Local 40, International Brotherhood of Electrical Workers, AFL-CIO (Universal City Studios, LLC)

National Labor Relations Board - Board Decisions

May 24, 2016

364 NLRB No. 7 (N.L.R.B. 2016)

364 NLRB No. 7
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Local 40, International Brotherhood of Electrical
Workers, AFL-CIO and NBCUniversal Media,
LLC and Universal City Studios, LLC and Na-
tional Association of Broadcast Employees &
Technicians, Local 53. Case 31–CD–149956
May 24, 2016
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act.
NBCUniversal Media, LLC (NBCU) filed a charge on
April 13, 2015, alleging that Local 40, International
Brotherhood of Electrical Workers, AFL–CIO (IBEW)
violated Section 8(b)(4)(ii)(D) of the Act by threatening
to picket or engage in other economic action with the
object of forcing Universal City Studios, LLC (the Em-
ployer) to assign certain work to employees represented
by IBEW rather than to employees represented by Na-
tional Association of Broadcast Employees & Techni-
cians, Local 53 (NABET). A hearing was held on May
13 and 14, 2015, before Hearing Officer John Rubin.
Thereafter, the Employer, IBEW, and NABET filed
posthearing briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire rec-
ord, the Board makes the following findings.
I. JURISDICTION
The Employer is a Delaware limited liability company
with an office and place of business located in Universal
City, California. The parties stipulated that the Employer
annually derives gross revenues in excess of $1 million
and purchases and receives at its Universal City, Califor-
nia facility goods valued in excess of $50,000 directly
from points outside the State of California. The parties
further stipulated, and we find, that the Employer is an
employer within the meaning of the Act and is engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act. The parties additionally stipulated, and we
find, that IBEW and NABET are labor organizations
within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is in the business of motion picture and
television production at its facility in Universal City,
California. It is a member of the Alliance of Motion Pic-
ture and Television Producers (AMPTP), a multiemploy-
er association, and is signatory to a collective-bargaining
agreement between AMPTP and IBEW (the AMPTP
Agreement). The AMPTP Agreement was effective
from August 1, 2012, through July 31, 2015. The Em-
ployer does not have a collective-bargaining agreement
with NABET.
The Employer’s Universal City facility consists of an
upper lot and a lower lot. The lower lot contains produc-
tion studios, sound stages, office buildings, and related
facilities.1 For several decades, the Employer has used
employees represented by IBEW to perform the HVAC
(heating, ventilation, and air conditioning), electrical, and
related skilled maintenance work at the buildings and
other structures on the lower lot. Employees called
“tower engineers” perform HVAC, electrical, and plumb-
ing work and are assigned to specific buildings on the
lower lot. Electrical department and HVAC department
employees install, maintain, and repair the electrical and
HVAC systems for the production facilities, sound stag-
es, and buildings on the lower lot that do not have regular
tower engineer coverage.
Prior to 2013, NBCU operated television production
facilities in Burbank, California (the Burbank lot). In
2007, NBCU sold the Burbank lot, then leased it back
from the new owner and continued to operate there. For
several decades prior to the sale, and for a few years af-
ter, NABET-represented air conditioning and plant
maintenance employees employed by NBCU performed
the HVAC and building maintenance work at the Bur-
bank lot. NBCU and NABET were parties to a collec-
tive-bargaining agreement effective April 1, 2009,
through March 31, 2015 (the NBCU Master Agreement).
The “L contract” within the NBCU Master Agreement
covered the air conditioning and plant maintenance em-
ployees at the Burbank lot (the L contract employees).
In 2010, the new owner of the Burbank lot began tak-
ing over some of the HVAC and building maintenance
work from NBCU. In 2012, the new owner informed
NBCU that it no longer wanted to use NBCU’s L con-
tract employees, and in January 2013, the new owner
took over the remaining HVAC and building mainte-

1 The upper lot, which is not involved in this case, features the Uni-
versal Studios Hollywood Theme Park and related tourist attractions.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nance work. As a result, the L contract employees at the
Burbank lot were laid off.2
Beginning in 2012, two buildings on the Employer’s
lower lot were renovated to house NBCU’s broadcast
television operations. The buildings were first called the
Universal City Broadcast Center (UCBC) and were sub-
sequently renamed the Tom Brokaw News Center
(BNC). The renovations were completed in 2013. Be-
ginning in fall 2013 and continuing into 2014, NBCU’s
broadcast television operations were transferred from the
Burbank lot to the BNC.
In a telephone conversation in early August 2013,
Mark Higginbotham, the Employer’s director of labor
relations, informed Steven Ross, NABET’s president,
that the Employer’s IBEW-represented employees would
perform the HVAC and building maintenance work at
the BNC.3 Ross replied that the work should be assigned
to NABET. On August 13, 2013, NABET filed a griev-
ance against NBCU, claiming that
work covered by the “L” contract of the current
NABET-CWA/NBCU Master Agreement was being
assigned to members of the IBEW, including, but not
limited to, air conditioning and plant maintenance work
at the newly constructed UCBC Building located on the
Universal lot within Los Angeles. The UCBC Building
is to be the new home of NBC, KNBC, and Telemundo
operations. As such, the UCBC Building will be a fa-
cility “of the Company [NBCU] in Los Angeles” under
the terms of the NABET-CWA/NBCU Master Agree-
ment and the assignment of “L” contract personnel is
required.
In a letter sent to Higginbotham on August 30, 2013,
IBEW likewise claimed the maintenance work at the
BNC. In September 2013, the Employer assigned the
HVAC, electrical, and related maintenance work at the
BNC to tower engineers represented by IBEW. NABET
referred its grievance to arbitration on October 9, 2014.
On March 26, 2015, in response to NABET’s pursuit of
its grievance, Bill Brinkmeyer, IBEW’s business manag-
er/financial secretary, sent a letter to Higginbotham, stat-
ing:

2 The parties stipulated that a grievance filed by NABET after it was
notified that the L contract employees at the Burbank lot would be laid
off was settled on December 26, 2012. Pursuant to the settlement, all
of NBCU’s L contract employees were laid off on December 28, 2012.
3 Higginbotham testified that he called Ross because NABET had
filed a grievance after the Burbank lot’s new owner informed NBCU
that it no longer wanted to use NBCU’s L contract employees. Thus,
Higginbotham anticipated that NABET would similarly assert that the
maintenance work at the BNC should be assigned to NABET members
under the L contract.
[A]s you likely know, under IBEW’s current collective
bargaining agreement, IBEW is the bargaining repre-
sentative of electricians and related skilled maintenance
employees on the Universal Studios lot. IBEW consid-
ers NABET’s continued pursuit of its grievance to be a
claim for work which is covered under our agreement
and within the jurisdiction of IBEW. As a result, if
NABET or any other union continues to claim or is as-
signed work covered under our agreement, IBEW will
take action, including economic action, such as picket-
ing, to compel NBC Universal [sic] to reassign the
work back to workers represented by IBEW.
B. Work in Dispute
The parties stipulated, and we find, that the disputed
work is the installation, operation, maintenance and re-
pair of the heating, ventilation, and air conditioning sys-
tem and the electrical and plumbing systems plant
maintenance at the Tom Brokaw News Center in Univer-
sal City, California.
C. Contentions of the Parties
The parties agree that there is reasonable cause to be-
lieve that IBEW has violated Section 8(b)(4)(D) and that
no agreed-upon method to adjust the dispute voluntarily
binds all parties. On the merits, the Employer and IBEW
contend that the work in dispute should be awarded to
employees represented by IBEW based on the factors of
collective-bargaining agreements, employer preference
and past practice, area and industry practice, relative
skills and training, and economy and efficiency of opera-
tions. NABET asserts that the factors of collective-
bargaining agreements, past practice, area and industry
practice, relative skills and training, and economy and
efficiency of operations favor awarding the work in dis-
pute to employees represented by NABET.
D. Applicability of the Statute
The Board may proceed with a determination of a dis-
pute under Section 10(k) of the Act only if there is rea-
sonable cause to believe that Section 8(b)(4)(D) has been
violated. Operating Engineers Local 150 (R&D Thiel),
345 NLRB 1137, 1139 (2005). This standard requires
finding that there is reasonable cause to believe that there
are competing claims to the disputed work between rival
groups of employees and that a party has used proscribed
means to enforce its claim to that work. Additionally,
there must be a finding that the parties have not agreed
on a method for voluntary adjustment of the dispute. Id.
The parties stipulate, and we find, that IBEW and
NABET both claim the work in dispute. In addition, we
find reasonable cause to believe that IBEW used means
proscribed by Section 8(b)(4)(D) to enforce its claim to
ELECTRICAL WORKERS LOCAL 40 (UNIVERSAL CITY STUDIOS, LLC) 3
the disputed work. In its March 26, 2015 letter, IBEW
threatened to picket or engage in other economic action if
NABET or any other labor organization was assigned the
disputed work. See Bricklayers (Cretex Construction
Services), 343 NLRB 1030, 1032 (2004) (“[W]here a
charged party has used language that on its face threatens
economic action, the Board will find reasonable cause to
believe that Section 8(b)(4)(D) has been violated.”) Fi-
nally, the parties also stipulate, and we find, that there is
no agreed-on method for voluntary adjustment of this
dispute.
Accordingly, we find that all three prerequisites for the
Board’s determination of a jurisdictional dispute are es-
tablished and that this dispute is properly before the
Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive award of disputed work after considering various
factors. NLRB v. Electrical Workers IBEW Local 1212
(Columbia Broadcasting), 364 U.S. 573, 577–579
(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 involved in a particular case. Machinists
Lodge 1743 (J.A. Jones Construction), 135 NLRB 1402,
1410–1411 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Certifications and collective-bargaining agreements
The parties stipulated that the Employer is not failing
to conform to any Board certification concerning the
employees involved in this dispute.
As set forth above, as a member of the AMPTP the
Employer is party to a multiemployer collective-
bargaining agreement with IBEW. The AMPTP Agree-
ment applies to journeymen and apprentice air condition-
ing mechanics and journeymen and apprentice electri-
cians employed by signatory employers in Los Angeles
County, California. The AMPTP Agreement covers
“[t]he installation . . . and maintenance . . . of permanent
or portable refrigeration and air conditioning systems and
heating systems . . . and normal operation of such
equipment and systems,” “generator rooms and rectifier
rooms,” “portable generator sets and prime movers there-
for,” “rectifier sets,” and “[a]ll repair and maintenance
work in and around the studio.”4

4 Although the AMPTP Agreement does not specifically refer to
plumbing, the disputed plumbing work appears to come within the
work-jurisdiction provision covering “[a]ll repair and maintenance
work in and around the studio.”
The Employer does not have a collective-bargaining
agreement with NABET. Although NABET has a col-
lective-bargaining agreement with NBCU, that agree-
ment is irrelevant to the analysis. The relevant collec-
tive-bargaining agreement is the one that binds “the em-
ployer who has the ultimate control over the assignment
of the work.” Elevator Constructors Local 91 (Otis Ele-
vator Co.), 340 NLRB 94, 96 (2003). Here, the Employ-
er controls the assignment of the work in dispute, not
NBCU.5
Accordingly, we find that the factor of collective-
bargaining agreements favors an award of the disputed
work to employees represented by IBEW.6
2. Employer preference and past practice
Higginbotham and Brent Whaley, the Employer’s di-
rector of facilities engineering, testified that tower engi-
neers represented by IBEW have been performing the
disputed work since the BNC renovations were complet-
ed in 2013, and that the Employer prefers that this work
remain with them.7

5 At the hearing, NABET asserted that the Employer and NBCU are
joint employers and/or a single employer. However, NABET failed to
prove either theory. Higginbotham testified that NBCU and the Em-
ployer are separate entities, and NABET did not introduce evidence
disputing this testimony. The record contains some evidence suggest-
ing a relationship between the Employer and NBCU—in particular,
Higginbotham acknowledged that he handled some labor relations
matters for NBCU, and the Employer and NBCU were represented by
the same counsel in this proceeding—but this evidence is insufficient to
support a joint- or single-employer determination. Moreover, NABET
did not raise these arguments in its post-hearing brief and thus has
abandoned them.
6 We reject NABET’s argument that its agreement with NBCU ap-
plies to the work in dispute. NABET cites Side Letter 61 to the NBCU
Master Agreement, which states that NBCU “will not assert, based
solely on a change of location from [NBCU]’s Burbank facility to
another location within the Los Angeles metropolitan area of an enti-
ty(s) and/or operation(s) covered under . . . the Master Agreement, that
such entity(s) and/or operation(s) is no longer covered.” Regardless of
what NBCU’s obligations are under Side Letter 61, an issue we find
unnecessary to reach, Side Letter 61 does not give NBCU control over
the assignment of the HVAC and building maintenance work at the
BNC. The assignment of that work is controlled by the Employer. Nor
does Side Letter 61 somehow cause the Employer to become bound by
the NBCU Master Agreement.
7 NABET contends that the Employer’s preference should be afford-
ed little weight because the NBCU Master Agreement’s “clear and
express contractual language” requires that the disputed work be as-
signed to employees NABET represents, and NBCU should not be
allowed to escape its contractual obligations simply because it is locat-
ed on the property of a third party that prefers assigning the disputed
work to a different labor organization. However, as explained above,
the NBCU Master Agreement does not require the Employer to assign
the disputed work to NABET-represented employees. Member
Miscimarra also notes that the Board attaches significant weight to the
employer’s preference in making work assignment awards, and the
terms of the competing unions’ collective-bargaining agreements are
only one of several factors the Board considers in resolving Sec. 10(k)
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
NABET argues that the Employer’s past practice “for
broadcasting facilities such as the Burbank Studios lot”
has been to use NABET-represented employees to per-
form HVAC and maintenance work. But there is no evi-
dence that the Employer (as opposed to NBCU) ever had
control over the HVAC and maintenance work at the
Burbank lot. Moreover, there is no evidence that the
Employer has used employees represented by NABET
for the HVAC and building maintenance work at the
BNC or any other motion picture or broadcasting facility
located on the lower lot.
Accordingly, we find that the factors of the Employ-
er’s preference and past practice favor an award of the
disputed work to employees represented by IBEW.
3. Area practice
As to area practice, Whaley and IBEW business man-
ager/financial secretary Brinkmeyer testified that the
Employer uses IBEW-represented employees to perform
HVAC and building maintenance at the other buildings
and structures throughout the lower lot and has done so
for several decades. In addition, Brinkmeyer identified
seven other AMPTP-member television and motion pic-
ture studios in Los Angeles County where IBEW-
represented electricians and HVAC mechanics perform
facilities maintenance under the AMPTP Agreement.
According to NABET’s president, Ross, NABET has
eight or nine contracts with companies in Los Angeles
County and is working on a contract for a newly orga-
nized bargaining unit in Las Vegas, Nevada. Aside from
the L contract within the NBCU Master Agreement,
however, only one of those contracts covers HVAC and
building maintenance employees in Los Angeles County.
Under these circumstances, we find that area practice
favors awarding the disputed work to employees repre-
sented by IBEW.
4. Industry practice
Little evidence was presented as to industry practice.
Brinkmeyer testified that employees covered by the
AMPTP Agreement may travel outside the Los Angeles
area if they are working on a production that starts in Los
Angeles and later relocates. Ross testified that NABET
represents HVAC and building maintenance employees
at NBCU’s broadcasting facilities in New York City, but
those employees are represented by a different NABET
Local. NABET asserts that the industry practice is for
NABET-represented employees to perform HVAC work
at broadcasting facilities owned and/or occupied by em-
ployers that are signatory to collective-bargaining

disputes. See, e.g., Graphic Communications Workers Local 508M
(Jos. Berning Printing), 331 NLRB 846, 848 (2000).
agreements with NABET. However, the evidence shows
that NABET-represented employees ceased performing
the HVAC work at the Burbank lot after December 28,
2012, even though NBCU continued to occupy the facili-
ty until 2014. Accordingly, we find that this factor does
not favor an award of the work in dispute to either em-
ployee group.
5. Relative skills and training
Higginbotham and Whaley testified that IBEW-
represented employees have been successfully perform-
ing the disputed work at the renovated BNC since mid-
2013 and are trained on and experienced with the BNC’s
systems and equipment. In particular, Whaley testified
that the BNC’s digital automation system, which moni-
tors and controls the BNC’s HVAC and other systems
and equipment, requires specialized training and
knowledge to operate. According to Whaley, IBEW-
represented employees received training on the BNC’s
digital automation system from the vendor or from
IBEW leadership. More generally, Brinkmeyer testified
that IBEW has an industry training program for electri-
cian and HVAC mechanic apprentices, and Hig-
ginbotham testified that the Employer has often used
IBEW apprentices over the years. In addition, Hig-
ginbotham testified that the Employer is able to obtain
qualified workers with the necessary training and skills
from IBEW’s hiring hall.
Ross testified that NABET members have training and
experience as HVAC mechanics, and NABET-
represented employees successfully worked on the
HVAC systems and equipment at the Burbank lot. How-
ever, Kevin Watson, chief engineer of the BNC, testified
that even an individual with an HVAC background
would need specialized training to work on the digital
automation system at the BNC. NABET did not present
any evidence showing that employees it represents have
such training or other training specific to the BNC’s sys-
tems and equipment. Further, NABET does not run a
training program or operate a hiring hall for electricians
or HVAC mechanics.
Based on this evidence, we find that the factor of rela-
tive skills and training weighs in favor of awarding the
work in dispute to employees represented by IBEW.
6. Economy and efficiency of operations
Whaley and Watson testified that it is more economi-
cal and efficient to assign the disputed work to IBEW-
represented employees because they can interchange
with other tower engineers and electrical and HVAC
department employees at other facilities on the lower lot.
Whaley and Watson explained that tower engineers are
assigned to cover the BNC 24 hours a day, 7 days a
ELECTRICAL WORKERS LOCAL 40 (UNIVERSAL CITY STUDIOS, LLC) 5
week: five tower engineers are regularly assigned to the
BNC, and a tower engineer from another building covers
two weekend shifts. Whaley testified that since the BNC
is the only building on the lower lot with 24/7 tower en-
gineer coverage, BNC tower engineers respond to any
emergency maintenance issues that arise on the lower lot
when other tower engineers and electrical and HVAC
employees are not on duty. In addition, Watson testified
that BNC tower engineers assist other tower engineers
and the HVAC department with the automation systems
for other lower lot buildings and facilities on a weekly
basis, even when other regularly scheduled employees
are working. Whaley and Watson also testified that BNC
tower engineers assist other tower engineers and the elec-
trical and HVAC departments with special projects as
needed; other tower engineers or electrical or HVAC
employees occasionally supplement BNC tower engi-
neers as well.
NABET asserts that because the BNC’s HVAC sys-
tems are separate from the systems for the other build-
ings and facilities on the lower lot, it would be at least
equally efficient for a separate NABET-represented crew
to maintain the BNC’s HVAC systems. However, as set
forth above, the record shows that BNC tower engineers
perform additional electrical and HVAC work through-
out the lower lot. Brinkmeyer testified that if NABET-
represented employees were working at the BNC,
IBEW’s position would be that those employees could
not provide electrical or HVAC services to any of the
other facilities on the lower lot. Thus, assigning the dis-
puted work to NABET-represented employees would
eliminate the Employer’s ability to cross-utilize BNC
tower engineers, other tower engineers, and electrical and
HVAC employees. Under these circumstances, we find
that it is more efficient and economical to assign the dis-
puted work to employees represented by IBEW. See,
e.g., Operating Engineers Local 825 (Walters & Lam-
bert), 309 NLRB 142, 145 (1992) (factor of economy
and efficiency of operations favored laborers over operat-
ing engineers where evidence showed that laborers pos-
sessed knowledge and skills necessary to perform other
tasks when not performing disputed work). Therefore,
we find that this factor favors an award of the disputed
work to employees represented by IBEW.
CONCLUSION
After considering all of the relevant factors, we con-
clude that employees represented by IBEW Local 40 are
entitled to perform the work in dispute. We reach this
conclusion based on the factors of collective-bargaining
agreements, employer preference and past practice, area
practice, relative skills and training, and economy and
efficiency of operations. In making this determination,
we award the work to employees represented by IBEW,
not to that labor organization or its members.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of Universal City Studios, LLC, who are
represented by Local 40, International Brotherhood of
Electrical Workers, AFL–CIO are entitled to perform the
installation, operation, maintenance, and repair of the
heating, ventilation, and air conditioning system and the
electrical and plumbing systems plant maintenance at the
Tom Brokaw News Center in Universal City, California.
Dated, Washington, D.C. May 24, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD