Electrical Workers, Local 439

National Labor Relations Board - Board Decisions

Mar 21, 1972

195 N.L.R.B. 976 (N.L.R.B. 1972)

976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers, Lo-
cal 439 and John J. Dunn Construction Company
and Laborers International Union of North
America, Local 172, AFL-CIO
Laborers International Union of North America, Local
172, AFL-CIO and Gerald Electric Construction
Company , Inc. and International Brotherhood of
Electrical Workers, Local 439. Cases 4-CD-261
and 4-CD-267
March 21, 1972
DECISION AND
DETERMINATION OF DISPUTE
I. THE BUSINESS OF THE COMPANIES
Dunn is a New Jersey corporation engaged in the
business of general construction. During the 12-month
period prior to the hearing it received supplies in excess
of $50,000 from points outside the State of New Jersey.
Gerald is a New Jersey corporation engaged in the
business of electrical construction. During the 12-
month period prior to the hearing it received supplies
in excess of $50,000 from points directly outside the
State of New Jersey.
On the basis of the foregoing stipulated facts, we find
the two companies are engaged in interstate commerce
and that it will effectuate the policies of the Act to
assert jurisdiction herein.
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND KENNEDY
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following the
filing of charges by Gerald Electric Construction Com-
pany, Inc., herein called Gerald, and John J. Dunn
Construction Company, herein called Dunn. The
charge filed by Gerald alleges that Laborers Interna-
tional Union of North America, Local 172, AFL-CIO,
herein referred to as Laborers, has violated Section
8(b)(4)(D) of the Act by threatening and coercing
Dunn where an object thereof is to force Dunn to assign
certain work to employees represented by Laborers
rather than to employees represented by International
Brotherhood of Electrical Workers, Local 439, herein
referred to as IBEW. The charge filed by Dunn alleges
that IBEW has threatened and coerced Dunn where an
object thereof is to force Dunn to assign certain work
to employees who are represented by IBEW, rather
than to employees who are represented by Laborers.
Pursuant to notice, a hearing was held before Hear-
ing Officer Gary H. Feinberg on August 11, 12, 16, 18,
19, and 20, 1971. All parties appearing at the hearing
were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to adduce evidence
bearing on the issues. Thereafter, Dunn, Gerald, La-
borers, and IBEW filed briefs in support of their respec-
tive positions. In its brief, IBEW also renewed its mo-
tion, first made at the hearing, to quash the notice of
hearing.
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. The rulings are hereby affirmed.
The Board has considered the briefs, motions, and re-
sponses of the parties and the entire record in this
proceeding and hereby makes the following findings:
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Laborers
and IBEW are labor organizations within the meaning
of Section 2(5) of the Act.
III. THE DISPUTE
The disputed work involves the installation of in-
ground conduit along portions of Interstate Route 295
-sections 3(b) and 4(a)-from the Burlington-Mount
Holly Road to the Rancocas Creek, Burlington
County, New Jersey.
A. The Background Facts
The record reveals that sometime prior to December
1969, Dunn entered into a contract with the State of
New Jersey Department of Transportation for the con-
struction of Interstate Highway Route 295 through
portions of southern New Jersey. On December 9,
1969, Dunn entered into a subcontract with Gerald for
the performance of certain electrical work on Section
3(b)-4(a) of Route 295. Included in this electrical work
subcontracted to Gerald was the installation of the
disputed work.
Conduit installation requires the digging of a trench
in accordance with the plans and specifications in the
contract. The trench is then graded and the pipe is
coupled together and laid in the trench. On some occa-
sions the pipe must be bent to conform to terrain before
being laid in the ground, or reamed to smooth out
rough edges if it has had to be cut. After the pipe is laid,
the trench is then backfilled.
Although Gerald shortly after December 9 began
some portions of the subcontracted work, more par-
ticularly on bridges, it did not immediately begin in-
stalling the in-ground conduit. John J. Dunn, president
of Dunn Construction Company, testified to numerous
conversations with John Hahn, Gerald's president, in
which he stated to Hahn that laborers would be used
195 NLRB No. 178
ELECTRICAL WORKERS , LOCAL 439 977
to install the in-ground conduit. Hahn disputes this
testimony. Dunn testified further that while he would
not normally have subcontracted the work in dispute to
Gerald, Dunn was left with no other alternative since
the large number of his current jobs left him without
adequate supervision.
On June 4, 1971, Gerald began to install in-ground
conduit using a mixed crew of IBEW members and
Laborers. Frankie Frascella, Laborers business agent,
upon observing IBEW members installing the conduit,
went to Dunn's office and asked, "what's going on out
there." Dunn then approached Joe Desederio, who was
supervising the operation for Gerald, and told Desed-
erio to stop the conduit installation. Dunn thereupon
phoned Hahn and told Hahn that because Gerald was
using electricians, rather than laborers, to install the
in-ground conduit, Dunn was withdrawing this work
from Gerald's contract and would perform it with
Dunn's own employees who are represented by the
Laborers. Gerald's crew left the jobsite about noon.
Later that same day Laborers Business Agent Perro
advised Dunn that Laborers was claiming the work in
question and that members of the Laborers would
strike the jobsite if IBEW members were used to con-
tinue the in-ground conduit installation.
About June 25, 1971, Dunn told IBEW Agent Kelly
that Dunn intended to use laborers, not electricians, for
the conduit installation when work resumed. Kelly in-
.formed Dunn that IBEW considered the work within
its jurisdiction and would "put a picket line up and stop
the job" if laborers performed the work.
No further attempts at conduit installation were
made until August 10, 1971, when Dunn assigned a
crew of laborers to begin installation. On August 11,
the parties agreed that conduit installation would be
halted until the dispute was determined by the National
Labor Relations Board. Before the 10(k) hearing
closed, however, Dunn announced it would begin in-
stalling conduit in the near future and would use labor-
ers for that purpose.
B. Contentions of the Parties
IBEW contends the evidence does not show that
IBEW is party to a jurisdictional dispute in the tradi-
tional sense. Rather, it contends its actions amount
only to attempts to preserve the work of conduit-laying
for its regular members, who were being replaced by
members of Laborers, and accordingly, moves that the
notice of the hearing be quashed. Gerald and IBEW
contend, in essence, that on the merits, the work was
properly assigned to employees represented by IBEW
on the basis of (a) the collective-bargaining agreement
between IBEW and Gerald covering the disputed
work; (b) only IBEW members possess the necessary
skills to perform the work; (c) area and industry prac-
tice; (d) Gerald's preference to having the work per-
formed by its own employees who are IBEW members.
They assert, in this connection, that Gerald as subcon-
tractor was the employer for purposes of assigning the
disputed work.
Dunn and the Laborers contend that Dunn, as gen-
eral contractor, has control over the job and is held
ultimately responsible for its timely completion. There-
fore they maintain Dunn is the proper party to assign
the disputed work. They argue, in essence, that Dunn's
assignment of the work to Laborers should not be dis-
turbed in view of (1) the collective-bargaining agree-
ment between Dunn and the Laborers covering the
disputed work; (2) Dunn's assignment and preference
for having members of the Laborers perform the work;
(3) possession of adequate skills by members of Labor-
ers; (4) past practice; (5) area and industry practice;
and (6) reasons of efficiency and economy.
C. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause for be-
lieving that Section 8(b)(4)(D) has been violated.
A question has been presented as to whether Dunn
or Gerald is the employer for the purpose of assigning
the disputed work. Dunn testified that in subcontract-
ing the conduit installation to Gerald it was never con-
templated that Dunn would lose control over the work
and in fact there was an understanding between Dunn
and Gerald that the work would be performed by labor-
ers. Dunn and various other contractors also testified
that it is a common practice in the area for general
contractors, because of their responsibility for ultimate
completion of the prime contract,' to withdraw certain
work from a subcontractor. While Gerald denied the
existence of an understanding, Dunn in fact did remove
the disputed work from Gerald's contract and assigned
the work to employees represented by the Laborers.
Therefore, it is clear that Gerald now has no status as
an employer for purposes of assigning the disputed
work. Accordingly, since Gerald's authority to per-
form the work has been withdrawn, and Dunn stated
it would be responsible for completing the work, we are
satisfied that Dunn is the employer for work assign-
ment purposes.'
' Under the terms of its prime contract with the New Jersey Department
of Transportation, Dunn is not permitted to subcontract out more than 50
percent of the work.
' IBEW, whose position has been adopted by Gerald, argues in essence,
that Dunn's dismissal of Gerald from the conduit installation and recoup-
ment of the work for itself resulted from illegal secondary pressure by the
Laborers. The record, however, shows no evidence of illegal activity prior
to the time Dunn withdrew the work. Additionally, we take administrative
notice that Gerald's 8(b)(4)(D) charge against the Laborers based on these
allegations was dismissed by the Regional Director, who was sustained on
appeal by the General Counsel.
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As previously set forth , both labor organizations
have demanded the disputed work and both have
threatened Dunn with a strike or work stoppage in
attempts to have the work assigned to their respective
members. While IBEW argues its action was work
preservation , we find that the IBEW did more than
merely request that certain work continue to be per-
formed by its members . Rather, it was claiming juris-
diction over the work to be performed by employees of
Dunn (with whom IBEW had no contract) and threat-
ened a strike if the disputed work were performed by
members of the Laborers . Accordingly , the 'motion to
quash is denied . There is no evidence that there exists
a method for voluntary adjustment of the dispute.
We find , therefore , on the entire record , that there is
reasonable cause to believe that a violation of Section
8(b)(4)(D) has occurred and that the dispute is prop-
erly before the Board for determination.
D. 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 the various relevant factors.'
1. Collective-bargaining agreements
Dunn, through its membership in the Associated
General Contractors of New Jersey , is party to a collec-
tive-bargaining agreement with the Laborers. The
present 1971-74 agreement states in pertinent part:
It is specifically understood that bargaining unit
work within the meaning of this Article and this
Agreement , includes any work performed in con-
nection with pipe or conduit of all kinds and of any
description and for whatever purpose including
but not limited to , all work connected with the
loading , unloading , installation , distribution or
handling of pipe or conduit of any description.
The 1968-71 agreement also includes "conduit work."
We are satisfied that these provisions cover the work in
dispute . In view of the fact that Dunn is using its own
employees , who are represented by the Laborers, and
the absence of any agreement between Dunn and the
IBEW , we find that this factor favors the assignment of
the disputed work to laborers.
2. Company, industry, and area practice
Dunn testified that he has always used laborers for
the installation of conduit . Therefore , the present as-
signment is consistent with Dunn 's practice and is a
factor favoring laborers.
3 XL R.B. v Radio and Television Broadcast Engineers Union, Local
1212, International Brotherhood of Electrical Workers, AFL-CIO (Co-
lumbia Broadcasting System), 364 U.S 573
The ample evidence introduced concerning industry
and area practice is inconclusive , as the record indi-
cates use of both laborers and electricians to perform
work similar to that in dispute.
3. Skills , efficiency, and economy of operation
Testimony presented at the hearing regarding skills
differed sharply . Thus, Gerald and IBEW presented
testimony that only IBEW members , because of their
training , possess the necessary skills for conduit instal-
lation . Dunn and the Laborers , on the other hand,
presented testimony that the work involved is relatively
simple, requiring only about 2 hours or instruction for
a new employee with no background experience in con-
struction work . Dunn and other general contractors
testified that laborers have installed in-ground conduit
to their satisfaction.
The record reveals that throughout the area in-
volved , wage rates for laborers are considerably lower
than are rates for electricians , thus indicating that utili-
zation of laborers to perform the disputed work results
in a more economical operation . Gerald and IBEW
also contend that despite the difference in wages, utili-
zation of electricians is more economical , purportedly
because electricians work faster and are able to perform
more work in less time with fewer men. Hahn so tes-
tified on the basis of his having observed conduit instal-
lation by electricians on a particular job. The record
shows, however, that on that particular job, electricians
installed conduit only and did not perform the attend-
ant tasks . On the other hand , Gerald points out that the
factor of economy was of no concern to Dunn since the
bid submitted by Gerald and accepted by Dunn in-
cluded the work in dispute.
From the point of view of efficiency , the overall con-
duit installation involves the digging of a trench, grad-
ing of the trench , and backfilling after the conduit has
been installed. While IBEW claims jurisdiction over
the task of laying the conduit , it is clear from the record
that the attendant tasks of setting up the junction box,
digging, grading, and backfilling of the trench are per-
formed by laborers. Thus it would appear that to award
the disputed work to employees represented by the
IBEW would involve fragmentation of the overall oper-
ation . Additionally , laborers who, prepared the trench
would be required to wait for the electricians to lay the
conduit before they begin the backfilling. Thus, effi-
ciency of operations tends to favor an award to labor-
ers.
The record does not establish that job safety will be
enhanced by assignment of the work to one group of
employees as opposed to the other.
ELECTRICAL WORKERS , LOCAL 439 979
CONCLUSIONS
Upon the record as a whole, and after full considera-
tion of all relevant factors involved, we believe that
employees represented by the Laborers are entitled to
perform the work in dispute. We reach this conclusion
relying on Dunn's assignment of the disputed work to
employees represented by the Laborers who possess the
requisite skills, the fact that the assignment is consist-
ent with Dunn's past practice and its collective-bar-
gaining agreements with the Laborers, and the fact that
the assignment will permit a more efficient operation.
In making this award, we are assigning the work to
employees represented by the Laborers rather than to
that organization itself or its members. Our present
determination is limited to the particular controversy
which gave rise to this proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Re-
lations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this proceed-
ing, the National Labor Relations Board hereby makes
the following determination of dispute:
1. Employees of John J. Dunn Construction Com-
pany currently represented by Laborers International
Union of North America, Local 172, AFL-CIO, are
entitled to perform the work of installing in-ground
conduit along section 3(b) -4(a) of Interstate Route 295
from the Burlington-Mount Holly Road to the Ran-
cocas Creek, Burlington County, New Jersey.
2. International Brotherhood of Electrical Workers,
Local 439, is not entitled by means proscribed by Sec-
tion 8(b)(4)(D) of the Act to force or require John J.
Dunn Construction Company to assign the disputed
work to employees represented by said Union.
3. Within 10 days from the date of this Decision and
Determination of Dispute, International Brotherhood
of Electrical Workers, Local 439, shall notify the Re-
gional Director for Region 4 in writing whether it will
refrain from forcing or requiring John J. Dunn Con-
struction Company, by means proscribed in Section
8(b)(4)(D) of the Act, to assign the work in dispute to
employees represented by it rather than to employees
represented by Laborers International Union of North
America, Local 172, AFL-CIO.