Local 58, Int'l Brotherhood Electrical Workers

National Labor Relations Board - Board DecisionsApr 29, 1964

146 N.L.R.B. 1191 (N.L.R.B. 1964)

LOCAL 58, INT'L BROTHERHOOD ELECTRICAL'WORKERS 1191 'the hearing that ' it had not occurred to union representatives that -distributors might be employees rather than independent contractors 'until he was so advised by the union attorney in the fall of 1963. It thus appears that there was an intent to exclude .those in question from the certified units and that the distributors have been without representation since. Clarification of a certification or amendment of 'a unit description may be in order where a new employee classification has been created, or an employer's operations have been expanded subsequent to a cer- tification, and the 'employees involved are normal accretions to the certified unit.' Here, however, the categories of distributor and con- signment or fuel oil distributor are not new, since they antedate the certification by many years, and it is not even alleged that their duties have undergone such change as would be tantamount to the creation of a new classification. Thus, even if the distributors were found to be employees rather than independent contractors, a question we need not decide, we believe that they do not constitute an accretion to the existing unit. The proper procedure for accomplishing Peti- tioner's purpose in the instant matter is a petition filed pursuant to Section 9(c), of the Act, seeking an election rather than a motion for clarification,' and we shall therefore dismiss the instant proceedings. [The Board dismissed the motions for clarification of certifications in Cases Nos. 8-RC-4745 and 8-RC-4747.] I Brockton-Taunton Gas Company , 132 NLRB 940. 2 Westinghouse Electric Corporation, 142 NLRB 317. Local 58, International Brotherhood of Electrical Workers, AFL-CIO and Guardian Building Company . Case No. 7-CD-90. April R9, 1964 DECISION AND DETERMINATION OF DISPUTE This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, following a charge filed on June 26, 1963, by Guardian Building Company, herein called the Employer, alleging that Local 58, International Brotherhood of Electrical Workers, AFL- CIO, herein called IBEW or Respondent, had violated Section 8 (b) (4) (D) of the Act. Pursuant to notice, a hearing was held be- fore Hearing Officer Harry D. Camp, beginning on October 25 and ending on October 31, 1963. 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 on the issues. The rulings of the Hearing Officer made at the. hearing are free from 146 NLRB No. 144. 1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prejudicial error and are hereby affirmed. Briefs have been filed by the Employer, by the IBEW, and by Local 79, Building Service Em- ployees' International Union, AFL-CIO, herein called BSEIU or Building Service. Upon the entire record in the case, the Board 1 makes the following : FINDINGS OF FACT 1. The business of the Employer The Employer owns, manages, and maintains the Guardian Build- ing, a multistory office building in downtown Detroit, Michigan. Dur- ing the calendar year ending December 31, 1962, it received revenues and incomes in excess of one million dollars, including rentals in excess of $25,000 from each of the following : The Michigan Bank National Association; Aetna Life Insurance Company; Home Life Insurance Company; and Michigan Limestone Division, United States Steel Corporation. The operations of each of these enterprises meet the Board's standards for assertion of jurisdiction. The parties stipulated, and we find, that the Employer is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. 2. The labor organizations involved Local 58, International Brotherhood of Electrical Workers, AFL-, CIO, and Local 79, Building Service Employees' International Union, AFL-CIO, are labor organizations within the meaning of the Act. 3. The dispute A. The work at issue In January 1963, the Employer ordered from General Electric Company modern, metal-clad switch panels, hereinafter referred to as primary switch gear, for the purpose of replacing the Guardian Building's primary electrical distribution system. The function of primary switch gear is to receive the 4800-volt "lead-in" electricity from the utility company, and to distribute the said electricity to transformer banks within the building in order to step down its volt- age and thereby fulfill the building's normal electrical requirements. The work in dispute involves the unloading and installation of the primary switch gear, consisting of approximately 10 large metal cubicles and cabinets which were completely assembled, wired, and ' Pursuant to the provisions of Section 3(b) of the Act , the Board , has delegated its powers in connection with this case to a three -member panel [ Chairman McCulloch and Members Leedom and Brown]. LOCAL 58, INT'L BROTHERHOOD ELECTRICAL WORKERS 1193 tested by the manufacturer and'- .then partially disassembled for shipping. The installation work consists primarily of placing the units in position, bolting the cubicles together, and connecting them to the incoming power line by means of two line splices or "potheads." B. Evidence of conduct violative of Section 8(b) (4) (D) The Employer decided, in January, to assign the aforesaid work to its regularly employed licensed . maintenance electricians and elec- trician's helpers who, along with such other craftsmen classifications as carpenters, plumbers, and painters as well as janitorial employees, were covered by a collective-bargaining agreement 2 between the Em- ployer and BSEIU pursuant to a Board certification. Approxi- mately 2 months later, Joseph LaPlant, IBEW's business representa- tive, telephoned John Glaze, manager of the Guardian Building, and informed- him that the Employer's maintenance electricians could not install the equipment because the work fell within the jurisdiction of the IBEW. On the following day, the Employer met with representa- tives of both unions. At this meeting, IBEW's representatives con- tended that the work in question constituted "construction" work which "maintenance" electricians were not qualified to, and do not customarily, perform, and therefore urged that the work be subcon- -tra.cted to an electrical contractor who employs its members. Noth- ing was decided at the meeting. Thereafter, Building Service, through .Business Representative Vorkapich, investigated the nature of the Job and took the position that the work belonged to its members by virtue of its contract and Board certification. Subsequently, the Em- ployer decided not to subcontract the work, but to assign it to the maintenance electricians. , Thereafter, on June 25; 1963, LaPlant appeared . in person at the building and approached the Employer's maintenance employees who were engaged in unloading the recently delivered switch panels and made a demand upon them for the work. The Building Service elec- tricians, however, refused to abandon the work. The next day the Respondent commenced to picket in front of the building with signs stating, "Guardian Building Unfair to Members of Local 58, I.B.E.W." The picketing continued until July 16, 1963,3 when it was 'enjoined by a Federal district court. Since mid-July, the Building Service electricians have been installing the switch gear and at the time of the hearing approximately one-half of the project had been completed. 2 The contract in effect between the parties covered a period from approximately March 26, 1962, to January 25, 1964. 3 Picketing was suspended 'between July 5 and 8,-during which time the Regional Di- rector was conferring with the Unions in an attempt to settle the controversy. '1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Applicability of â€¢ the statute Section 10(k) of the Act empowers the Board to hear and determine the dispute. out of which a Section 8(b) (4) (D) charge has arisen. However, before the Board proceeds with a determination of dispute, it must be satisfied that there is reasonable cause to believe that Sec- tion 8 (b) (4) (D) has been violated. Although the Respondent does not deny that it engaged in the above- described picketing activity, it nevertheless contends that its conduct was not unlawful because the picketing did not relate to claims by two competing unions or groups of. employees, but rather, it was merely to protest the Employer's failure to subcontract the work, a dispute between itself and the Employer only. In support, the Re- spondent asserts that BSEIU's president agreed that the disputed work was within the IBEW's jurisdiction and thereby refrained from competing with the Respondent for the work assignment with the re- sult that no jurisdictional dispute is involved in this proceeding and, therefore, Section 10 (k) of the Act is inapplicable herein. We do not agree. The. record evidence demonstrates that there are, and have been, two adversaries competing for the work at all relevant times.' Thus, it is apparent from the record that IBEW and BSEIU both made claims upon the Employer for the work, that both appeared at the hearing where BSEIU disputed the IBEW's alleged right to the work, and that BSEIU and IBEW are at present, in their briefs before the Board, claiming the work in dispute, which the Employer assigned to employees represented by BSEIU. Furthermore, as the record is clear that an object of the Respondent's picketing was to force the Employer to change this assignment of work, we find, on the entire record, that there is reasonable cause to believe that a violation of Section 8 (b) (4) (D) has occurred. Accordingly, we find that the work dispute is properly before the Board for determination under Section 10 (k) of the Act. D. Merits of the dispute As we stated in the J. A. Jones Construction Company case,5 we will, pursuant to the Supreme Court's CBS decision,' determine in each case presented for resolution under Section 10(k) of the Act, the ap- 4 We do not regard the statements attributed to BSEIU President Cordtz as a sufficient disclaimer of BSEIU's jurisdiction over the work in dispute as the Respondent asserts. What we regard as significant is that BSEIU has claimed and is claiming the work. Local Union No. 3, IBEW, AFL-CIO (Western Electric Company, Incorporated), 141 NLRB 888, 894, footnote 6. 5 International Association of Machinists , Lodge No. 1743, AFL-CIO (J. A. Jones Con- struction Company), 135 NLRB 1402. 9 N.L.R.B. v. Radio & Television Broadcast Engineers Union, Local 1218 , International Brotherhood of Electrical Workers, AFL-CIO (Columbia Broadcasting System), 364 U.S. 573. LOCAL 58, INT'L BROTHERHOOD ELECTRICAL WORKERS 1195. propriate assignment of disputed work only after taking into account and. balancing all relevant factors . The following factors are as- serted in support of the claims of the parties herein : 1. Certification ; contract ; and Employer's assignment As mentioned above, the Employer assigned the work in question to its regular maintenance electricians who were covered by a contract between the Employer and BSEIU, the certified bargaining agent since March 1959. We note that the agreement's subcontracting clause provides for the retention of "services which are normally performed by the employees" represented by BSEIU, but further, excepts from the above-quoted phrase, "remodeling" and "major repairs." Both Respondent and Building Service claim that the aforesaid language supports their respective members' right to the work assignment; the Respondent asserting that the installation of primary gear is excepted therefrom, and Building Service contending that it is within the definition of services normally performed by its members . The Em- ployer takes the position that a subcontract of the work as sought by the IBEW might constitute a breach of its agreement with Building Service, and in any event , it should not be forced to subcontract the work if it does not so desire. Although the contract reflects no specific intention with respect to the work in question , we find that the Em- ployer's assignment is not inconsistent with it. 2. The skills and work involved Although it is apparent that the conflicting claims to the work are being made by two groups of electricians , the Respondent contended at the hearing that maintenance electricians do not possess the degree of skill and experience necessary to install switch gear, particularly, with respect to functions such as cable-splicing and the construction of " potheads." It argues that the lack of such critical skills exposes the public to undue danger. In this regard Respondent's witness, George Mason, testified that even among, electricians, the work of installing primary switch gear is considered a specialty. However, there is evidence that the maintenance electricians assigned to the work are licensed electricians with approximately 10 years' journeyman experi- ence in addition to the requisite education and apprenticeship train- ing, and they expressed no doubt as to their qualification to do the job. In addition, the Employer is satisfied that the Building Service electricians are capable of performing the installation work. More- over, it appears that the manufacturer of the equipment, the public utility company, and the city of Detroit will each inspect the installa- tion before the equipment is put into operation. We find on the record, 1196 DECISIONS OF NATIONAL,-LABOR RELATIONS, 'BOARD - that the maintenance electricians possess the necessary skills to per- form the work in dispute, and that their performance of such work. would be consistent with the safety factor. . , 3. Employer's past practice and custom in the'industry The record evidence shows that the installation of the primary switch gear has not been performed since the erection of the building, but that substantially all electrical work has been retained by the Em- ployer's maintenance electricians. Thus, Building Service electricians, have. installed numerous secondary switch panels, and a large motor control center in addition to their maintenance duties on both the pri- mary and secondary electrical distribution systems. With respect to the practice in. the industry, the Respondent con- tends that the work in dispute is "construction" work and. is usually installed by its construction electricians. In support, it offered in evidence a survey prepared by the. Detroit Electrical Contractor's Association, which purported to show that several large. buildings in, the city of Detroit have contracted out the work of installing primary distribution systems to contractors. who belong. to t'heâ€¢Association and employ members of IBEW. The survey, however, did not attempt to show the practice of non-Association employees, or whether such in- stallation work has ever been performed by maintenance electricians or subcontracted to firms whose employees do not belong to the IBEW, although George Mason, an electrical engineer, testified that he never heard of such work having been ; performed by "maintenance" electricians. On the' other hand, the. Employer's' assignment appears to conform to its past practice of assigning "similar" work to' its maintenance electricians. Since the survey regarding area practice is incomplete, it is of little practical assistance in determining this dispute. 4. Efficiency and- economy of operation The Employer's building manager, Glaze, testified that the installa- tion work was being performed by its maintenance electricians as a routine portion of their regular duties, thereby filling otherwise slack work periods and effectuating susbtantial savings. As the Building Service electricians have the requisite skills and training to do the dis- puted work, we consider the economy. factor to be a significant item in support of the Employer's assignment. E. Conclusions as to the merits of the dispute On the basis of the record as a whole, and on appraisal of all the relevant considerations, we believe that the work in dispute should be THE BANKERS WAREHOUSE COMPANY 1197 awarded to the Building Service electricians. Such factors as the Employer's assignment which conforms with its past practice with regard to similar work, the fact that the maintenance electricians have sufficient skill and experience to do the work, and the consequent economy and efficiency of operation, demonstrate the superior claim of the employees represented by the BSEIU to the disputed work. We shall, 'accordingly, determine the jurisdictional dispute by decid- ing that the Employer's maintenance electricians are entitled to con- tinue performing the work in dispute. Our present determination is limited to the particular controversy which gave rise to this proceed- ing. In making this determination, we are awarding the disputed work to the employees of the Employer who are represented by BSEIU, but not to that Union or its members. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings, and the entire record in the case, the Board makes the following Determination of Dispute pursuant to Section 10 (k) of the Act : 1. Employees engaged in installing primary switch gear currently represented by Local 79, Building Service Employees' International Union, AFL-CIO, are entitled to continue this project in the Guardian Building. 2. Local 58, International Brotherhood of Electrical Workers, AFL- CIO, is not and has not been lawfully entitled to force or require Guardian Building Company to assign IBEW members the work of installing primary switch gear. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 58, International Brotherhood of Electrical Work- ers, AFL-CIO, shall notify the Regional Director for the Seventh Region, in writing, whether or not it will refrain from forcing or re- quiring Guardian Building Company by means proscribed by Sec- tion 8 (b) (4) (D) to assign the work in dispute to its members rather than to the employees of Guardian Building represented by BSEIU. The Bankers Warehouse Company and International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 17. Case No. 27-CA-1388. April 30, 1964 DECISION AND ORDER On October 18, 1963, Trial Examiner James R. Hemingway issued his Decision in the above-entitled proceeding, finding that the Re- 146 NLRB No. 135.