled saws for cutting slots for detector loops. Finally, an officer of the area's largest outside electrical contractor testi- fied that it is the practice of that contractor, consistent with general practice in the St . Louis area, that the disputed work is done by Local 2 employees. Although Local 513 adduced testimony that some area contractors have used operating engineers to cut detector loop slots , we find that area practice favors assignment of the work to employees represented by Local 2. by the Operating Engineers have no bearing on this dispute. Thus, Local 2 notes that the outside electricians were not a party to any of these awards and that none of the awards involved work that is completely comparable to the work involved here. Although we do not consider the National Joint Board awards binding on the Employer or Local 2, we do consider such awards as a factor in determin- ing the proper assignment of disputed work . Howev- er, in view of all the circumstances , including area practice to the contrary , we fmd that the awards submitted in evidence by the Operating Engineers should not be given controlling weight herein. Conclusion 4. Efficiency, competency, and economy of operations Company Supervisor Jones testified that assign- ment of the disputed work to employees represented by Local 2 allowed the Company to complete the entire job using only two or three men rather than the four or five employees required when the work was assigned to the Operating Engineers . Although he acknowledged that he was unable to provide specific cost figures , Company District Manager Sipe testified that the Company believed it was more economical and a better utilization of its manpower to assign the work to Local 2 . We conclude that the factors of efficiency and economy favor assignment of the work to employees represented by Local 2. Local 513 maintained that its apprentice program includes training for the job while the IBEW program does not. Charging Party McAlister ac- knowledged , however, that he had no special training on the particular saw involved here. Furthermore, both Jones and' Sipe indicated their satisfaction with the job performance of the Local 2 member who operated the saw in accordance with the Company's October assignment of the disputed work . Conse- quently, we do not find that factors of skills or competency favor assignment of the work to the employees represented by either Union. 5. Joint Board decisions Local 513 contends that decisions by the National Joint Board favor awarding the disputed work to the Operating Engineers . In support of this contention, Local 513 submitted several Joint Board awards pertaining to the operation of self-propelled concrete saws . Local 2 maintains that the awards submitted Upon consideration of all relevant factors, we conclude that the Employer's employees who are represented by Local 2, IBEW, are entitled to the work in dispute . We reach this conclusion upon the Employer's assignment of the disputed work to these employees, the fact that the assignment is consistent with the area practice, that employees represented by Local 2 possess the requisite skills to perform the work, and that such an assignment will result in greater efficiency and economy of operations. Ac- cordingly , we shall determine the dispute before us by awarding the work in . dispute at the Dorsett and McKelvey Roads worksite in St . Louis County, Missouri , to those employees represented by Local 2, but not to that Union or its members . In conse- quence, we fmd that Local 513, Operating Engineers, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer to assign the disputed work to employees represented by it. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and on the basis of the foregoing findings and the entire record in this proceeding , the National Labor Relations Board hereby makes the following Determination of Dis- pute: Employees of the Welsbach Corporation , who are represented by Local 2, International Brotherhood of Electrical Workers , AFL-CIO , are entitled to per- form the work consisting of the operation of a self- propelled concrete saw for the cutting of slots for detector loops for actuated traffic signals at the Dorsett and McKelvey Roads worksite in St. Louis County, Missouri.