Teamsters Local 26

National Labor Relations Board - Board DecisionsApr 19, 1973

203 N.L.R.B. 26 (N.L.R.B. 1973)

26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Teamsters Local 26; International Union of Operating 1 THE BUSINESS OF THE EMPLOYER Engineers, Local 841 ; Laborers International Union of North America, Local 624 and Local Union No. 51, International Brotherhood of Electrical Workers, AFL-CIO and John Burns Construction Com- pany.' Case 38-CD-92 April 19, 1973 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by Local Union No. 51, International Brotherhood of Electrical Workers, AFL-CIO (here- inafter referred to as Local 51, IBEW, or Electricians), alleging that Teamsters Local 26 (hereinafter referred to as Teamsters), International Union of Operating Engineers, Local 841 (hereinafter referred to as Oper- ating Engineers or Local 841), and Laborers Interna- tional Union of North America, Local 624 (hereinafter referred to as Laborers or Local 624), violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign the work in dispute to Teamsters, Operating Engineers, and Laborers rather than to employees of the Employer, John Burns Construction Company (hereinafter referred to as Burns or Employer), represented by Local 51, IBEW. Pursuant to notice, a hearing was held before Hearing Officer William G. Stack on December 14, 1972, at Danville, Illinois. 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. Thereafter, a brief was filed by Teamsters, Operating Engineers, and Labor- ers, and by Local 51, IBEW, respectively. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. The Board has considered the entire record in this case, including the briefs, and hereby makes the fol- lowing findings: 1 The name of the Employer , party in interest , appears as corrected at the hearing. The parties stipulated that the Employer is an Illi- nois corporation engaged in the business of contract- ing and construction work in various places in Illinois. During the last 12 months, a representative period, the Employer purchased goods valued in excess of $50,000 from sellers located outside the State of Illi- nois , which goods were hereafter shipped into the State of Illinois. Accordingly, we find that the Em- ployer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectu- ate the policies of the Act to assert jurisdiction herein. 11. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Team- sters, Operating Engineers, Laborers (hereinafter re- ferred to as the Respondent Unions), and Local 51, IBEW, are labor organizations within the meaning of Section 2(5) of the Act. III THE DISPUTE A. The Work at Issue The work in dispute is the digging of trench in public streets, laying and installing 6-inch conduit, pouring concrete over the conduit, installing man- holes, refilling of trench, restoring the surfaces of the streets, and the hauling of material to and from the jobsite. B. Background and Facts of the Dispute The Employer is a construction company which prior to 1971 had operated exclusively in the Chicago, Illinois , metropolitan area . The primary work of the Employer is the laying of underground conduit for utilities . In 1971, the Employer decided to expand its operations to downstate Illinois. In November 1971, it succeeded in obtaining a contract with CILCO, the Peoria area power utility, to install underground con- duit. That utility company suggested that the Employ- er obtain employees for this work from Local 51, IBEW, a lineman local whose members performed such work in a large area of downstate Illinois. The Employer agreed and subsequently entered into an agreement with Local 51, IBEW. Thereafter, the Employer performed nine jobs in downstate Illinois using exclusively employees repre- sented by Local 51, IBEW, and without experiencing any jurisdictional work problems. These jobs were performed not only in Peoria, but also in various other downstate Illinois locations including Champaign, 203 NLRB No. 7 TEAMSTERS LOCAL 26 Urbana, and Decatur. Each job involved substantial- ly the same equipment and same job classifications of work. Specifically, the job classifications were equip- ment operator, truckdriver, installers of conduit, and foreman. The equipment utilized in this work includ- ed a backhoe loader, an air compressor, a pickup truck, and a 2-axle dump truck. The crew in these jobs ranged from three to perhaps eight members and fluc- tuated according to the amount of work there was to be performed. The jobs lasted from 1-1/2 week to about 8 weeks. Each job was performed pursuant to a contract between Burns and a utility company, ei- ther the local power company or the Illinois Tele- phone Company. In all these jobs, the Employer retained and utilized his key personnel, brought from the Chicago metropolitan area, which included a fore- man, an operating engineer, a teamster, and ordinari- ly at least one laborer. These employees were paid pursuant to the collective-bargaining contracts be- tween the Employer and the Chicago Building Trade Unions, plus a per diem expense of $20 per day. Addi- tional employees used by the Employer were hired through Local 51, IBEW, and were paid pursuant to a collective-bargaining contract between the Employ- er and Local 51, IBEW. In October 1972, the Employer subcontracted with the Illinois Power Company to install a 6-inch conduit under several blocks of public streets in Danville, Illi- nois. It assigned the job to employees represented by Local 51. Hayes, an executive of the Employer, ex- plained that Burns' preference for Local 51 is based primarily on its need for a flexible crew that would move to any area downstate and from one job classifi- cation of work to another. On October 30, 1972, the Employer started on the Danville project, located at the corner of Hazel and Main Streets, Danville, Illinois. It began with investi- gative drilling to determine where utility lines were located under the public street. While thus engaged, according to the stipulation of the parties, the Charged Parties (Teamsters, Operating Engineers, and Laborers) picketed the said jobsite of the Em- ployer on or about November 6, 1972, for the purpose of causing a change in work assignments from em- ployees represented by Local 51, IBEW, to employees represented by the three Respondent Unions, which resulted in the shutdown of the Employer's construc- tion at that jobsite. The Respondent Unions based their claim on traditional practice of the building trade unions in the Danville area. C. The Contentions of the Parties The Employer contends that the assignment of the work to employees represented by Local 51, IBEW, 27 should not be changed because it offers the Company greater efficiency and economy. It argues that the employees represented by Local 51, IBEW, possess all the skills to perform the disputed work and that it would be inefficient and uneconomical for the Em- ployer to hire employees represented by the Respon- dent Unions solely for this purpose, considering further that the Employer is accustomed to the style and performance of the former but not the latter group of employees; Local 51, unlike the Respondent Unions, can supply the Employer the kind of flexibili- ty it needs: a crew of employees that can move from one jobsite to another 2 as well as from one job classi- fication of work to another. The Employer further argues that the assignment of this work to Local 51, IBEW, as in conformity with the Employer's past practice; the terms of its collective- bargaining agree- ment with Local 51, IBEW; and with the industrial practice in downstate Illinois. Local 51, IBEW, contends that its meipbers are entitled to perform the work in question based on the Employer's assignment , past practice (the Employer had used employees represented by Local 51, IBEW, on 9 or 10 other projects in downstate Illinois during the year preceding the Danville , Illinois, job), and its collective-bargaining agreement with the Employer. The Respondent Unions contend that the work in dispute is traditionally assigned to their members un- der existing area practice and that building trades construction men, represented by the Respondent Unions, have always done this work in the Danville, Illinois , area; Local 51, IBEW, members are linemen and so assignment of the work to them would result in confusing area practice within the Danville, Illi- nois, area . They also contend that they are entitled to the work because they have the necessary skills for the work and will offer the Employer flexibility in the use of employees to at least as large an extent as does Local 51, IBEW. Finally, the Respondents dispute certain claims , namely, that the Employer's assign- ment to Local 51, IBEW, is economical because the cost accruing to the Employer by importation of men to the jobsite is more than the cost of employing local building trades union men represented by Respon- dent Unions; that a written contract exists between the Employer and Local 51, IBEW, covering the dis- puted work; and that the assignments of work made by the Employer to Local 51, IBEW, should be fol- lowed, since four out of six employees on the job are 2 The Employer asserts that it contracted for the work in question with the understanding that the work would be performed as in the past under its contract with Local 51, IBEW, because it had not experienced any junsdic- tional work dispute problem in its use of the members of that Union in the downstate area , and because the contract permitted flexibility, since it cov- ered a wide geographical area. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD teamsters, laborers, or operating engineers, who tradi- tionally are members of the building trades, rather than linemen. D. Applicability of the Statute Before the Board may proceed to the determination of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that (1) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and (2) the parties have not agreed upon a method for the voluntary adjustment of the dispute. The parties stipulated that there is reasonable cause to believe that on or about November 6, 1972, the Teamsters Local 26, the Laborers Local 624, and the Operating Engineers Local 841, picketed the jobsite of John Burns Construction Company located at Main and Hazel Streets in Danville, Illinois, for the purpose of causing a change in the work assignment of digging a trench in public streets, laying conduit, installing manholes, refilling trench, restoring surfaces, and hauling materials to and from the jobsite, from em- ployees represented by Local 51, IBEW, to employees represented by Teamsters Local 26, Laborers Local 624, and and Operating Engineers Local 841. On the basis of the entire record and the stipulation of the parties, we find that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that the dispute is properly before the Board for determination. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various relevant factors.' As the Board has stated, its determination in the jurisdiction- al dispute case is an act of judgment based on com- monsense and experience reached by balancing those factors involved in a particular case.' 1. Collective-bargaining agreements Local 51, IBEW , put in evidence a letter of assent signed in October 1971, whereby the Employer agreed to comply with all of the terms and conditions of employment contained in the collective-bargaining agreement between the American Line Builders Chapter, NECA, and Local Union No. 51, IBEW, which was also placed in evidence. It does not appear I N L R. B. v. Radio & Television Broadcast Engineers Union , Local 1212, International Brotherhood of Electrical Workers [Columbia Broadcasting Sys- tem], 364 U.S. 573 ( 1961). 4 International Association of Machinists (J A Jones Construction Compa- ny), 135 NLRB 1402. that this contract specifically covers the work in dis- pute. In addition, Local 51, IBEW, also introduced in evidence a second collective-bargaining agreement between it and American Line Builders Chapter, NECA. Although the Employer is not a named party in this contract, an IBEW executive testified that it has an oral understanding with the Employer that this contract covers the work in dispute. Also, an execu- tive of the Employer testified that the Employer as- sumed that the work in question was covered by the above contract with Local 51, IBEW, and it has abid- ed by the contract terms. The Employer has no con- tractual relations with the Respondent Unions either collectively or individually. 2. Employer's past practice Since moving its construction work to downstate Illinois in November 1971, the Employer has per- formed nine jobs similar to the one in question. In performing each job, the Employer has retained and used its key employees from the Chicago metropoli- tan area. To supplement these employees, the Em- ployer has hired additional employees through Local 51, IBEW, who were paid pursuant to the above- described collective-bargaining contract between the Employer and that Union. The Employer presented evidence that since it be- gan the use of this composite crew of his Chicago- based employees and supplementary employees rep- resented by Local 51, IBEW, the Employer has not experienced any jurisdictional work disputes aside from the instant case. At no time, the evidence further shows, has the Employer assigned the disputed work to employees represented by Respondent Unions; nor has the Employer used employees represented by any of these Unions in its operations. 3. Relative skills Both the Respondent Unions and Local 51, IBEW, possess the requisite skills necessary to perform the work in dispute. Members of Local 51, IBEW, have performed similar work to the Employer's satisfaction for the past year. 4. Area practice The Respondent Unions introduced evidence showing that historically in the Danville area the type of work now in dispute has invariably been performed by the building trades who are represented by the Respondent Unions. Local 51, IBEW, introduced evidence showing that employees represented by it performed the work in TEAMSTERS LOCAL 26 29 question in other various downstate Illinois areas, in- cluding Peoria, Decatur, Galesburg, Champaign, Ur- bana, Springfield, etc., but not in the Danville, Illinois, area. The record shows that whereas the Employer had in the past engaged in conduit installations in the above-mentioned downstate Illinois areas, during which operations it used employees represented by Local 51, IBEW, the Employer had never before the instant case done any construction or installation work in the Danville area. 5. Economy and efficiency An executive of the Employer testified that Burns wants to develop a crew that has the expertise to install underground conduit and that is flexible both in its ability to move from one area to another without the necessity of hiring and training new employees and in its willingness and ability to move from one job classification of work to another, if necessary to max- imize the use of its employees, considering the small size of its operations. Local 51, IBEW, introduced evidence showing that it gives the Employer the two aspects of flexibility needed. On the other hand, Respondent Unions intro- duced evidence showing that while they can give the Employer flexibility to the extent that the Employer needs a crew that is available anywhere in downstate Illinois, their members are restricted to their re- spective, specialized jobs by contract. Conclusion The foregoing factors, including specifically effi- ciency and economy of operation as well as the Employer's past practice and its agreement with Local 51, IBEW, justify the award of the disputed work to members of Local 51, IBEW. Nevertheless, the Re- spondent Unions contend that the work involved in this case is the same job which, in the Danville area, has been traditionally and exclusively performed by their members. But the weight of this argument, in our view, is overcome by a consideration of the Employer's past practice: in other parts of downstate Illinois, for the past year, prior to this Danville, Illi- nois, job, the Employer had successfully completed other jobs similar to the one in question and in all of them had used employees represented by Local 51, IBEW, without experiencing any jurisdictional work disputes. The Employer has continuously retained the use of Local 51, IBEW, and has moved from one jobsite to another with employees represented by it. Such continuity of contact is conducive to efficiency of operation. Moreover, these same employees have been found by the Employer to be able to move easily from one job classification of work to another so as to be fully occupied during the entire work period. Again, such flexibility as this encourages maximum economy of operation which, based on the Respon- dents' admission , would be denied the Employer if the work in dispute were to be awarded to the Respon- dent Unions. Moreover, the Employer has assigned the disputed work to Local 51, IBEW, pursuant to the contractual relationship with the Union. These fac- tors clearly favor an award to the employees repre- sented by Local 51, IBEW. In view of the foregoing, we conclude that employ- ees represented by Local 51, IBEW, are entitled to perform the work in dispute. In making this deter- mination, we are assigning the disputed work to em- ployees of Burns who are represented by Local Union No. 51, International Brotherhood of Electrical Workers, AFL-CIO, but not to that Union or its members. Our present determination is limited to the particular controversy which gave rise to this proceed- ing. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this pro- ceeding, the National Labor Relations Board hereby makes the following Determination of Dispute: 1. Employees of John Burns Construction Compa- ny, who are currently represented by Local Unions No. 51, International Brotherhood of Electrical Workers, AFL-CIO, are entitled to perform the work of digging trench in public streets, laying and install- ing conduit, pouring concrete over the conduit, in- stalling manholes, refilling trench, restoring surfaces, and hauling material to and from the jobsite in Dan- ville, Illinois. 2. Teamsters Local 26; International Union of Op- erating Engineers, Local 841; and Laborers Interna- tional Union of North America, Local 624, are not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require John Burns Construction Company to assign the above-described underground conduit installation work to workers represented by them. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Within 10 days from the date of this Decision and Determination of Dispute, Teamsters Local 26; International Union of Operating Engineers, Local 841; and Laborers International Union of North America , Local 624, shall notify the Regional Direc- tor for Region 13 , in writing, whether or not they will assign the work in dispute to workers represented by refrain from forcing or requiring the Employer by means proscribed by Section 8(b)(4)(D) of the Act, to Teamsters , Operating Engineers , and Laborers , rather than to employees represented by Local 51, IBEW.